PLD 2009 Judgments

P L D 2009 Federal Shariat Court 1

Before Haziqul Khairi, C.J, Allama Dr. Fida Muhammad Khan, Salahuddin Mirza, Muhammad Zafar Yasin and Syed Afzal Haider, JJ

FEDERAL GOVERNMENT---Plaintiff

Versus

PROVINCIAL GOVERNMENTS---Defendant

Shariat Suo Motu No.73 of 1987 (Suo Motu Examination of Companies Ordinance, 1984); decided on 24th October, 2008.

(a) Company---

----Company, its development, with particular reference to India and Pakistan.

(b) Companies Ordinance (XLVII of 1984)---

----Preamble---Constitution of Pakistan (1973), Art.203-D---Suo motu action of Federal Shariat Court to examine whether or not specified sections of Companies Ordinance, 1984 were repugnant to the Injunctions of Islam---Comments of the Governments, Institutions and Agencies, Juris Consults, Ulema, Scholars and Public etc.

Al-Sharikat fi al Shariah al Islamiah by Dr. Abdul Aziz al Khayyat Vol. I, p.25, published by Muassasa-tu-Alrisala Beirut); Islamic Law of Business Organization Corporation by Imran Ahsan Niazi; Principles of Islamic Jurisprudence by J.A. Rahim; An Introduction to Islamic law (Oxford 1964, p.125 by Josef Schacht; Ali Bin Abi Bakr al Haithami: Mujma al Zawaid; Beirut1407 A.H. Vol. 4, p.110; Abu Awanah Ya'qoob Bin Ishaq Musnad Abi Awanab Dar-al-Ma'rifah Beirut 1998, Vol. 3, p.336; Al-Tashri `ul Jenai al Islami, Mussasat Al Risalah (1992), Vol. I, p.393; Al Madkhal Al Faqhi-al-Aam Vol 3, pp.253, 258; Muhammad Bin Abi Al Abbas Al Ramali: Nihayatul Muhtaj Ila Sharh Al Minhaj, Beirut, Vol. 5, p.385; Abu Bakar Muhammad Bin Abi Sehal Sarkhsi: Al-Mabsut Lil Sarkhsi, Beirut, 1406 A.H., Vol.12, p.34; Ahmad Al-Dardir: al Shrhul Kabir, Vol. 4, p.77: Al-Sharikat Fiqhal Islami; Ali Al Khafif p.25; Masjid Shahid Ganj and others v. Shermani Gurdwara Parbandhak Committee Amritsar and others AIR 1940 PC 116; Tanqihul Hamidiya by Ibn Abideen Vol. 1, p.206 and Imran Ahsan Khan Niazee: Theories of Islamic Law, Islamic Research Institute and International Institute of Islamic Thought ND. P.47 ref.

(c) Companies Ordinance (XLVII of 1984)---

----Preamble---Constitution of Pakistan (1973), Art.203-D---Suo motu action of Federal Shariat Court to examine whether or not specified sections of Companies Ordinance, 1984 were repugnant to the Injunctions of Islam---Concept of "limited liability"---Contention was that according to Holy Quran and Ahadith of the Holy Prophet (p.b.u.h.) to the effect that neither getting harmed nor harming others was allowed in Islam, the concept of "legal entity" and "limited liability" was against Islam as the liability was limited to the shares/assets of company and not to the assets of a person and by liquidation of the limited companies, the burden of the loss was borne by the public exchequer or the public directly when the loans against the Companies, remained unpaid---Quranic verse and Ahadith relied for the contention, held, had nothing to do with any kind of business transaction or worldly gain or loss and appeared to be of general nature not relating to business transactions only but extended to all spheres of life of a Muslim---Concept of "limited liability" was not repugnant to Quran and Sunnah and there was nothing in the Companies Ordinance, 1984 according to which a company, "its legal entity" and the "limited liability" of its shareholders were found repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (P.B.U.H.) as envisaged under Art.203-D of the Constitution--Opinions of scholars/Ulema in support of the view of the Court quoted.

Abu Awanah Ya'qoob bin Ishaq Musnad Abi Awanab Dar-al-Ma'rifah Beirut 1998, Vol. 3, p.336; Al-Tashri ul Jenai Al-Islami, Mussasat Al-Risalah (1992), Vol. I, p.393; Al Madkhal Al- Faqhi-al-Aam Vol. 3, pp.253, 258; Muhammad Bin Abi al Abbas al Ramali: Nihayatul Muhtaj ila Sharh al Minhaj, Beirut, Vol. 5, p.385; Abu Bakar Muhammad Bin Abi Sehal Sarkhsi: Al-Mabsut Lil Sarkhsi, Beirut, 1406 A.H., Vol.12, p.34; Ahmad Al-Dardir: at Shrhul Kabir, Vol. 4, p.77; Al-Sharikat Fiqhal Islami; Ali al Khafif p.25; Masjid Shahid Ganj and others v. Shermani Gurdwara Parbandhak Committee Amritsar and others AIR 1940 PC 116; Tanqihul Hamidiya by Ibn Abideen Vol. 1, p.206 and Imran Ahsan Khan Niazee: Theories of Islamic Law, Islamic Research Institute; International Institute of Islamic Thought ND. P.47; Holy Qur'an with English translation, Taj Company Ltd. Karachi, N.D. Vol. 1, p.139-A; Abdullah Yusuf Ali, Holy Quran with English translation, published by Amana Corp. USA, Wash, p.339; Abul A'la Maududi; The Meaning of the Qur'an, Islamic Publications Ltd., Lahore-Pakistan Vol. II, p.174; Muhammad Asad Holy Quran with English translation, Dar al-Andalus, Gibraltar, p.816; Ma-ariful Quran Maktaba Darul-Uloom Karachi 14, Pakistan Vol.8, p.229; SayyidahA'ishah; Surah Yousuf Verse 20 of Holy Quran; Surah Al-e-Imran in verse 75; Kaghazi currency, Fazli Sons Karachi 1998, p.14 by Dr. Noor Ahmad Shahtaz; Microsoft (R) Encarta (R) 2008 1993-2007 Microsoft Corporation; Charter of United Nations and PLD 2008 FSC 1 ref.

(d) Islamic Jurisprudence---

----"Maal" (valuable thing)---Contention that Bank notes and shares being paper could not be termed as Waal' (valuable thing) in the eyes of Shariah, hence was not permissible in Islam, had no force and was untenable---Principles.

Surah Yousuf Verse 20 of Holy Quran; Surah Al-e-Imran in verse 75; Kaghazi currency, Fazli Sons Karachi 1998, p.14 by Dr. Noor Ahmad Shahtaz; Microsoft (R) Encarta (R) 2008 1993-2007 Microsoft Corporation; Charter of United Nation and PLD 2008 FSC 1 ref.

(e) Companies Ordinance (XLVII of 1984)---

----S. 223---Constitution of Pakistan (1973), Art.203-D---Prohibition on short selling---Repugnancy to Injunctions of Islam---"Short sale" and "Blank sale"---Meaning---Held, there was nothing in S.223, Companies Ordinance, 1984 to protect or safeguard either the interests of the shareholders or the company; in fact there was no mechanism provided in S.223 of the Companies Ordinance, 1984 for safeguarding the interests of shareholders from the underhand and unscrupulous dealings of Directors and others named therein and Kingmakers of Stock Exchange; similarly there was no provisions against those found guilty of violation thereof; what however, imperceivable was that no penal provision had been prescribed against the individual violator or collectively against Director(s), Chief Executive, Managing Agent, Chief Accountant, Secretary or Auditor of a listed company or any one else---Framers of law and the Government agencies rather overlooked the implications of unrestricted Blank/short sale of shares unmindful of grave consequences emanating therefrom---Was therefore, essential that the interest of ordinary shareholders and collective interest of all of them may be protected from the clutches of vested interests of monopoly stock holders and gang mafia operating in stock markets so as to inspire confidence and good corporate governance in the business world.---Such object was attainable only when the Federal Government would take necessary steps to eliminate said menace and fraudulent malpractices so frequently taking place in Stock Market---Federal Shariat Court declared that unrestricted "Short selling" under S.223, Companies Ordinance, 1984, or uncontrolled Blank sale, as in practice, were repugnant to Injunctions of Islam---Accordingly, in exercise of court's powers under Art.203-D of the Constitution the Federal Government through the President of Pakistan was required to make suitable amendment therein within six months hereof which may not be repugnant to Qur'an and Sunnah of the Holy Prophet (P.B.U.H.) providing penal provisions in respect of Short sale and Blank sale ensuring adequate safeguards to ordinary shareholder of a company and public at large.

Black's Law Dictionary 8th Edn.p.1366 and Black's Law Dictionary English Edn., p.155 ref.

Mr. Riaz-ul-Hassan Gillani, Deputy Attorney-General, Anwar Ahmed Qadri, Standing Counsel for Federal Government, Abdul Latif, Joint Secretary, Ministry of Finance and Economic Affairs, Iftikhar Hussain Ch. Advocate for Federation of Pakistan, Dr. Abdul Malik Irfani, Advocate for Federal Government and Sardar Abdul Majeed Khan, Standing Counsel for Federal Government.

Farooq Bedar, A.A.-G., Punjab, Mir Rehman Khalil, A.A.-G, N.-W.F.P., Muhammad Yaqoob Khan Yosufzai, A.G., Baluchistan, Syed Sarfraz Ahmed, A.A.G., Sindh, Syed Muhammal Jalal-ud-Din Khuld, A.A.G., Punjab, Syed Sajjad Hussain Shah, A.A.G., Punjab with Muhammad Aslam Uns, Advocate, Sohail Akhtar, Law Officer, N.-W.F.P., Ruh-ul-Amin, Advocate for A.-G., N.-W.F.P., Shafqat Munir Malik, Addl. A.G., Punjab, Pir Liaqat Ali Shah, A.G., N.-W.F.P., Muhammad Shoaib Abbasi, Advocate for A.G., Baluchistan and Sindh, Mehmood Raza, Addl. A.G., Baluchistan, Qari Abdul Rasheed, Advocate for A.G., N.-W.F.P., Arshad H. Lodhi, A.A.-G., Sindh, Muhammad Saeed, Addl. A.G., N.-W.F.P., Amanat Pervez Bhatti, Deputy Superintendent Home Department, Government of Punjab, Qasim Meer Jat, A.A.-G., Sindh, Muhammad Sharif Janjua, Advocate for A.G., N.-W.F.P., Rashid A. Rizvi, President, Sindh H.C. Bar Association for Provincial Government.

Mansoor Ahmed Khan, Advocate for I.C.P. and Bankers Equity Limited, Fakhurddin G. )rbrahim, Senior Advocate for Banking Council, Syed Zaheer Ahmed, Registrar, Corporate Law Authority, Malik Muhammad Iqbal, Deputy Chief (Legal) Corporate Law Authority, Waqas Qadeer, Director, SECP, Hafiz S. A. Rehman, Advocate for SECP, Arif Tasleem, Assistant Chief Manager, SBP., Salman Akram Raja, Advocate for SECP, Hafeez-ur-Rehman, Advocate for SECP, Yousaf Raza, Assistant Director, SECP, Malik Ghulam Sabir, Advocate for SECP, Raja Naeem Akber, Assistant Director, SECP, Ch. Tajmal Murad, Advocate for SBP, Saleem Akhtar, Legal Adviser, SBP, Munir Ahmed, Junior Joint Director, SBP, Karachi Counsel/Representatives for Financial Institutions.

Khalid M. Ishaque, Advocate, Maulana Riaz-ul-Hassan Noori, Maulana Muhammad Taseen, Dr. Muhammad Aslam Khaki, Dr. Bashir Ahmed Siddique, Abdul Waheed Siddique, Advocate, Muhammad Sharif, Iqbal-ur-Raheem, Amicus Curiae and Dr. Riaz-ul-Hassan Gillani, Advocate Juris-consults

Dates of Hearing: 28th June, 1987, 6th January, 1990., 9th April, 1994, 3rd December, 1995, 3rd, 30th May, 2007, 18th September, 2007, 23rd January, 2008, 11th, 26th March, 2008, 2nd, 29th and 30th April, 2008.

P L D 2009 Federal Shariat Court 33

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan and Salahuddin Mirza, JJ

MUHAMMAD SAEEDULLAH KHAN---Petitioner

Versus

SECRETARY, GOVERNMENT OF N.-W.F.P. EXCISE AND TAXATION DEPARTMENT, PESHAWAR and another---Respondents

Shariat Petition No.1-1/I/2002, decided on 28th August, 2008.

West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----S. 3(2) [as amended by North-West Frontier Province Urban Immovable Property Tax (Amendment) Ordinance (XV of 2001)]---Constitution of Pakistan (1973), Art. 203-D----Repugnancy to Injunctions of Islam---Vide amendment brought by the North-West Frontier Province in West Pakistan Urban Immovable Property Tax Act, 1958, property tax was for the first time levied on the houses which were in personal use of their owners or their families, with the concession that a rebate of 50% would be allowed in the case of such self-occupied houses---Petitioner feeling aggrieved from the said amendment had prayed that Amending Ordinance to that extent be declared repugnant to Shariat---Grounds pleaded by the petitioner for seeking the annulment of amendment, though seemed to have some force, but same could be agitated only before a High Court under Art.199 of the Constitution, as Federal Shariat Court had very limited jurisdiction under Art.203-D(1) of the Constitution, and it was to decide the question as to whether any law or a provision of law was repugnant to the Injunctions of Islam as laid down in Holy Qur'an and Sunnah of the Holy Prophet (Peace be upon him)---Petitioner did not want the Federal Shariat Court to decide the vires of the impugned amendment in the light of the Injunctions of Islam, but in the light of Injunctions of Islam as laid down in the Report of Islamic Ideology Council which on the principle of equity and justice Federal Shariat Court could not do that while exercising jurisdiction under Art.203-D(1) of the Constitution---Shariat petition being not maintainable, was dismissed.

Attiqur Rehman Qazi for Petitioner.

Sardar Abdul Majeed, Standing Counsel for Federal Government, Shafqat Munir Malik, Addl. A.-G. Punjab, Faridul Hassan, Asstt. A.-G. Sindh and Banaras Malik, Inspector Excise and Taxation Department, Government of N.-W.F.P. for the State.

Date of hearing: 28th May, 2008.

P L D 2009 Federal Shariat Court 36

Before Haziqul Khairi, C.J., Dr. Fida Muhammad Khan, Salahuddin Mirza, Muhammad Zafar Yasin, and Syed Afzal Haider, JJ

Col. (Retd.) MUHAMMAD AKRAM---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence, Rawalpindi and another---Respondents

Shariat Petitions Nos.44/I/1993 and 4/I/1993, decided on 2nd September, 2008.

(a) Pakistan Army Act (XXXIX of 1952)---

----Ss. 133-A & 133-B---Constitution of Pakistan (1973), Art.203-D---Court of appeal for hadd and other cases---Repugnancy to injunctions of Islam---Provisions of Ss.133-A & 133-B, Pakistan Army Act, 1952 are not repugnant to Injunctions of Islam---Principles.

Section 133-A of the Pakistan Army Act, 1952, relates to Hudood cases only in which either C.O.A.S. or a Muslim officer designated by him would hear appeals but no sentence awarded by a Court Martial as Hadd shall be executed unless it is confirmed by the Court of appeal. There is nothing therein that he or his appointee shall investigate or in any manner interfere with the proceedings in Court Martial. What this section envisages is that the execution of the order of the Court Martial shall be postponed or deferred till the decision and confirmation by the appellate Court. In other words there would be stay of the execution proceedings pending appeal upon the accused filing appeal within 60 days of his sentence. The history of confirmation of sentence and stay of sentence by the appellate Court' is not new. Under section 374, Cr.P.C. "When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court". Section 376, Cr.P.C. contemplates the power of the High Court to confirm or annul convictions. Similar provision is found in section 133-A of the Pakistan Army Act in which the C.O.A.S. or his nominee has same powers in Hudood appeals as the High Court has in cases falling under section 376, Cr.P.C.

Likewise appeals under section 133-B arise from sentence of death, imprisonment exceeding three months and dismissal from service, which would lie within 40 days before the C.O.A.S. or one or more officers designated by him presided over by an officer not below the rank of Brigadier in case of General Court Martial or Field General Court Martial or District Court Martial or Summary Court Martial convened or confirmed or countersigned by an officer of the rank of Brigadier or below as the case may be and one or more officers presided over by an officer not below the rank of Major General, in other cases, which would be as the Court of Appeal. In view of this position confirmation of sentence by the appellate Courts under section 133-A or 133-B of Pakistan Army Act is not repugnant to Qur'an and Sunnah.

Confirmation and execution of Court Martial judgment by the Appellate Court are in line with the procedure prescribed under Cr.P.C.

PLD 1985 FSC 365; Pakistan v. The General Public PLD 1989 SC (Shariat Appellate Bench) 6; Holy Qur'an Verses 4:58; 4:59; 4:105; 4:135; 5:42; 16:90; 55:7; 55:9; 57:25; 60:8; Dr. Muhammad Aslam Khaki and others v. Government of Punjab and others PLD 2005 FSC 3; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Adal, Qist, Mizan PLD 1989 FSC 30; Weiner's Book on "Civilians Under Military Justice; Union of India and another v. Charanji S. Gill and others AIR 2000 SC (India) 3427 and PLD 1985 FSC 365 ref.

(b) Constitution of Pakistan (1973)---

----Preamble---Separation of powers---Concept of separation of powers is very close to the teachings of Qur'an and Sunnah and is a salient feature enshrined in the Constitution.

(x) Military justice---

----Connotation.

Military justice means "a situation of punitive measures designated to foster order, morale and discipline within the military. Military Law is the branch of Public Law governing military discipline and other rules regarding service in the armed forces. It is exercised both in peace time and in war, is recognized by civil Courts, and includes rules far broader for punishment of offenders. The procedure prescribed for trial before Military Court is in no way contrary to the concept of a fair trial in a criminal case.

Black's Law Dictionary 8th Edn. P.1013 quoted.

(d) Constitution of Pakistan (1973)---

----Art. 203-D---Powers, jurisdiction and functions of Federal Shariat Court--Scope---Once it is brought to the notice of Federal Shariat Court that any law or provision of law is repugnant to Qur'an and Sunnah, the Court is empowers under Art. 203-D of the Constitution to declare it so; which will cover cases where such law or provisions of law suffer from omission or absurdity or result into palpable injustice within the meaning of Qur'an and Sunnah.

Pakistan v. General Public PLD 1989 SC 1 ref.

(e) Constitution of Pakistan (1973)---

----Art. 203-D---Powers, jurisdiction and functions of Federal Shariat Court---Scope---No doubt it is imperative that the Court should take into account the views expressed by acknowledged scholars, jurists and Judges of the past and present day on the subject matter provided they have nexus with Qur'an and Sunnah.

PLD 1986 SC (Shariat Appellate Bench) 240 ref.

(f) Judgment---

----Connotation.

Black's Law Dictionary (8th Edn.); Muhammad Ramzan v. The State NLR 1984 Cr. 425; 2003 SCMR 698; Jalil Alias Jalil--ud-Din alias Jallo and others v. The State PLD 1966 SC 971; Khalid Mahmood v. The State 2004 PCr.LJ; 984 ref.

(g) Pakistan Army Act Rules, 1954---

----R. 188---Pakistan Air Force Rules, 1951, R.230---Constitution of Pakistan (1973), Art.203-D---Repugnancy to Injunctions of Islam---Suo motu action under Art.203-D of the Constitution by Federal Shariat Court to examine as to whether under R.188, Pakistan Army Act Rules, 1954 and R.230, Pakistan Air Force Rules, 1951 non-supply of copies of judgments and other documents of Court Martial whereby an appellant was denied right to raise ground of appeal against his conviction would be in violation of injunction of Islam---Held, non-supply of copy of judgment, deposition and other record of the case to a convict person/appellant would tantamount to denial of justice to him as he will not be in a position to 'furnish grounds to assail his conviction in appeal; similarly, it is his basic right to be heard either in person or through his counsel by the appellate authority---Right of appeal being a substantive right, the denial of copy of judgment and of hearing in appeal would amount to denial of the substantive right resulting into injustice on the touchstone of Qur'an and Sunnah---Federal Shariat Court, in circumstances, directed the Federal Government to take necessary steps within six months for amendment of Pakistan Army Act Rules, 1954; Pakistan Air Force Rules, 1951 ensuring supply copies of judgment, depositions and other record of the case to all the persons to whom sentence has been awarded whether under Hadd or not, except petty punishment cases which may be made subject to revision only---Principles.

Petitioner in person.

Sardar Abdul Majeed, Standing Counsel, Col. Jehangiree, Pakistan Army, JAG, Department, Cmdr. Jan Sher, Pakistan Navy along with Lt. Cmdr. M. Nawaz Mirza, Asstt. JAG, Pak Navy, Sq. Ldr. Sohail, Asstt. JAG, Pakistan Air Force, Muhammad Tahir Khan, S.O., Senate Secretariat for Federal Government.

Peer Liaqat Ali Shah, A.G., N.-W.F.P. along with Sharif Janjua and Qari Abdul Rasheed, Shafqat Munir Malik, Addl. A.G., Punjab, Mehmood Raza Khan, Addl. A.-G. Balochistan and M. Sabir Hyder Addl. A.-G., Sindh along with Arshad H. Lodhi, Asstt. A.G., Sindh for the State.

Dr. Hafiz Muhammad Tufail and Dr. Muhammad Aslam Khaki, Juris-Consults.

Dates of hearing: 25th May, 1993, 8th, 18th January, 1994, 10th April, 1994, 29th November, 1995, 8th June, 2000, 14th September, 2000, 10th October, 2002, 24th October, 2007, 12th February, 2008, 27th March, 2008, 29th, 30th April, 2008 and 27th May, 2008.

P L D 2009 Federal Shariat Court 62

Before Dr. Fida Muhammad Khan Salahuddin Mirza and Muhammad Zafar Yasin, JJ

ZAFAR and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Shariat Petition No.4/I of 2007, decided on 6h April, 2007.

Penal Code (XLV of 1860)---

----Ss.302(b)/34 & 338-E---Constitution of Pakistan (1973), Arts. 203-D & 203-DD---Application for stay of execution of death sentence---Jurisdiction of Federal Shariat Court---Scope---Federal Sharait Court was vested with powers to exercise its jurisdiction under Arts.203-D & 203-DD of the Constitution to examine on. its own motion or on a petition by any citizen of Pakistan the repugnancy or otherwise of any law or provision of law, on the touchstone of Islamic Injunctions as contained in the Holy Qur'an and Sunnah of the Holy Prophet (P. B. U.H.)---While exercising its jurisdiction under provisions of Art.203-D of the Constitution Federal Shariat Court could not grant any Injunction in respect of relief in personam---While exercising its powers under Art.203-DD of the Constitution, Federal Shaiart Court could hear and decide appeals as well as revisions only in cases which carried charge under the Hudood Laws and could not pass order or temporary injunction pertaining to other laws not relating to Hudood Laws or conviction thereunder---In the present case neither was any charge pertaining to Hudood Laws nor any conviction thereunder, Federal Shariat Court for want of jurisdiction, could not pass any order in the case so far as staying the order of execution of accused was concerned, especially when an order had already been passed in the case by the Supreme Court; however, so far as the repugnancy or otherwise of the impugned law was concerned, that would be taken up along with similar petitions and examined at appropriate time under the jurisdiction of the Federal Shariat Court under Art.203-D of Constitution--Application for' grant of stay of execution of death sentence of accused, was dismissed by Federal Shariat Court.

M. Shuaib Abbasi for Petitioner/Applicant.

P L D 2009 Federal Shariat Court 65

Present: Haziqul Khairi, C.J., Dr. Fida Muhammad Khan, Salahuddin Mirza and Muhammad Zafar Yasin, JJ

Capt. (Retd.) MUKHTAR AHMAD SHAIKH---Petitioner

Versus

GOVERNMENT OF PAKISTAN---Respondent

Shariat Petition No.7/I of 1998, decided on 11th February, 2009.

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

----Art. 151(4)---Constitution of Pakistan (1973), Arts. 203-D & 25---Repugnancy to Injunctions of Islam---Rights given to a man accused of rape to impeach the character of prosecutrix---Petitioner had challenged sub-Article (4) of Article 151 of Qanun-e-Shahadat, 1984, under Art.203-D of the Constitution, being repugnant to the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.)---Woman is placed in a more exalted and respected position than a man in Islam and for this reason the punishment of Qazf has been ordained in the Holy Qur'an, as victims thereof are mostly women---Even a husband who has falsely made allegation of Zina paves way to decree for dissolution of marriage in favour of his wife---Character of prosecutrix would be greatly damaged once she stood in the witness box and her credit impeached by a man accused of rape or an attempt to ravish her---Holy Qur'an places women on a much higher padestal than ever known in any society---Woman is not considered as an agent of devil nor treated as a chattel in Islam, she has all the property rights and -similar rights as of man in matters of marriage and divorce---Penal laws also treat a woman equally with man---Woman has lesser responsibilities in worldly affairs and is bestowed with greater respect and kindness---Article 151(4) of Qanun-e-Shahadat, 1984, is discriminatory on the basis of sex and violates Art.25(2) of the Constitution, as it purports to impeach the credit of a woman and above all it negates the concept of "gender equality" as enshrined in the Holy Quran---Sub-Article (4) of Article 151 of Qanun-e-Shahadat, 1984, was resultantly declared to be repugnant to Qur'an and Sunnah, with the direction to the President of Pakistan to take appropriate steps to repeal the same within a specified period, failing which the said provision of law would cease to have effect whatsoever.

Al-Noor 24:4; 24:6-9; Kanzul Ummal p.42, Vol. 22; 7:189; 2:187; 2:28; 23:12; (95:4); PLD 2008 FSC 1 and 4:124 ref.

Petitioner in person.

Sardar Abdul Majeed, Standing Counsel for Federal Government.

Shafqat Munir Malik, Addl. A.G., Punjab.

Farid-ul-Hassan, Asstt. A.G., Sindh.

Muhammad Sharif Janjua, Advocate for A.G. N.-W.F.P. Salahuddin Mengal, A-G., Balochistan.

Dates of hearing: 23rd June, 19th November, 1998, 25th April, 2002, 6th, 13th February, 14th March, 3rd, 30th May, 6th, 18th September, 25th October, 2007, 14th February, 13th March, 1st April, 2008, 5th and 6th January, 2009.

P L D 2009 Islamabad 1

Before Dr. Sajid Qureshi, J

Mst. SHAMIM AKHTAR---Petitioner

Versus

Mst. RASHIM BIBI and 2 others---Respondents

Writ Petition No.1393 of 2006, decided on 14th May, 2008.

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

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for guardianship of minor---Jurisdiction of court---"Ordinarily resided ---Connotation---If the application was with respect to the guardianship of the person of the minor, it would be made to the District Court having jurisdiction in the place where the minor ordinarily resided---Word "ordinarily" would mean more than a mere temporary residence---Ordinarily abode of minor, after second marriage of his/her mother, would be where the mother resided---Section 9 of Guardians and Wards Act, 1890 allowed the District Court to have jurisdiction in the place where minor ordinarily resided.

Muhammad Iqbal v. Perveen Iqbal PLD 1005 SC 22; Syed Zia ul Hassan Gilani v. Mian Khadim Hussain and others PLD 2001 Lah. 188; Anne Zahra v. Tahir Ali Khilji and others 2001 SCMR 2000 and Mst. Deeba Khanam v. Muhammad Jamshed 2005 YLR 795 and 1995 CLC 1550 rel.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

---S. 25-A---Transfer of suit---High Court could on an application, transfer any suit or proceedings from one Family Court to another, be it in another District.

Muhammad Tanveer Chaudhry for Petitioner.

Fiaz Ahmad Jandaran for Respondents.

Date of hearing: 5th May, 2008.

P L D 2009 Islamabad 4

Before Syed Qalb-i-Hassan, J

MANZOOR ELAHI---Petitioner

Versus

ZULAIKHAN BIBI and another---Respondents

Writ Petition No.85 of 2008, decided on 28th March, 2008.

West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched, 9 & 10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of maintenance allowance---Procedure---Non-filing of written statement---Effect---Defendant having failed to appear despite service upon him, he was proceeded ex parte---Defendant moved an application for setting aside ex parte proceedings, which was accepted subject to payment of costs and case was adjourned---None appeared on behalf of defendant on adjourned date of hearing and his defence was struck off---Validity---Filing of written statement in the Family Court was not essential-Under provisions of S.10(2)(3)(4) of West Pakistan Family Courts Act, 1964, the court would make an attempt to effect compromise or reconciliation between the parties and if no compromise or reconciliation was possible the court would frame the issues in the case and fix a date for recording evidence--Even, if there was no written statement, reconciliation proceedings must be held and evidence should be recorded because Preamble of West Pakistan Family Courts Act, 1964 tended to show that the Family Courts were established in order to achieve an expeditious disposal of the family disputes and the matters relating thereto---Defendant had been adopting delaying tactics and constitutional petition was filed to harass plaintiff and prolong the litigation unnecessarily, which course could be deprecated by discouraging such uncalled for litigation---Family Court had not straightaway decreed the suit, but after striking off defence of defendant, had adjourned the same for cross-­examination---Family Court, in circumstances, had not committed any illegality or irregularity in the proceedings but had acted to achieve expeditious settlement and disposal of the dispute relating to family affairs---Constitutional petition was dismissed.

Mr. Muhammad Saleem Chishti for Petitioner.

M. Tanvir Chaudhry Advocate for Respondent No.1.

P L D 2009 Islamabad 7

Before Raja Saeed Akram Khan, J

KHAN AFSAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.76-B of 2008, decided on 28th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392/395/400/412---Bail, refusal of---Accused was identified during the identification parade and recovery of looted amount had been effected from the accused---Car which was used in the occurrence had also been recovered from the accused---Only tentative assessment was to be made and deeper appreciation was not permitted under the law at bail stage---Sufficient incriminating material was available on record which connected the accused with the occurrence---Offences against accused fell under the prohibitory clause of S.497, Cr.P.C.---Challan had already been submitted before the court and charge had also been framed---No enmity existed between the parties which could suggest false implication of accused in the case---Accused having been unable to make out his case for post-arrest bail, his bail petition was dismissed.

Ch. Muhammad Akram for Petitioner.

M. Tanvir Chaudhry for the Complainant.

Malik Ishtiaq Ahmad Federal Counsel.

Muhammad Ashraf A.S.I. with record.

P L D 2009 Islamabad 9

Before Raja Saeed Akram Khan, J

IKRAM ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.142-B of 2008, decided on 16th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.223 & 224---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Offences with which accused was charged except the one under S.5(2), Prevention of Corruption Act, 1947 were bailable---Prosecution had failed to collect any evidence regarding allegation of receiving illegal gratification---Challan though had been submitted in the court, but no progress was made in the trial---Incarceration of accused at trial stage would not serve any useful purpose and would amount to punishing him without a trial---Co-accused having been granted bail, keeping in view the principle of consistency accused also deserved the same concession---Bail was allowed to accused, in circumstances.

M. Tanvir Choudhry for Petitioner.

Malik Ishtiaq Ahmad for the State.

P LD 2009 Islamabad 11

Before Syed Qalb-i-Hassan, J

Mst. SHAMSHAD BIBI---Petitioner

Versus

BUSHRA BIBI and 3 others---Respondents

Writ Petition No.37 of 2008, decided on 1st April, 2008.

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

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment of guardian---Petitioner brought a petition under S.25 of Guardians and Wards Act, 1890 with the assertion that she was married to S.M. according to Christian rites and out of that wedlock a . son was born---Guardian application was allowed and minor was handed over to the petitioner in execution proceedings---Afterwards B.B. (another lady) moved an application in the executing proceedings contending that in fact her son was recovered from her through execution proceedings---Executing Court, prima facie, being convinced with the contention of both S.M. and B.B. handed over the minor to them---Petitioner in her application prayed that controversy could be resolved through D.N.A. test of the contesting parties---With the consent of the counsel for the parties, direction was given to the parties to appear before the Trial Court and Trial Court was directed to refer the parties to the Institute for the conduct of D.N.A. test of concerned persons without further loss of time---Trial Court would decide the matter expeditiously in the light of report of D.N.A. Test and all other available evidence after affording opportunity to the parties for leading evidence in support of their respective claims.

Tanvir Chaudhry for Petitioner.

Sarfraz Ali Khan for Respondents.

Raja Khalid Abbas Khan, Dy. Attorney-General on Court's call.

Muhammad Jamil Scientific Officer, National Forensic Science Authority, Islamabad.

P L D 2009 Islamabad 13

Before Muhammad Munir Peracha, J

Dr. SHAHID BASHIR---Petitioner

Versus

PAKISTAN MEDICAL DENTAL COUNCIL through Secretary, Islamabad and another---Respondents

Writ Petition No.1100 of 2008, decided on 13th October, 2008.

Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Ss. 12, 15, 19 and Third Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Foreign qualification, recognition of---Scope---Locus poenitentiae, principle of---Applicability---Petitioner, after getting M.B.,B.S. degree from Pakistan, went to Thailand and did his fellowship in cardiology---Grievance of petitioner was that provisional recognition of his post graduate qualification, could not be withdrawn by the authorities---Validity---Only those post graduate medical qualification could be recognized as additional medical qualification, which was granted by those medical institutions in or outside Pakistan which were included in Third Sched. to Pakistan Medical and Dental Council Ordinance, 1962---Although Federal Government had power to amend Third Sched. but so long a postgraduate qualification was not included in the Third Sched., Medical and Dental Council had no power to recognize the same as additional medical qualification---Such was in contrast to the powers conferred on Medical and Dental Council by Ss.15 and 19 of Pakistan Medical and Dental Council Ordinance, 1962---In absence of entry of said qualification in third Sched. of the Ordinance, the petitioner's present qualification could not be recognized as additional qualification---As the Council had no power to recognize the petitioner's qualification as additional qualification, the principle of locus poenitentiae was not attracted---Petition was dismissed in circumstances.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

Mushtaq Hussain for Petitioner.

Dr. Ahmed Nadeem Akbar, Registrar, PMDC and Saira Rubab Nasir, Legal Officer, PMDC for Respondents.

Date of hearing: 19th September, 2008.

P L D 2009 Islamabad 19

Before Muhammad Munir Peracha and Syed Qalb-i-Hassan, JJ

Maulana ABDUL MALIK WAZIR---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 13 others---Respondents

Writ Petitions Nos.935 and 1184 of 2008, heard on 29th September, 2008.

(a) Representation of the People Act (LXXXV of 1976)---

----S.69---Constitution of Pakistan (1973), Arts.199 & 225---Constitutional petition---Election dispute---High Court, jurisdiction of---Alternate remedy---Petitioner assailed election result before High Court in exercise of its constitutional jurisdiction---Validity---Election Tribunal had the power to order re-poll on some of the polling stations of the constituency and re-counting of votes was also within its jurisdiction---Petitioner having alternate remedy of filing election petition, his constitutional petition was barred under Art.225 of the Constitution---Constitutional petition was dismissed in circumstances.

(b) Representation of the People Act (LXXXV of 1976)---

----Ss.38(9), 69, 70, 103, 103-AA & Form-XIV---Constitution of Pakistan (1973), Arts.199 & 225---Constitutional petition---Election dispute---Re-polling---Principle---Absence of signatures of agents on Form-XIV---Effect---Election Commission directed re-polling in two polling stations on the ground that election result was neither prepared on prescribed Form-XIV nor the Form bore signatures of the agents of candidates---Validity--In absence of any allegation levelled by any candidate and finding of Election Commission that handwritten Form-XIV did not depict correct result, the Commission could not have directed re-poll---In absence of finding that results had been tampered with, Election Commission could not have made the same basis for re-polling on the ground that Presiding Officer did not get signatures of candidates or their agents on Form-XIV---Neither S.103 nor 103-AA of Representation of the People Act, 1976, could have been invoked by Election Commission to direct re-polling at two polling stations---Order of Election Commission suffered from misinterpretation of the provisions of Representation of the People Act, 1976, and rules framed thereunder---High Court in exercise of Constitutional jurisdiction declared the order of re-poll passed by Election Commission without lawful authority having no legal effect---Statements prepared by Presiding Officers of two polling stations in question, depicted true results of the 'polling stations---High Court declared candidate securing highest votes as returned candidate---Petition was allowed accordingly.

"Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Additional District Judge 1994 SCMR 1299; Ch. Muhammad Arif v. Rao Sikandar Iqbal PLD 2008 SC 429 and Syed Nayyar Hussain Bukhari v. District Returning Officer PLD 2008 SC 487 ref.

Kamran Murtaza for Petitioner (in W.P.No.935 of 2008).

Sadar Khurram Latif Khan Khosa for Respondent No.8.

Adul Baseer Qureshi for Petitioner (In Writ Petition No.1184 of 2008).

Date of hearing: 29th September, 2008.

P L D 2009 Islamabad 32

Before Sardar Muhammad Aslam, C J

MUHAMMAD FAROOQ SULEHRIA---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, ISLAMABAD---Respondent

Case Diary No.1356 of 2008, decided on 26th May, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition--Failure to supply copy of F.I.R.---Office had raised objection that petitioner had not supplied copy of F.I.R.---Counsel for the petitioner had contended that filing of certified copy of F.I.R. was not the requirement of law and petitions were received without submission of F.I.R. and only the statement of the counsel for the petitioner, at bar was deemed to be sufficient---Validity---Held, due to certain difficulties, it was ordered by the High Court that a photostat copy of F.I.R. would be filed invariably and on finding interpolations in the photostat copy of the F.I.R., in certain cases, serious note was taken by the Bench on administrative side, directing that in future no petition be entertained unless it was accompanied by certified copy of F.I.R.---Order accordingly.

Tanveer Ch. for Petitioner.

P L D 2009 Islamabad 33

Before Sardar Muhammad Aslam, C J

UMER MUJEEB SHAMI---Appellant

Versus

CHIEF COMMISSIONER, ISLAMABAD CAPITAL TERRITORY, ISLAMABAD and another---Respondents

F.A.O. No.11 of 2005, decided on 11th December, 2008.

Press, Newspapers, News Agencies and Books Registration Ordinance (XCVIII of 2002)---

----Ss. 10(2)(b), 19 & 20---Appeal to High Court---Cancellation of declaration of daily newspapers from the name of appellant and transfer in respondent's name---Agreement between three parties including appellant and respondent providing for transfer of such declaration in respondent's name---Respondent's application ' for transfer of such declaration in his name on basis of such agreement---Report of inquiry committee constituted by District Magistrate under old law set aside by High Court in earlier constitutional petition and Supreme Court remanded case to Chief Commissioner for its decision in accordance with new law---Cancellation of such declaration from appellant's name and its transfer in respondent's name by Commissioner in view of such earlier report---Validity---Appellant had been condemned unheard for not having been associating with earlier inquiry---According to such agreement, its third party had to transfer such declaration and pay compensation to respondent---Such third party was neither before Commissioner nor was impleaded in constitutional petition, thus, in his absence such agreement could not be enforced---Commissioner had travelled beyond his jurisdiction by granting declaration not even asked for in such application---Commissioner had issued declaration in respondent's name on same day i.e. before expiry of 60 days of cancellation order---High Court accepted appeal and set aside impugned order in circumstances.

2003 CLC 430 ref.

Muhammad Akram Sheikh, M. Raheel Kamran Sheikh and Miss Natalya Kamal for Appellant.

Amjad Iqbal Qureshi, D.A.-G. for Respondent No.1.

Habib-ul-Wahab Al-Khairi for Respondent No.2.

P L D 2009 Islamabad 41

Before Muhammad Munir Peracha, J

WI-TRIBE PAKISTAN LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Information Technology and Telecom, Islamabad and another---Respondents

Writ Petitions Nos.705, 706, 741, 763, 1526 and FAOs Nos.7, 11 and 13 of 2008, decided on 21st January, 2009.

(a) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---

----Ss. 23, 33-A to 33-E & 57 [as amended by Pakistan Tele-Communication (Reorganization) (Amendment) Ordinance (XVI of 2005) and Pakistan Telecommunication (Reorganization) (Amendment) Act (II of 2006)---Access Promotion Rules, 2004, Rr.4 & 5---Universal Fund Rules, 2006---Constitution of Pakistan (1973), Art.199---Constitutional petition---Demand of access promotion contribution (APC) for Universal Services Fund (USF) from Long Distance & International (LDI) licensees and Local Loop (LL) licensees---Plea of licensees was that Access Promotion Rules, 2004 were ultra vires for having been framed by Federal Government in absence of powers to make such Rules under un-amended provision of S.57 of Pakistan Telecommunication (Reorganization) Act, 1996---Validity---Power of Government to frame rules for carrying out purposes of Pakistan Telecommunication (Reorganization) Act, 1996 conferred by legislature under S.57 thereof in general terms by using therein words "may make rules for carrying out the purposes of the Act" would include power to frame rules specifically mentioned in earlier sections than S.57 thereof---Government under un-amended S.57 of the Act had power to frame rules for carrying out its purposes, thus, an additional power to frame rules would not be required to be given, if same was provided for in other sections before S.57 like S.29(4) thereof---Function of Authority was to promote rapid modernization of telecommunication systems and services---Government for achieving such purpose had framed Universal Service Fund Rules, 2006 by making provision of Universal Service Fund---Authority while granting licences could lay down terms and conditions thereof---Licensees would be bound by agreed terms and conditions of their licences and could not ignore same subsequently on pretext of being violative of law or rules---Government had validly promulgated Access Promotion Rules, 2004 in exercise of its power under un-amended S.57 of Pakistan telecommunication (Re-organization) Act, 1996---Principles.

(b) Words and phrases---

---"And" & "or"---Both such words are inter-changeable.

(c) Interpretation of statutes---

---Rules making powers conferred by legislature in general terms by using words "may make rules for carrying out the purposes of the Act"---Scope stated.

Generally, while empowering the Government or any other functionary to make rules, the legislature uses the words "may make rules for carrying out the purposes of the Act". After giving power to frame rules in general terms, it has been the methodology adopted by the legislature to enumerate certain subjects on which the Government or the functionary may frame rule The provisions enumerating the subjects after giving the general power to frame rules does not mean that power is confined to only those subjects which are specifically mentioned.

Kh. Ahmad Tariq Rahim, Ali Raza, Mujtaba Haider Sherazi, Afnan Karim Kundi, Muhammad Ashraf Khan and Atta Ullah Kundi for Petitioners.

Barrister Muezzin Qureshi with Shafaqat Jan, Director (Litigation) PTA, Muhammad Akhtar Awan, Standing Counsel with Syed Muhammad Anwar, Director (Law) M/O I&T for Respondents.

Date of hearing: 16th December, 2008.

P L D 2009 Islamabad 50

Before Muhammad Munir Peracha and Dr. Sajid Qureshi, JJ

HASHWANI HOTELS LIMITED through General Manager---Applicant

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through Chairman and another---Respondents

Execution Application No.4 of 2008, decided on 25th November, 2008.

(a) Words and phrases---

----"Include"---Connotation.

When phrase "include" is used, it implies that something else also falls within that word which was behind its general organic meaning. This is, however, not the rule of thumb. It really depends on tie context in which it is used.

2002 CLC 388; PLD 2000 Lah. 602 and Dilworth v. Commissioner of Stamps 1899 AC 99 ref.

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

----Ss. 37, 38, 39, 96 & O.XLI, R.35---Suit decreed in first appeal by High Court---Application for execution of such decree filed in High Court---Maintainability---Plea of decree-holder was that Trial Court had ceased to have pecuniary jurisdiction to execute such decree, which was executable by High Court---Validity---Appellate or Revisional Court was not covered by expression "court which passed a decree" as used in S.37, C.P.C.---Appellate or Revisional Court only corrects error committed by Trial Court, but decree passed in either case would remain to be that of Trial Court---Trial Court had power to execute such decree, which could not be executed by Appellate Court---If a court after passing decree lost territorial or pecuniary jurisdiction, then successor court in whom such jurisdiction vested could not entertain application for execution as court having passed decree had not lost jurisdiction to execute same---High Court under S.39(2), C.P.C. had power to send decree for execution to any subordinate court of competent jurisdiction---High Court sent execution application to trial Court in circumstances.

Ardeshir Cowasjee v. Byram D. Avari and 4 others 1984 CLC 2494; Muhammad Asar Hussain v. Karachi Development Authority, Karachi and another 1999 CLC 1121; Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; Siraj Din and 3 others v. Sardar Khan and 2 others 1993 SCMR 745; Mayzone Pak. International v. Additional Secretary, Government of Pakistan 2002 CLC 388; Mst. Fehmida Begum v. Federation of Pakistan through Secretary, Federal Secretariat, Islamabad and 6 others PLD 2000 Lah. 602; Muhammad Hussian v. Messrs. Adamiee Sheikh Jeevanjee and another 2001 MLD 1183; Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497; Muhammad Hayat and others v. Muhammad Said PLD 1950 Lah. 352; Khan Muhammad Ishaq Khan v. The Azad Shama Transport Co. Ltd. and others PLD 1953 Lah. 22; Messrs United Bank Ltd. v. Mst. Rehana Raza PLD 1983 Kar. 467; Zubair Ahmad and another v. Shahid Mirza and 3 others 2006 YLR 1900; Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Nizam­ud-Din and 11 others v. Ch. Muhammad Saeed and another 1993 CLC 2130;" Mehar Singh and another v. Kasturi Ram and other AIR 1962 Punjab 394 (V 49 C 108); Merla Ramanna v. Nallaparaju and others PLD 1956 Supreme Court (Ind.) 220; Merla Ramanna v. Nallaparaju and others AIR 1956 Supreme Court 87 (V.48 C. 21 Jan.); Ramagouda Malagouda Patil and others v. Bhajarang Tukaram Bhoja and others 2003 AIR Karantaka 154; Sreenath Chakravarti and others v: Priyanath Bandopadhya and others AIR 1931 Calcutta 312 and Sri Rajah Satrucherla Sivakanda Raju Bahadar Garu v. Rajah of, Jeypore and others (AIR 1927 Mad. 627 ref.

PLD 1953 Lah. 22; 1984 CLC 2494; 1999 CLC 1121 and PLD 1956 SC (Ind.) 220 rel.

Syed Naeem Bukhari for Applicant.

Mian Muhammad Hanif for Respondent.

Date of hearing: 6th November, 2008.

P L D 2009 Islamabad 61

Before Sardar Muhammad Aslam, C.J.

ALI ARSHAD---Petitioner

Versus

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

Writ Petition No.950 of 2008, heard on 10th February, 2009.

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

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Name of petitioner was placed on Exit Control List on the pretext that he had violated the rules and regulations of the department where he served for about seven months on contract---Petitioner was an employee of Federal Government on contract, liable to termination on one month's notice or payment of one month basic pay, in lieu thereof, on any side without assigning any reason---Petitioner was going abroad for higher education and department had accepted his resignation subject to payment of one month basic pay in lieu of notice---Relieving order of petitioner was issued upon acceptance of his resignation---Petitioner was not involved in any noticeable activity and the project on which he was working had not suffered on account of his resignation---Only reason for placing the name of petitioner on Exit Control List was his seven months, service on a sensitive project-Validity-Held, department had to devise a policy clearly putting an employee on contract at notice. that on termination of the contract by efflux of time or by resignation, he would be debarred from proceeding abroad for a particular period of time---In the absence of such a clause in the contract, a person could not be prevented from pursuit of higher education abroad---No material was available on record against the petitioner of his involvement in any manner affecting the State or prejudicial to the interest of the country---High court, allowed, the constitutional petition and order placing the name of petitioner on Exit Control List was set aside.

Ajmal Raza Bhatti for Petitioner.

Raja M. Aleem Khan Abbasi, Standing Counsel for Respondents Nos. 1 and 2.

Naseer Anjum Awan for Respondent No.3.

Date of hearing: 10th February, 2009.

P L D 2009 Karachi 1

Before Muhammad Athar Saeed and Dr. Qamaruddin Bohra, JJ

Messrs AL-KHAIR SERVICES FOR HAJ AND UMRAH (PVT.) LTD. through Chief Executive and 3 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary---Respondent

C.P. Nos.D-1815 to 1817, 1835 and M.A. No.8511 of 2008, decided on 24th September, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Hajj policy---Petitioners were Hajj Group Operators and were aggrieved of reduction in their quota by Ministry of Hajj---One of. the petitioners surrendered its quota due to change in Hajj policy---Effect---As there was no claimant of the forms surrendered by the petitioner, High Court directed the authorities to issue the surrendered number of forms to remaining three petitioners and allow them further time to file the forms and framed guidelines for government and directed the authorities to follow the same for finalizing the scheme for Hajj 2009.

Following are the guidelines as framed by the High Court:--

(1) The quota allocated for the year, 2007 should be taken as basis for allocation of quota for the year, 2009 and if any reduction had to be made in their quota, proper show cause notice should be issued to these Hajj Group Operators giving cogent reasons for such reduction and they should be given an opportunity to present their case and only after hearing them their quota of year, 2007 might be reduced by a speaking

order;

(2) If Ministry would feel that quota of any Hajj Group Operator had to be increased, the same could only be done by a speaking order giving cogent reason for such increase before the date envisaged in the above paragraph;

(3) All procedure and conditions for Hajj Group Operators (including allocation of their quota) should be finalized at least six months before the date of Hajj of 2009 and all bottlenecks should be removed and last date of filing forms should be fixed at least three months before the date of Hajj and should not be extended unless there would be compelling reasons for such extension and no change should be made in the procedures and conditions after that date.

High Court, in exercise of constitutional jurisdiction, extended the time for submission of Hajj forms and disposed of the petition accordingly.

Abid S. Suberi for Petitioner (in C.P.No.D-1815 and 1516 of 2008).

Khalid Javed for Petitioner (in C.P.No.D-1817 of 2008).

Ms. Sana Akram Minhas for Petitioner (in C.P.No.D-1835 of 2008).

Amer Raza Naqvi and Umer Hayat Sandhu, D.A.Gs. along with Director Hajj Abdul Sattar and Section Officer, Ministry of Religious Affairs Khaleel Ahmad.

P L D 2009 Karachi 7

Mrs. Yasmin Abbasey and Nadeem Azhar Siddiqi, JJ

RAZA KHAN---Applicant

Versus

THE STATE and 2 others---Respondents

Criminal Revision Application No.72 of 2007, decided on 18th June, 2008.

(a) Criminal trial---

----Cognizance by Court---Principle---Courts dealing with criminal cases usually take cognizance of offence on the basis of contents of F.I.R. and on tentative assessment of material available on record---Deeper appreciation of evidence or detail inquiry is not required and for such purpose pleas raised in defence are not relevant.

(b) Anti-Terrorism Act (XXVII of 1997)---

----S. 23---Cognizance by Court---Principle---F.I.R. against accused persons was registered on the allegation of abduction for ransom---Anti-Terrorism Court returned the challan for presentation of the same before competent forum---Validity---Material available on record showed that a prima facie case triable by Special Court was made out---On the basis of any material. that might have come on record through evidence of either prosecution or defence if the court would form any opinion that offence was not scheduled offence and was triable by ordinary court dealing with criminal cases, it might transfer the case to such court in exercise of powers under S.23 of Anti-Terrorism Act, 1997---High Court in exercise of revisional jurisdiction, set aside the order passed by Anti-Terrorism Court---Revision was allowed in circumstances.

M.A. Kazi for Applicant.

Habib Ahmed, A.A.G. for the State.

Raza Hashmi for Respondents Nos. 2 and 3.

Date of hearing: 26th March, 2008.

P L D 2009 Karachi 14

Before Khawaja Naveed Ahmed, J

ISHAQ LASHARI, INSPECTOR---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.183 of 2008, decided on 11th September, 2008.

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

----S. 22-A(6)(ii)---Powers of Justice of Peace---Transfer of investigation from one police officer to another---Guidelines regarding powers of Ex-Officio Justice of Peace.

PLD 2005 Kar. 621 fol.

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

----S. 22-A--Powers of Justice of Peace---Registration of F.I.R.---When a grievance is voiced with regard to non-registration of F.I.R. in a cognizable offence, Justice of Peace in terms of section 22-A, Cr.P.C. can only direct or suggest as to whether concerned S.H.O. had acted legally or illegally in terms of section 154, Cr.P.C. and in case he has refused to act, whether his inaction is justified, but Justice of Peace under no provision of law can direct or even observe with regard to the nature of the offence, commission of the offence or addition or deletion of relevant sections, as the same exclusively falls within the jurisdiction of either Investigation Officer or of the Trial Court at the time of framing the charge.

Muhammad Javaid Khan v. Additional Sessions Judge, Multan 2007 PCr.LJ 124; Khizar Hayat and others v. I.G. Punjab and others PLD 2005 Lah. 470 and Sheikh Muhammad Shahzad v. Naveed Anwar Sethi and 4 others PLD 2006 Lah. 460 ref.

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

----Ss. 561-A & 22-A---Quashing of order---Registration of F.I.R.---Powers of Justice of Peace---Scope---Brother of the deceased had filed an application under S.22-A, Cr.P.C. before Sessions Court having jurisdiction of Ex Officio Justice of Peace for taking legal action against the police officers for refusing to lodge the F.I.R.---Case was outcome of a police encounter with the wanted and notorious criminals---S.H.O. was duty bound to see whether the police party had killed the persons in discharge of its duty or it had exceeded its powers and he was the right man to take decision in the light of facts and circumstances of the case---Justice of Peace could not give direction to S.H.O. to register the case---Sessions Court in the impugned order had given a conditional direction for registration of case against the responsible persons if the offence was cognizable---S.H.O had to see whether a cognizable offence was made out or the story narrated in the application of the complainant was the defence plea for the trial---Justice of Peace was directed not to give any direction because the same could be misinterpreted by the S.H.O. or litigant parties---Impugned order was consequently set aside leaving it open for the S.H.O. to act in accordance with law.

PLD 2005 Kar. 621; Khawaja Nazir Ahmed v. The State AIR 1945 PC 18; Shahnaz Begum v. The State PLD 1971 SC 677; Brig. Imtiaz v. The State 1994 SCMR 2142; Muhammad Yousaf v. II-Additional District Judge, Karachi and others C.P.No.D-1917 of 2006; Abid Sultan v. Additional District Judge, Vehari 2007 PCr.LJ 1384; Muhammad Javaid Khan v. Additional Sessions Judge, Mutlan 2007 PCr.LJ 124; Khizar Hayat and others v. I.G. Punjab and others PLD 2005 Lah. 470; Sheikh Muhammad Shahzad v. Naveed Anwar Sethi and 4 others PLD 2006 Lah. 460 and Abid Sultan v. Additional District Judge, Vehari 2007 PCr.LJ 1388 ref.

Shaukat H. Zubedi for Applicant.

Haji Abdul Majeed for the State.

P L D 2009 Karachi 24

Before Abdur Rahman Faruq Pirzada and Ghulam Dastagir A. Shahani, JJ

SHEVO---Applicant

Versus

REGIONAL POLICE OFFICER, HYDERABAD REGION, HYDERABAD and 15 others---Respondents

Criminal Miscellaneous Applications Nos.D-169 of 2008 and D-283 of 2007, decided on 12th August, 2008.

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

----Ss. 561-A, 107 & 150---Penal Code (XLV of 1860), Ss.440, 341, 355, 511, 148, 117, 114, 147, 149, 504, 337-A(i) & 337-F(i)---Quashing of proceedings---Scope of S.561-A, Cr.P.C.---Allegations made by the complainant were refuted by the accused---Veracity of the contents of the F.I.R. could not be properly thrashed out at' this stage in the present petition and the controversy could be resolved by the trail Court after evaluating the evidence recorded by it, which primarily was its domain to properly adjudicate upon the factual controversy emanating from the allegations and to finally decide the case on its own merits---High Court ordinarily would not quash the proceedings under S.461-A, Cr.P.C. unless Trial Court had exercised its powers under S.249-A, Cr.P.C. or S.265-K, Cr.P.C. which were incidentally of the same nature and in a way akin to and correlated with quashment of proceedings as envisaged under S.561-A, Cr.P.C.---However, High Court in exceptional circumstances in exercise of its jurisdiction under S.561-A, Cr.P.C. could quash the proceedings, if the facts of the case so warranted to prevent abuse of the process of the Court or otherwise to secure the ends of justice---Allegations made in the F.I.R., prima facie, constituted cognizable offences which required proper trial after evaluation of evidence available on record---No exceptional circumstances were found in the case to intervene in the matter at this stage under S.561-A, Cr.P.C. with regard to the factual controversy between the parties--Accused applicant was at liberty to approach the Trial Court by way of filing an application under S.265-K, Cr.P.C.---Petition was dismissed in circumstances.

1994 SCMR 798; 2002 SCMR 1076; 2005 PCr.LJ 1524; 1996 SCMR 276; 2006 SCMR 1957; Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298; Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another 1996 SCMR 839; Ghulam Muhammad v. Muhammad Khan PLD 1967 SC 317; Malik Salman Khalid v. Shabbir Ahmed, D and S.J, Karachi and another 1993 SCMR 1973; Mst. Sarwar Jan v. Ayub and Gulab 1995 SCMR 1679; Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275; Raja Haq Nawaz v. Muhammad Afzal and others PLD 1967 SC 354; Gian Chand v. State 1968 SCMR 380; Sh. Muhammad Saeed and others v. Amir Nawaz Khan and another 1996 SCMR 839; Khushi Muhammad and 4 others v. The State 1979 SCMR 94; Khawaja Fazal Karim v. The State and another PLD 1976 SC 461 and Shahnaz Begum v. Hon'able Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 ref.

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

----Chaps. XX [Ss.241 to 250-A] & XXII-A [Ss.265-A to 265-N]--Determination of guilt or innocence of accused---Scheme prescribed by the Code of Criminal procedure detailed.

Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298 ref.

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

----S. 561-A---Inherent jurisdiction of High Court, exercise of---Scope and object of S.561-A, Cr.P.C.---When High Court decides to proceed under S.561-A, Cr.P.C. the parties get divested of their rights to adduce evidence, to cross-examine the witnesses produced by the other side and to discredit the evidence offered to the Court, with the result that the normal course of law is disrupted, the parties get deprived by the precious and valuable rights vesting in them, the Trial Court gets deprived by the jurisdiction conferred on it by law and a matter which was required to be determined after a detailed and a full fledged trial is decided in more than a summary manner and thereby depriving the High Court of the opportunity to determine the issue in the light of the proper material---Using the powers under S.561-A, Cr.P.C. to determine the fate of a criminal case is a serious departure from the normal course and any deviation from the normal path is always pregnant with risk of being led astray---Such a deviation can, therefore, never be ordinarily advisable---Extraordinary circumstances must always be shown to exist before a choice could be made to abandon the regular course and instead to follow an exceptional route---Mere claim of innocence by an accused person should never be considered sufficient to justify such a departure, because if this is so permitted then every accused person would opt to stifle the prosecution and to have his guilt or innocence determined under S.561-A, Cr.P.C.---Result, therefore, would be decision of criminal trials in a summary and a cursory manner rendering the trials as a superfluous activity and the Trial Courts as a surplusage---Such never was and could never have been the intention of the law maker in adding S.561-A to the Code.

Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298; Sheikh Mahmood Sated and others v. Amir Nawaz Khan and another 1996 SCMR 839; Malik Salman Khalid v. Shabbir Ahmed, D and SJ, Karachi and another 1993 SCMR 1973 and Mst. Sarwar Jan v. Ayub and Gulab 1995 SCMR 1679 ref.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---Powers under S.561-A, Cr.P.C. can be exercised to prevent abuse of the process of any Court or to secure the ends of justice---Such powers cannot be exercised mechanically or in every case where allegation of false implication or of the evidence being false is made---Exercise of such powers cannot further the ends of justice, if the same is undertaken at pretrial stage to determine whether the prosecution evidence likely to come on record is true or false---Quashment of proceedings, at an early stage given an unfortunate impression of stifling of criminal prosecutions by exercising an extraordinary power, which is given for the dispensation of complete justice in the forms provided by law.

Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275 and Raja Haq Nawaz v. Muhammad Afzal and others PLD 1967 SC 354 ref.

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

----S. 561-A---Inherent jurisdiction of High Court---Nature and scope---Inherent jurisdiction given to High Court by S.561-A, Cr.P.C. is not an alternate jurisdiction or an additional jurisdiction, but is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has-been provided by the Code itself---Power given by S.561-A, Cr.P.C. can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute.

Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317; Khawaja Fazal Karim v. The State and another PLD 1976 SC 461 and Shahnaz Begum v. Hon'able Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 ref.

Abdul Sattar Sarki for Applicant.

Allah Bachayo Soomro, Addl. A.G. for Respondents.

Date of hearing: 12th August, 2008.

PLD 2009 Karachi 33

Before Ghulam Dastagir A. Shahani, J

Mst. GUL KHATOON alias GUKKI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.887, 888 and 890 of 2008, decided on 11th September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/147/148/149---Bail, refusal of---Bail of accused had already been declined on merits up to the level of Supreme Court---Bail was now sought on the fresh ground that the accused was having a suckling baby aged one to 1-1/2 years with her in the Jail---Said baby according to record was now two years and three months old and could not be said to be a suckling child---Bail on the ground of having a suckling baby in jail could only be allowed to accused when the baby was under the age of two years---Admittedly the said baby was more than two years old and, thus, no fresh ground was available to accused lady for grant of bail---Accused was refused bail accordingly.

Haji Shah v. Mst. Musarat alias Phullah and another 2001 PCr.LJ 262; Mst. Ruqiya Bibi v. The State 2001 PCr.LJ 613; Mst. Ansar Jan v. State and another 2000 PCr.LJ 586; Vikio v. Abdullah and another 1980 PCr.LJ 602 and Aijaz Ali v. The State and 2 others PLD 1981 Kar 484 distinguished.

Mst. Nusrat v. The State1996 SCMR 973 rel.

Mahmood Habibullah for Applicant.

Asadullah Baloch, State Counsel.

Syed Sulleman Badshah for the Complainant.

P L D 2009 Karachi 38

Before Nadeem Azhar Siddiqi, J

ATTAULLAH and 6 others---Plaintiffs

Versus

SANAULLAH and 5 others---Defendants

Suit No.1151 of 2006 and C.M.A.No.1286 of 2007, decided on 29th September, 2008.

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

---O. VII, R.11---Rejection of plaint---Plaint could only be rejected under Cl. (d) of O. VII, R.11, C.P.C. if from the statement in the plaint Court came to the conclusion that the same was barred by any law---For deciding an application under O. VII, R.11, C.P.C. the contents of the plaint had to be taken as true on its face value and the pleas raised in defence could not be looked into.

(b) Cooperative Societies Act (VII of 1925)---

----Ss. 54 & 70-A---Civil Courts---Jurisdiction---Scope---Jurisdiction of Civil Courts is ousted only in cases where statutory functionaries have jurisdiction to entertain, adjudicate and dispose of or determine any matter, under Cooperative Societies Act, 1925---If dispute is of such nature that the same cannot be referred to arbitration under S.54 of Cooperative Societies Act, 1925, for adjudication and decision, then S.70-A of Cooperative Societies Act, 1925, would not bar jurisdiction of Civil Courts.

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

----O. VII, R.11---Rejection of plaint---Principles---Plaint cannot be rejected in part and even if one prayer is maintainable, the plaint cannot be rejected.

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

----S. 42---Partition Act (IV of 1893), S.4---Cooperative Societies Act (VII of 1925), Ss.54 & 70-A---Civil Procedure Code (V of 1908), O.VII, R.11---Rejection of plaint---Jurisdiction of Civil Court---Plaintiff rightly or wrongly asked for accounts and partition of properties of deceased parents and had also sought cancellation of oral gift under which defendant was claiming suit property---Defendant sought rejection of plaint on the ground that jurisdiction of civil court was ousted under S.70-A of Cooperative Societies Act, 1925---Validity---All reliefs could not be adjudicated and granted by Registrar of Cooperatives or his nominee---Not every dispute between persons mentioned in- S.54 of Cooperative Societies Act, 1925, could qualify to be a dispute touching business of society, merely because subject property of the suit was managed and controlled by the Society, thus High Court declined to reject the plaint---Application was dismissed in circumstances.

Lahore Cantt. Cooperative Housing Society Ltd. v. Messrs Builders and Developers (Pvt.) Ltd. PLD 2002 SC 660; Imran Raza Shaikh v. Mst. Zarina Gul and 4 others 2003 YLR 934 and Wahidullah Ansari v. Zubeda Sharif and another PLD 2002 Kar. 414 rel.

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

----Ss. 42 & 54-Civil Procedure Code (V of 1908), S.11---Res judicata, principle of---Applicability---Earlier suit was filed for permanent injunction and the same was withdrawn---Subsequent suit was filed for cancellation of oral gift deed, rendition of accounts and partition of property---Plea raised by defendant was that subsequent suit was hit by principle of res judicata-Validity--Principle of res judicata was not available in circumstances.

Shafaat Hussain for Plaintiffs.

Aminuddin Ansari, and hold brief for Mr. Mustafa Lakhani for defendant No.3.

P L D 2009 Karachi 42

Before Abdur Rahman Faruq Pirzada and Arshad Noor Khan, JJ

NAZIR AHMED DAYO---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Defence Islamabad and 2 others---Respondents

C.P.No.D-295 of 2005, decided on 16th September, 2008.

Constitution of Pakistan (1973)---

----Art. 199(3)---Pension Regulation, Vol. I, 1999, R.17(a)-Constitutional petition---Maintainability---Armed Forces, decision of---Son of petitioner served for thirteen months in army and committed suicide---Petitioner claimed pensionary benefits of his deceased son but authorities after conducting inquiry, did not find petitioner entitled to any pensionary benefits---Validity---Petitioner failed to establish any one of the three ingredients for invoking constitutional jurisdiction of High Court viz. the action being without jurisdiction or coram non judice or mala fide---High Court declined to interfere in the decision passed by Army authorities---Petition was dismissed in circumstances.

Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498 distinguished.

PLD 2001 SC 549 and PLD 1996 SC 632 fol.

Basharat Ahmed Jatt along with Petitioner.

Hakim Ali Siddiqui, Federal Counsel.

P L D 2009 Karachi 47

Before Anwar Zaheer Jamali, C. J. and Zaffar Ahmed Khan Sherwani, J

ABDUL WAHAB ABBASI---Petitioner

Versus

FEDERATION OF PAKISTAN through Chief Election Commissioner, Islamabad and 2 others---Respondents

Constitutional Petition No.D-1719 of 2008, decided on 2nd September, 2008.

Constitution of Pakistan (1973)---

----Arts. 62(f) & 199---Election of office of President of Pakistan---Filing of nomination papers by former Chief Justice of Pakistan---Constitutional petition by former Additional District and Sessions Judge challenging candidature of former Chief Justice of Pakistan for not being "Ameen" as provided in Art.62(f) of the Constitution---Maintainability---Petitioner alleged that former Chief Justice of Pakistan while appointed as Chief Justice of High Court had dishonestly deleted his name from list of candidates selected for appointment as Additional District and Sessions Judge; and that later on, he was appointed as Additional District and Sessions Judge by the then Acting Chief Justice, thus, on account of delay of five years in such appointment, his seniority was affected---Validity---Petitioner had not disclosed in petition as to why he had not availed remedy before Election Commission of Pakistan and why he had brought petition. before High Court without exhausting available remedy---Petitioner had retired from service after long span of time and had never agitated his alleged grievance during his tenure of service before competent forum---Such wild allegation against a former Chief Justice without any substance would lead to conclusion that the petition was mala fide and had been filed with ulterior motive to malign a former head of the institution---High Court dismissed petition in limine with special costs of Rs.1,00,000.

Jamat-e-Islami v. Federation of Pakistan, PLD 2008 SC 30 fol.

Ghulam Asghar Abbasi for Petitioner.

Nemo for Respondent.

P L D 2009 Karachi 50

Before Khawaja Naveed Ahmed, J

Mst. NASIMA---Petitioner

Versus

HANIF and 2 others---Respondents

Constitutional Petition No.S-114 of 2008, decided on 4th September, 2008.

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

----S. 7---Guardianship of minor son having citizenship of Canada by birth, citizenship of Tanzania by reason of his father's citizenship and citizenship of Pakistan by reason of his mother's citizenship---Contest between mother and father after divorce of their marriage by order of court in Tanzania giving joint custody of son to both parents and directing father to provide maintenance to son---Non-payment of maintenance to son by father---Refusal of father to give "NOC" for getting Australian visa for son by mother---Mother's application for appointing her as sole guardian for getting such visa for son---Plea of father that mother for such purpose could approach only to court of Tanzania, thus, her application was not maintainable---Validity---Son, being of growing age was residing in Pakistan along with mother, who wanted to move him to Australia for better financial prospects for herself and son---Requirement of "NOC" from father by Visa Officer was legal formality to be completed prior to issuance of visa to son---Mother was already out of Tanzania and jurisdiction of Tanzanian court---Living of mother in Australia or Pakistan would make no difference--Mother in such circumstances was appointed as sole guardian of her son for obtaining his visa for Australia and renewal of his Canadian Passport and to sign all documents in such capacity for such purposes.

M. S. Mangrio for Petitioner.

PLD 2009 Karachi 54

Before Nadeem Azhar Siddiqi, J

Messrs TRACON SERVICES (PVT.) LTD.---Plaintiff

Versus

Messrs SUI SOUTHERN GAS CO. LTD.---Defendant

Suit No.153 of 2000, decided on 16th September, 2008.

Arbitration Act (X of 1940)---

----Ss. 17, 29, 30 & 33---Award---Objections---Duty of Court---Misconduct by arbitrator---Plaintiff was awarded contract by defendant to transport certain quantity of pipes---Grievance of plaintiff was that defendant did not provide him the agreed number of pipes for transportation and due to such short supply, he suffered loss---Matter was referred to sole arbitrator for determination of loss if any and award was filed in court for making the same rule of the court---Defendant filed objections against the award including the plea of misconduct committed by arbitrator---Validity---Court, while examining validity of award could not act as a court of appeal---Court hearing objection to award could not undertake reappraisal of evidence recorded by arbitrator in order to discover error or infirmity in award---Error or infirmity in award which could render award invalid must appear on the face of the award and should be discovered by reading the award itself---Award of charges on account of deficit in transportation of pipes and award of man-month charges at the same time and award of interest without referring to any specific provision of agreement, were errors apparent on the face of award---High Court modified the award to the extent that plaintiff was only entitled to claim on account of extra man-months from 1-2-1996 to 30-6-1996, as there was no evidence on record that after June 1996, arrangements were there for transportation of pipes and plaintiff himself admitted that he did not transport pipes in August 1996---High Court reduced the amount of award and directed defendant to pay the same with, markup to plaintiff, within two months---Objections raised by defendant against award were rejected---Award was made rule of the Court.

Nemo for Plaintiff.

Asim Iqbal for Defendant.

P L D 2009 Karachi 58

Before Nadeem Azhar Siddiqi, J

KHAISTA KHAN through Legally Constituted Attorney---Plaintiff

Versus

KARACHI WATER AND SEWERAGE BOARD through Managing Director/Executive Engineer, Karachi and 3 others---Defendants

Suit No.1058 of 2007, decided on 9th September, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Maintainability---Plaintiffs could not seek declaration to do a business which he could not run without proper licence or permission from the authorities concerned---Plaintiff, in the present case, had taken contradictory pleas, as on the one hand he had stated that no "NOC" or permission was required and on the other hand produced the licence from local authorities which was not got renewed---Plaintiff had not sought any declaration that he was entitled to the renewal of the licence issued to him---Held, since the plaintiff had no licence to maintain the business in question, the prayers of declaration and injunction could not be granted and no purpose would be served in keeping the suit pending---Plaintiff having no cause of action to maintain the suit, plaint was rejected under O.VII, R.11, C.P.C.

Mirza Sarfraz Ahmed for Plaintiff.

S. Tassawur Hussain for Defendant No.1.

Shafi Muhammadi for Defendant No.2 with Dy. Superintendent Rangers, Ashraf Hussain.

Qazi Majid Ali, A.A.G. for Defendant No.3 along with TMO, Gul Hassan.

Abdul Karim Nizamani, Standing Counsel.

P L D 2009 Karachi 61

Before Ali Sain Dino Metlo and Bin Yamin, JJ

AFGHAN CARPET through Sole Proprietor---Appellant

Versus

HASHWANI HOTELS LIMITED through Director and another---Respondents

H.C.A. No.146 of 2007, decided on 28th August, 2008.

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

----O. IX, Rr. 3 & 8---Scope and application of O.IX, Rr.3 & 8, C.P.C.---Where neither party appears on an adjourned date of hearing, the court may, in exercise of its discretion, either dismiss the suit or make such other order as it thinks fit---Judicial discretion should always be exercised judiciously for doing substantial justice and suit should not be dismissed mechanically---Courts, as a matter of policy, prefer to decide matters on merits---If there is material available on record for giving decision on merits, dismissal should be avoided to the utmost, in such a case, the court may either adjourn the hearing or decide the suit on merits forthwith---Principles.

Allah Rakha v. Muhammad Yousif PLD 1991 SC 601; Muhammad Haleem and others v. H: H. Muhammad Naeem and others PLD 1969 SC 270; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Qaim Ali Khan v. Muhammad Siddique 1987 SCMR 733; Abdul Latif v. Aqeel Ahmed 2006 SCMR 789 and Syed Qadar Dad and others v. Muhammad Afzal and others PLD 1997 SC 859 ref.

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

----O. IX, Rr.8 & 3---Code of Civil Procedure (Amendment) Ordinance (X of 1980), S.15---Appeal to High Court---Scope---Orders of restoration of suit dismissed under O.IX, R.8, C.P.C., not to talk of O.IX, R.3, C.P.C. is not appealable---Suit, in the present case, was dismissed, when the same had just become ripe for decision on merits--Impugned order of restoration of suit to be heard on merits, did not call for any interference---Principles.

Notwithstanding the fact that under section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980, all interlocutory orders of a Single Judge, in exercise of original civil jurisdiction have been made appealable before a Division Bench, the Court, in keeping with the policy of preferring to decide matters on merits, should be slow in interfering with the orders of restoration. It may be noted that under the Code of Civil Procedure, 1908, even order of restoring a suit dismissed under Rule 8 of Order IX, C.P.C., not to talk of Rule 3 of Order IX C.P.C., is not appealable. In the present case, the suit was dismissed under Rule 3 of Order IX, C.P.C. after eight years, when it had just become ripe for decision on merits. In such circumstances, the impugned: order of restoring the suit for decision on merits does not call for any interference. It was for these reasons that the appeal, being meritless, was dismissed by a short order.

Siddiq Mirza for Appellant.

M. Arif Khan for Respondent No.1.

Aijaz Ahmed Khan for Respondent No.2.

Date of hearing: 28th August, 2008.

P L D 2009 Karachi 65

Before Zaffar Ahmad Khan Sherwani, J

MAQSOOD AHMED QURESHI---Applicant

Versus

MUHAMMAD AZAM ALI SIDDIQUI and 8 others---Respondents

Criminal Revision Application No.82 of 2008, decided on 19th September, 2008.

(a) Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S.439---Complaint under S.3(2) of the Illegal Dispossession Act, 2005, had been dismissed by trial Court, directing the petitioner to approach the Civil Court to take possession of the house in dispute, as he had failed to show his lawful ownership over the house---Validity---As per claim of the petitioner his possession over the house in question was on account of a sale agreement between him and the respondent---Petitioner had specifically alleged in his complaint that he had been dispossessed illegally by the respondent from the said house---Respondent had also executed a general power of attorney in favour of petitioner, which was duly registered---Civil Court had passed a decree in favour of petitioner restraining the respondent from dispossessing the petitioner from the house in question---Report of the concerned S.H.O. revealed that respondent had taken illegal possession of the said house in the absence. of the petitioner---All the above facts had made out a prima facie case in favour of petitioner, which was sufficient for taking cognizance in the matter under the Illegal Dispossession Act, 2005, which was applicable in all cases of illegal and unauthorized dispossession, except those cases which were pending adjudication before any other forum at the time of its promulgation---Petitioner complainant was not legally barred from maintaining both the civil and criminal actions simultaneously---Impugned judgment was set aside being illegal and the case was remanded to trial Court for disposal on merits according to law---Revision petition was allowed accordingly.

Rahim Tahir v. Ahmed Jan PLD 2007 SC 423; Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah. 358 and Iftikhar Ahmad v. Zulfiqar Ali and 3 others PLD 2008 Lah. 59 ref.

(b) Administration of justice---

----No legal bar to maintain both the criminal and civil actions simultaneously.

(c) Illegal Dispossession Act (XI of 2005)---

----Preamble---Applicability of Illegal Dispossession Act, 2005---Scope---Provisions of the Illegal Dispossession Act, 2005, are applicable in all cases of illegal and unauthorized dispossession, except those cases which were pending adjudication before the other forum at the time of its promulgation.

Rahim Tahir v. Ahmed Jan PLD 2007 SC 423; Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah. 358 and Iftikhar Ahmad v. Zulfiqar Ali and 3 others PLD 2008 Lah. 59 ref.

Riaz Hussain Shah for Appellant.

Khalil Ahmed for Respondent.

Abdullah Memon for the State.

Date of hearing: 9th September, 2008.

P L D 2009 Karachi 69

Before Mrs. Qaiser Iqbal and Khalid Ali Z. Qazi, JJ

SANOFI AVENTIS PAKISTAN LIMITED and others---Appellants

Versus

PROVINCE OF SINDH through Secretary Excise and Taxation Department, Karachi and 2 others---Respondents

High Court Appeal No.215 of 2003, decided on 17th September, 2008.

(a) Constitution of Pakistan (1973)---

----Art. 142---Subject-matter of Federal and Provincial laws---Scope.

A bare perusal of Article 142 of the Constitution would reveal that the Federal Parliament has the exclusive powers to make laws in respect of the matters mentioned in the Federal legislative list, while both the Federal and Provincial Parliaments have the powers to legislate in respect of the matters mentioned in the Federal legislative list. In case any item is neither mentioned in the concurrent nor in the federal legislative lists the same falls within the exclusive domain of the provincial legislature. This is what is called a residuary legislative clause in the parlance of constitutional jurisprudence. In other words, the residuary power to legislate in respect of items not appearing in the federal and concurrent legislative lists fall within the ambit of the Provincial Parliaments. Lastly, the Federal Parliament is equipped with the exclusive powers to make laws with regard to matters not mentioned either in the concurrent or the Federal legislative lists, pertaining to those areas which do not fall in any of the provinces for example the Islamabad capital territories.

(b) Constitution of Pakistan (1973)---

----Art. 77---Tax to be levied by law only---Constitutional limitations---No tax is permissible except under the authority of law and the Constitution---Article 77 of the Constitution clearly contains this salutary principle, which, though is explicitly applicable to federal taxes, by analogy the principle contained therein is squarely extendable to provincial taxation as well.

The "power of legislation, and consequently of taxation, operates on all persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It is granted by all for the benefit for all." No doubt this is an "original principle", upon which the society is based, it may be stressed without any further ado that taxation is a pecuniary burden upon the citizen of the State. Hence no tax is permissible except under the authority of law and the Constitution. In other words, tax can only be levied and recovered, in consonance with the dictates of law and the Constitution. Article 77 of the Constitution clearly contains this salutary principle, which though is explicitly applicable to federal taxes, but by analogy the principle contained therein is squarely extendable to provincial taxation as well.

Providence Bank v. Billings, 4 Pet. 514, 561, 7 Led. 939, 955, (reproduced in "A Treastise on the Constitutional Limitations" by Thomas M. Cooley) fol.

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

----Fourth Schedule, Legislative List, Part I, Item No.43---Legislative powers-Limitations-Principles.

When considering the scope of legislative powers it should be borne in mind that it is a recognized principle of constitutional law that except where any limitation has been imposed by the Constitution itself, the power of legislature to legislate on the enumerated subjects is unlimited and practically absolute. The legislature is free to exercise this power as and when the occasion arises. It is an essential legislative function to add, subtract, decrease and increase the customs duties so long as the subject to legislation was covered by Item No.43, which is the touchstone of the validity of the legislative measure.

A perusal of the above principle of interpretation of constitutional entries as propounded by Muhammad Haleem CJ in the above mentioned case would confirm that the construction of the constitutional entries constitute the basis of the inquiry as to whether the levy in question is lawful or invalid. In other words the test is whether on a liberal but fair construction the levy can reasonably fall within the parameters of the constitutional entry in question.

Sh. Abdur Rehim, Allah Ditta v. Federation of Pakistan PLD 1988 SC 670 and Sohail Jute Mills Limited, v. Federation of Pakistan PLD 1991 SC 329 fol.

(d) Interpretation of Statutes---

----Taxing statute---If the language in the taxing Statute was clear, the same had to be strictly construed irrespective of any hardship that could be caused; or, if any hardship that could be caused; or if any ambiguity or vagueness was in the language of the statute, the interpretation beneficial to the citizen had to be adopted.

Sohail Jute Mills Limited. v. Federation of Pakistan PLD 1991 SC 329 ref.

(e) Interpretation of Constitution---

----Construction of entries in the Schedule of the Constitution relating to taxation-Principles.

The following principles of law can safely be deciphered:-

(a) the power of taxation is an inherent right of the State in any modern civil society;

(b) the State can exercise its choice so as to tax any subject matter, transaction or property with the rider that no tax can be imposed except under the authority of law and in accordance with the mandate prescribed by the law and the Constitution;

(c) words in the Constitution are to be given a dynamic interpretation in keeping with the development of the society and the exigencies of time;

(d) the constitutional entries contained in the legislative list do not confer any legislative power but only point out to the broad fields/legislative heads in which the legislative powers can be exercised;

(e) the words in the constitutional entries have to be given their ordinary, grammatical and natural meaning. The said words should not be construed in a narrow or pedantic manner and are required to be given a very wide and liberal connotation. However, the words in the said constitutional entries cannot be stretched beyond a certain limit; this limit is prescribed by the principle of "pith and substance", which means that the words in the constitutional entries are to be given the most liberal construction but they cannot be stretched to such limit so as to occasion an unfair, unreasonable or absurd construction. In other words, if a word in the constitutional entry, by no stretch of imagination can be given the meaning intended by the legislature, the said stretched meaning should not be so given because otherwise the same would do violence to the principle of fair construction, which is another colour of the principle of "pith and substance". Elaborating further, a liberal but a fair and reasonable construction is to be adapted to the word in the constitutional entry;

(f) if the words in the statute are clear, a strict interpretation is to be offered despite any hardship that may be caused to the taxpayer, if, however, the words in the taxing statute are vague and ambiguous, a beneficial interpretation favourable to the taxpayer is to be adopted.

The items in the constitutional entries, which confer the power of taxation, were to be construed in the widest possible manner and not in any restricted or pedantic way. None of the items in the constitutional entries were to be read in a narrow restricted sense, and that each general word would extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.

The constitutional entries do not confer legislative power but merely point out to the broad fields in which the legislative power could be exercised. Constitutional entries should be given a very wide construction and the same should not be interpreted in a narrow or pedantic sense. It was the "pith and substance of the legislation" which should be seen while determining the power of the legislature to legislate on a particular subject.

No doubt entries are to be construed in a broad and pragmatic sense but where even upon the broadest possible interpretation of various entries the item of taxation could not fall within such entries the courts would not stretch the connotation beyond the permissible limits.

None of the items in the lists is to be read in a narrow restricted sense. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.

Words in constitutional entries should not be given a narrow and pedantic construction.

Words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing the words in constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude.

It is true that the words used even in their literal sense, are the primary and ordinarily the most reliable source of interpreting the meaning of any writing, be it a Statute, a Contract or any thing else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that Statutes always have some purpose and object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning.

When interpreting laws relating to economic activities, the same must be viewed with greater latitude than the laws relating to civil rights, keeping in view the complexity of the economic problems which do not admit a solution through any "doctrinaire or strait jacket formula." An attempt should be made to save rather than destroy the statute, unless where ex facie the legislative instrument was violative of any constitutional provision.

The entries in the legislative lists of the Constitution were not powers of legislation but only fields of legislative heads. The allocation of subjects to the list was not by way of any scientific or logical definition but by way of a mere simple enumeration of a broad catalogue. The key test laid down .was whether a particular word in the constitutional entry was susceptible to a particular connotation, not only in the ordinary parlance but also by way of a fiction.

Nishat Tek Ltd. v. FOP PLD 1994 Lah. 347; Suhail Jute Mill's case PLD 1991 SC 329; United Provinces v. Mrs. Atiqa Begum AIR 1941 FC 16; Navinchandra Mafatlal v. C.I.T. (1954) 26 ITR 758 (SC); K.P. Varghese v. ITO AIR 1981 SC 1922; Elahi Cotton v. FOP PLD 1997 SC 582 and Corpus Juris Secundum Vol. LXXXIV fol.

(f) Words and phrases---

----"Import"---Connotation.

Pakistan Textile Mill-Owners' Association v. Administrator of Karachi PLD 1963 SC 137; East and West Steamship Co. v. Collector Customs PLJ 1976 SC 511 and Master Foam (Pvt.) Ltd v. Government of Pakistan PLD 2005 SC 373 ref.

(g) Words and phrases---

----"Export"---Meaning---Popular, meaning of "export" is carrying or sending out something from the country.

Saphire Textile Mills v. Government of Sindh PLD 1990 Karachi 402 and Blacks Law Dictionary and Ballentine's Law Dictionary ref.

(h) Constitution of Pakistan (1973)---

----Fourth Sched., Legislative List, Part I, Entries 27, 43 & 54---Broad construction of Entries 27, 43 & 54 of Fourth Schedule of the Constitution would amply show that it is only the federal legislature which is empowered to impose any tax/duty or fee in respect of goods leaving or entering the country by sea or air.

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

----Art. 142(c)---Subject-matter of federal and provincial laws---Provincial legislature is empowered under Art.142(c) of the Constitution to legislate for the purposes of carriage of passengers or goods by road.

(j) Interpretation of statutes---

----Validation clause---When the main Statute itself has been declared to be ultra vires any individual section/provision providing for validation or ouster of jurisdiction cannot be sustained.

Molasses case 1993 SCMR 1905 ref.

(k) Jurisdiction---

---Jurisdiction of superior Courts are not ousted in respect of executive, or legislative actions which are completely illegal, unconstitutional and without jurisdiction.

FOP v. Ghulam Mustafa Khar PLD 1989 SC 26 ref.

(l) Sindh Finance Act (XIII of 1994)---

----Ss. 9 & 10---Sindh Finance Act (XV of 1996), S.5---Sindh Finance (Amendment) Act (XII of 2001), Preamble---Sindh Finance (Second Amendment) Ordinance (XVI of 2001), Preamble---Sindh Finance (Amendment) Ordinance (XXXVIII of 2006), Preamble---Constitution of Pakistan (1973), Fourth Schedule, Legislative List, Part I, Items 43, 24 & 54 & Art.142(c)---Vires of infrastructure fee levied by Provincial Government---Held, sections 9 and 10 of Sindh Finance Act, 1994; S.5 of Sindh Finance Act, 1996; Sindh Finance (Amendment) Ordinance, 2001 and Sindh Finance (Second Amendment) Ordinance, 2001 are ultra vires the Constitution, invalid ab initio and of no legal effect---Sindh Finance (Amendment) Ordinance, 2006 is valid and hence the levy imposed and collected from the effective date i.e. 28-12-2006 is valid and all imposition and collection before such date are invalid---Any bank guarantees/securities furnished under Ss.9 & 10 of Sindh Finance Act, 1994, S.5 of Sindh Finance Act, 1996, Sindh Finance (Amendment) Ordinance, 2001 and Sindh Finance (Second Amendment) Ordinance, 2001 for transaction before 28-12-2006 stand discharged and are liable to be returned back---All bank guarantees/securities furnished in respect of transactions after 28-12-2006 are liable to be encashed---Operation of discharge and encashment of bank guarantees/Securities, however, were suspended by the High Court for a period of sixty days so as to facilitate any party aggrieved by the present judgment from exercising its right in exhausting any further remedy available to it under the law.

H.A Rahim (Pvt.) Ltd. v. Government of Sindh and another 2003 CLC 649; Federation of Pakistan v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723; Mirpurkhas Sugar Mills Ltd v. District Council. Tharparkar 1991 MLD 715; Mirpurkhas Sugar Mills Ltd. v. District Council 1990 MLD 317; Kotri Association of Trade and Industry v. Government of Sindh 1982 CLC 1252; Saphire Textile Mills v. Government of Sindh PLD 1990 Kar. 402; G.K. Krishnan v. State of Tamil Nado AIR 1975 SC 583; I.A. Sharwani v. GOP 1991 SCMR 1041; Inamur Rehman v. FOP 1992 SCMR 563; Sindh Glass Industries Ltd v. CCI&E 1990 CLC 638; Molasses Trading v. FOP 1993 SCMR 1905; B.P Biscuits v. Wealth Tax Officer 1996 SCMR 1470; State v. Ziaur Rehman PLD 1973 SC 49; Shahtaj Sugar Mills v. Province of Punjab 1998 SCMR 2492; Pakistan Tobacco Co. Ltd. v. Province of N.-W.F.P. PLD 2002 SC 460; Elahi Cotton Mills v. FOP PLD 1997 SC 582; International Tourist Corporation v. State of Haryana AIR 1981 SC 774; Friends Diaries v. FOP PLD 1989 Lahore 337; Kohinoor Textile Mills v. FOP 2002 PTD 121; Gulf Edible Oil v. FOP 2001 RTD 3956; Providence Bank v. Billings, 4 Pet. 514, 561, 7 Led. 939, 955, (reproduced in "A Treastise on the Constitutional Limitations by M. Coley); Sh. Abdur Rehim, Allah Ditta v. Federation of Pakistan PLD 1988 SC 670; Sohail Jute Mills Limited. v. Federation of Pakistan PLD 1991 SC 329; PIDC v. Pakistan 1992 SCMR 891; Nishat Tek Ltd. v. FOP PLD 1994 Lah 347; United Provinces v. Mrs. Atiqa Begum AIR 1941 FC 16; Navinchandra Mafatlal v. C.I.T. (1954) 26 ITR 758 (SC); L.P. Varghese v. ITO AIR 1981 SC 1922; Corpus Juris Secundum Vol. LXXXIV; Pakistan Textile Mill-Owners' Association v. Administrator of Karachi PLD 1963 SC 137; East and West Steamship Co v. Collector Customs PLD 1976 SC 618; Master Foam (Pvt.) Ltd. v. Government of Pakistan PLD 2005 SC 373; Saphire Textile Mills v. Government of Sindh PLD 1990 Kar. 402; Blacks Law Dictionary; Ballentine's Law Dictionary; Khyber Electric Lamp Manufacturing Co. Ltd. v. Chairman, District Council 1986 CLC 533; Saphire Textile Mills v. Government of Sindh PLD 1990 Kar. 412; Mirpurkhas Sugar Mills Ltd v. District Council, Tharparkar 1990 MLD 317 and FOP v. Ghulam Mustafa Khar PLD 1989 SC 26 ref.

H.A. Rahim (Pvt) Ltd. v. Government of Sindh and another 2003 CLC 649 affirmed.

(m) Sindh Finance (Amendment) Ordinance (XXXVIII of 2006)---

----Preamble---Sindh Finance Act (II of 2007)---Vires of statutes---Sindh Finance (Amendment) Ordinance, 2006 as subsequently ratified into an Act of Provincial Assembly i.e. Sindh Finance Act, 2007 is a valid piece of legislation.

Dr. Farogh Naseem, Muneeb Akhtar, Ms. Sana Minims, Ms. Sofia Saeed, Kazim Hasan, Ms. Danish Zuberi, Anjum Ghani Khan, Abdul Ghafoor Mangi, Mazhar Imtiaz Lari, Muhammad Hanif Khetana, Muhammad Ali Abbasi, K.A. Wahab, Naveed Ahmed Khan, Khalid Mahmood Siddiqui, Abdul Ghaffar Khan, Muhammad Siddique Mughal, Hafeezur Rehman Chaudhry, Minhaj Farooqui, Agha Faqeer Muhammad, Abdul Qayyum, Naveedul Haque, Taha Ali Zai, M/s. Mandviwala and Zafar, Messrs Orr, Dignam and Co. for Appellants.

Rasheed Ahmed Akhund, M. Sarwar Khan, Addl. A.-G. of Sindh, Abdul Fatah Malik, Addl. A.-G. of Sindh, Adnan Karim Assistant A.-G. of Sindh, Muhammad Javed Memon Director Excise and Taxation Sindh, Qayyum Ali Pathan Excise Officer and Abdul Qadir Khan, Dy. Secretary Law, Government of Sindh for Respondents.

Dates of hearing: 26th, 27th and 28th August, 2008.

P L D 2009 Karachi 112

Before Khilji Arif Hussain and Bin Yamin, JJ

HAJI AMIN---Petitioner

Versus

PAKISTAN TRADING CORPORATION (PVT.) LTD, and another---Respondents

Constitutional Petition No.2129 of 2007, decided on 30th September, 2008.

(a) Contract Act (IX of 1872)---

----S. 2(a) & (h)---"Binding contract"---Tender for the sale or purchase of property, was not an offer, but an invitation of an offer and when accepted, it would constitute a binding contract; and unless the contract came into existence, the mutual rights and obligations would not arise.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope---Normally a constitutional petition for the enforcement of a contractual obligation, was not maintainable, however, State and a functionary acting under the State had to act in a fair and transparent manner; and if disputed questions of facts were not involved, relief, in exercise of power under Art.199 of the Constitution, in appropriate matters could not be denied, merely because issues in the matter related to contractual obligation.

Executive Engineer, Sundargrah R&B Divisions and others v. Mohan Prasad Sahu AIR 1990 Orissa 26 and Joravarmull Champalal v. Jeygopaldas Ghamshamdas AIR 1922 Madras 486 ref.

M. Anwar Tariq for Petitioner.

Salman Hamid for Respondents.

Date of hearing: 17th September, 2008.

PLD 2009 Karachi 114

Before Khalid Ali Z. Qazi, J

Ms. BEHNAZ NAUSHERWAN MARFATIA---Petitioner

Versus

ARASH BURJOR SETHNA---Respondent

Divorce Petition No.1 of 2008, decided on 28th October, 2008.

Parsi Marriage and Divorce Act (III of 1936)---

----S. 32(g)---Divorce on the plea of desertion---Delegates, statements of---Scope---Wife sought divorce on the plea of desertion and notices were issued to delegates---Out of 28 delegates, 12 were present before the court---Effect---In view of no objection raised by husband and opinion of acting delegates, court dissolved the marriage under S.32(g) of Parsi Marriage and Divorce Act, 1936---Petition was allowed in circumstances.

Khorshed Aspi Jamula v. Aspi Dossabhoy Jamula PLD 1960 (W.P.) Kar. 178 rel.

Ms. Danish Zuberi for Petitioner.

Saadat Yar Khan for Respondent.

Date of hearing: 28th October, 2008.

P L D 2009 Karachi 117

Before Zafar Ahmed Khan Sherwani, J

ABDUL REHMAN---Applicant

Versus

MUHAMMAD SHAHID QURESHI and another---Respondents

Criminal Revision Application No.83 of 2008, decided on 19th September, 2008.

(a) Illegal Dispossession Act (XI of 2005)---

----S. 3(2)---Complaint under S.3(2) of the Illegal Dispossession Act, 2005 was dismissed by trial Court on the ground that the accused was neither a member of Qabza Group nor of Land Mafia and the dispute was of civil nature---Validity---Plea of both the parties in support of their case was that they were occupying the property in question in their own rights after having purchased the same from different owners on different dates---Accused/respondent had purchased the land in dispute much after the applicant complainant and, therefore, the complainant had a prima facie case with regard to the legal possession thereon---Such fact along with police report in support of the complainant was sufficient to take cognizance of the matter under the Illegal Dispossession Act, 2005, by the trial Court---All the cases pertaining to illegal dispossession of lawful owner or an occupier would come under the pale of the Illegal Dispossession Act, 2005, except the cases pending before any other forum at the time of promulgation of the said Act---Impugned orders dismissing the complaint was, consequently, set aside being illegal and the complaint was remanded to trial court for disposal according to law.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah. 358; Iftikhar Ahmed v. Zulfiqar Ali and 3others PLD 2008 Lah. 59 rel.

Zahoor Ahmed and 5 others v. The State and 3 others PLD 2007 Lah. 231 ref.

(b) Illegal Dispossession Act (XI of 2005)---

----Preamble---Scope of Illegal Dispossession Act, 2005---Provisions of the Act are applicable in all cases of dispossession, except the cases which were pending before any other forum at the time of promulgation of the said Act.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 rel.

Mazharuddin Dehraj for Applicant.

Tawawar Ali Hashmi for Respondent.

Saifullah for the State.

Date of hearing: 12th September, 2008.

P L D 2009 Karachi 120

Before Ali Sain Dino Metlo, J

MUHAMMAD HAROON and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.61 of 2008, decided on 23rd October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 190 & 173---Bombay Presidency Police Guide---Cognizance of offence by the Magistrate---Report of investigation under S.173, Cr.P.C.---Procedure---Report of investigation under section 173 of the Cr.P.C. was to be filed either in the form of a charge-sheet, if accused was sent for trial, or in the form of a Final Report, in other cases---Final reports were classified into A': true cases,B': maliciously false cases, C': neither true nor maliciously false cases and non-cognizable cases---After re-investigation of the case, a report that no cognizable offence was made out against the accused was filed before Magistrate, who had already taken cognizance of the case on the basis of previous investigation--Trial court did not agree for disposal of the case---Validity---Court was not bound by arbitrary opinion of Investigating Officer and had to apply its independent mind to the facts and circumstances of the case---Court could take cognizance even on negative report and could refuse to take cognizance on a positive report, depending upon facts and circumstances of each case---Trial court had already taken cognizance of the case and initiated proceedings for the trial of the accused, which was his judicial act---No exception could be taken to the administrative act of not approving the report of the investigation for the disposal of case inA class' filed after about one and half year of his taking of the cognizance.

S. Lal Hussain Shah for Applicants along with Applicant No.1.

Zafar Ahmed Khan, Addl. Prosecutor-General for the State.

Date of hearing: 23rd October, 2008.

P L D 2009 Karachi 123

Before Nadeem Azhar Siddiqi, J

MUHAMMAD JAMEEL KHAN and 10 others---Applicants

Versus

MUHAMMAD ALI ZAKI KHAN and 4 others---Respondents

J.M. No.20 of 2007 in Suit No.554 of 1987 and C. M. A. No.4865 of 2007, decided on 28th August, 2008.

Civil Procedure Code (V of 1908)---

----S.12 (2)---Word "final" as appearing in S.12 (2) C.P.C.---Scope---Application for setting aside judgment and decree---Maintainability---Judgment in question was passed by High Court in exercise of original civil jurisdiction, which judgment was maintained by Division Bench of High Court in exercise of appellate jurisdiction and also by Supreme Court---Applicants had assailed the judgment before single Judge of High Court, as Trial Court---Validity---Word "final" as appearing in S.12(2) C.P.C. had been defined as last in the series of judgment, decree or order which was no longer alterable by court passing that judgment, decree or order and had attained finality---In case of appeal, decree of Trial Court, except in exceptional cases, merged in the decree passed by appellate court and was capable of execution---Merger took place irrespective of fact whether decree of Trial Court was affirmed or reversed---Judgment passed by Division Bench of High Court in exercise of appellate jurisdiction was challenged but Supreme Court merely re-affirmed the judgment of appellate court by refusing its leave to appeal---Final judgment and decree was passed by Division Bench of High Court in exercise of appellate jurisdiction---Application under S.12(2) C.P.C. filed in the Court of single Judge of High Court as Trial Court was not maintainable---Application was dismissed in circumstances.

Abdur Rehman Khan v. Muhammad Altaf and others 1997 CLC 1260; Abdul Waheed v. Pervez Akhtar and others 2005 CLC 1821; Abid Kamal v. Muddassar Musatafa and others 2000 SCMR 900; Secretary, Ministry of Religious Affairs v. Syed Abdul Majid 1993 SCMR 1171; Government of Sindh v. Ch. Fazal Muhammad PLD 1991 SC 197; Mubarak Ali v. Fazal Muhammad PLD 1995 SC 564 and Khawaja Muhammad Yousuf v. Federal Government through Ministry of Kashmir Affairs 1999 SCMR 1516 ref.

M. Qaiser Qureshi for Applicants/Petitioners.

Respondent No.1 (present in person).

P L D 2009 Karachi 126

Before Farrukh Zia G. Shaikh, J

EXECUTIVE DISTRICT OFFICER/AGRICULTURE and 3 others---Appellants

Versus

ALLANA SHAIKH and 4 others---Respondents

1st C.As. Nos.24 and 25 of 2003, heard on 24th October, 2008.

West Pakistan Civil Courts Ordinance (II of 1962)---

----Ss. 2, 5 & 7 [As amended by Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)]---Civil Procedure Code (V of 1908), S.96---First appeal---Jurisdiction of Court of District Judge---Contention of counsel for appellants was that original jurisdiction of the Court of District Judge in civil suits and proceedings would be without limit of the value thereof, except in Karachi Districts; that original jurisdiction in civil suits and proceedings of the value exceeding 5 Lac, would be exercised by the High Court; and that under provisions of S.5 of West Pakistan Civil Courts Ordinance, 1962 [as amended], all suits, appeals and proceedings of the value, not exceeding original or appellate jurisdiction of the District Judge, outside Karachi respectively in the High Court before commencement of the Sindh Civil Courts (Amendment) Ordinance, 2002, would stand transferred to concerned District Judge for disposal--- Counsel for appellants had further relied on the direction dated 28-9-2006 issued from the office of Solicitor of Sindh to the effect that appeals could be returned with the prayer to allow the same to be filed before the Court of District Judge, immediately---Held, words civil suits' andproceedings' as mentioned in S.7 of West Pakistan Civil Courts Ordinance, 1962 as amended by Sindh Civil Courts (Amendment) Ordinance, 2002 had to be given an ejusdem generis interpretation; and word "proceedings" would include the word "appeal"---Such being the case, the proper forum for appeals would be the District Court which had jurisdiction to entertain the same---District Judge, was directed to dispose of both appeals in the case within a period of three months positively and report compliance.

PLD 2002 Kar. 511; 2003 CLC 1183 and 2004 SCMR 1622 ref.

Lachmandas G. Rajput for Appellants (in Ist Civil Appeal No.24 of 2003).

Imtiaz Ali Soomro, Asstt. A.G., Sindh for Appellants (in civil Appeal No.25 of 2008).

Parya Ram M. Vasvani and Muhammad Imran Shamsi for Respondents.

Date of hearing: 24th October, 2008.

P L D 2009 Karachi 129

Before Dr. Rana Muhammad Shamim, Farrukh Zia G. Shaikh and Khawaja Naveed Ahmed, JJ

FAHAD MALIK through Attorney---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary Election Commission of Pakistan, Islamabad and 20 others---Respondents

C.P. No.D-91 of 2008, decided on 9th April, 2008.

Per Dr. Rana Muhammad Shamim, J, Khawaja Naved Ahmed, J. agreeing [Majority view]

(a) Constitution of Pakistan (1973)---

----Arts. 199 & 225---Constitutional petition---Election dispute---Efficacious remedy---Petitioner had assailed election result before High Court in constitutional jurisdiction---Validity---Once process of election had commenced, disputes relating to election were to be challenged before Election Tribunal under Art.225 of the Constitution---Eight Judges of High Court had been nominated as members of Election Tribunals, therefore, proper and efficacious remedy available with petitioner was to approach Election Tribunal---In case Election Tribunals were not constituted, petitioner could approach Election Commission for redressal of his grievance---High Court declined to interfere with the election result---Petition was dismissed in circumstances.

Mian Muhammad Nawaz Sharif v. President PLD 1993 SC 173 and Election Commissioner v. Javed Hashmi PLD 1989 SC 396 fol.

Per Farrukh Zia G. Shaikh, J -- [Minority view]

(b) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Election dispute---Setting aside of election---Grave irregularities, fraud and misrepresentation on polling day had been noticed---F.I.R. was registered against culprits who had rigged the election---Effect---High Court declared election of the constituency as null and void and ordered for re-polling and re-election of the constituency---High Court directed law enforcing agencies to take all necessary preventive measures to ensure conduct of election as free, fair, transparent and peaceful---High Court also directed Election Commission to announce date of re-election in the constituency and to de-notify result of the constituency, if the same had been announced by the Commission---Petition was allowed accordingly.

Per Khawaja Naveed Ahmed, J.--

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

----Art.199---Constitutional petition---Election dispute---Notification of election result---Effect---Notification in respect of success of respondent as returned candidate had been made and he had already taken oath in Assembly---Respondent was attending National Assembly session and had given vote for election of Prime Minister, Speaker and Deputy Speaker, thus the petition had become infructuous---Petitioner could agitate all the points mentioned in petition before Election Tribunal specially constituted for such purpose---Petition was dismissed.

Mian Muhammad Nawaz Sharif v. President PLD 1993 SC 473 and Election Commissioner v. Javed Hashmi PLD 1989 SC 396 fol.

Shafqatullah Shaikh for Petitioner.

Date of hearing: 13th March, 2008.

P L D 2009 Karachi 133

Before Arshad Noor Khan, J

Mrs. ZAIBUNNISSA---Applicant

Versus

MUHAMMAD SAJID and 2 others---Respondents

C.M.A. No.341 of 2008 in Suit No.1352 of 2004, decided on 26th August, 2008.

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

----Ss.39, 42 & 54---Cooperative Societies Act (VII of 1925), S.70---Civil Procedure Code (V of 1908), O. VII, R.11---Rejection of plaint---Mandatory notice---Cooperative Society was not initially impleaded as party to the suit but subsequently plaintiff served notice to the Society and after lapse of two months impleaded the society as defendant with the permission of court---Plea raised by Cooperative Society was that as no notice under S.70 of Cooperative Societies Act, 1925, was given prior to filing of the suit, therefore, suit was liable to be rejected---Validity---Notice under S.70 of Cooperative Societies Act, 1925, was properly served prior to impleading the Society as party to the suit---As such compliance of S.70 of Cooperative Societies Act, 1925, was already made before joining of Society as party to the suit who was joined as party much after the expiry of two months period after service of notice under S.70 of Cooperative Societies Act, 1925---High Court declined to reject the suit on such plea raised by the Society---Application was dismissed in circumstances.

Syed Sultan Ali v. Sahibzada Frogh Najam Najmi and others 2003 YLR 2216 ref.

(b) Cooperative Societies Act (VII of 1925)---

----S. 54, proviso---Arbitrator---Jurisdiction---Complicated questions of law and fact---Allegation of fraud and misrepresentation---Arbitrator cannot adjudicate upon allegations of fraud and misrepresentation allegedly committed by parties as such allegations are completely alien to S.54 of Cooperative Societies Act, 1925---When allegation of committing fraud and misrepresentation is against non-members of the Society, then arbitrator has not been assigned any power to adjudicate upon such allegations under S.54 of Cooperative Societies Act, 1925---Even otherwise proviso attached to S.54 of Cooperative Societies Act, 1925, provides suspension of proceedings before Registrar if question involving in the proceedings is a complicated question of law and facts---Registrar in such circumstances, is required to suspend proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or the Society.

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

----Ss. 39, 42 & 54---Cooperative Societies Act (VII of 1925), S.54, proviso---Civil Procedure Code (V of 1908), O.VII, R.11---Rejection of plaint---Arbitration by Registrar---Complicated question of law and fact---Allegation of fraud and misrepresentation---Cooperative Society sought rejection of plaint on the ground that suit was filed without getting mandatory arbitration under S.54 of Cooperative Societies Act, 1925---Validity---Fact of committing fraud and misrepresentation was a complicated question of fact which required evidence to be led by parties---Such question could not be effectively and satisfactorily adjudicated upon by Registrar under S.54 of Cooperative Societies Act, 1925---Cooperative Society could not press applicability of S.54 of Cooperative Societies Act, 1925, in view of the proviso, in getting the plaint rejected under O.VII, R.11 C.P.C.---Application was dismissed in circumstances.

M. Waheedullah Ansari v. Zubeda Sharif PLD 2002 Kar. 414; Amir Alik Hussain Shalwani v. Ismaili Masalwala and others 2001 YLR 2537; Messrs Super Builders v. Gulshan-e-Faisal Cooperative Society and others 2000 YLR 1385 and Tameezul Hassan v. Waheed Akhtar 2001 YLR 882 ref.

Mushtaq A. Memon along with Muhammad Ali Hakro for the Applicant.

Mrs. Soofia Saeed Shah for Respondent No.3.

P L D 2009 Karachi 139

Before Zafar Ahmed Khan Sherwani, J

Messrs PUB CORPORATION---Plaintiff

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Managing Director and 2 others---Defendants

Suits Nos.1556 of 1997 and 1135 of 1998, decided on 24th November, 2008.

(a) Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 4---Constitution of Pakistan (1973), Art.165 & 165-A---Goods brought and utilized by WAPDA in jurisdiction of Union Council---Refusal of WAPDA to pay outstanding octroi tax after making part payment to Union Council---Suit by Union Council for recovery of its outstanding dues from WAPDA---Plea of WAPDA that same being a statutory body was performing functions under control of Federal Government, thus its properties vesting in government were exempt from levy of octroi tax---Validity---WAPDA for having partly fulfilled Union Council's demand could not plead that it was not liable to pay its outstanding tax---WAPDA was not exempt from any tax and octroi under Arts. 165 and 165-A of the Constitution---High Court could not exempt WAPDA from payment of taxes and octroi by applying doctrine of lifting veil of incorporation---Suit against WAPDA was decreed as prayed for.

WAPDA v. Government of Sindh PLD 1998 Kar. 209; Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749; Qabil Shah v. Shaday PLD 1992 Pesh. 144; Union Council Ali Wahan v. Associated Cement (Pvt.) Ltd. 1993 SCMR 468 and Messrs Gadoon Textile Mills v. WAPDA 1997 SCMR 641 ref.

WAPDA v. Administrator, District Council, Swabi 2005 SCMR 487 and WAPDA v. Government of Sindh (C.P. No.660 of 1986) rel.

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

----O. VI, R.17 & O.XXX, R.10---Limitation Act (IX of 1908), S.22---Amendment of pleadings---Suit by unregistered from through its sole proprietor---Maintainability---Plaint signed and verified by plaintiff in his personal capacity, but not as sole proprietor of such firm---Plea of plaintiff was that mis-description of plaintiff in title of plaint was result of inadvertent typing mistake---Validity---Such bona fide error could be corrected by amendment in title of plaint with red ink---In view of contents of plaint including its verification clause such amendment would not involve substitution or addition of party.

Collector of Customs v. Messrs Imran Enterprises 2001 CLC 419; The Chef v. Union Cooperative Club Limited 1997 CLC 187; Province of Sindh v. Messrs Royal Contractors 1996 CLC 1205 and Messrs Karim Development .Corporation v. Messrs Razi Construction Company Limited PLD 1995 Kar. 153 ref.

Ismail Haji Sulaiman v. Messrs Hansa Line PLD 1961 Dacca 693 rel.

Bashir Ahmed for Plaintiff (in Suit No.1556 of 2997).

Abbas Ali for Defendant (in Suit No.1135 of 1998).

Badar Alam for Defendants (in Suit No.1556/1997 and for Plaintiff in Suit No.1135 of 1998).

Date of hearing: 19th October, 2008.

P L D 2009 Karachi 148

Before Syed Mahmood Alam, J

AZHAR HUSSAIN SHAH---Applicant

Versus

Messrs HARAT MANAGEMENT (PVT.) LTD. through Managing Director---Respondent

Civil Revision Application No.30 of 2007, decided on 13th October, 2008.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 24 & O.XXXVII, Rr. 1, 2, 4---Suit for recovery of money filed in High Court under O.XXXVII of C.P.C.---Framing of issues by High Court---Transfer of suit to District Judge on change of pecuniary jurisdiction of High Court---Assignment of suit by District Judge to court of Senior Civil Judge, which was not a court notified by High Court to try such suit---Fixation of case by Senior Civil Judge for recording ex parte evidence of plaintiff due to non-appearance of defendant despite issuance of notice to him---Reference of case to District Judge by Senior Civil Judge for want of jurisdiction to try such suit---Transfer of case by District Judge to court of Additional District Judge for trial and disposal as per law---Non-issuance of notice to defendant by Additional District Judge and closing of his evidence for non-appearance---Passing of ex parte decree by Additional District Judge on basis of ex parte evidence recorded Senior Civil Judge---Application under S.12(2) read with O.XXXVII, R.4 of C.P.C. by defendant for setting aside such decree during its execution---Dismissal of such application by Additional District Judge---Validity---Defendant had no knowledge of proceedings before Senior Civil Judge---Defendant was not informed or aware of administrative order of District Judge transferring suit to Additional District Judge, who, in turn, had not issued court motion notice to defendant despite being entitled thereto---High Court had not notified Senior Civil Judge to try suit under O.XXXVII of C.P.C., thus, proceedings before him were incompetent and without jurisdiction-Additional District Judge had acted illegally and without jurisdiction by relying on evidence recorded by Senior Civil Judge---High Court set aside impugned order and remanded case to District Judge for further proceedings from the stage when same was initially transferred from High Court on change of pecuniary jurisdiction.

1987 SCMR 150; Saifullah Siddiqui v. KESC 1997 SCMR 926 rel.

Nazar Akbar for Applicant.

Date of hearing: 28th August, 2008.

P L D 2009 Karachi 154

Before Muhammad Athar Saeed and Arshad Noor Khan, JJ

Messrs IBRAHIM FIBRES LTD. through Secretary/Director Finance---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary/Revenue Division and 3 others----Respondents

C.P. No. D-548 of 2008, decided on 22nd November, 2008.

Income Tax Appellate Tribunal Rules, 2005---

----R. 3---Civil Procedure Code (V of 1908), S.20(c)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appeal before Income Tax Appellate Tribunal at Lahore, pendency of--Action and inaction of Members of the Tribunal challenged by appellant in constitutional petition before Karachi High Court---Maintainability---Sealing of impugned order by Tribunal in compliance with interim order of Karachi High Court---Effect---Such compliance out of respect would not mean that Tribunal had impliedly given consent to jurisdiction of Karachi High Court---Impugned action and inaction of Members of Tribunal had taken place within territorial limits of Lahore High Court, thus, cause of section had fully arisen at Lahore---Effect of final order to be passed by Tribunal would be either to demand tax from appellant or extinguish his liability by Taxation Officer at Lahore---No person or authority based in Karachi or any part of Sindh Province could issue any demand of tax or take coercive action against appellant---Income Tax Tribunal as Federal institution was functioning through Benches in different areas assigned to them by Chairman---Lahore Bench of Tribunal was constituted to hear appeals against orders of Tax Department performing functions in Lahore---Writ of mandamus issued by Karachi High Court could not run beyond its territorial' jurisdiction---Income Tax Tribunal, Lahore Bench and its Members, Taxation Officers based at Lahore were not falling within territorial jurisdiction of Karachi High Court---Constitutional petition was dismissed in circumstances.

Messrs Al-Iblagh Ltd. Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Itehad Cargo Services v. Rafaqat Ali PLD 2002 Karachi 420; Gulzar Ahmad Khan v. The Chief Election Commissioner of Pakistan Islamabad and 7 others PLD 1997 Lah. 643; Trading Corporation of Pakistan (Private) Ltd. v. Pakistan Agro Forestry Corporation (Private) Limited and another 2000 SCMR 1703; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114; Flying Kraft Paper Mills (Pvt.) Ltd. Charsadda v. Central Board of Revenue, Islamabad and 2 others 1997 SCMR 1874; Asghar Hussain v. Election Commissioner of Pakistan and others PLD 1968 SC 387; Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Sabir Din v. Government of Pakistan through Secretary, Ministry of Defence and others 1979 SCMR 555; Abdul Ghaffar Lakhani v. Federal Government of Pakistan and 2 others PLD 1986 Kar. 525; Mst. Shahida Maqsood v. President of Pakistan through Secretary, Law Justice and Human Rights 2004 CLC 565; Subhan Beg and 18 others v. Pakistan State Oil Co. Ltd. Rawalpindi PLD 1980 Kar. 113; Zafar Ali Shah's case PLD 2000 SC 869; Messrs Facto Belarus Tractors Ltd. Karachi and another v. Federation of Pakistan PLD 2006 Kar. 479 and Collector, Customs and Central Excise, Peshawar v. Messrs Rias Khan Ltd. 1996 SCMR 83 ref.

Khawaja Shamsul Islam and Jawed Zakaria for Petitioner.

Aqeel Ahmed Abbasi for Respondents Nos. 1 to 5.

Shahid Jamil Khan for Respondents Nos.9, 10 and 12 to 14.

Ikram Ahmed Ansari for Intervernor.

G.N. Qureshi, DAG for the State.

P L D 2009 Karachi 169

Before Arshad Noor Khan, J

Messrs SHADMAN COTTON MILLS LTD. through Director---Plaintiff

Versus

FEDERATION OF PAKISTAN through the Chairman Central Board of Revenue (Revenue Division), Islamabad and another---Respondents

Civil Suit No. 979 of 2003 and C.M.A. No.9172 of 2007, decided on 17th November, 2008.

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

----Ss. 19 & 217---Sales Tax Act (VII of 1990), S.13(2)(a)---Civil Procedure Code (V of 1908), S.9 & O. VII, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Plaintiff's claim for declaring its imported goods to be exempt from levy of customs duty and sales tax by challenging vires of subsequent withdrawal of exemption S.R.O. issued at relevant time---Validity---Government under special statutes (i.e. Customs Act, 1969 and Sales Tax Act, 1990), in exercise of its delegated powers, could issue notifications regarding incentive or imposition or withdrawal of customs duty and sales tax---Such delegated powers of Government could not be checked or limited by filing declaratory suit under S.42 of Specific Relief Act, 1877---No provision of such special statutes could be made dormant or redundant by filing a declaratory suit---No provisions of such special statutes or notifications issued thereunder could be checked or examined on any ground in civil. Courts---Complete mechanism for claiming such relief was provided in both such special statutes and in case of its refusal by relevant authority, plaintiff could avail remedies provided thereunder---Such suit was completely barred by S.217 of the Customs Act, 1969---Plaint in such suit was rejected under O. VII, R.11, C.P.C.

Messrs Shafiq Textile Mills Ltd. Karachi v. Federation of Pakistan and others 2007 PTD 1480; Messrs Rohi Ghee Industries (Pvt.) Ltd. v. Collector of Customs and others 2007 PTD 878 and Messrs Binaco Traders v. Federation of Pakistan and others 2006 PTD 1491 ref.

(b) Interpretation of statutes---

----Special law would normally prevail over ordinary law of land.

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

----S.42---Customs Act (IV of 1969), S.19---Sales Tax Act (VII of 1990), S.13(2)(a)---No provision of special statute can be made dormant or redundant by filing a declaratory suit.

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

----O. III, R. 2, O. VII, R. 11 & O. XXIX, R.1---Suit by Corporation through its Director---Non-filing along with plaint power of attorney in favour of such Director or resolution of Board of Directors authorizing him to sign, verify and present plaint---Effect---Plaintiff had not presented plaint through a proper agent or attorney---Plaint was rejected under O.VII, R.11, C.P.C.

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

----S.42---Customs Act (IV of 1969), S.19---Sales Tax Act (VII of 1990), S.13(2)(a)---Civil Procedure Code (V of 1908), O. VII, R.11--Constitution of Pakistan (1973), Art. 199---Suit for declaration---Vires of notifications issued under Customs Act, 1969 and Sales Tax Act, 1990 challenged in such suit after dismissal of constitutional petition filed thereagainst in High Court---Effect---Vires of such notifications could not be challenged in a civil suit---Plaint in such suit was rejected under O.VII, R.11, C.P.C.

Nishat Mills Limited v. Federation of Pakistan and other reported in 2005 PTD 495 rel.

None present for Plaintiff.

Raja Muhammad Iqbal for Defendant No.1.

S. Tariq Ali, Standing Counsel.

P L D 2009 Karachi 176

Before Munib Ahmad Khan, Ali Sain Dino Metlo and Nadeem Azhar Siddiqi, JJ

Syed TAHIR HUSSAIN MAHMOODI and 7 others-Plaintiffs

Versus

TAYYAB and 9 others---Defendants

Suit No.1385 of 2006, decided on 24th December, 2008.

(a) Administration of justice---

----Judicial bias---Test---Principles---Judge is not disqualified to hear a case simply because he had expressed his opinion on similar questions .of fact and law while deciding a similar case earlier---Principles.

Whether the test be real danger of bias' orreal possibility of bias' or `reasonable apprehension of bias', as had been applied at different times, and whether the test be applied by the arbiter himself, or by an informed and fair--minded observer in court or by a casual observer, the question is whether a Judge, who has expressed his opinion on a question of fact or of law while deciding a case, will lose open-mindedness and objective impartiality and will be disqualified to decide any other case of similar nature.

If the proposition is accepted, then a Judge can decide only one case of a kind in his life. He cannot decide second case of similar nature at any subsequent time. The necessary consequence will be that for every second case of similar nature, a separate Judge will have to be appointed, which will be an impossibility in a litigious society of the present day.

The law of precedent does not bind a Judge to repeat his mistakes. A Judge, who is supposed to be open to advice, can always be persuaded to reconsider his previous decisions in the light of correct position of law and dictates of justice. Instances are not lacking where the superior courts, including the Supreme Court, have revisited and changed their previous decisions. If the Judge had not considered the law laid down by the Supreme Court at the time of passing the previous order, he can very well be persuaded to consider the same at the time of deciding the application in the present case and his previous decision, if per incurium, will not be binding upon him.

Open-mindedness does not mean empty mind. A person cannot be free from the influences of the society in which he lives.

The human mind, even at infancy, is no blank piece of paper. We are born with predispositions, and the process of education, formal or informal, creates attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices. Without acquired slants and preconceptions, life could not go on. Every habit constitutes a prejudgment; were those prejudgments, which we call habits, absent in any person, was he obliged to treat every event as an unprecedented crisis presenting a wholly new problem, he would go mad. Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. To live is to have a vocation, and to have a scheme of values is to have a point of view, and to have a point of view is to have a prejudice or bias.

Rarely, if any, in the absence of injudicious or intemperate behaviour, can a Judges previous activity, as such, gives rise to an appearance of bias. Over a time, of course, Judges acquire a track record, and experienced advocates may be able to predict with more or less accuracy how a particular judge is likely to react to a given problem. Since Judges are not automat this is inevitable, and presenting a case in the way most likely to appeal to a particular tribunal is a skill of the accomplished advocate. But adherence to an opinion expressed judicially in an earlier case does not of itself denote a lack of open-mindedness; and there are few experienced Judges who have not, on fresh argument applied to new facts in a later case, revised an opinion expressed in an earlier. In practice as the case shows, problems of apparent bias do not arise where a Judge is invited to revisit a question on which he or she has expressed a previous judicial opinion, which must happen in any developed system, but problems are liable to arise where the exercise of judicial functions is preceded by the exercise of legislative functions.

It is the era of specialization. A Judge, who has gained experience of deciding a particular category of cases, can understand and deal with the other cases of same category more efficiently. It will be better if his experience is utilized in deciding cases of similar nature instead of preventing him from dealing with such cases and thereby wasting his expertise. By this is not suggested that cases should be decided only on the basis of expertise of a Judge unshared with the bar as that may amount to moving the doing of justice from the Court to the Chamber. A Judge should be more advised than learned.

A Judge is not disqualified to hear a case simply because he has expressed his opinion on similar questions of fact and law while deciding a similar case earlier.

R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2) (1999) ALL ER (HL) 577 distinguished.

Tufail Suteria and another v. Tariq Mumtaz and others 2008 YLR 738; Porter and another v. Magill (2001) UKHL 67; Rt. JP Linahan, Inc. (138 F.20.650); Bias on Appeal published in Public Law 2005, p. 227 and Davidson v. Scottish Ministers (2004 UKHL 34) ref.

(b) Bias in a Judge---

----Test---Principles.

Naeem-ur-Rehman and Khursheed Jawed for Plaintiffs.

Rasheed A. Rizvi and S. Haider Imam Rizvi for Defendants Nos. 1 to 4.

S. Afsar Ali Abidi for Defendant No.3.

Tahawwar Ali Khan and Muhammad Iqbal Memon for Defendant No.8.

Date of hearing: 17th September, 2008.

P L D 2009 Karachi 183

Before Sajjad Ali Shah, J

Mian SHIRAZ ARSHAD---Petitioner

Versus

Mst. TAZEEN ARIF ALI KHAN and others---Respondents

C.M.As. No. 1634 and 1635 of 2008 in Constitutional Petition No.S-222 of 2008, decided on 27th October, 2008.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 25-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Family cases pending in Family Court---Application by wife to District Judge for transferring such cases to another court by levelling allegations against Judge, Family Court already seized with the matter---Transfer of such cases by District Judge to another Family Court through an administrative order---Validity---District Judge had no such powers, which High Court had under S.25-A of West Pakistan Family Courts Act, 1964 to transfer any case from one Family Court to another Family Court in same district or other District---District Judge should have either returned such application to respondent for want of jurisdiction or referred matter to High Court after calling comments from concerned Family Court---District Judge had not adopted any of such two courses, but had misused his administrative powers by circumventing specific provision of S.25-A of West Pakistan Family Courts Act, 1964---Misuse of administrative powers in such manner would shake confidence of litigants upon court and fair administration of justice besides giving an impression of its partiality---Both parties had levelled allegations against Family Court seized with the matter---High Court with consent of parties transferred such cases to another Family Court.

(b) Administration of justice---

----Administrative powers of court, exercise of---Scope---Exercise of such powers by circumventing specific provision of law would shake confidence of litigant upon court and fair administration of justice besides giving an impression of its partiality---High Court emphasized on avoidance of such practice.

Ali Mumtaz Shaikh for Petitioner.

Iftikhar Jawed Kazi for Respondents Nos. 1 and 2.

Asadullah Baloch for Respondents Nos. 3 and 4.

P L D 2009 Karachi 186

Before Gulzar Ahmed, J

Syed MUHAMMAD KHALID---Plaintiff

Versus

PROVINCE OF SINDH through Secretary Land, Karachi and 2 others---Defendants

Suit No.87 of 2005, decided on 5th November, 2008.

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

----O. VII, R. 11---Rejection of plaint---Maintainability of suit, question of---Material to be considered by court---Scope---Court would examine plaint to find out whether facts stated therein provided cause of action to plaintiff and suit could be maintained on basis thereof---Plaintiff had to sustain its claim on strength of plaint and documents filed therewith, but in order to meet ends of justice, admissions made in written statement could be referred to in discussion---Principles.

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

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S.107---West Pakistan Land Revenue Act (XVII of 1967), S.42---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and injunction---Lease Deed for 99 years executed in plaintiff's favour regarding suit plot on basis of Deh Form-VII by its alleged owner---Such Form not finding mention of nature of holding of land by its alleged owner---Effect---Lessor in order to make a lease or sub-lease of 99 years must have with him similar right of lease or perpetual ownership to transfer land of lease or sub-lease to lessee---Such Form would not create right ownership or any other right in favour of its alleged owner---Lease Deed of 99 years executed on basis of such Form would not confer any right in favour of plaintiff-lease as none was possessed by its alleged owner ­lessor---Plaintiff had failed to make out a case of ownership of suit plot on basis of such Form to substantiate his cause of action---Plaint was rejected in circumstances.

PLD 1998 Lah. 233; 1987 MLD 305; 2003 YLR 233; AIR 1960 SC 1373; PLD 1964 SC 106; PLD 2004 Kar. 269; 2003 YLR 1491; PLD 1971 SC 114; 2002 CLC 1464; PLD .1967 Dacca 145; PLD 1979 SC 890; 2005 MLD 13; 2005 MLD 986; 1982 CLC 473; 1993 MLD 2464; 2000 CLC 623; PLD 1975 Kar. 979 and 2003 CLC 1498 ref.

Bahadur Khan v. Qabool Ahmed 2005 CLC 1937 rel.

Rana Muhammad Khan for Plaintiff.

Nafees Ahmed Usmani, A.A.-G. Sindh.

Ahmed Pirzada for Defendant No.1.

Tahwar Ali Khan for Defendants Nos. 2 and 3.

P L D 2009 Karachi 191

Before Ali Sain Dino Metlo and Khawaja Naveed Ahmed, JJ

NAZEER AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. D-86 of 2007, decided on 13th October, 2008.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Benefit of doubt---Police witnesses---Complainant as investigating officer---At the time of recovery from accused, investigating officer did not associate private persons as recovery witnesses and only relied upon his subordinates and furthermore he himself registered the complaint and investigated the case---Validity---Investigating officer of police or such other force, under S.25 of Control of Narcotic Substances Act, 1997, was not authorized to exclude independent witnesses nor it did away with principle of producing the best of available evidence-While keeping provisions of S.103, Cr.P.C., which were salutary intact for searches in respect of all other things, the legislature considered it expedient to do away with requirement of calling upon respectable persons to attend and witness search in respect of narcotics---Provisions of S.25 of Control of Narcotic Substances Act, 1997, were a departure from general law of land and appeared to be outcome of an expediency so as to give a free hand to police and other forces while dealing with cases involving narcotics---By excluding applicability of S.103, Cr.P.C. in narcotic cases, legislature had not conferred any additional or extra sanctity upon officers of police or such other forces---Seizing officer excluded independent persons to act as witnesses of arrest and recovery and chose two of his subordinates to act as attesting witnesses, who too did not support prosecution case---Seizing officer himself acted as investigating officer and Trial Court finding him innocent acquitted one of the two persons sent for trial---High Court declined to maintain conviction and sentence awarded to accused by Trial Court, as accused was entitled to benefit of doubt---Appeal was allowed in circumstances.

Ali Hassan v. The State PLD 2001 Kar. 369; Pir Bux v. The State 2007 MLD 1696 and The State v. Bashir and others PLD 1997 SC 408 rel.

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

----Ss.103 & 161---Recovery witness---Omission to record statement of such witness---Effect---Omission to record statement of witness under S.161, Cr.P.C. creates a serious doubt about his presence at the time of alleged recovery.

(c) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss.103 & 161---Appreciation of evidence---Recovery witness---Non recording of statement under S.161, Cr.P.C,---Cross-examining the witness on next date of hearing---Effect---Recovery witness was required to be examined on the same day so that one might not be able to know answers given by others in cross-examination---In absence of statement under S.161, Cr.P.C. of recovery witness and recording of his evidence much later after recording complainant's evidence, accused was deprived to some extent, of his right of effectively cross-examining him---No weight could be given to evidence of such witness particularly when he was subordinate of complainant.

(d) Criminal trial---

----Investigating officer---Duties---Justice is to be done not only in courts, but every person particularly one who is entrusted with public power is required to do justice at his level---Officer of police or such other force, invested with enormous powers, is also obliged in law to do justice and conduct investigation fairly and independently---Such officer is required to collect and preserve all relevant evidence, even if it be favourable to accused.

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

----S. 154---Registration of case and investigation---Principles---Officer, who is himself complainant in the case cannot be expected to collect and preserve evidence, which goes against his case---Such investigating officer cannot properly perform duties of an independent and fair investigating officer.

(f) Police Rules, 1934---

----R. 25.2, para. 3---Investigating officer, duty of---Scope-.--Duty of an investigating officer to find out the truth and his object should be to discover actual facts---For achievement of such object, investigating officer should not commit himself prematurely to any view of the facts for or against any person.

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

----Arts. 117 & 120---Criminal trial---Charge, proving of---Burden of proof---Principles--Burden is upon prosecution to-prove charge against accused beyond reasonable doubt and not upon accused to prove his innocence---Law presumes an accused innocent till proved guilty and does not presume an accused guilty till proved innocent.

Abdul Qadir Halepota for Appellant.

Ashfaq Hussain Rizvi, Special Prosecutor ANF (present on 11-9-2008 and 24-9-2008 and absent on 13-10-2008).

Dates of hearing: 11th, 24th September and 13th October, 2008.

P L D 2009 Karachi 198

Before Zafar Ahmed Khan Sherwani and Bin Yamin, JJ

KHADIM HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-57 of 2005, decided on 15th October, 2008.

Penal Code (XLV of 1860)---

----Ss. 302, 337-A(ii), 337-F(v) & 460---Qanun-e-Shahadat (10 of 1984), Art. 22---Appreciation of evidence---Identification parade---Un-known accused---Recovery of weapon of offence and crime empties---Non-­sending of weapon and empties to Forensic Science Laboratory---Effect---Out of twelve culprits, accused was arrested and put to trial and was convicted and sentenced by Trial Court---Plea raised by accused was that prosecution had failed to prove his presence at the place of offence---Validity---Twelve culprits participated in commission of offence at about 6 a.m. and there was no evidence that accused was previously known to complainant, therefore his identification required corroboration---Name of accused was given in F.I.R. by complainant under S.161, Cr.P.C. after eleven days, in such circumstances it was the duty of prosecution at least to hold an identification test before some Judicial Officer immediately after recording arrest, in order to confirm his identity but prosecution failed to do the same---Arrest of accused and recovery of rifle on his pointation was also not supported by both the private witnesses when they were examined to prove such facts---Neither rifle nor empties secured from place of incident were sent to Forensic Science Laboratory for certification that both match with each other---Such recovery of rifle on pointation of accused, even if proved on the basis of evidence of Investigating Officer, had no nexus with commission of offence by accused---Conviction and sentence awarded by Trial Court was set aside and accused was acquitted---Appeal was allowed in circumstances.

Asif Ali Abdul Razak Soomro for Appellant.

Azizul Haque Solangi, Asstt. A.-G.

Date of hearing: 15th October, 2008.

P LD 2009 Karachi 203

Before Anwar Zaheer Jamali, C. J. and Syed Pir Ali Shah, J

Mufti MUHAMMAD SHARIF SARKI---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Government of Sindh, Auqaf, Religious, Minorities Affairs, Zakat and Ushr Department and 3 others---Respondents

Constitutional Petition No.D-1519 of 2008, decided on 3rd November, 2008.

Zakat and Ushr Ordinance (XVII of 1980)---

----Ss. 16 & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Chairman, District Zakat and Ushr Committee, office of---Appointment of petitioner as District Chairman for three years---Removal of petitioner from such office during his tenure and appointment of respondent in his place for unexpired term by order of Chairman Provincial Zakat Council---Validity---Legislature had divested Provincial Council from its power to remove Chairman or Member of District Committee---Both Chairman Provincial Council and Central Council had ceased to hold such power---Impugned orders were violative of principles of natural justice, illegal, mala fide and coram non judice---High Court set aside impugned order and reinstated petitioner as Chairman, Zakat and Ushr Committee.

Allauddin Akhtar v. Government of Punjab 1982 CLC 515; Hadia and others v. EDO Education and others 2007 PLC (CS) 703; Shabbir Ahmed v. Government of Sindh 2002 PLC (CS) 233; Sher Afzal Khan v. Federation of Pakistan 2003 PLC (CS) 736; Dr. Muhammad Arslan v. Chancellor Quaid-e-Azam University, Islamabad 2004 SCMR 1419; Ch. Muhammad Bux v. Government of Punjab PLD 1989 Lah. 175; Prof. M.A. Saeed v. Secretary Education Punjab 1992 PLC (CS) 259; G.M. Malik v. Province of Punjab 1990 CLC 773; Dr. Aftab Ahmed v. University of Engineering & Technology 2005 PLC (CS) 80 and Nasir Trading Company v. Provincial Transport Authority Balochistan PLD 1979 Quetta 45 ref.

M.M. Aqil Awan for Petitioner.

Masoor A. Noorani, Addl. A.-G. for Respondents Nos. 1 to 3.

Akhtar Ali Mahmood for Respondent No.4.

P L D 2009 Karachi 212

Before Muhammad Athar Saeed and Arshad Noor Khan, JJ

LAL MUHAMMAD alias HAJI LALOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.76 of 2008, decided on 30th October, 2008.

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

----S. 167---"Prison"---Meaning---Word "prison" includes any other public building or a place other than the place where only convicted prisoners or under trial prisoners are kept.

Black's Law Dictionary 6th Edn. P.1194 rel.

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

---S. 167 proviso---Word "prison"---Connotation---Lock-up at police station---Scope---Condition of sunset and sunrise--Applicability---Word "prison" as used in proviso to S.167, Cr.P.C., cannot be used for exclusive meaning of place where only convicted or under trial prisoners are kept but it may also be given effect to other public building for keeping prisoners---Police station has lock-up within its boundaries to keep prisoners and such lock-up may also be treated as prison to give effect to the word "prison" used in S.167, Cr.P.C.---If lockups are included in the definition of prison, then interpretation of proviso to S.167, Cr.P.C. is not difficult to say that police officer/official cannot take out custody of prisoner in between sunset and sunrise from lock-up also.

(c) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Recovery of 160 kilograms of Charas---Chemical examination report--Police witnesses---Authorities recovered 160 kilograms of Charas on the pointation of accused and Trial Court convicted accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life---Plea raised by accused was that only 20 grams of Charas' was taken into consideration by Chemical Examiner, therefore, case of accused fell under S.9(a) of Control of Narcotic Substances Act, 1997---Accused further raised the plea that no witness from public was associated in recovery proceedings---Validity---Heavy quantity of Charas secured at the instance of accused was not mandatorily required to be sent to Chemical Examiner---Only samples of contraband Charas and its positive report was sufficient to hold whole recovery as Charas---In lengthy cross-examination conducted on prosecution witnesses no material had been fished out to prove that prosecution witnesses possessed any animosity against accused to implead him falsely---Evidence of prosecution witnesses being police officials could not be excluded from consideration in view of S.25 of Control of Narcotic Substances Act, ,1997, as that provision of law was completely different in nature from provisions of 5.103, Cr.P.C.---Accused failed to point out any material contradictions in testimony of prosecution witnesses so as to extend its benefit to him---Minor or trivial contradictions in testimony of prosecution witnesses were not sufficient to reflect on their bona fides, which discrepancies were bound to occur due to lapse of considerable time---Trial Court rightly apprised evidence brought on record before it and its judgment did not suffer from any illegality, irregularity, misreading or non-reading of evidence available on record so as to interfere in it--High Court also declined to modify the sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

SCMR 881; Nasrullah v. The State PLD 2001 Pesh. 152; Arshad Mahmood v. The State PLD 2008 SC 376; Muhammad Younas v. Mst. Perveen alias Mano 2007 SCMR 393; Karl John Joseph v. The State PLD 2004 SC 394; Zafar v. The State 2008 SCMR 252; Muhammad Hashim v. The State PLD 2004 SC 856; Waris Khan v. The State 2006 SCMR 1051; Fida Jan v. The State 2001 SCMR 36; Nadir Khan and another v. The State 1988 SCMR 1899 and Ali Muhammad v. The State 2003 SCMR 54 ref.

(d) Criminal trial---

----Investigation---Unauthorized officer---Defect in remand---Scope---Trial cannot be vitiated merely for the reason that case was investigated by an officer not authorized to do so---Court is required to determine guilt or innocence of accused only on the basis of evidence produced before it irrespective of the manner in which it was brought before the court--Defect in remand of accused to police custody is a technicality not sufficient to vitiate the whole proceedings against accused.

(e) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Appreciation of evidence---Recovery of 160 kilograms of Charas---Old age of accused---Sentence---Effect---Authorities recovered 160 kilograms of Charas on the pointation of accused and Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life---Accused sought reduction in sentence on the ground that he was old man of 71 years of age and was suffering from ailment and had been confined in jail from the date of his arrest which was a long time back---Validity---Looking to his old-age, infirmity and ailment, accused was entitled for concession in his sentence but he failed to produce any medical evidence to show that he was suffering from such a chronic disease which could not be treated inside jail and old age, infirmity and ailment were sufficient grounds under law so as to extend its benefit to accused in reduction of his sentence---Despite sympathetic consideration, in view of heavy quantity of Charas secured at the instance of accused, High Court did not find it a fit case of reduction of sentence.

Muhammad Ilyas Khan for Appellant.

Ashfaque Hussain Rizvi, Spl. Prosecutor, ANF for the State.

Dates of hearing: 15th, 23rd and 30th October, 2008.

P L D 2009 Karachi 227

Before Gulzar Ahmed, J

AL-HOQANI SECURITIES AND INVESTMENT CORPORATION (PVT.) LTD. and another---Plaintiffs

Versus

NATIONAL CLEARING COMPANY OF PAKISTAN LTD. and 2 others---Defendants

Suit No.1690 of 2008, decided on 18th December, 2008.

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

----O. I, R. 10---"Dominus litis" principle of---Applicability---Scope.

The principle of "dominus litis" means that it is within the domain of plaintiff to choose the defendants in suit, and no party is to be added as defendant whom the plaintiff does not wish to be added.

The principle of "dominus litis" will be applicable to a person not connected with the cause of action of the suit and who is total stranger to proceedings, but not to the person, who is directly to be affected by the proceedings of the suit.

Moti Ram Roshan Lal Coal Company (P.) Ltd: v. District Committee Dhanpat AIR 1962 Patna 357; Altaf Parekh v. Delments Construction Company 1992 CLC 700 and Atid Navigation Co. Ltd. v. Fairplay Towage and Shipping Co. Ltd. [1955] 1 All. ER 698 ref.

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

----S. 39---National Clearing Company of Pakistan Regulations, 2003, Reglns. 7.4.1., 7.4.2. & 7.4.3.---Clearing Houses (Registration and Regulation) Rules, 2005, R.12---Civil Procedure Code (V of 1908), O.I, R.10(2)---Suit for rescission of CFS MK-II contract for being frustrated---Plaintiff being financee under such contract and member of Stock Exchange---Parties impleaded in suit as defendants being National Clearing Company, Karachi Stock Exchange and Securities and Exchange Commission of Pakistan---Application for impleading applicant as defendant in suit for having provided finance under such contract and to be affected by final decision in suit---Validity---Stock Exchange though having security and margin deposit was only facilitation agent between two participants and was not beneficiary or having any stake of its own in such transaction---Stock Exchange provided one window operation for such transaction and had to follow Regulations and terms of agreement between participants---Authorised financiers in such suit would be directly affected even though they might have recourse to security in custody of Stock Exchange---Case of applicants was that security in custody of Stock Exchange would not be sufficient to meet loss being incurred in market day to day---Applicants seemed to be connected with cause of action of suit and were not total strangers---Cause of action as claimed by plaintiff would show that applicants were necessary party to suit---Applicants were joined in such as defendants.

Uzin Export Import Enterprises for Foreign Trade, Karachi v. Union Bank of Middle East, Karachi PLD 1994 SC 95; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Dr. Saleem Javed v. Mst. Fozia Naseem 2003 SCMR 965; Province of Punjab v. Kavi Engineering (Pvt.) Ltd. 2007 MLD 89 and Messrs Jans Caterers v. Islamic Republic of Pakistan PLD 1972 Lah. 169 ref.

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

----O. I, R.10(2)---Addition or deletion of parties in suit---Powers of court---Scope.

Provision of sub-rule (2) of Rule 10, Order I, C.P.C. deals with the matter of, adding or deleting plaintiff and defendant in suit and empowers the court with judicial discretion in this regard. It lays down two situations where such power may be exercised. Firstly, when court comes to the conclusion that a party who ought to have been joined is not before it and secondly, whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit.

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

----O. I, Rr. 1 & 3---Plaintiff and defendant in suit, joinder of---Scope---For such purpose, facts of case would be looked into along with cause of action upon which a decision could reasonably be made---Principles.

The question relating to joinder of parties in the suit is always based upon peculiar facts and circumstances of each case and no specific rule as standard procedure can be applied for each case. To ascertain as to who should or should not be plaintiff and defendant in the suit, the facts of that very case have to be looked into with cause of action upon which a decision can reasonably be made in this respect.

Abdul Hafeez Pirzada, Munir A. Malik, Abdul Sattar Pirzada, Rana Ikramullah, Usman Hadi and Adnan Chodhary for Plaintiffs.

Ejaz Ahmed for Defendant No.1.

Munib Akhtar and Rashid Anwar for Defendant No.2.

Makhdoom Ali Khan for Defendant No.3 along with Ms. Nitasha Jehangir, Dy. Director Law, SECP.

Abid S. Zuberi along with Muhammad Umar Lakhani for Applicant/Intervenor.

Kazim Hassan for Applicants/Intervenor.

Aamir Raza Naqvi, D.A.-G.

P L D 2009 Karachi 235

Before Gulzar Ahmed, J

Messrs SUNLEY DEVELOPERS PRIVATE LIMITED through Authorised Officer, Karachi---Plaintiff

Versus

Messrs MUMAIR ASSOCIATES through Attorney and others---Defendants

Suit No.9 and C.Ms. Nos.53 and 2790 of 2008, decided on 31st December, 2008.

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

----O. VII, R.11---Specific, Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Rejection of plaint---Scope---Giving a notice for filing of such suit though was not a requirement of law but prudency required that giving of notice be adverted to before entering upon costly and time consuming affair of litigation---Exchange of notice and reply, in many cases may bring parties to some agreeable solution of the dispute or at least narrow down contentious issues between them and also, crystallize their respective stands on point or points on which disagreement existed---Such course would facilitate Court proceedings as it would only address narrowed controversy and answer to same---No specific law having been cited for giving of a notice before filing of the suit for specific performance of contract, therefore, question of rejection of plaint under O.VII, R.11, C.P.C. on such issue, could not be considered.

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

----O. VII, R.11---Specific Relief Act (I of 1877), S.12---Limitation Act (IX of 1908), .Art.1'13---Suit for specific performance of contract---Limitation---Rejection of plaint---Scope---While dealing with the question of rejection of plaint under O.VII, R.11, C.P.C. the contents of the plaint were to be assumed to be correct and same would be rejected if it was shown that the plaint on its face was barred by law of limitation---Where the plaint on its face did not show that same was barred by limitation, its rejection would not be justified---Principles.

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

----O. VII, R.11---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Rejection of plaint---Scope---Agreement to sell revealed that all the items on which grievances had been raised by the plaintiff were to be undertaken by the plaintiff itself and none by the defendant---Heading of the agreement though mentioned same to be an "agreement to sell" but its reading showed that it was not so but was a complete conveyance of the land by defendant to the plaintiff with giving of irrevocable general power of attorney for selling of the plots and recovery of sales proceeds and making of sub-leases in favour of prospective purchasers---Held, to the extent what was read from the agreement itself and complaints made in the plaint, there seemed to be no cause of action for filing of the suit by the plaintiff---Application under O.VII, R.II, C.P.C. was allowed.

1986 SCMR 497; PLD 1987 Kar. 132; PLD 1985 SC 153; PLD 1987 Kar. 292; 2001 CLC 946 and 1988 CLC 722 ref.

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

----O. VII, R.11---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Lease---Rejection of plaint---Scope---Agreement, though showed selling of 950 residential plots but their exact location was mentioned to be partly in specified survey numbers and as to where the remaining part of the land was situated, the agreement was altogether silent---Except for there being a covenant from the side of the defendant that it had a subsisting lease of land, no particulars or details were given about purported lease as to from whom it was obtained, what was its date, its nature, right given under it and to what specific land it related; agreement and plaint were altogether silent on this aspect of the matter---Where a document which, in the present case, was agreement to sell purported to have conveyed the land of 950 plots by the defendant to the plaintiff, it had to mention full particulars and details of the lease---Even the copy of purported lease was not attached with the plaint nor was available on record which would lead to the only inference that there was no existence of lease of the suit land---Application under O.VII, R.11, C.P.C. was allowed.

Muhammad Sadiq Hidayatullah for Plaintiff.

Nazar Akbar for Defendant No.1.

Nemo for Defendants Nos.2, 3 and 5.

P L D 2009 Karachi 243

Before Anwar Zaheer Jamali, C.J. and Ghulam Dastagir A. Shahani, J

HABIBULLAH NIAZI---Petitioner

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Ministry of Interior, Pakistan Secretariat, Islamabad and 2 others---Respondents

C.P. No.D-980 of 2008, decided on 20th November, 2008.

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

----S. 2---Constitution of Pakistan (1973), Arts.199 & 15---Constitutional petition---Criteria for placement on Exit-Control List---Where the criteria drawn for placement on Exit Control List had not been met in the case of a person, placement of his name on such list, was, prima facie, unjustified and amounted to denial of his right guaranteed under Art.15 of the Constitution---Any arbitrary action of the Government functionaries depriving a citizen from his legitimate rights could not be sustained unless sufficient material was produced before the Court for examination to justify that such action was in accordance with law.

Government of Pakistan and another v. DADA Amin Haider Khan PLD 1987 SC 504; Wajid Shamsul Hasan v. Federation of Pakistan PLD 1997 Lah. 617; Khan Muhammad Mehar v. Federation of Pakistan PLD 2005 Kar. 252 and Hashmat Ali Chawla v. Federation of Pakistan PLD 2007 Kar. 705 fol.

Z.U. Mujahid for Petitioner.

Aamir Raza Naqvi, D.A.-G. for Respondents.

P L D 2009 Karachi 247

Before Abdul Rasheed Kalwar, J

Haji UMER and 2 others-Applicants

Versus

PROVINCE OF SINDH through Secretary, Revenue Department, Karachi and 5 others-Respondents

Civil Revision Application No.60 of 2007, decided on 18th February, 2009.

Limitation Act (IX of 1908)---

----Ss. 3, 12(5) & Art.152---Sindh Chief Court Rules, R.331---First appeal---Impugned judgment was passed on 27-11-2006---Decree was prepared on 30-11-2006---Application for obtaining certified copies of judgment/decree was made on 5-12-2006---Copies were prepared on 13-12-2006 and delivered on 19-12-2006---Appeal was filed on 11-1-2007---Dismissal of appeal for being barred by time---Plea of appellant was that Copying Branch had not intimated him about readiness of copy on 13-12-2006, thus, time elapsed between 13-12-2006 till 19-12-2006 should have been treated as consumed in obtaining copies---Validity---Section 12(5) of Limitation Act, 1908 and R.331 of Sindh Chief Court Rules provided that appellant had a right of notice about date on which copies were to be ready for delivery---Appellant in absence of such notice could not be made responsible to explain delay caused between date of preparation and date of delivery of copies--Time in such case consumed between date of such application and date of delivery of copies would be deemed as time requisite for obtaining copies---High Court set aside impugned order while treating appeal to have been filed within time.

Mst. Rukhsana Ahmed v. Tariq Ataullah PLD 1977 Kar. 564 ref.

Mirza Muhammad Ishaq and other's v. Additional Settlement

Commissioner Lands and others 2005 SCMR 973 and Messrs Pak Suzuki Motor Co. Ltd. v. Haji Ahmed Shaikh and another 2005 CLC 680 rel.

Abdul Shakoor A. Abbasi for Applicants.

Nemo for Respondents Nos. 1 to 5.

Farooque Hashim for Respondent No.6.

Date of hearing: 18th February, 2009

P L D 2009 Karachi 252

Before Zafar Ahmed Khan Sherwani, J

Syed ABDULLAH ABIDI---Plaintiff

Versus

Mst. HAJRA ABIDI and another---Defendants

Suit No.1058 of 2005, decided on 3rd March, 2009.

(a) Transfer of Property Act (IV of 1882)---

----Ss. 123 & 129---Gift under statutory law and Islamic Law---Distinction stated.

The requirement of a valid gift are somehow different as compared to statutory law as provided under section 123 of the Transfer of Property Act, 18$2, under which execution of such document in presence of two attesting witnesses is mandatory besides its registration. However, section 129 of the said Act is an exception to the same. In Islamic Law, only such voluntary declaration in express terms with transfer of possession from the donor in favour of the donee and the acceptance by the donee are sufficient to fulfil all requirements of a valid gift hiba. However, the only exception to that rule is that the donor must not be suffering from any disease having immediate threat of death, which is called Marz-ul-Maut. There are three essentials of gift under Islamic Law: (i) declaration of gift by the donor, (ii) express or implied acceptance of the donee, and (iii) the seisin or the delivery of possession of the gift property by the donor to the donee. In case the donor and the donee are in joint possession of property, if the purpose of the gift at the time of declaration shared between the donor and the donee, the donee is not required to vacate and may continue jointly in possession with the donee without entailing any adverse repercussions on the factum of the gift, for example when a gift is made by a husband to his wife, the husband can continue to receive accruing returns on the subject matter of the gift and the required element of delivery of possession would remain un-affected.

Ashiq Hussain v. Ashiq Ali 1972 SCMR 50 and Alf Khan v. Mumtaz Begum and another 1998 SCMR 2114 fol.

(b) Islamic Law---

----Gift of house by father in favour of son excluding two daughters---Suit by brother for recovery of possession of house and mesne profits from sisters after death of father---Sisters' plea was that donor of 80 years age at relevant time was incapacitated due to tongue cancer and mentally retarded after he was operated; that as per family settlement, donor had agreed to gift house to them and two shops to plaintiff-brother, and that plaintiff being in possession of title documents got gift deed registered in his favour fraudulently and sold both shops---Plaintiff stated that donor, prior to operation on account of cancer, had first executed a will disclosing therein gift of suit house in his favour---Validity---Execution of such will proved that donor must be having immediate danger of death on account of cancer disease, otherwise there was no reasons to execute same when he had gifted house in favour of plaintiff---Nothing was available on record to show that donor, after operation, had fully recovered while executing gift deed in favour of plaintiff---Plaintiff as sole son of donor was earning member of family---Gift in favour of plaintiff on account of his such advantageous position and infirmity of donor, could not be said to be out of free will---Plaintiff had failed to prove a valid gift in his favour---Plaintiff could not claim possession of suit house and mesne profits from defendant for being in legal occupation thereof as legal heirs of its deceased owner---Suit was dismissed in circumstances.

Ashiq Hussain v. Ashiq Ali 1972 SCMR 50; Alf Khan v. Mumtaz Begum and another 1998 SCMR 2114; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 and Mst. Hussain Bibi and others v. Mst. Aisha Bibi 1981 CLC 962 ref.

(c) Islamic Law---

----Gift---Burden of proof---Onus to prove all ingredients of a valid gift would lie upon a person desirous to take benefit thereof---Qanun-e-Shahadat (10 of 1984), Art.117.

Ashiq Hussain v. Ashiq Ali 1972 SCMR 50 rel.

(d) Islamic Law---

----Gift---Invocation of doctrine of Maraz-ul-Maut---Scope---For invoking such doctrine it is not necessary that death of donor must be result from of a disease.

Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 fol.

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

----S. 8---Civil Procedure Code (V of 1908), S.2(12)---Suit for recovery of possession and mesne profits---Failure of plaintiff to prove his exclusive ownership over suit house on basis of gift in his favour by his deceased father---Effect---Plaintiff could not claim possession and mesne profits from defendants being in occupation of suit house as legal heirs of its deceased owner---Suit was dismissed in circumstances.

(f) Tort---

----Damages for mental shock, pressure, physical torture and social disgrace alleged to have been suffered by plaintiff on account of illegal acts of defendant---Failure of plaintiff to prove any particular act of defendant---Validity---Mere such allegations without any tangible evidence would be of no consequence---Plaintiff was, now entitled to such relief in circumstances.

Shafaat Hussain for Plaintiff.

Nemo for Defendants.

Date of hearing: 4th February, 2009.

P L D 2009 Karachi 261

Before Mrs. Qaiser Iqbal, J

Ms. MAHNAZ BAKHTIAR---Petitioner

Versus

FAROOKH R. MEHRI---Respondent

Divorce Petition No.1 and C.M.A. No.241 of 2009, decided on 4h March, 2009.

Parsi Marriage and Divorce Act (II of 1936)---

----S. 32---Petition for dissolution of marriage by wife on the ground that she had been deserted by the respondent without any reasonable cause for a period of three years within the meaning of S.32(g) of the Parsi Marriage and Divorce Act, 1936---Petitioner had averred that she had been living away from the respondent since 15 June, 2001, and that respondent had withdrawn all the obligations rested upon him---Delegates had opined that the petitioner was entitled to a decree for dissolution of marriage on the ground of desertion---When the respondent had extended no allegation and the delegates were also of the opinion that it would be impossible for the parties to live together under one roof, the petitioner had made out a case for the grant of divorce petition---Petition for divorce was granted by High Court in view of the consent of the respondent and the opinion of the delegates---Decree for divorce was allowed under S.32(g) of the Parsi Marriage and Divorce Act, 1936.

Khorshed ASPI Jamuia v. ASPI Dossabhoy Jamula PLD 1960 (W.P.) Karachi 178 and Behnaz Nausherwan Marfatta v. Arash Burjor Sethna PLD 2009 Kar. 114 rel.

Saadat Yar Khan for Petitioner.

Abdul Majeed Khoso holding brief for Khalid Mehmood Siddiqui for Respondent.

Respondent present in person.

P L D 2009 Karachi 263

Before Ali Sain Dino Metlo and Syed Shafqat Ali Shah Masoomi, JJ

Mst. SHAHZADI---Petitioner

Versus

SAIFULLAH BUGHIO, S.H.O. KETI MUMTAZ, LARKANA and 6 others---Respondents

Constitutional Petition No.D-213 and M.A. No.507 of 2009, decided on 25th March, 2009.

Constitution of Pakistan (1973)---

----Art.199--- Constitutional petition---Recovery of detenu---Quashing of F.I.R. and proceedings---Petitioner/mother of alleged detenu had alleged that respondents/Police Officials along with other 12 unidentified persons in civil dress, armed with deadly weapons trespassed into her house and took away her son and some valuable articles---Police Official (S.H.O.) stated that detenu was arrested as 1100 grams charas was recovered from him and that F.I.R. was registered against him---Counsel for the petitioner had rightly contended that F.I.R. recorded by the Police Official (S.H.O.) against the detenu one day after filing petition by the petitioner was fabricated by him to cover his act of illegally detaining the detenu---On date when petition was filed by the mother of the detenu, she could not possibly know that Police Official (S.H.O.) would arrest the detenu and recover charas from him on next day---Detenu, in circumstances, could not be said to be preparing a false defence in advance---Case against the detenu, on the face of it, was fabrication on the part of the Police---No useful purpose, in circumstances, would be served to allow the case to pass through investigation and trial; on the contrary, it would be abuse of the process of law as well the court---Other F.I.R. recorded against the detenu on allegation that detenu injured himself to attempt to commit suicide was also fabricated---F.I.R. and proceedings were quashed in circumstances.

Javed Ahmed Deenari for Petitioner.

Abdul Hamid Bhurgri, Addl. A. G. and Azizul Haque Solangi, Asstt. A. O. for the State.

SIP Ali Nawaz S.H.O., P.S. Naudero, S.-I, Saifullah S.H.O., P.S. K.T. Mumtaz, SIP Zamir Hussain SIO, P.S. KT Mumtaz, A.S.-I. Mabtab Shah, IB K.T. Mumtaz, A.S.-I. Muhammad Zaman, SIO Civil Line, PC Muhammad Ali i/c of Mujahid No.5 and P.C. Haroon P.S. K.T. Murnaz present.

Alleged detenu Shoukat Ali Memon, produced by Superintendent, Central Prison, Larkana.

P L D 2009 Karachi 265

Before Amir Hani Muslim and Muhammad Iqbal Mahar, JJ

JANAN alias JANO CHANDIO and another---Applicants

Versus

THE STATE-Respondent

Criminal Bail Application No.D-9 of 2009, decided on 1st April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/353/148/149---Anti-Terrorism Act (XXVII of 1997) Ss.6/7---Bail, refusal of-'-Accused persons were nominated in the F.I.R. with specific role of causing firearm injuries to deceased---Prosecution witnesses in their statements under S.161, Cr.P.C. had fully supported the version of complainant given by him in the F.I.R.---Medical evidence also supported the version of complainant party---Recovery of kalashnikov was from one of accused persons, and pistol from the other---No enmity with the Police had been suggested or pleaded by accused---Sufficient material was available against accused persons to suggest that there were reasonable grounds to believe that accused were connected with the alleged offence---Counsel for accused had failed to make out a case of further inquiry---Contention of counsel for accused persons that one of co-accused was found and let off, had no force as said co-accused had been shown as absconder in the charge-sheet-Deeper appreciation of material at bail stage was deprecated---Bail application was dismissed, in circumstances.

Muhammad Sachal R. Awan for Applicants.

Muhammad Azeem Panhwar, State Counsel.

P L D 2009 Karachi 268

Before Nadeem Azhar Siddiqi, J

ALMAS KHAN---Petitioner

Versus

Mrs. BANO through Attorney and 2 others---Respondents

Constitutional Petition No.S-599 of 2008, decided on 13th April, 2009.

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

----S. 15---Ejectment petition---Ground of non-payment of rent from May, 2002 onwards---Rent for May, 2002 to September, 2002 collectively sent through money order---Validity---Landlord's attorney had stated on oath that tenant had not paid rent from May, 2002 onwards---Burden shifted on tenant to prove that before tendering rent through money order, he tendered rent every month to landlord personally, who refused to accept the same---Due to non-availability of any date on coupon of money order, same would be presumed to have been sent in September, 2002 after committing default for May and June, 2002---Tenant had not produced any evidence to discharge burden of proof---Ejectment petition was accepted in circumstances.

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

----S. 15---Non-payment of rent by tenant---Burden of proof---Payment of rent being positive fact could be proved by evidence---Non-payment of rent being a negative fact, thus, for proving same, there could be no evidence.

Muslim Commercial Bank Ltd. v. Yaqinuddin PLD 1992 Kar. 314 and Afia Baig v. Pakistan State Oil PLD 1991 Kar. 239 rel.

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

----S. 15---Ejectment petition---Bona fide personal need of shop by landlord---Attorney of landlord in cross-examination giving account of all shops owned by landlord---Tenant's failure to establish availability of any vacant shop---Effect---Mere statement of tenant without evidence would not be sufficient that other shops were available with landlord---Prerogative of landlord to select shop and nature of business---Ejectment petition was accepted in circumstances.

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

----S. 15---Ejectment petition---Ground of non-payment of rent by tenant---Plea of tenant that there would be no default on his part, if arrears of rent were allowed to be adjusted from pugri amount paid to previous owner of demised shop---Validity---Pugri never received any legal recognition, thus, tenant could not claim benefit thereof---Pugri not being an advance rent, could not be adjusted towards arrears of rent to save tenant from consequences of default in payment of rent, if committed by him and proved by landlord---Landlord could not be made to suffer for unlawful doings of others i.e. receipt of pugri by previous owner---Tenant's plea was repelled and ejectment petition was accepted in circumstances.

Azizur Rehman v. Pervaiz Shah 1997 SCMR 1819; Sh. Muhammad Yousuf v. District Judge, Rawalpindi 1987 SCMR 307 and Muhammad Ashraf v. Ismail 2000 SCMR 498 rel.

Mobarak Ahmed for Petitioner.

Raja Riaz Ahmed for Respondent No.1.

Date of hearing: 13th April, 2009.

P L D 2009 Karachi 273

Before Nadeem Azhar Siddiqi, J

HASAN ALI---Petitioner

Versus

MUHAMMAD FARHAN AHMED and another-Respondents

C.P. No.S-168 and C.M.A. No.487 of 2009, decided on 17th April, 2009.

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

----S. 15---Ejectment petition---Ground of non-payment of water and other charges of demised premises by tenant---Plea of tenant that no agreement existed between parties regarding his liability to pay such charges---Validity---Definition of term "tent" as provided in Sindh Rented Premises Ordinance, 1979 included such charges---Tenant could not plead against specific provision of law--Onus would lie upon tenant to prove that he was not liable to pay such charges, but his mere words to such effect would not be sufficient to discharge such burden.

State Life Insurance Corp. v. Mrs. Surraya Sajjad 2000 CLC 1813 rel.

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

----Ss. 15 & 16(1)---Constitution of Pakistan (1973), Art.199---Ejectment petition---Ground of non-payment of utility charges by tenant---Plea of tenant that no agreement existed between parties regarding his liability to pay such charges---Decision of such question by Rent Controller at a stage of passing order under S.16(1) of Sindh Rented Premises Ordinance, 1979---Scope---Such factual question could be decided only after recording of evidence, but not at such stage or in constitutional petition.

Muhammad Alam Baloch's case 1989 MLD 2294 and State Life Insurance Corp. v. Mrs. Surraya Sajjad 2000 CLC 1813 ref

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

----Art. 199---Constitutional petition---Maintainability---Disputed questions of fact as to contractual liabilities of parties---High Court in writ jurisdiction could not decide such questions---Principles.

Factual controversies cannot be decided in writ jurisdiction of High Court. But where the question is purely legal and also settled by the superior courts, then writ jurisdiction can be pressed into service.

Writ jurisdiction can only be invoked where it is shown that the order is perverse or while passing the order, the subordinate courts have committed some illegality and irregularity. The disputed questions of facts as to the contractual liabilities of the parties cannot be adequately resolved in writ jurisdiction.

Mirza Waqar Hussain for Petitioner.

P L D 2009 Karachi 278

Before Anwar Zaheer Jamali, C. J. and Muhammad Karim Khan Agha, J

HAKIM ALI and another---Petitioners

Versus

PROVINCE OF SINDH through Secretary, and 10 others---Respondents

Constitutional petition No.D-1659 of 2008, decided on 8th April, 2009.

Penal Code (XLV of 1860)---

----Ss. 365-B, 344 & 346/34---Constitution of Pakistan (1973), Art.199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional petition---Quashing of proceedings---Constitutional petition---Conversion of constitutional petition into petition under S.561-A, Cr.P.C.---Petitioner/alleged abductee had alleged that as her father intended to marry her against her will, she was compelled to leave her home and seek assistance of an Advocate---Said Advocate brought her before a Justice of the Peace/Judicial Magistrate where she swore an affidavit of her free will---Other petitioner (Female) thereafter contracted marriage with the petitioner and Nikah was performed---Nikahnama was registered by Registrar concerned---According to the petitioners, respondent/father of female petitioner allegedly in collision with Police Officials lodged a false F.I.R. against female petitioner and his relations for abduction of the female petitioner---Police Surgeon had reported that age of petitioner alleged abductee was 19 years---Petitioner (female) had reached the age of puberty which was evidenced by the birth of her son and her statement on oath before the High Court that she married out of her free will, was corroborated by her affidavit earlier sworn by her before Justice of Peace/Judicial Magistrate---F.I.R. in the case was registered after a delay of 7 months after the alleged incident of abduction---Challan had revealed that the investigation had found hardly any thing to support the allegation in the F.I.R. against the petitioner/accused---High Court found that there was no probability of conviction of accused in the case arising out of F.I.R.---Treating the constitutional petition as a petition for quashing of proceedings under S.561-A, Cr.P.C., proceedings were quashed and the petitioners were declared legally married as husband and. wife based on their own free will.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76; Choudhry Munir v. Mst. Surriya and others PLD 2007 SC 189; Ch. Pervez Ellahi v. Federation of Paksitna 1995 MLD 615; Muhammad Hanif Pathan v. The State PLD 1999 Kar. 123 and 2003 MLD 1557 rel.

Muhammad Ibrahim Sahto for Petitioner.

Muhammad Nawaz Shaikh for Respondent No.8.

Miran Muhammad Shah, Addl. A.-G. Sindh, along with S.-I. Ghulam Mustafa, Investigating Officer.

P L D 2009 Karachi 284

Before Sajjad Ali Shah and Khadim Hussain M. Shaikh, JJ

UMER REHMAN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-160 of 2003, decided on 24th March, 2009.

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(b)---Appreciation of evidence---Benefit of doubt---Trial Court was influenced by the fact that no cross-examination was offered by accused and thereby the testimony of prosecution witnesses and complainant had gone unchallenged---Trial Court, however, lost sight of the fact that both the prosecution witnesses, who were Police Officers, were not examined on one and the same date, but they were examined on different dates; and that both prosecution witnesses were examined in absence of the advocate for accused, who was unrepresented at the time of recording of evidence of said prosecution witnesses---Trial Court, in such a state of affairs, was obliged to take into consideration the entire material placed before it in arriving at the conclusion, whether a fact was proved or not; because the proof of a fact would depend upon the probability of its having existed; and not upon the accuracy of the statement---Copy of alleged Roznamcha which would establish that the complainant party was actually on patrolling on that date during day time, had not been produced in evidence---Not a single person had been cited as witness or mashir despite the fact that while on patrolling the Police party had received spy information about selling of charas by accused---Explanation of the prosecution that due to heat no private person was available at the place of recovery, was apparently a lame excuse, which did not appeal to a prudent mind for the reason that the place of recovery was in the heart of city and alleged recovery was made at 1.30 P.M., which was peak hour of the business; and it was beyond imagination that no private person was available at the alleged place of recovery at that time---Contraband charas was received in Chemical Laboratory after 8 days of its recovery and report was prepared after one month and 20 days and no explanation was offered by the prosecution for such considerable delay in sending the contraband charas to the Chemical Laboratory---Such a delay was opposed to law i.e. the Control of Narcotic Substances (Government Analysts) Rules, 2001; it was also not proved that during said period of 8 days alleged contraband charas remained in safe custody---Difference existed with regard to quantity of weight of recovered charas between prosecution and report of Chemical Examiner---Duty of prosecution was to prove its case beyond any reasonable doubt and if any doubt would arise in the prosecution case, the benefit of that was to be given to accused not as matter of grace, but as a matter of right---Prosecution having failed to prove its case against accused beyond any reasonable doubt, he was acquitted extending him benefit of doubt.

Syed Mehmood Alam Shah v. The State PLD 1987 SC 250 and Tariq Parveez v. The State 1995 SCMR 1345 ref.

Appellant in person.

Allah Bachayo Soomro, Addl. A.-G. Sindh for the State.

Date of hearing: 12th March, 2009.

P L D 2009 Karachi 288

Before Khilji Arif Hussain and Arshad Noor Khan, JJ

COOPER & CO. (PVT.) LTD. Through Authorized Chairman---Appellant

Versus

LAUREL NAVIGATION (MAURITIUS) LTD. and another---Respondents

High Court Appeals. Nos.304 and 305 of 2008, decided on 6th March, 2009.

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

----O. XXXIX, Rr.1 & 2---Interim injunction, grant of---Duty of Court stated.

For the purposes of grant of interim injunction, Court has to consider the existence of good prima facie case in favour of the plaintiff and balance of inconvenience lies in his favour and he will suffer irreparable loss and injury, if the injunction is refused.

(b) Specific Relief Act (1 of 1877)---

----Ss. 42 & 54---Contract Act (IX of 1872), Ss.201 & 202---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Agreement for looking after business of cargo shipping of defendant by plaintiff on payment of commission over services rendered by him---Termination of agreement by defendant without issuing 90 days advance notice to plaintiff---Application for temporary injunction to restrain defendant from acting upon termination letter---Plea of plaintiff that he had interest in agency; and that he had invested huge amount on arranging containers, trailers, heavy machinery and staff to manage affairs of business, which investment would be ruined in case of refusal of injunction---Validity---Agreement executed between parties was that of principal and agent---Agreement did not speak about status of plaintiff having any interest in agency, except as a commission agent---According to agreement, such containers, trailers, machinery were assets of principal and payment of salaries to staff employed by plaintiff was to be made from income of business---Nothing on record to show that plaintiff from his own fund had arranged containers, trailers, machinery and staff to promote business of defendant---Such agreement did not provide any clause containing interest of plaintiff as agent in agency, thus, provision of S.202 of Contract Act, 1872 would not apply thereto---Nothing on record to show that there was any express or implied conduct of parties to convert agency agreement into interest in agency in favour of plaintiff---Termination of agency without issuing advance notice of 90 days could be treated as illegal, which point would require evidence, but same could not be considered as sufficient for granting injunction in favour of plaintiff---Plaintiff for termination of his agency could claim damages or compensation from defendant, which was an appropriate and efficacious remedy available to him---Plaintiff had not made out prima facie case nor balance of inconvenience lay in his favour nor he would suffer irreparable loss in case of refusal of injunction---Application for temporary injunction was dismissed in circumstances.

Jamal Ahmed v. Zakaria 1987 MLD 295; Molasses Export Co. Ltd. v. Consolidated Sugar Mills Ltd. 1990 CLC 609; Pir Bux and others v. Ghulam Rasool and others PLD 1997 Kar.113; Messrs Universal Trading Corporation (Pvt.) Ltd. v. Messrs Beecham Group PLC and another 1994 CLC 726; Nooruddin and others v. Messrs Sindh Industrial Trading Estate Ltd. and others 1993 CLC 2204; Roomi enterprises (Pvt.) Ltd. v. Stafford Miller Ltd and others 2005 CLD 1805; Messrs Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation 1997 CLC 1903; Puri Terminal Ltd. v. Government of Pakistan 2004. SCMR 1092; Hazara Hill Tract v. Mst. Qaisra Elahi and others 2005 SCMR 678; Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others 1996 SCMR 1047; State of Punjab v. Inder Singh AIR 1998 SC 07; Shaw Wallace and Co. AIR 31 Calcutta 676; Bright Bros. (Pvt.) Ltd. Bombay v. J.K. Sayani AIR 1976 Mad. 55; Sohrabaji Dhunjibhoy v. Oriental Government Security Life Assurance Co. AIR 1944 Bom. 166; Cooperative Hindustan Bank v. Surandra Nath Dey AIR 1952 Cal. 524; Nandlal v. Dharamdeo Singh and others AIR 1925 Pat. 299; Union of India v. Motilal Kamalia and others AIR 1962 Pat. 384; Chandi Prasad Singh v. The State of Uttar Pradesh AIR 1956 SC 149; Lakshminarayan Ram Gopal and Sons Ltd. v. Government of Hyderabad AIR 1954 SC 364; Amrit Lal C. Shah v. Ram Kumar AIR 1962 Pun. 325; Firm Murlidhar Banwarilal v. Kishorelal Jagannath Pradad and others AIR 1960 Raj. 296; Muhammad Yousuf v. Messrs Urooj (Pvt.) Ltd. PLD 2003 Kar.16; Messrs Farooq & Co. v. Federation of Pakistan 1996 CLC 2030; Sunshine Corporation Ltd. v. V.E.I. Du Pont 1999 YLR.2162; ABN Amro Bank v. Wasim Dar 2004 PLC 69; West Pakistan Industrial Development Corporation v. Aziz Qureshi, PLD 1973 SC 222; Messrs Nasir Traders and others v. Habib Bank Ltd. PLD 1993 Quetta 94; Mst. Azeemun Nisa Begum v. Ali Muhammad PLD 1990 SC 382; Hafiz Sharafatullah v. Federation of Pakistan 1995 CLC 1790; Abdul Habib Rajwani v. Messrs Industries Ltd. and others 2007 YLR 590; Maj. Gen. (Retd.) Mian Ghulam Jillani v. The Federal Government PLD 1975 Lah. 65; Pakistan Chest Foundation v. Government of Pakistan and others 1997 CLC 1379; Khairpur Textile Mills v. National Bank of Pakistan 2003 CLD 326; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Asif Jah Siddiqi v. Government of Sindh PLD 1983 SC 46; Phalippine Airlines Inc. v. Paramount Aviation (Pvt.) Ltd. PLD 1999 Kar. 227; Tauseef Corporation (Pvt.) Ltd. v. Lahore Development Authority and others 2002 SCMR 1269; Shakil Waqas and Co. v. General Manager, Pakistan Railways and others PLD 2001 Kar.185; Messrs Petrocommodities (Pvt.) Ltd v. Rice Corporation of Pakistan PLD 1998 Kar. 1; Messrs Pakistan Associated Construction Ltd. v. Asif H. Kazi and another 1986 SCMR 820; Boulton Bros and Co. Ltd. (India) v. New Victoria Mills Co. Ltd., AIR 1929 Allahabad 87; Thimmarayappa v. Narayanappa and others AIR 1854 Mysore 88; Adam Limited v. Messrs Mitsui and Co. 1997 MLD 2712; S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338 and Rashid Khan alias Muhammad Rafiq Khan v. Haji Muhammad Yousuf and another 1987 SCMR 392 ref.

Bolan Beverages Ltd v. Pepsico Inc. and others PLD 2004 SC 860; JJ Sayani v. Bright Brothers (Pvt.) Ltd. AIR 1980 Mad.; Muhammad Aref Effendi v. Egypt Air 1980 SCMR 588; Pakistan Paper Corporation v. National Trading Company 1983 CLC 1965; Subhash Chandra J.M. v. Feroze Khan AIR 1982 Deh.114 and Law of Agency, III Edition (Revised) by Prof. SC Srivastava, p.757 rel.

Pakistan Automobiles Corporation Ltd. v. General Motors Overseas Distribution Corporation and other PLD 1982 Kar.796 and Messrs Om Prokash Paiwal and another v. Union of India and others AIR 1988 Cal. 143 distinguished.

(c) Contract Act (IX of 1872)----

----S. 201---Agency, termination of---Conditions and circumstances stated.

The principal has authority to terminate the authority of an agent in the following circumstances:

(i) by the principal revoking his authority;

(ii) by the agent renouncing the business of the agency;

(iii) by the business of the agency being completed;

(iv) by either the principal or agent dying or becoming of unsound mind;

(v) by either the principal or agent being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors;

(vi) by expiry of the period of agency, if any;

(vii) by the destruction of a material part of the subject-matter of the agency;

(viii) the happening of any event which renders the agency unlawful or upon the happening of which, it is agreed between the principal and the agent that the authority shall determine; or

(ix) by dissolution of the principal, where the principal is a firm or a company or other corporation.

The principal has always ample power to rescind, revoke or alter the authority of agent, provided any one or more of the aforesaid conditions are available to the principal to amend, alter, rescind, vary 'or cancel the authority of the agent.

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

----O.XLI, R. 1(1) & O.XLIII, R.1(r)---Appeal against order of dismissal of injunction application---Appeal filed along with photocopy of impugned order---Validity---Appeal was not maintainable for there being an inherent defect therein.

M. Farogh Naseem for Appellant.

A. Rehman Malik and Syed Ali Haider for Respondent No.1.

Shakeel Pervez Bhatti for Respondent No.2.

Date of hearing: 28th January, 2009.

P L D 2009 Karachi 303

Before Nadeem Azhar Siddiqi, J

BANK OF CREDIT AND COMMERCE INTERNATIONAL, S.A. through Special Attorney---Decree-holder

Versus

Mrs. SHAHIDA JAM SADIQ ALI---Judgment-debtor

Execution Application No.21 C.M.As. 710 of 1998 and 2422 of 2002, decided on 9th April, 2009.

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

----O. VI, Rr.4, 5 & 6---Order for supplying of further and better statement of claim or defence or particulars of any other matter stated in pleading---Scope and object---If claim or defence was vague for not fulfilling requirements of O.VI, R.4, C.P.C., then Court could order for supply of such statement and particular---Provision of O. VI, R.5, C.P.C., could be pressed into service in respect of pleadings only to prevent surprise and narrow down scope of controversy between parties.

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

----Ss. 13, 44-A & O.VI, R.5---Execution of foreign judgment/decree for recovery of money---Filing of execution application on 20-5-1996---Filing of objections by judgment-debtor on 3-10-2006---Application under O.VI, R.5, C.P.C. filed on 23-9-2008 by judgment-debtor for giving direction to decree-holder to provide document about property allegedly sold in foreign country, details about alleged service on judgment-debtor and details about cost, taxes, penalty, compound interest and charges added to alleged money decree---Validity---Judgment-debtor in objections dated 3-10-2006 had not raised such plea as taken in application dated 29.3-2008---Effect---Only remedy available to judgment-debtor would be to argue his objections dated 3-10-2006---Application dated 29-3-2008 was dismissed in circumstances.

Usman Jamil for Decree-holder.

Abrar Hassan for Judgment-debtor.

P L D 2009 Karachi 309

Before Mushir Alam and Safdar Ali Bhutto, JJ

MADINA ELECTRIC MARKET through Shop-keepers Union and 4 others---Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI through Nazim-e-Aala, Karachi and 6 others---Respondents

Constitutional Petition No. D-54 of 2008, decided on 15th April, 2009.

(a) Sindh Local Government Ordinance (XXVII of 2001)---

----Ss. 54 & 76---Municipal Administration---Powers and functions---Removal of encroachments---Scope---Town Municipal Administration, Union Administration and Union Council in their respective domains are not only required to prevent and remove encroachment but also to improve and maintain public open spaces, public gardens and playgrounds---Union Council is responsible to mobilize community involvement in maintenance of public ways, public streets, culverts, bridges and public buildings, de-silting of canals and other development pursuits.

(b) Sindh Local Government Ordinance (XXVII of 2001)---

----Ss. 54 & 76---Police Order (22 of 2002), Art.139---Constitution of Pakistan (1973), Art.199---Constitutional petition---Removal of encroachments---Town Municipal Administration and police officials, role of---Petitioner sought direction against official for removing encroachments on a specific public road which was causing inconvenience to public at large---Validity---High Court noted it with great concern that if menace of encroachment was not nipped in the bud, it would grow out of proportion and that would require substantial resources to remove it and at the same time it would create law and order situation---Not only the road in question was occupied thereby causing obstructions for commuters and passersby cognizable under Police Order, 2002, but public street, footpath had also been occupied by miscreants bringing the issue within the domain of authorities under Sindh Local Government Ordinance, 2001---Menace of encroachment being composite both on road and public street needed to be addressed by concerted joint efforts of functionaries under Sindh Local Government Ordinance, 2001 and Police Order, 2002, passing on the responsibility would not solve the problem; it was joint responsibility of administration under Sindh Local Government Ordinance, 2001 and Police Order, 2002, to clear public road in question and street from obstruction---High Court directed Local Government Authorities and Police Authorities to undertake jowl efforts for factual removal of obstruction/encroachment that might be found on the road and public street or footpath thereof, in planned and concerted manner extending mutual cooperation and logistics to each other---Petition was allowed accordingly.

Zakir Hussain Khaskheli, Advocate.

Manzoor Ahmed, Advocate

Muhammad Idrees, Advocate.

M. Sarwar Khan, A.A.-G.

P L D 2009 Karachi 315

Before Khilji Arif Hussain and Arshad Siraj Memon, JJ

PAKISTAN REFINERY LIMITED---Appellant

Versus

BARRET HODGSON PAKISTAN (PVT.) LTD and 2 others---Respondents

High Court Appeals Nos.326 and 327 of 2008, decided on 11th May, 2009.

(a) Administration of justice---

----Counsel appearing for the parties are duty bound to place correct statute duly amended for proper assistance of the court.

(b) Civil Defence (Special Power) Rules, 1951---

----Rr.3 to 23---Salient features of Rules 3 to 23, Civil Defence (Special Power) Rules, 1951 highlighted.

(c) Civil Defence (Special Power) Rules, 1951---

----R. 10---Rule 10, Civil Defence (Special Power) Rules, 1951 is an enabling Rule where prohibition of construction (within the area specified in the order to be made by R. 10) and (within the distance of key points 1A-200 yards and 2B-100 yards respectively) is not absolute---Construction may be allowed if the lay out and material involved are cleared by the Government who passed the order under R.10 or by Key Point Intelligence Division---Principles.

Khalid Anwar for Appellant.

Zahid F. Ebrahim for Respondents Nos. 1 and 2.

Date of hearing: 25th March, 2009.

P L D 2009 Karachi 325

Before Khadim Hussain M. Shaikh, J

Mst. AZRA BHATTI---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION HYDRI and 3 others---Respondents

Criminal Miscellaneous Application No.101 and M.A. No.744 of 2009, decided on 19th May, 2009.

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

----S. 491---Custody of minor---Application for---Applicant/mother of a minor girl had alleged that respondent who had divorced the applicant and had driven her out of his house along with her two daughters, had snatched away one of the daughters aged 14 months from the custody of the applicant, though she had right of hizanat till the minor attained majority---Applicant had prayed for restoration of the custody of minor girl to her---Validity---Minor of such a tender age would need constant care of mother and it was a universal truth that there could not be any substitute for a mother; and that the lap of mother was God's own cradle for child---Custody of minor girl with respondent/father was improper, if not illegal---Application was allowed with the direction that minor girl would be handed over by respondent to the applicant/mother forthwith.

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

----S.491---Guardians and Wards Act (VIII of 1890), Preamble---Habeas corpus---Matters dealt with by S.491, Cr.P.C. and Guardians and Wards Act, 1890, were entirely different and the provisions of both the laws were neither mutually exclusive nor one would overlap or destroy the other---Plea that dispute between the spouses regarding custody of minor children should not be decided by High Court under S.491, Cr.P.C., was repelled.

Muhammad Naseer Humayon v. Mst. Syada Ummatul Khabir 1987 SCMR 174 ref.

Muhammad Akram Shaikh for Applicant. Imtiaz Ahmed Bhatti for Respondent No.3.

Respondents Nos. 3 and 4 along with minor baby Javeria present.

P L D 2009 Karachi 327

Before Anwar Zaheer Jamali, C.J. and Muhammad Karim Khan Agha, J

QURBAN ALI ABBASI---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 3 others---Respondents

Constitutional Petition No. D--2462 of 2008, decided on 21st April, 2009.

(a) Sindh Local Government Ordinance (XXVII of 2001)---

----S. 131---Provincial Local Government Commission---Appointment---Manner of appointment of those entitled to be appointed to Commission and in some cases qualifications, which such members should hold has been set out in detail in S.131 of Sindh Local Government Ordinance, 2001---Commission so appointed should be an impartial body of competent people of good standing---When Commission becomes involved in Local Government affairs on few occasions envisaged by Sindh Local Government Ordinance, 2001, people whose rights they may be interfering with at grass root level can have full confidence in their impartiality, integrity and competence---Idea behind such provisions is to ensure that Government cannot simply appoint anyone it chooses to the Commission at its whim.

(b) Sindh Local Government Ordinance (XXVII of 2001)---

----S. 131(1)(c)---Conduct of General Elections Order (7 of 2002), Art.2(d)---Word "technocrat"--Meaning---Word "technocrat" was not defined in Sindh Local Government Ordinance, 2001, however for the purpose of fulfilling requirements High Court considered that definition found in Art.2(d) of Conduct of General Elections Order 2002, would be a useful definition to be adopted for the purpose of appointing technocrat members under Sindh Local Government Ordinance, 2001.

(c) Sindh Local Government Ordinance (XXVII of 2001)---

---Ss. 132(3)(4), 152, 161 & 164---Taluka Nazim---Notification of removal---Jurisdiction of Chief Election Commissioner---Scope---Plea raised by petitioner was that notification for his removal should have been issued by Chief Election Commissioner---Validity---Notification regarding removal of Taluka Nazim was not to be made by Chief Election Commissioner pursuant to ,recommendation of the Commission under S.132(4) of Sindh Local Government Ordinance, 2001---Issuance of such notification under S.164 fell within Chapter XVII of Sindh Local Government Ordinance, 2001, which dealt with Local Government Elections---Provisions of S.164 of Sindh Local Government Ordinance, 2001, applied to removal of Nazim as envisaged under 5.161(1) of Sindh Local Government Ordinance, 2001, which specifically dealt with removals in connection with proceedings of disqualification under S.152 of Sindh Local Government Ordinance, 2001---Provisions of S.152(2) of Sindh Local Government Ordinance, 2001, specifically related to circumstances where removal was on account of disqualification---Removal of petitioner was effected under Chapter XIV of Sindh Local Government Ordinance, 2001, which was concerned with Government and Local Government relations---Notification under S.132(3) or (4) of Sindh Local Government Ordinance, 2001, did not have to be made by Chief Election Commissioner, as the provision of law did not envisage involvement of Chief Election Commissioner nor it was concerned with disqualification.

(d) Sindh Local Government Ordinance (XXVII of 2001)---

----Ss.132(1)(b)---Constitution of Pakistan (1973), Art.199-2-Constitutional petition---Removal of Taluka Nazim---Provincial Local Government Commission---Role and delegation of powers---Scope--Petitioner was Taluka Nazim against whom inquiry was conducted and notification for his removal was issued---Plea raised by petitioner was that Commission had delegated its powers to some officials who were not members of the Commission---Validity---Where one member of the Commission who was part of inquiry team seemed to have played no meaningful role whatsoever and only appeared to be part of inquiry team on paper, the Commission had no power to sub delegate its entire function of carrying out inquiry in the manner under S.132(1)(b) of Sindh Local Government Ordinance, 2001---Inquiry conducted by officers who were not even part of the Commission was coram non judice---Notification of removal was issued / passed by the authorities based upon a report of an inquiry Team, which was coram non judice, was without lawful authority and was of no legal effect---High Court, in exercise of Constitutional jurisdiction, set aside Inquiry Report which led to issuance of the Notification---High Court directed the Commission to constitute a new Inquiry Team and thereafter hold a fresh inquiry against the petitioner strictly in accordance with law---High Court directed the petitioner to appear before and assist any inquiry, which would be initiated against him by the Commission---Petition was disposed of accordingly.

Bombay Dyeing and MFG. Co. Ltd:, v. Bombay Environmental Action Group AIR 2006 SC 1489; Yusuf Haji Ismail v. Hussain Mumtaz PLD 1989 Kar. 299; Ghulam Muhammad Lali v. Imtiaz Ahmed Lali PLD 2006 Lah. 661; Abdul Karim v. Karim Nabi PLD 1979 SC (AJK) 74; Nasimul Haque Malik v. Chief Secretary to Government of Sindh 1996 SCMR 1264; Ghazi Khan v. State 1985 SCMR 1856; Atlas Autos Limited v. National Industrial Relations Commission PLC 1990 SC 369; Qasu v. State PLD 1969 Lah. 48; Ghulam Mustafa Khar- v. Pakistan PLD 1988 Lah. 49; Tata Iron. and Steel Co. Ltd. v. State of Jharkhand AIR 2005 SC 2871; Kotumal v. The State PLD 1960 (W.P.) Karachi 15; Rangal Shah v. Mula Jadal PLD 1960 (W.P.) Kar. 512; Shahid Mehmood v. Nasreen Masood PLD 2007 Karachi 178; C.P. No.D-2406/2008; Ghulam Sarwar v. Additional District Judge Daska District Sialkot 2005 YLR 257 and Nazir Ahmad Panhwar v. Government of 'Sindh 2005 SCMR 1814 ref.

(e) Administration of justice---

----Opportunity of hearing---Scope---Person against whom adverse order is made must be "afforded an opportunity to be heard Such person should be given notice of proceedings against him and he is given an opportunity to associate himself with the proceedings- -In case where such right is statutory it is almost absolute whilst in the cases of natural justice it can be excluded expressly or by implication.

Rukhsana Soomro v. Board or Intermediate and Secondary Education 2000 MLD 145 rel.

Abdul Majeeb Pirzada and Syed Khalid Shah for Petitioners.

Muhammad Yousaf Leghari, A.-G. Sindh along with Mr. Miran Muhammad Shah, A.A.-G. for Respondents.

Ataur Rehman, Assistant Election Commissioner, on behalf of Election Commission of Pakistan.

Date of hearing: 26th March, 2009.

P L D 2009 Karachi 350

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

ABDUL HAFEEZ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-VII, SOUTH KARACHI and 2 others---Respondents

Constitutional Petition No. D-752 of 2008, decided on 28th May, 2009.

(a) Illegal Dispossession Act (XI of 3005)---

----Preamble & Ss.3/4---Illegal dispossession from the property---Illegal Dispossession Act, 2005 was a special law 'providing remedy' to aggrieved persons who had been illegally dispossessed from the property; and provides for a new punishment for offences committed under the said Act---Punishment that was provided in subsection (2) of S.3 of Illegal Dispossession Act, 2005, appeared to be in addition to the one that a person could entail under any other law---No bar seemed to be on the aggrieved person from availing remedy against the offender under any other law as well as under Illegal Dispossession Act, 2005---Subsection (2) of S.3 of Illegal Dispossession Act, 2005, was very clear in that respect---Lodging of F.I.R. by the complainant/aggrieved person under general law would not act as a bar to avail remedy under Illegal Dispossession Act, 2005 nor the availing of remedy under said Act, would act as bar from initiating proceedings under any other law for the time being in force.

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

----S. 403---Double jeopardy, concept of---Concept of double jeopardy was attracted where accused had been tried for the offence charged in the competent Court and there was judgment or order of conviction or acquittal---Merely lodging of F.I.R. and filing of complaint would not attract the rule of double jeopardy.

Muhammad Irfan for Petitioner.

P L D 2009 Karachi 352

Before Amir Hani Muslim, J

MUHAMMAD KHAN---Applicant

Versus

MUKHTIARKAR REVENUE, KOT GHULAM MUHAMMAD, DISTRICT MIRPURKHAS and others---Respondents

Revision Application No.220 and C.M. Nos. 1080, 1081 of 2005, decided on 15th May, 2009.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27 & S. 115---Additional evidence---Principle---Revisional Court, jurisdiction of---Filling in lacuna in evidence---Suit filed by plaintiff was concurrently dismissed by Trial Court and Lower Appellate Court---Judgments and decrees passed by two Courts below were assailed by plaintiff in revision application seeking permission to produce additional evidence---Validity---Additional evidence of the nature, which was being sought to be produced and/or brought on record could not be allowed at revisional stage with the intent to fill in lacuna---Scope of O.XLI, R.27 C.P.C. was limited to the extent of appeal and it could not be allowed to be extended to fill in the lacuna---Plaintiff failed to make out a case to justify allowing application under O.XLI, R.27 C.P.C.--- Plaintiff did not approach the Court with clean hands and had avoided to implead his sisters, who had direct interest in the outcome of proceedings---High Court did not find any infirmity in judgments passed by both the Courts below warranting interference by High Court in exercise of revisional jurisdiction---Revision was dismissed in circumstances.

Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another PLD 2008 SC 564 and Ghulam Ahmed Chaudhry v. Akbar Hussain and another PLD 2002 SC 615 rel.

Ejaz Ali Hakro for Applicant.

Harish Chandar for Respondent No.3.

Allah Bachayo Soomro, Additional Advocate-General, Sindh.

P L D 2009 Karachi 356

Before Munib Ahmad Khan, J

TANVEER SIDDIQUI and another---Appellants

Versus

MUHAMMAD RASHID---Respondent

First Rent Appeal No. 1 and C.M.A. No.1171 of 2009, decided on 27th April, 2009.

Cantonments Rent Restriction Act (XI of 1963)---

---Ss. 17 & 24---Ex parte eviction order---Written statement, non-filing of---Rent Controller took six months to come to final stage for closing the side as tenants failed to file written statement and Rent Controller passing eviction order against tenants---Validity---Tenants themselves were not keen to safeguard their own interest and took the matter with Court very lightly---Tenants appeared in Court when all modes of services were exhausted and even thereafter failed to file written statement from 9-9-2008 to 22-11-2008---It was not only the responsibility of counsel but of the party of case itself to appear before Court but none had appeared---Order passed by Rent Controller also showed that some junior counsel of tenants was also present which showed that tenants had full knowledge about development in the case but no step was taken notwithstanding the fact that appropriate action could be taken and even required written statement could be filed in the office of Court at any convenient time and date to avoid ex parte order but that had not been done---Tenants were themselves indolent and High Court declined to interfere in ex parte eviction order passed by Rent Controller against them---Appeal was dismissed in circumstances.

FRA No. 7 of 2008; FRA 58 of 2008; C.P. No.491-K/2008 and 2008 SCMR 635 rel.

G.N. Qureshi for Appellant.

Sardar Muhammad Yousuf for Respondent.

P L D 2009 Karachi 361

Before Bin Yamin and Malik Muhammad Aqil Awan, JJ

ABDUL QAYYUM KHAN---Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Federal Secretary Ministry of Interior, Interior Division, Pakistan Secretariat and 2 others---Respondents

Constitutional Petition No.D-865 of 2008, decided on 30th April, 2009.

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

----S. 2--Constitution of Pakistan (1973), Art.199---Constitutional petition---Exit Control List---Incriminating material, absence of--Only material available with authorities for placing name of petitioner on Exit Control List was recommendation of intelligence agencies---Validity---From such state of affairs High Court noted it with great concern that competent officers of Ministry authorized to -place name of any citizen on Exit Control List had abdicated their jurisdiction to intelligence agencies and had acted as merely a rubber stamp showing their helplessness to remove name of petitioner unless such recommendation was made by intelligence agencies---Concerned authorities did not even bother to ask about reasons from such agency justifying placing name of petitioner on Exit Control List---High Court commented that such type of subjugated civil bureaucracy contributed nothing for shaping Pakistan into welfare Islamic State---Such State functionaries themselves were found in many cases as violators of fundamental rights of citizens of Pakistan---Despite giving chance to authorities, no incriminating material of any sort was produced or alleged against petitioner---High Court declared act of authorities as void ab initio, without lawful authority and the same was set aside and petitioner was at liberty to travel abroad for any lawful purpose on valid travelling documents---Petition was allowed in circumstances.

PLD 2003 Kar. 705 fol.

PLD 1999 Kar. 177; PLD 1997 Lah. 617 and SBLR 2006 Sindh 145 ref.

Muhammad Aqil for Petitioner.

Ms. Cookie Rawat, Standing Counsel for the Respondents Nos.1 and 2.

Date of hearing: 30th April, 2009.

2009 P L D Karachi 366

Before Amir Hani Muslim, J

BADRUDDIN---Petitioner

Versus

BUKHARI MOTORS and 8 others---Respondents

Constitutional Petition No. S-531 and C.M.A. No.3435 of 2007, decided on 9th October, 2008.

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

----S. 15---Civil Procedure Code (V of 1908), O.I, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment proceedings---Determination of title---Rent Controller, jurisdiction of---Petitioner's mother was previously co-owner in the premises and petitioner filed application for impleading him as party to ejectment proceedings and to determine title of suit property---Rent Controller as well as Lower Appellate Court concurrently dismissed application and appeal. filed by petitioner---Validity---If such application of petitioner was allowed it would have amounted to enlarge scope of Sindh Rented Premises Ordinance, 1979---Jurisdiction of Rent Controller was limited and Rent Controller could not be granted jurisdiction to hold regular trial as was available to Civil Court---Issues raised by petitioner in his application pertaining to dispute with regard to title and validity of gift alleged to have been made in his favour by mother of petitioner who was previously co-owner of the property, was outside the purview of Sindh Rented Premises Ordinance, 1979, and Rent Controller could not give any finding on such issues---Rent Controller in law could not adjudicate issue of validity of gift in favour of petitioner as against landlords nor could reopen issue of compromise decree which had attained finality way back---Orders passed by both the Courts below were in accordance with law and there was no legal infirmity which could warrant interference of High Court in exercise of Constitutional jurisdiction---Petition was dismissed in limine.

Rehmatullah v. Ali Muhammad 1983 SCMR 1064; Province of Punjab v. Abdul Ghani PLD 1985 SC 1; Inayatullah Butt v. Umar Hayat Khan 1994 CLC 1323; Ahmad Shah v. Bibi Sakhian PLD 1990 Lah. 48; Abdul Hamid Khan v. Muhammad Zameer Khan 1990 MLD 1617 and Aurangzeb v. Muhammad Taffan 2007 SCMR 2367, ref.

Nawabuddin v. Qamar Oil Mills 1989 SCMR 205 fol.

Dr. Muhammad Farogh Naseem, for Petitioner.

Muhammad Safdar for Respondents Nos. 6 and 7.

P L D 2009 Karachi 373

Before Nadeem Azhar Siddiqi, J

ALLAH WARAYO---Applicant

Versus

KHALIFO MUHAMMAD ASHRAF---Respondent

Civil Revision No.63 and C.M.A. No.1256 of 2008, decided on 23rd May, 2009.

Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of High Court---Scope and ingredients---Provisions of S.115, C.P.C., envisaged interference by High Court only on account of jurisdiction alone i.e., if a court subordinate to the High Court had exercised its jurisdiction not vested in it; or had irregularly exercised a jurisdiction vested in it or had not exercised such jurisdiction not vested in it---When a court had jurisdiction to decide a question, it had jurisdiction to decide it both in fact and law---Mere fact that its decision was erroneous in law would not amount to illegal or irregular exercise of jurisdiction---For an applicant to succeed under S.115, C.P.C. he had to show that there was some material defect of procedure or disregard of some rule of law in the manner of reaching that wrong decision---Some distinction between jurisdiction to try and determine a matter and erroneous action of court in exercise of such jurisdiction had to be there---Erroneous conclusions of law or fact could be corrected in appeals and not by way of a revision, which primarily deals with the question of jurisdiction of the court i.e. whether a court had exercised a jurisdiction not vested in it or had not exercised a jurisdiction vested in it or had exercised a jurisdiction vesting in it illegally or with material irregularity---Counsel for the applicant having not been able to show any of the ingredients justifying interference by High Court in exercise of powers vesting in it under S.115, C.P.C., revision application was dismissed.

PLD 1954 SC 70; PLD 1962 W.P. (Lahore) 765 and 2005 PTD 2139 (SC) ref.

Sarwar Muhammad Khan for Applicant.

Nemo for Respondent.

P L D 2009 Karachi 377

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

Mst. NIGHAT and 5 others---Petitioners

Versus

VITH SENIOR CIVIL JUDGE KARACHI and 2 others---Respondents

Constitution Petition No. D-293 of 2009, decided on 2nd May, 2009.

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

----O. XXXVII, R.2---Succession Act (XXXIX of 1925), S.218---Suit for recovery of amount on basis of promissory note and receipt---Debtor had deposited title documents of property as security for repayment of the amount---Debtor having died, the amount was not paid, the suit was filed against the legal representatives of the deceased debtor---Contention of the counsel of defendants, was that the creditor ought to have obtained Letter of Administration under the Succession Act, 1925 in respect of the property in question---Validity---Liability was denied by the defendants, issues were framed, evidence of the parties was recorded and thereafter the Trial Court passed its judgment and decree---Present case, in circumstances, was not a fit one where the creditor could have directly approached the court for grant of Letter of Administration of the property of the deceased---Principles.

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

----O. XXXVII, R.2---Suit for recovery of amount on the basis of promissory note and receipt---Minors, legal representatives of deceased debtor, were represented through their next friend/mother, who was appointed as guardian ad litem at some stage of the proceedings before the Trial Court---Next friend of minor was their mother while the remaining defendants were brothers and sisters and apparently they did not have any adverse interest to that of minors, and therefore, no apparent prejudice seemed to have been caused to them even if an order for appointment of guardian ad litem was not obtained from the court.

Tanveer Mahboob v. Haroon and others 2003 SCMR 480 fol.

Mahmood Habibullah for Petitioner.

Date of hearing: 10th April, 2009.

P L D 2009 Karachi 382

Before Khalid Ali Z. Qazi, J

RASHID AHMED BARRY through Legal Heirs and 7 others---Plaintiffs

Versus

MUHAMMAD IQBAL and another---Defendants

Suit No. 561 of 1995 and C.M.As. Nos.10359 to 10361 of 2008, decided on 30th April, 2009.

(a) Transfer of Property Act (IV of 1882)---

----S. 52---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Transfer of property pending suit relating thereto-Lis pendens, doctrine of---Applicability---Subsequent purchaser under S.52, Transfer of Property Act, 1882, does not acquire any independent right and his acquisition of the property is subject to the right of the seller, which in turn is subject to any pending suit vis-a-vis the first purchaser---Subsequent vendee cannot defeat the title of the first vendee, provided such title of the first vendee is sustained by the court in a cause---Even if the subsequent vendee is not a party to the pending suit between the first vendee and the vendor, the decree, if any, in favour of first vendee is executable against the second vendee if it is shown that the disputed property .was acquired by the second vendee during the pendency of lis.

Messrs Aman Enterprises v. Messrs Rahim Industries Pakistan Ltd. PLD 1993 SC 292; Mukhtar Begum v. Sardar Begum 2000 SCMR 45; Mian Tahir Shah v. D.J. Sawabi 1998 SCMR .853 and Muhammad Mubeen v. Messrs Long Life Builders PLD 2006 Kar. 278 fol.

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

----O. I, R.10---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Impleadment of subsequent vendee under O.I, R.10, C.P.C. in the suit for specific performance filed by the first vendee against vendor---Principles illustrated.

Generally the courts are liberal in granting impleadment applications with a view to avoid multiplicity of proceedings so as to end the controversy.

An application for impleadment by a subsequent vendee can be granted on grounds that his interest was likely to be affected.

The party claiming interest cannot be kept away. Principle of lispendens could not be made a ground for rejecting the application seeking impleadment.

In order to avoid any complications the next transferee could be impleaded as a party despite the operation of the doctrine of lis pendens.

Despite the doctrine of lis pendens contained in section 52 of the Transfer of Property Act the court would be misled in failing to implead the subsequent vendee. The effect of the transaction pending litigation and the rule of lis pendens were to be examined by the Court in 'due course of time.

Section 52 of the Transfer of Property Act, 1882 did not preclude the transferee/subsequent vendee from being impleaded as a party to the pending .proceedings on the basis of a transfer O.XXII, rule 10, C.P.C., regulated the proceedings of the suit wherein a provision was made in cases of assignment, creation or devolution of any interest during the pendency of the suit, which can be continued by or against the person to or upon whom such interest stood devolved. A subsequent vendee may not be a proper and necessary party to justify impleadment in a lis between the first purchaser and the vendor.

The subsequent vendee is hit by the doctrine of lis pendens contained in section 52 of the Transfer of Property Act. This means that the first vendee in a suit against the vendor is under no obligation to implead the subsequent vendee(s). Since any decree obtained by the first vendee will automatically be executable against the subsequent vendee(s). Therefore, an application for intervenor at the behest of the first vendee, seeking impleadment of subsequent vendee(s), in the suit against the vendor may not be maintainable. However, the subsequent vendee(s) may have a defence against the doctrine of lis pendens in view whereof an application for impleadment at the behest of subsequent vendee(s) may be maintainable. The reason for this is rather simple. In case the subsequent vendee(s) may have any defence, cognizable under the law, against doctrine of lis pendens, it would be a matter of propriety and right that such defence should be entertained in the principal suit so as' to avoid multiplicity of proceedings setting the entire controversy finally and effectually.

In the present case, the subsequent vendee had not come forward to move an application for impleadment. The present application at the behest of first vendee i.e. the plaintiff, would thus not be maintainable.

An appeal is a continuation of the original proceedings and the doctrine of lis pendens would take effect from the very moment the suit is maintainable till the final decision of the appeal, if any, arising from the suit or title the expiry of the limitation period for the purposes of the appeal.

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

----O. I, R.10---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Impleadment of parties---Application under O.I, R.10, C.P.C. to implead the subsequent vendee in the suit for specific performance of agreement to sell filed by the first vendee against the vendor---Area Registrar, may qualify to be impleaded so that he is in the notice of the pending litigation so. that an innocent third party may not be sold out the property under dispute without knowledge of pending litigation, which will have a propensity to expose the first vendee to the subsequent vendee---Sub-Registrar of the area, may although not be a necessary party, but he would amply qualify to be a proper party justifying impleadment.

Khalid Javed for Plaintiff.

Messrs Agha Faqir Muhammad and Muhammad Ilyas Khan Tanoli for Defendants.

P L D 2009 Karachi 390

Before Khilji Arif Hussain and Ms. Soofia Lateef, JJ

RASHID NASEEM through Attorney---Appellant

Versus

Mrs. AMNIA FAHIM and another---Respondents

H.C.A. No. 265 and C.M.A. No.1637 of 2008, decided on 14h May, 2009.

Specific Relief Act (I of 1877)---

----Ss.12 & 19---Law Reforms Ordinance (XII of 1972), S.3---Suit for specific performance of agreement of sale---High Court appeal---Plaintiff agreed to purchase the property in question and out of total sale consideration he paid considerable amount---Defendants having failed to transfer the suit property in favour of the plaintiff, despite his request, plaintiff filed suit for specific performance, praying for a decree of special damages against defendants and damages on the amount paid by the plaintiff with 30% compensation thereon---Single Judge of the High Court dismissed the suit by holding that the relief of specific performance was an equitable relief and. since the plaintiff had failed to deposit balance sale consideration, same had disentitled the plaintiff for the relief of specific performance of the contract---Validity---Apart from claiming relief for specific performance, the plaintiff had claimed damages and compensation in respect of the amount paid by the plaintiff as advance part payment---Even if accepted that failure to pay balance sale consideration at the initial stage would tantamount to disentitle equitable relief of specific performance, the plaintiff at least was entitled to damages, if any, proved by him---Under S.19 of the Specific Relief Act, 1877, if court would decide that specific performance ought not to be granted and contract had been broken by the defendant, the court could award compensation, if the plaintiff was entitled to it---Impugned order was set aside and matter was remanded for decision on merits.

Haq Nawaz Talpur for appellant.

P L D 2009 Karachi 392

Before Khalid Ali Z. Qazi, J

MUHAMMAD ALI ABBASI and 2 others---Plaintiffs

Versus

PAKISTAN BAR COUNCIL through Secretary and 8 others---Defendants

Suit No. 293 of 2009, decided on 25th May, 2009.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S.13(2) [as amended by Legal Practitioners and Bar Councils (Amendment) Ordinance (LXIX Of 2007) and Legal Practitioners and Bar Councils (Amendment) Ordinance (VIII of 2008)]---Sindh Chief Court Rules (OS), R.10---Constitution of Pakistan (1973), Arts.199 and 270-AAA---Constitutional petition---Appeal against the decision of Bar Council/Association---Plea of petitioner that right of appeal to Pakistan Bar Council available under section 13(2) of Legal Practitioners and Bar Councils Act, 1973 prior to its amendment by Legal Practitioners and Bar Councils (Amendment) Ordinance, 2007 and Legal Practitioners and Bar Councils (Amendment) Ordinance, 2008 stands revived due to non-ratification of the Amending Ordinance, 2008 by Parliament, and promulgation of Ordinance, 2007 by President during unlawfully imposed emergency in November, 2007---Judgments of Supreme Court reported as PLD 2008 SC 6, PLD 2008 SC 178 and PLD 2008 SC 615 validating. Art. 270-AAA of Constitution, Proclamation of Emergency, dated 3-11-2007, Provisional Constitutional Order, 2007, Provisional Constitutional (Amendment) Ordinance, 2007---Effect---Reference of such matter to even the largest Bench of High Court would be an exercise in futility for lacking jurisdiction to overrule judgment of Supreme Court---According to pleadings and documents on record, Single Bench of High Court could decide matter involved in petition without touching upon such intricate constitutional questions---Single Bench of High Court declined to refer petition to a larger Bench for its decision.

Tikka Muhammad Iqbal v. General Pervez Musharraf PLD 2008 SC 6; Tikka Muhammad Iqbal v. General Pervez Musharraf PLD 2008 SC 178 and Tikka Muhammad Iqbal v. General Pervez Musharraf PLD 2008 SC 615 ref.

Zahoor Ahmed v. Federation of Pakistan PLD 1999 Lah. 139 and K.I. Shephard and others v. Union of India (1987) 4 SCC 431 rel.

(b) Sindh Chief Court Rules (OS)---

----R. 10---Reference of matter by Single Bench to Large Bench---Scope stated.

According to Rule 10 of Sindh Chief Court Rules (OS), when the Single Judge construes a conclusion that a suit or matter is to be more advantageously heard by a larger Bench, then he can make a reference to the Chief Justice of the High Court for constituting a larger Bench.

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

----Art. 189---Obiter dicta of Supreme Court, irrespective of its strength, 'would be binding on High Court.

M. Islamil and Sons v. Trans-Oceanic Steamship Co. Ltd. PLD 1966 Dacca 296; Ghaus Muhammad v. The State PLD 1978 Lah. 1235; Afaquz Zubair v. Muhammad Idrees PLD 1978 Kar. 984; Faiz Bakhsh v. Muhammad Munir 1986 CLC 507; Ghulam Mustafa Mughal v. Azad Government of the State of Jammu and Kashmir 1992 MLD 2083; Abdul Razzak v. The Collector of Customs 1995 CLC 1453; Mian Manzoor Ahmed Wattoo v. The State 2002 YLR 2333; Hafeez-ud-Din v. Badar­-ud-Din PLD 2003 Kar. 444; Azad J & K Government v. Ch. Muhammad Saeed, Stenographer 2003 PLC (CS) SC (AJ&K) 789 and Watan Party v. FOP 2005 YLR 388 rel.

Messrs Rasheed A. Razvi, Munir A. Malik and Salahuddin Ahmed for Plaintiffs.

F.M. Jawed, Advocate for Defendant No.1, Muirur Rehman, Advocate for Defendant No.2, Mustafa Lakhani, Advocate for Defendant No.5 and Khizar Askar Zaidi, learned A.A.-G.

P L D 2009 Karachi 397

Before Gulzar Ahmed and Malik Muhammad Aqil Awan, JJ

FEROZUDDIN and 11 others---Petitioners

Versus

MAZHAR HUSSAIN SHAH and 5 others---Respondents

Constitutional Petition No. D-669 of 2006, decided on 15th April, 2009.

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

----O.XXI, R.11---Limitation Act (IX of 1908), S.3---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Execution of decree---Principle of merger---Applicability---Question of limitation---Determination---Decrees passed by Trial, Appellate and Revisional Courts---Suit was decreed on 28-4-1994 and appeal was dismissed by Appellate Court on 11-2-1996, while execution application was filed on 12-12-1998---Executing Court allowed execution application and issued writ of possession on 9-4-2000 but possession could not be obtained by decree holders as in the meanwhile on 12-3-2004, judgment-debtors moved application under S.3 of Limitation Act, 1908, asserting execution petition being barred by limitation---Executing Court allowed application of judgment debtors and recalled order passed in execution application---Order passed by Executing Court was maintained by Lower Appellate Court in exercise of revisional jurisdiction---Validity---Rule of merger was not restricted to appeal but was extended to remedy of revision also, provided such appeal or revision was decided on merits---Rule of merger was meant for computation of limitation period for filing of execution application whether impugned judgment before Appellate Court and Revisional Court remained under suspension or not or whether judgment of Trial Court was affirmed or modified by Appellate or Revisional Court---Relying on rule of merger, execution application was well within time notwithstanding the fact that Lower Appellate Court did not stay execution nor suspended judgment of Trial Court---As order of Executing Court whereunder execution application was allowed, was appealable, therefore, such time-barred application under S.3 of Limitation Act, 1908, amounted to nothing but to circumvent law and as such was not maintainable---High Court in exercise of Constitutional jurisdiction set aside orders passed by two Courts below on application filed by judgment-debtors---Petition was allowed in circumstances.

Moulvi Abdul Qayyum v. Syed Ali Asghar shah 1992 SCMR 241; Sardar Begum v. Ch. Muhammad Saeed 2001 SCMR 1636 and Muhammad Azhar Khan v. Assistant Commissioner Toba Tek Singh 2006 SCMR 778 rel.

Engineer In Chief Branch through Ministry of Defence v. Jalaluddin PLD 1992 SC 207; Land Acquisition Collector v. Sarfraz Khan PLD 2001 SC 514; Muhammad Mazhar v. Qaiser Ali Khan 2003 SCMR 436 and Nazakat Ali v. WAPDA 2004 SCMR 145 distinguished.

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

----Art.181---Residuary Article---Applicability---Provision of Art.181 of Limitation Act, 1908, being residuary Article applies on any or all applications for which specifically no limitation period is provided---Limitation period under Art.181 of Limitation Act, 1908, commences with effect from the date when right to apply accrues.

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

----S.3---Period of limitation---Computation---Duty of Court---Scope---Court is to see that every suit, appeal and application whether is within time limitation or not at the time when suit was instituted, appeal preferred and application made---Court is also to see whether "cause" being brought before the Court is within time or out of time--Provisions of S.3 of Limitation Act, 1908, do not apply on "cause" which has already been decided and thereafter it falls within the jurisdiction of appellate or revisional Court to see as to whether original Court had complied with S.3 of Limitation Act, 1908, or not.

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

----S. 47 & O.XXI, R.11---Executing Court---Remedy of review---Scope---Grievance of petitioner was that order passed by Executing Court was reviewed and the same was recalled---Validity---Remedy of review was substantive right like that of remedy of appeal and unless. it was shown that under relevant statute remedy of review was provided against order of Executing Court whereunder execution petition was allowed, the same power could not have been exercised to review its earlier order whereunder execution petition was allowed.

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

----S.21---Locus poenitentiae, principle of---Applicability---Exceptions---According to rule of locus poenitentiae, authority passing an order can recall the same unless it is acted upon---Such power is subject to three exceptions which are very common in its nature against such rule namely the order must not be obtained by its beneficiary through fraud or mis­representation, secondly it must not be passed by incompetent authority and thirdly it must not be passed in violation of specific provisions of law.

Shaaban and others v. Mst. Shamim Akhtar and others 2005 SCMR 1707 ref.

Aamir Saleem for Petitioners.

S. Muhammad Abbas for Respondents Nos. 1 and 4.

Date of hearing: 15th April, 2009.

P L D 2009 Karachi 408

Before Mushir Alam, Khilji Arif Hussain, Gulzar Ahmad, Maqbool Baqar and Faisal Arab, JJ

SINDH HIGH COURT BAR ASSOCATION, through Honorary Secretary---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Law and Justice, Islamabad and 4 others---Respondents

Constitutional Petition No.D-40 of 2009, decided on 25th June, 2009.

Per Gulzar Ahmed, J; Mushir Alam; Khilji Arif Hussain and Maqbul Baqar, JJ, agreeing---

(a) High Court (Lahore) Rules and Orders---

----Vol. I, Ch.3, Part A, R.6 & Ch.10, Part A, R.1---Sindh Chief Court Rules (AS), R.12(2)---West Pakistan Civil Courts Ordinance (II of 1962), S.28---Sindh Courts Act (VII of 1926), S.8---Constitution of Benches by Chief Justice of High Court of Sindh---Application of R.12(2), Sindh Chief Court Rules (AS)---Scope---Contention was that R.12(2) of the Sindh Chief Court Rules (AS) required one or both Judges to sit as member of the Full Bench and it being not so, the Full Bench was not properly constituted---Held, High Court (Lahore) Rules and Orders were being applied in exercise of appellate jurisdiction of Sindh High Court; Rule 12(2) of the Sindh High Court being not applicable to the High Court of Sindh and Sindh Courts Act, 1926 except its S.8, having been repealed, contention had no force and the same was rejected---Rule 6, Part A, Ch.3, Vol.V and Rule 1, Part A, Ch.10, of Vol.V of High Court (Lahore) Rules and Orders give ample power to the Chief Justice to constitute Bench including the Full Bench without any condition and that it was not necessary for the Chief Justice to sit as a member of the pull Bench constituted by him---Principles.

Messrs Muqtada Khan Iqtada Khan v. Mst. Allah Rakhi Begum PLD 1972 Kar. 471; The State v. Muhammad Ashraf PLD 1961 (WP) Kar. 452 and Abdul Aziz v. Abdul Wahab PLD 1964 (W.P.) Kar. 630 ref.

(b) Writ---

----Mandamus and quo warranto, writs of---Rule for issuing a writ of mandamus/enforcement of fundamental rights and for issuing writ of quo warranto is governed by two different independent sets of law in which there is no similarity and the ultimate decision of the court, in case writs are issued, produces altogether different results---In issuing of writ of mandamus/enforcement of fundamental rights, the court directs the official functionaries to do and perform what law requires them to do and to perform, and in case of issuing of writ quo warranto the person holding or purporting to hold public office ceases to hold office for it being without authority of law.

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

----Art. 199(1)(ii)---Constitutional jurisdiction of High Court----Scope---Article 199(1)(ii) of the Constitution confers powers on the High Court to entertain and decide a petition of quo warranto---Constitutional duty has been cast upon the High Court to decide such matter, which duty ought not be abdicated for reason that some point in the nature of mandamus/involving enforcement of fundamental rights either collaterally or directly involved in the constitutional petition before the High Court be also pending adjudication before the 'Supreme Court, in view of the clear distinction in the matters of quo warranto and mandamus---Such would be more appropriate, for the added reason that if any party is aggrieved by the decision of the High Court, it will have remedy to having the decision of High Court examined by the Supreme Court.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Petition of quo warranto in respect of Judge of a superior Court will be maintainable under Art.199 of the Constitution.

Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 quoted.

Al-Jehad Trust's Case PLD 1996 SC 324 ref.

(e) Constitution of Pakistan (1973)---

----Arts. 177, 193, 197 & 48---Appointment of Supreme Court and High Court Judges---Object of providing consultation, inter alia, in Arts.177 & 193 of the Constitution---Principles.

Following are the settled principles on the subject:---

(I) The object of providing consultation, inter alia, in Articles 177 and 193 for the appointment of Judges in the Supreme Court and in the High Courts was to accord constitutional recognition to the practice/convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Federal Court which was obtaining prior to independence of India and post-independence period, in order to ensure that competent and capable people of known integrity should be inducted in the superior judiciary.

(II) Since the Chief Justice of High Court concerned and Chief Justice Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship, their recommendations have been consistently accepted during pre-partition days as well as post-partition period in India and Pakistan.

(III) The words "after consultation" referred to inter alia, in Articles 177 and 193 of the Constitution involve participatory consultative process between the Consultees and also the Executive. It should be effective, meaningful, consensus-oriented leaving no room for complaint of arbitrariness or unfair play.

(IV) The Chief Justice of a High Court and Chief Justice of Pakistan are well-equipped to assess as to the knowledge and suitability of a candidate of judgeship in the superior Courts whereas the Governor of a Province and the Federal. Government are better equipped to find out about the antecedents of a candidate and to acquire other information as to his character/conduct.

(V) None of the consultees/functionaries is less important or inferior to the other. All are important in their respective spheres. The Chief Justice Pakistan being Paterfamilias i.e. head of the judiciary, having expertise knowledge about the ability and suitability of a candidate, definitely his views deserve due deference.

(VI) The view of none of the consultee can be rejected arbitrarily in a fanciful manner and that the views of Chief Justice of the High Court concerned and Chief Justice of Pakistan cannot be rejected arbitrarily for extraneous consideration and if the Executive wishes to disagree with their views, it has to record strong reasons which will be justiciable.

(VII) That if a person found to be unfit by the Chief Justice of a High Court and Chief Justice of Pakistan for appointment as a Judge of a High Court or by the Chief Justice of Pakistan for the judgeship of the Supreme Court he cannot be appointed as it will not be proper exercise of power to appoint under the Articles of the Constitution.

(VIII) That since the interpretation of the various Articles by the Supreme Court becomes part of the Constitution and as it becomes the law, it is incumbent on all Executive and judicial authorities throughout Pakistan to act in the aid of the Supreme Court by virtue of Article 190. An advice under clause (1) of Article 48 of the Constitution, therefore, cannot be in violation of law as declared by the Supreme Court. If the advice tendered by the Prime Minister in respect of appointment of the Judge of a superior Court is in accordance with the judgment in the Judges' case, it will be binding on the President. But if the advice is contrary to the said judgment the President has several options which inter alia, include the following:---

(i) The President may agree with the reasons recorded by the Prime Minister for not accepting the recommendations of the Chief Justice or the Chief Justices. In that event the above reasons will be justiciable as held in the Judges' case.

(ii) The President may refer the matter to the Prime Minister for reconsideration under the proviso of clause (1) of Article 48 of the Constitution.

(iii) The President may refer the matter for consideration of the Cabinet under clause (c) of the Article 46 of the Constitution.

(iv) The President may convene a meeting and may invite the Prime Minister, the Chief Justice of Pakistan and Chief Justice of High Court concerned for resolving the issue by participatory consultative process and consensus-oriented.

(v) The President may make a reference to the Supreme Court under Article 186 for soliciting opinion.

The Executive Authority is bound to accept the views of Chief Justice of High Court concerned and Chief Justice of Pakistan in the matter of appointment of Judges in superior judiciary and such views cannot be rejected arbitrarily for extraneous consideration and if the Executive wishes to disagree with their views, it has to record strong reasons which will be justiciable and that if a person is found to be unfit by the Chief Justice of a High Court concerned and Chief Justice of Pakistan for appointment as a Judge of a High Court, he cannot be appointed as it will not be a proper exercise of power to appoint under Articles of the Constitution. The assumption is that the views of the Chief Justice of a High Court and Chief Justice of Pakistan are identical and does not speak of a case in specific terms where the views of Chief Justice of High Court concerned and Chief Justice of Pakistan may not be the same. The judgment proceeds on the assumption that there will be identity of views of Chief Justice of High Court concerned and Chief Justice of Pakistan in the matter of appointment of a Judge or Additional Judge of High Court concerned and Chief Justice of Pakistan being Members representing judiciary have their channels of discussion/consultation open between them and if there does crop-up difference of opinion between them, they are completely free to have their views discussed with each other to reach consensus between them.

The differences in views between Chief Justice of High Court and Chief Justice of Pakistan in the matter of appointment of a Judge or an Additional Judge in the High Court have been arising but there appears to be no one case where it may not have been resolved through the process of consultation between them. No such situation- could have been visualized nor comprehended for the reason that Chief Justice of High Court and Chief Justice of Pakistan being head of their respective Courts are always expected to resolve their differences by an amicable means so as to forward to the Executive a consensus view from the side of judiciary regarding appointment of a Judge or an Additional Judge of a High Court.

Supreme Court on Record Advocate Association v. Union of India AIR 1994 SC 268; Philosophy of Law, 2nd Edn. By Joel Feinberg and Hyman Gross; Al-Jehad Trust v. Federation of Pakistan PLD '1996 SC 324; Justice Ghulam Haider Lakho v. Federation of Pakistan PLD 2000 SC 179; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; M.M. Gupta and another v. State of J&K and others AIR 1982 SC 149 and Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan others PLD 1997 SC 84 ref.

(f) Constitution of Pakistan (1973)---

----Arts.177, 193, 197 & 260---Appointment of Supreme Court and High Court Judges---"Consultation"---Meaning.

The definition of the word "consultation" given in the Constitution is: shall, save in respect of appointment of Judges of the Supreme Court and High Courts, means, discussion and deliberation which shall not be binding on the President. This definition in the first place provides consultation by means of discussion and deliberation in the case of appointment of Judges in the Supreme Court and High Courts and secondly provides saving clause which as a rule is construed to exempt something from immediate interference or destruction.

The word "consultation" as defined in the Constitution with meaning of discussion and deliberation, as an exception has been made binding on the President only in respect of appointment of Judges of Supreme Court and High Courts and it seems to be based on the rationale not far to be found i.e. pronouncement of Supreme Court in the Judges' case.

Understanding Statutes Conons of Construction, 2nd Edn., p.114 by S. M. Zafar and Judge's case PLD 1996 SC 324 ref.

(g) Constitution of Pakistan (1973)---

----Arts. 193 & 197---Appointment of Judges of High Court---Consultative process---Principles---By not adhering to the recommendations of the Chief Justice of concerned High Court and by not giving any reasons for such non-adherence and without consulting the Chief Justice of the High Court, appointing a permanent Judge of said High Court and granting 6 months extension as Additional Judge through a notification was not based upon mandatory consultation as required by the Constitution read with Judge's case PLD 1996 SC 324 which provided that there should be participatory consultative process' between the consultees and also with the Executive and it should be effective, meaningful, purposive, consensus oriented leaving no room for complaint of arbitrariness or unfair play and that the views of each of the consultees was binding on the Executive and in case Executive wishes to disagree with view of any of the consultees, it was required to give strong reasons for it---Views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan Will be binding on the Executive---Views of judicial consultees in respect of appointment of a Judge of High Court has to be expressed by the Chief Justice of Pakistan with the supporting views of the Chief Justice of High Court concerned which has to be evolved through participatory consultative process to be effective, meaningful, purposive and consensus oriented---If the recommendations of Chief Justice of Pakistan are not based on such consultative process, such recommendations to the Executive will not be binding and if the Executive accepts such recommendations, it will become justiciable---Non-justiciablity is attached to the recommendations of the Chief Justice of High Court and that of Chief Justice of Pakistan expressed conjunctively---Law and principles on the subject elaborated.

Judges' case PLD 1996 SC 324; Judges' case AIR 1994 SC 268, p.447 by His Lordship Verma, J; Supreme Court Bar Association v. Federation of Pakistan PLD 2002 SC 939; Justice Ghulam Haider Lakho v. Federation of Pakistan PLD 2000 SC 179 ref.

(h) Constitution of Pakistan (1973)---

----Arts. 177 & 260---Appointment of Judge of Supreme Court---Consultative process---Principles---Article 177 of the Constitution provides that the Judges of Supreme Court shall be appointed by the President in consultation with Chief Justice of Pakistan---Only one judicial consultee is provided and by the dint of Judge's case and the definition of the word "consultation" in the Constitution, the consultation of the Chief Justice of Pakistan in appointment of Judges in the Supreme Court has been made binding on the President.

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

----Art. 197---Appointment of Additional Judge of the High Court---Expectancy of Additional Judge of being made a permanent Judge--Principles.

Though there is well-established practice/convention of an Additional Judge being appointed against a permanent vacancy has a reasonable expectancy to be considered for appointment as a permanent Judge but such expectancy has been made subject to the satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan---If the Chief Justice of the High Court does not recommend the appointment of an Additional Judge as a Permanent Judge, the qualification of reasonable expectancy will not stand, for that in order to take contrary view from the one taken by the Chief Justice of the High Court concerned either strong reasons have to be assigned or his consensus through consultative process is obtained. The rule of fitness and suitability has an edge over the principles of seniority and legitimate expectancy.

(j) Constitution of Pakistan (1973)---

----Arts. 193 & 199(1)(b)(ii)---Constitutional petition---Maintainability---Constitutional petition challenging the right to hold office of a Judge of High Court is maintainable under Art.199(1)(b)(ii) of the Constitution.

(k) Constitution of Pakistan (1973)---

----Arts. 193, 197 & 260---Appointment of High Court Judges---Consultative process---Principles---Consultation with regard to the confirmation and/or extension of a Judge of the High Court by the President/Executive with the consultees mentioned in Arts.193 & 197 of the Constitution read with definition of "consultation" under Art.260 of the Constitution has to be effective, meaningful, consensus oriented, purposive--Any appointment, confirmation and or extension in disregard of said principles shall be violative of the Constitution and the well-established constitutional conventions and thus invalid---Where the said procedure was not adhered to in the matter of confirmation and extension of an Additional Judge of the High Court, his "confirmation" was held by the Full Bench to be treated as an "extension" in his tenure as an Additional Judge of High Court as recommended by the Chief Justice of the concerned High Court, for a period of one year from the date of expiry of his tenure as mentioned in the notification relating thereto---Chief Justice of concerned High Court having not recommended the name of an Additional Judge for extension in his tenure, extension in his tenure being violative of the Constitution, was declared invalid.

Per Faisal Arab, J; Mushir Alam; Khilji Arif Hussain and Maqbul Baqar, JJ agreeing---

(l) Constitution of Pakistan (1973)---

----Arts. 193, 197, 199(1)(b)(ii)(5) & 209---Appointment of High Court Judges---Constitutional jurisdiction of High Court---Scope---Contentions regarding maintainability of the constitutional petition challenging constitutionality of appointment of High Court Judges were that no proceedings in the nature of quo warranto lay against a Judge of a High Court as under Art.199(5) of the Constitution, High Courts had been specifically excluded from the definition of "person" as under Art.192 of the Constitution, High Court meant and included its Chief Justice and all the puisne Judges, therefore, proceedings under Art.199(1)(b)(ii) of the Constitution were not maintainable even against a Judge of a High Court as he did not come within the meaning of "person" provided in Art.199(1)(b)(ii) Of the Constitution and that in case a Judge of superior Court was not fit to hold his office, Art.209 of the Constitution should be resorted to---Validity---Held, under Art.199(1)(b)(ii) of the Constitution, right of a person to hold a public office could be tested--Validity and constitutionality of appointment of a Judge of High Court was outside the purview of the enquiry under Art.209 of the Constitution---Remedy provided under Art.209 of the Constitution, therefore, could not be equated with the proceedings filed under Art.199(1)(b)(ii) of the Constitution to challenge the unconstitutional appointment of a Judge of superior Court---Principles.

Under specific provision of Article 199(1)(b)(ii) of the Constitution, right of a person to hold a public office can be tested. The provisions of this Article are applicable in cases where there is (i) intrusion or usurpation of a public office i.e. either the office was never granted to a person or if granted, his right to the office subsequently stood terminated or forfeited or (ii) the grant of public office is found to be legally defective. In any of these situations, a High Court can declare the right to a public office to be invalid. Hence under Article 199(1)(b)(ii) of the Constitution, a High Court can inquire from a holder of public office, by what authority he has a right to hold his office. While examining the legality of an appointment to a public office, not only the authority of the grantee comes under scrutiny but the scrutiny can go beyond the grant itself and examine the very propriety and legality of the procedure that was adopted in the grant of public office. In other words, a High Court can examine the question whether the procedure that was followed for making an appointment conforms to the requirements of the law and the accepted norms established over the years that have come to be recognized as constitutional conventions. It is an appropriate remedy in cases where public has some interest in the controversy that needs to be resolved and is not meant to be invoked purely for protecting interests of a private right i.e. it cannot be used to question the legality of official acts that a holder of office has performed while in office to which he had no right. Thus, this remedy under Article 199(1)(b)(ii) of the Constitution is limited only to examine a right to a public office.

When the appointment of a Judge of superior Court is called in question on the ground that he did not possess the prescribed qualifications or his appointment does not fulfil the requirements of the Constitution, the relater is not asking the Court to strike down any of his actions which he had performed or is performing as Judge of a superior court but is .asking to examine his right to hold the office of a Judge of the superior Court. Such a case does not fall within the mischief of the provision of Article 199(5) of the Constitution.

In case an appointment is found to be in violation of the provision of any Article of the Constitution, then such person is not entitled to hold and continue in office and the appointment cannot only be called in question on the ground that it infringes the Fundamental Rights guaranteed under Articles 9 and 25 of the Constitution but information in the nature of quo warranto can also be sought through a petition filed under Article 199(1)(b)(ii) of Constitution.

The Supreme Judicial Council cannot grant any relief where there is an illegal and unconstitutional appointment to a superior Court. Hence, the validity and constitutionality of appointment of a Judge of a superior Court is outside the purview of the enquiry under Article 209 of the Constitution as it has no nexus either with the mental or physical incapacity of the Judge to perform the duties of his office or with the misconduct of the Judge. The remedy provided under Article 209 of the Constitution, therefore, cannot be equated with the proceedings filed under Article 199(1)(b)(ii) of the Constitution to challenge the unconstitutional appointment of a Judge of a superior Court.

Proceedings in the nature of quo warranto against a judge of a superior Court are maintainable under Article 199(1) (b) (ii) of the Constitution and provisions of Article 209 of the Constitution have no application in such matters.

In case violation of the provision of Constitution is brought to the notice of a Judge of a superior Court in appropriate proceedings which involves the person of another Judge of the same Court, the relief, in the absence of a Constitutional bar, cannot be declined at the cost of maintaining high tradition to have comity amongst the Judges.

Asad Ali v. Federation' of Pakistan PLD 1998 SC 161 ref.

(m) Sindh Chief Court Rules (AS)---

----R. 12(2)---Sindh Courts Act (VII of 1926), S.12---Constitution of Full Bench by Chief Justice of High Court---When a Full Bench was not constituted on the request of a Division Bench and no question as contemplated by R.12(2), Sindh Chief Court Rules (AS) had been referred for its decision, R.12, Sindh Chief Court Rules (AS) was not applicable-Principles:

(n) Constitution of Pakistan (1973)---

----Arts. 193, 197 & 199---Pakistan Legal Practitioners and Bar Council Rules, 1976, R.165---Memorandum of Association of the Sindh High Court Bar Association, Art.3(d)---Appointment of High Court Judges---Challenge to constitutionality of such appointments by Sindh High Court Bar Association under Art.199 of the Constitution---Contention of the respondents was that Bar Association, had no locus standi to maintain a constitutional petition on the issue---Validity---Held, duty of Advocates was not limited to their obligations towards their clients and courts but they also have to keep their eyes and ears open and raise their voice whenever an occasion arises in order to ensure that no political interference takes place which may compromise the independence of judiciary---Rule 165, Pakistan Legal Practitioners and Bar Councils Rules., 1976 and Art.3(d) of the Memorandum of Association of the Sindh High Court Bar Association entitled the Bar Association, which was a body of advocates, to protest earnestly and actively against the appointment of Judges through a process, which was not mandated by the Constitution and Constitutional conventions and had every right to call in question any executive action that interfered with the independence of judiciary---Sindh High Court Bar Association, which was a body of advocates of the Sindh High Court, therefore, had locus standi to file the constitutional petition.

Sharaf Fridi v. Federation of Pakistan PLD 1989 Kar. 404; Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Judges' case PLD 1996 SC 324 ref.

(o) Constitution of Pakistan (1973)---

----Arts. 193, 177 & 199---Appointment of High Court Judges---Opinion of Chief Justice of Pakistan on the recommendations of Chief Justice of concerned High Court---Justiciability---Scope---Where an appointment is challenged on the ground that consultative process lacked constitutional requirements and disregarded the rule laid down in Judges' case, such is a situation where the question of non-justiciability would not arise---If such situation was not made justiciable then it would not be possible to question an appointment even if it was made in violation of rules laid down in the Judges' case.

Judges' case PLD 1996 SC 324 ref.

(p) Constitution of Pakistan (1973)---

----Arts. 177, 193 & 199---Appointment of High Court Judges---Remarks made in relation to an appointee by judicial consultees under Arts.177 & 193 of the Constitution were not justiciable---Full Bench expunged all averse remarks made against respondents (appointee Judges) in the petition that were said to have been expressed by the Chief Justice of the High Court in his opinion---Full Bench observed that the Bench shall be examining the opinions of judicial consultees only for the limited purpose to form its (Full Bench) opinion on the question whether in confirmation of the Judge of the High Court and extension in the judicial tenure of other two Judges, the consultative process was carried out as was required to be undertaken under Art.193 of the Constitution and defined by Supreme Court of Pakistan in its various judgments, most particularly the Judges' case.

Judges' case PLD 1996 SC 324 ref.

(q) Constitution of Pakistan (1973)---

----Arts. 193 & 197---Appointment of Judges of the High Court---Method---Consultative process---Principles.

The method of appointment of a Judge or an Additional Judge of a High Court is the same i.e. the one that is provided in Article 193 of the Constitution. Article 193 provides that appointment of a Judge of a High Court is to be made by the President after consulting with (a) the Chief Justice of Pakistan, (b) the Governor concerned, and (c) the Chief Justice of the concerned High Court (except where the appointment is that of the Chief Justice of the High Court itself).

The Judges' case recognizes the importance of consultations in the whole process of appointment of Judges to the superior Courts and therefore, the term "consultation" was given an extensive and elaborate meaning.

The word "consultation" was given wider and enlarged meaning keeping in view the fact that appointments relate to the exalted position in the judiciary that has to function independently. It was for this reason felt that no room should be left for political considerations in the appointment of Judges as it would then compromise on the requisite credentials, which Judges of superior Court must possess. To achieve this objective, importance of the opinion of the Chief Justice of the High Court to which appointments are to be made was recognized along with the opinion of the Chief Justice of Pakistan. The opinion of both the judicial consultees being expert opinion, in case they (any of them) find a person not fit and capable to be appointed as Judge of a High Court then the executive must not act against such advice.

Judges' case accords constitutional recognition to the convention of consulting the Chief Justice of the High Court concerned and the Chief Justice of the Pakistan in the appointment of Judges to the Federal Court now Supreme Court and the High Courts that was in vogue prior to the independence and continued since then. It was considered that continuation of such convention would result in induction of competent and capable people of known integrity in the superior judiciary which is assigned very delicate task to ensure that all the functionaries of the State act within the limits delineated by the Constitution and close the doors for making appointments on political consideration. The words "after consultation" referred to, inter alia, in Articles 177 and 193 of the Constitution involve participatory consultative process between the judicial consultees and executive consultees as both the set of consultees are well-equipped in their specific spheres to assess the suitability of a candidate for judgeship in the superior Courts and none of the consultees is less important or inferior to the other.

The views of none of consultees can be rejected arbitrarily and in fanciful manner. If a person found unfit to be a Judge of the High Court by the Chief Justice of the High Court concerned or the Chief Justice of Pakistan then he cannot be appointed by the President as it will not be a proper exercise of power under Article 193 of the Constitution. The consultative process is mandatory and without it no appointment/confirmation can be made and in absence of consultation as contemplated and interpreted by the Supreme Court (Judges' case) the appointment or confirmation of a Judge in the superior Courts shall be invalid.

Thus, it is quite evident that while making appointments to the superior Courts, there is no room for arbitrariness. When a Judge of a High Court is to be appointed, the Chief Justice .of Pakistan and the Chief Justice of the concerned High Court have to first arrive at a consensus on the appointment of a recommendee by engaging themselves in a participatory consultative process. The final opinion so reached is then forwarded by the Chief Justice of Pakistan to the executive. The adoption of such procedure is mandatory. Failure to do so would invalidate the appointment or confirmation of a Judge as it would not be regarded as an outcome of an effective, meaningful and consensus oriented consultations.

Though the Chief Justice of the Supreme Court is head of the entire Judiciary and may be figuratively paterfamilias of the brotherhood of Judges but the Chief Justice of a High Court is also an equally important constitutional functionary when it comes to the appointment of Judges of the High Courts and in the entire consultative process it cannot be said that, in any way, his role is less important than the role of the Chief Justice of the Supreme Court.

When consultation is a constitutional requirement then it cannot be treated as a mere formality. The whole object of appointment through consultative process would be defeated if even after the differences in the opinions of the two judicial consultees, no further consultations take place between them. In the present case, there was total absence of having any further consultations with the Chief Justice of High Court in spite of the differences in the two opinions. Thus, the consultative process lacked basic requirements of the "consultations" as defined in the Judges' case and thus, the confirmation of a Judge and extension in the judicial tenure of Judges was in complete violation of the rules laid down in the Judges' case.

Al-Jehad Trust's case PLD 1996 SC 324; Malik Asad Ali's case PLD 1998 SC 161; Ghulam Haider Lakho's case PLD 2000 SC 179; Supreme Court Bar Association's case PLD 2002 SC 939; S.P. Gupta v. Union of India AIR 1982 SC 149 and Supreme Court Advocates-on-Record Association v. Union of India AIR 1994 SC 268 ref.

(r) Constitution of Pakistan (1973)--

----Arts. 193 & 197---Appointment of Judges of the High Court---Consultative process---Primacy of opinion---Principles.

Constitution has not envisaged giving primacy to the opinion of any individual judicial consultee in the matter of appointment of Judges to the High Courts. In the matter of appointment of High Court Judges, the opinion has to be formed by both the judicial consultees collectively. When such an opinion is formed, the Chief Justice of Pakistan forwards the same to the Executive. When this collective opinion comes in conflict with the opinion of the Executive it has to be given primacy for the reason that the Chief Justice of High Court concerned and the Chief Justice of Pakistan have expertise knowledge about the ability and competency of a candidate for judgeship. They are well-equipped to assess the knowledge and suitability of a person who is being considered for appointment as a Judge.

Wherever it is stated in Judges' case that the opinion of the Chief Justice of Pakistan has primacy, insofar as it relates to the appointment of High Court Judges, it means primacy of the common opinion collectively formed by both the judicial consultees over the opinion of the Executive. The reason for stating that opinion of the Chief Justice of Pakistan has primacy is because the collective opinion is finally forwarded by the Chief Justice of Pakistan to the appointing authority i.e. the President. When this collective opinion comes in conflict with the opinion of the Executive then it has to be given primacy over the opinion of the Executive in order to preserve independence of the judiciary. In such a situation if the Executive does not wish to appoint the recommendee on account of negative opinion about his antecedents, the Executive is bound to give reasons for that, whereas no reasons are required to be given by the judicial consultees for their negative opinion about a recommendee. Therefore, in case a person is found to be unfit for appointment by the Chief Justice of the High Court concerned or the Chief Justice of Pakistan then he cannot be appointed as it will not be a proper exercise of power under Article 193 of the Constitution. This restriction on the powers of the appointing authority not to appoint a person who has not been recommended by either of the two judicial consultees gives primacy to their opinion over the opinion of the Executive. Thus, the negative opinion of any of the judicial consultees cannot be ignored by the Executive in any circumstance.

Judges' case PLD 1996 SC 324 ref.

(s) Constitution of Pakistan (1973)---

----Arts. 193 & 197---Appointment of Judges of the High Court--Constitutional Conventions---Enforceability---Constitutional Conventions are enforceable as if they are provisions of the Constitution---Guidance has to be taken from well-established Conventions, which have dealt with similar situations in the matter of appointment of Judges in the past---Where the Chief Justice of High Court gives negative opinion about a person and Chief Justice of Pakistan holds a positive opinion then it is all the more necessary that the matter be referred back to the Chief Justice of the High Court for reconsideration and only after reaching consensus, recommendations be sent to the appointing authority.

Judges' case PLD 1996 SC 324 and Malik Asad Ali's case PLD 1998 SC 161 ref.

(t) Constitution of Pakistan (1973)---

----Arts. 193 & 197---Confirmation of Additional Judges of the High Court---Procedure to be followed.

In the matter of confirmation of additional Judges of the High Courts, the procedure that is followed is that before the judicial tenure of an Additional Judge of a High Court expires, the Chief Justice of the concerned High Court decides (a) whether or not to recommend him for confirmation or (b) whether his tenure needs to be extended for a further period and the question of confirmation be deferred till then. The Constitution has specifically assigned a consultative role to the Chief Justices of the High Courts in the entire process of appointment of Judges/Additional Judges to their respective High Courts. The object of having consultations between the Chief Justice of a High Court and Chief Justice of Pakistan is to appoint such persons who are fit and suitable to hold the office of the High Court Judge and about whom there are no differences of opinion about his fitness and suitability. Differences on the fitness and suitability of a person make him controversial. In such circumstances it is better not to appoint a controversial person who though may be otherwise fit to be appointed as a Judge. This is so because both the judicial consultees have been collectively entrusted with the obligation to appoint such persons whose credentials to hold the office of Judge are beyond reproach. When there is collective responsibility then there is no room for arbitrariness. Appointing a person about whom there are reservations in the mind of any of the two judicial consultees is certainly going to create an adverse perception among the lawyers' community as well as among the public which may shatter confidence in the judiciary.

Therefore, in case the Chief Justice of the High Court gives his negative opinion and does not recommend confirmation or extension in the judicial tenure of an additional Judge and on the other hand the Chief Justice of Pakistan is of the opinion that the additional Judge deserves to be confirmed then both the judicial consultees must engage themselves in further consultations. The two judicial consultees must discuss on the point of their differences and reach at some consensus. It is only after reaching consensus that the Chief Justice of Pakistan forwards the final opinion to the Executive. In this manner, the final opinion that is communicated by the Chief Justice of Pakistan to the executive is not merely his individual opinion but an opinion that is formed collectively by both the judicial consultees after engaging themselves in consultative process. The main object of having consensus-oriented consultations could only be achieved if such a course is adopted.

Any deviation in the method of appointment prescribed under the Constitution and defined in the Judges' case is likely to shake the confidence of the public in the institution of judiciary and tarnish its image as the neutral arbiter in disputes between citizen and citizen and citizen and State and therefore, such deviation would vitiate the right to hold office.

Any adverse remark expressed in relation to any person by any of the judicial consultees in the course of the consultative process is not open to judicial scrutiny and hence not justiciable. What is open to judicial scrutiny is the propriety and legality of the consultative process which, if found to be deficient on the touchstone of the provisions of the Constitution (as defined in the Judges' case and practised through well-established constitutional Conventions), would lead to invalidating the appointment.

Judges' case PLD 1996 SC 324 and Malik Asad Ali's case PLD 1998 SC 161 ref.

(u) Constitution of Pakistan (1973)---

----Arts. 193, 197 & 203---Appointment of Judges of the High Court---Executive cannot appoint a candidate for judgeship if the Chief Justice of the concerned High Court or the Chief Justice of Pakistan has given negative opinion, in the entire process of appointment and/or confirmation of High Court Judges, the opinion of the Chief Justice of the High Court is of vital importance---Ignoring the opinion of Chief Justice of the High Court would amount to treating his opinion as a mere formality---Principles.

Though the President has sole power to appoint Judges but the opinion of the consultees, particularly of the Chief Justice of the High Court and the Chief Justice of Pakistan, who are supposed to be experts in the field of law in which the appointment is to be made, cannot be ignored. The Chief Justice of the High Court and the Chief Justice of Pakistan normally know the advocates who appear in their Courts regularly and therefore, they would recommend names of such advocates who are capable and fit to be Judges of the High Court. It is in this context that their opinions, which is expert opinion in a way, cannot and should not be ignored. Then some of the elevations to the High Courts are made from the subordinate judiciary as well. The Chief Justice of the concerned High Court is in a better position to know the performance and capabilities of the Judges of the subordinate judiciary by virtue of Article 203 of the Constitution. This Article entrusts the concerned High Court with the responsibility to supervise and control all Courts subordinate to it. The Chief Justice of the concerned High Court is in direct contact with the District Judges and is aware of their performance as Judges. The Chief Justice of the concerned High Court therefore, is in best position to know their potential and capability to become Judges of the High Court. In this background, the opinion of the; Chief Justice of the concerned High Court gains immense importance when it comes to the appointments that are to be made to his High Court. The negative opinion of both the judicial consultees has to be respected. In case the Executive gives negative opinion about a person for reasons of his improper antecedents in whose favour the Chief Justice of the High Court and the Chief Justice of Pakistan have given their positive opinion the Executive may not appoint such person but it has to give strong reasons for that. On the other hand the Executive cannot appoint a candidate for judgeship if the Chief Justice of the High Court or the Chief Justice of Pakistan have given negative opinion. In the entire process of appointment and/or confirmation of High Court Judges, the opinion of the Chief Justice of the High Court is of vital importance. Ignoring his opinion would amount to treating his opinion as a mere formality.

Judges' case PLD 1996 SC 324 ref.

(v) Constitution of Pakistan (1973)---

----Arts. 193 & 197---Appointment of Judges of High Court---Differences as to suitability and fitness about a candidate between the two judicial consultees---Principles.

Whenever differences as to suitability and fitness arise about a person between the two judicial consultees, attempt should be made to reach at some consensus. If no consensus is reached then the Executive cannot appoint such a person, as it would not be a proper exercise of power under Article 193 of the Constitution. Then to maintain transparency, the entire consultative process must also be reflected from the record i.e. it should be in writing. The Executive cannot choose from any of the two diverse opinions of the judicial consultees and appoint a person which the executive deems fit. The Executive can only vouch for the antecedents of a person, which too are justiciable. Appointing a person that is likely to give rise to controversy should always be avoided at all costs. Disregard of this principle, which has its root in the time-honoured Conventions, would defeat the very object for which the consultative process was devised in the Constitution and defined in the Judges' case.

Judges' case PLD 1996 SC 324 ref.

(w) Constitution of Pakistan (1973)---

----Arts. 193 & 197---Appointment/confirmation of Judges of High Court---Consultative process, in the present case, had not been validly held while confirming an Additional Judge of the High Court---Contention was that when the Judge was administered oath by the same Chief Justice of the High Court who had not recommended his confirmation, therefore, legal infirmity, if any, stood cured---Validity---Held, there was no estoppel against the law or the Constitution---Oath by itself could not cure the defect that was left in the consultative process, which was a mandatory requirement of the Constitution---No consultee possessed exclusive role in the appointment of a High Court Judge---If the Chief Justice of High Court gave oath to a Judge on account of notification by the appointing authority, that did not mean that the consultative process that originally lacked validity under the Constitution would become valid---Obligation to have effective, meaningful, purposive and consensus oriented consultations . before final recommendations were sent to the Executive for consideration had to be discharged in the light of time-honoured past Conventions and the rules laid down in the Judges' case---Giving oath was secondary which would not cure the inherent defect in the entire process of confirmation of a High Court Judge.

Judges' case PLD 1996 SC` 324 ref.

(x) Constitution of Pakistan (1973)---

----Arts. 193 & 197---Appointment of Judges of High Court---Question, in the present case, was whether in the matter of recommendation, extension, confirmation or otherwise of Additional Judges of High Court, there was 'consultation by and between the Constitutional consultees within the contemplation of Articles 193 & 197 of the Constitution, as expounded by the Supreme Court of Pakistan in the cases of Al-Jehad Trust's case (PLD 1996 SC 324); Malik Asad Ali's case (PLD 1998 SC 161); Ghulam Haider Lakho's case (PLD 2000 SC 178) and the Supreme Court Bar Association's case (PLD 2002 SC 939)---Verdict of the High Court with regard to the controversy involved in the case summarized.

Following is the summary of the verdict of the High Court on the subject.

(i) It is time honoured constitutional Convention that the process of appointment of a High Court Judge is initiated by the Chief Justice of the concerned High Court and the recommendation for appointment is finally forwarded to the appointing authority by the Chief Justice of Pakistan and this is done only , after both the judicial consultees have reached consensus by engaging themselves in a participatory consultative process.

(ii) The norms that have emerged from the time honoured constitutional conventions have to be respected in the entire consultative process. Guidance has to be taken from the well-established constitutional Conventions, which have dealt with similar situations in the past. Appointing a person that may give rise to controversy should be avoided at all costs. Disregard of this principle, which has its root in the time-honoured conventions, would defeat the very object for which the consultative process was devised in the Constitution and defined in the Judges' case.

(iii) In the Judges' case (PLD 1996 SC 324) wherever there is reference to the opinion of "the Chief Justice of Pakistan and the Chief Justice of the High Court", the Word "and" appearing in the said phrase is to be read to mean the opinion which both the judicial consultees have collectively formed with regard to the suitability and fitness of a person.

(iv) Wherever it is stated in the Judges' case that the opinion of the Chief Justice of Pakistan has primacy, insofar .as it relates to the appointment of High Court Judges, it refers to the opinion that is collectively formed by both the judicial consultees with consensus that has primacy over the opinion of the executive consultees.

(v) When the Chief Justice of the High Court in his opinion expresses disapproval of any person to be appointed as Judge and on the other hand the Chief Justice of Pakistan finds such person to be suitable for appointment then the record must reflect that further consultations were held between them to sort out the differences. Without addressing the differences in the two opinions, the purpose of having meaningful and effective consultations could never be realized.

(vi) In order to ensure effective consultations between the Judicial consultees; the reasons for disagreement, if any, must be disclosed to the other for reconsideration.

(vii) Where the differences between the Chief Justice of Pakistan and Chief Justice of the High Court remain, in spite of an attempt to sort them out, then appointment should not be made as it would not be in the best interest of the judiciary to appoint a controversial person.

(viii) The Chief Justice of Pakistan and the Chief Justices of High Courts are head of their respective institutions and therefore, if any of them find a person not fit and capable to be appointed as a Judge of the High Court then the Executive cannot disregard such negative opinion and must not appoint a controversial person as it would not be proper exercise of power under Articles 193 and 197 of the Constitution.

(ix) In case the Executive wishes to disagree with the positive opinions of the judicial consultees on account of its negative opinion about the antecedents of a person, it has to give strong reasons, which shall be justiciable but the Executive cannot appoint a person in case the Chief Justice of the High Court or the Chief Justice of Pakistan has given negative opinion about his suitability and fitness.

(x) In order for the consultative process to be credible and transparent, it should always be in writing and must form part of the record, as the appointment of Judges to' the superior Courts is too important a matter to be left to speculation and conjectures.

(xi) The concept of non-justiciability was devised only to provide a carte blanche to the judicial consultees so that they, while considering appointments under the Constitution, may give their free and frank opinion about a person, without any inhibitions and without putting up with the embarrassment that is bound to come, in case the adverse remarks made in their opinions are made justiciable and allowed to be challenged through representations and legal proceedings.

(xii) What is open to judicial scrutiny is the propriety and legality of the consultative process which if found to be deficient on the touchstone of the provisions of the Constitution (as defined in the-Judges' case) and the well-established constitutional Conventions, would invalidate the appointment.

In order for a consultative process to be in line with the constitutional requirements and well-established constitutional Conventions, no appointment, confirmation or extension in the judicial tenure of an Additional Judge of High Court could be valid if the Chief Justice of the concerned High Court has not given his positive recommendations in the matter or revised his earlier negative recommendations.

Al-Jehad Trust's case PLD 1996 SC 324; Malik Asad Ali's case PLD 1998 SC 161; Ghulam Haider Lakho's case PLD 2000 SC 179 and Supreme Court Bar Association's case PLD 2002 SC 939 ref.

(y) Constitution of Pakistan (1973)---

----Arts. 193 & 197---Appointment of Judges of the High Court---Consultative process-Constitutional requirements and constitutional conventions---Held, in order for a consultative process to be in line with the constitutional requirements and well-established Conventions, no appointment, confirmation or extension in the judicial tenure of an Additional Judge of High Court could be valid if the Chief Justice of the concerned High Court has not given his positive recommendations in the matter or revised his earlier negative recommendations.

Per Mushir Alam, J, agreeing with. Gulzar Ahmad and Faisal Arab, JJ

(z) Constitution of Pakistan (1973)---

----Arts. 175(3), 193, 197 read with Art.260---Appointment of Judges of the High Court---Disagreement of Chief Justice of Pakistan with the recommendation of Chief Justice of concerned High Court---Option of initiating .participatory consultative and consensus-oriented process through exchange of correspondence or invitation to the Chief Justice of concerned High Court---Non-arrival of judicial consultees to any consensus---Role of the President in such circumstances---Scope and extent elaborated.

The disagreement of Chief Justice of Pakistan with the recommendation of Chief Justice of High Court is not something unusual in the context of appointment, extention or confirmation of a Judge of High Court and instances are there. It is but part of the healthy consultative process aiming at arriving at consensus amongst the judicial consultees. In case the Chief Justice of Pakistan disagrees with the opinion of the Chief Justice of High Court in the matter of appointment, extention or confirmation or otherwise of a Judge of High Court for any good reasons same may be disclosed to the Chief Justice of concerned High Court to enable him to reconsider his recommendation. If the Chief Justice of concerned High Court still does not deem it necessary to review his opinion as regards non-recommendation either for appointment, extention or non-confirmation of a Judge as the case may be, and he maintains his opinion, then non-appointment, non-extention or non-confirmation of that person as a Judge of High Court for reasons to be recorded by the President is permissible in the public interest. If the non-appointment, non-extention or non-confirmation in rare case, on this ground, turns out to' be a mistake, in the ultimate public interest the same is less harmful than a wrong appointment. One can very well imagine the devastating and far reaching consequence of wrongful appointment and

the judiciary of Pakistan has suffered immensely on this count.

In case of disagreement between the Judicial Consultee, Chief Justice of Pakistan has option to initiate participatory consultative and consensus-oriented process, through exchange of correspondence or may invite the Chief Justice of concerned High Court and engage into integrated participatory consultative process for selecting the best of the best and most suitable person available for appointment. In event consensus inter se judicial consultee cannot be arrived at, and a person is opined to be unfit by the Chief Justice of the concerned High Court for the judgeship of the High Court, such person should not be recommended for appointment, extention and or confirmation by the Chief Justice of Pakistan. From the record made available to us on the subject-matter, it appears that the President in the present case, acted mechanically, without application of mind in post haste in issuing the notification on the very date of receipt of recommendation, without making any conscious effort to encourage consensus amongst the two judicial consultees.

Role of the President in the appointment of Judges of superior Courts should not be taken lightly to be merely ceremonial, mechanical, or executive; it is solemn constitutional duty of vital importance, which must, be performed and discharged objectively, impartially with due deference, seriousness and conscious application of mind, in its true spirit to maintain the independence, dignity and majesty of the Judiciary, the pivotal pillar of the State and with the object to select the best of the best and most suitable person for the judgeship of superior Courts.

If the President/Executive appoints a candidate found to be unfit and unsuitable for the judgeship of the High Court by either of the two judicial consultees, it will not be a proper exercise of important and solemn constitutional authority, under the. Articles 175(3), 193, 197 read with Article 260 of the Constitution.

Non-adherence to the constitutional duty cast upon the President/Executive, and non-observance of mandatory consultative procedure as noted above, amounts to abdication in discharge of its important and constitutional duty. If the President/Executive appoints a candidate found to be unfit and unsuitable for the judgeship of the High Court by either of the two judicial consultees, it will not be a proper exercise of power under the relevant Articles of the Constitution and is always justiciable and amenable to judicial review by superior Courts for the simple reason that mandatory procedure of meaningful, consensus oriented and purposive consultation was not adhered to.

S.C. Advocates-on-Record Association v. Union of India AIR 1994 SC 268 and AIR 1999 SC 1 ref.

Rasheed A. Rizvi for Petitioner.

Sardar Abdul Latif Khosa, Attorney General of Pakistan along with Nazar Akbar, Deputy Attorney General for Pakistan for Respondent No.1.

Yousuf Leghari, Advocate General, Sindh and. Aziz A. Munshi, Advocate for Respondent No.2.

None present for Respondent No.3.

Yawar Farooqui and Irfan Memon for respondent No.4.

Muhammad Javed Alam, Advocate for respondent No.5.

Khalid Anwar, Abdul Hafeez Lakho and Qazi Faez Isa as Amicus Curiae.

Dates of hearing: 14th, 21st, 22nd, 27th, 28th 29th, 30th April, 2009 and 4th and 6th May, 2009.

P L D 2009 Lahore 1

Before Sayed Zahid Hussain, C.J.

Ch. SAFDAR MUMTAZ SANDHU---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Punjab and others---Respondents

Writ Petition No.9603 of 2008, heard on 29th September, 2008.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Constitution of Musalehati Committees---Petitioner, a Union Nazim, had assailed the constitution of Musalehati Committees by, Regional Police Officer contending that such an action was illegal and without jurisdiction inasmuch as no law including the Police Order, 2002 contemplated the formation of such committees; that his action was violative of Ss.102 to 126 of Punjab Local Government Ordinance, 2001 and the provisions of Local Government Musalehat Anjuman (Constitution and Functions) Rules, 2006 (which provided for settlement of dispute through Musalehat Anjumans selected by Insaaf Committees at the Union Council level); and that such action of Regional Police Officer amounted to setting up of a paralled judicial system negating the concept of independence of judiciary as envisaged by the Constitution---Validity---Held, functioning of Musalehati Committees was entirely dependent upon the willingness and consent of the parties, it was only when the parties so desire that such committee should resolve their disputes at local levels---Constitution of such Committees and their functioning, therefore, did not offend any law nor any legitimate exception could be taken thereto---Committees do act and perform functions of dispute resolution of a large segment of Society i.e. deprived people strictly within the set parameters and do not overstep and remain within their bounds to achieve the goal of amicable, inexpensive and expeditious resolution of dispute---Principles---Constitutional petition was dismissed.

Ch. Muhammad Idrees, Advocate v. S.H.O. Police Station, Pattoki, District Kasur and others 1999 CLC 570; Ijaz Hussain and another v. S.H.O. Police station, Saddar Bhakkar and others 1999 PCr.LJ 954; Abdul Kareem v. Returning Officer, Qauidabad, District Khushab and 2 others 1999 MLD 3244; Anjuman Araian, Bhera v. Abdul Rashid and others PLD 1982 SC 308; Nisar Ahmad and 2 others v. Additional Secretary, Food and Agriculture Government of Pakistan and 3 others 1979 SCMR 299 and Role of Alternative Dispute Resolution Methods in Development of Society: `Lok Adalat' ref.

(b) Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---`Aggrieved person'---Person not directly affected by the mere constitution of Musalehati Committees was not an "aggrieved person" and had no locus standi to move constitutional petition against such action.

Mubin Uddin Qazi, Assisted by Ch. Muhammad Naseer for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G., Punjab along with Rao Abdul Jabbar, Superintendent of Police, City Gujranwala and Afzaal Ahmad Kausar, Additional Superintendent of Police, Gujrat for Respondents.

Date of hearing: 29th September, 2008.

P L D 2009 Lahore 8

Before Zubda-tul-Hussain, J

SHARAFAT ALI---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.11940 of 2008, decided on 17th September, 2008.

(a) Criminal trial---

----Right of defence---Scope.

It is vested right of every person against whom a cause has been raised or a criminal case has been registered to defend himself in. the manner provided by the law. The accused is entitled not only to defend himself or to show that cause/complaint against him is false but can also bring on record such other facts as may be relevant to the version of his matter. If he has a grievance that he has been falsely implicated in the case and that the aggression was imposed upon him, he can lawfully and rightfully put forward his own claim or, as it may also be termed, his own version of the occurrence/matter, to show that he was aggressed upon by the complainant. This is in fact, one form of right of defence, which of course is inalienable and undeniable.

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

----Ss. 22-A & 561-A---Justice of Peace, powers of---Scope---Cross version---Quashment or cancellation of. cross-version---Principles---Where the claim or version of an accused is reported by him before the police, under the law, the police is required to bring same on record and then to proceed therewith in accordance with law---If such right is defied by the police/the Investigating Officer, the remedy available under S.22-A, Cr.P.C. cannot be jeopardized merely because previously F.I.R. has been recorded and has been investigated---Defence though can be pleaded during the trial but that alone will not by itself bring the accused of the cross version before the Court to face the trial---Principles.

Where the claim or version of an accused is reported by him before the police, under the law the police is required to bring it on record and then to proceed therewith in accordance with law. If this right is defied by the police/the Investigating Officer, the remedy available under section 22-A, Cr.P.C. cannot be jeopardized merely because previously an F.I.R. has been recorded and has been investigated. It is true that the defence can be pleaded during the trial but that alone will not by itself bring the accused of the cross version before the court to face the trial.

The quashment or cancellation of the cross-version shall be subject to the same legal and factual limitations as are relevant for the quashment of the formal F.I.R. The Criminal Procedure Code has laid down exhaustive procedure for the registration and investigation of the cases as well as their trial after submission of the challan before the Court. The scheme of the law proceeds on' prescribed principles, the progress whereof should not be allowed to be hampered against the procedure laid down in that behalf. What the law envisages is that the investigation, in so far it adheres to the law, should not be allowed to be jeopardized.

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

----S. 561-A---Constitution of Pakistan (1973), Art.199---Inherent jurisdiction of High Court under Art. 199 of the Constitution and S.561-A, Cr.P.C.---Scope---Quashment or cancellation of judicial and administrative proceedings-Primary object.

The primary object of quashment or cancellation of the judicial and administrative criminal proceedings is to secure the ends of justice. The achievement of this end would involve a finding that if the proceedings are allowed to continue, the same would defeat the ends of justice and as a result would perpetuate injustice. The abuse of process of law is to be deprecated by all possible legal measures. At the same time it cannot be ignored that where, prima facie, offence seems to have been committed, the justice would° require its inquiry and trial. The constitutional jurisdiction of the High Court or even for that matter the provisions of section 561-A, Cr.P.C. cannot be used to stifle the prosecution but the intention thereof is to prevent the abuse of process of law or the process of the Court. The jurisdiction in this behalf cannot be so utilized as to interrupt or divert the ordinary course of criminal provisions.

Before proceeding with the quashment of the case the conclusion has to be arrived at that the impugned proceedings, if continue would defeat the ends of justice and result in perversion of the administration of justice and harassment to an innocent party.

The power under Article 199 of the Constitution can be used for qaushment of the proceedings only in exceptional cases where the proceedings are likely to cause unnecessary harassment. Such provisions are however, not to be resorted to if a prima facie case is made out against the person.

The cancellation could be directed when the case was of no evidence; when the very registration of the case was proved to be mala fide on the face of the record; when the case was of purely civil nature; when there was serious jurisdictional defect; and when there was unexceptional delay in the disposal of the case causing deplorable, mental, physical and financial torture to the person proceeded against.

If prima facie an offence has been committed the ordinary course of trial before the court should not be allowed to be deflected by resorting to the constitutional jurisdiction of the High Court. The procedure as provided by law is not to be deviated while exercising the equitable jurisdiction, which may not be in consonance with the law. It is especially so because an alternate remedy to raise objection at the time of framing the charge by the Trial Court or thereafter during the trial can be availed of by the accused.

Younas Siddiqui v. The State 2001 PCr.LJ 1331; 2003 PCr.LJ 192; Ch. Pervez Ilahi v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 3 others 1995 MLD 615 and Haji Sardar Khalid Saleem v. Muhammad Ashraf 2006 SCMR 1192 ref.

Fahad Ahmad Siddiqui for Petitioner.

P L D 2009 Lahore 14

Before Hasnat Ahmad Khan, J

IMTIAZ AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6456-B of 2008, decided on 11th September, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail, grant of---Fatal injury of the deceased was not attributed to accused---Complainant had thrown a very wide net implicating ten persons including the accused in the murder of his brother---Ineffective firing had been attributed to all the accused in a generalized form in the F.I.R. by the complainant---Recovered motorcycle bearing a fake number plate allegedly used in the incident was not connected with the accused---Kalashnikov allegedly used by the accused could not be recovered from him during investigation---Accused was found innocent in investigation---Co-accused whose case was at par with that of accused had not even been arrested during investigation---Accused could not be kept as hostage for the arrest of proclaimed offenders and could not be punished for the failure of the police to ,perform their duties diligently and efficiently---Case against accused, thus, being one of further inquiry, he was entitled to bail as a matter of right, which could not be denied to him simply because the trial had commenced---Accused was admitted to bail accordingly.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Muhammad Ismaeel v. Muhammad Rafiq and another PLD 1989 SC 585; Muhammad Saleem v. The State PLD 1989 Lahore 233 and Muhammad Umar v. The State and another PLD 2004 SC 477 ref.

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

----S. 497---Penal Code (XLV of 1860), S.302/148/149/109---Bail---Police opinion---Effect---Opinion of police is neither admissible in evidence nor binding on the Courts, but at bail stage the same can be considered by the Courts, rather after having been declared innocent accused becomes entitled to bail as a matter of right.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149/109---Bail---Commencement of trial---Effect---Accused after having become his case of further inquiry is entitled to bail as a matter of right, which cannot be denied to him on the rule of propriety which demands that ordinarily after the start of trial bail should not be granted to accused.

Muhammad Ismaeel v. Muhammad Rafiq and another PLD 1989 SC 585; Muhammad Saleem v. The State PLD 1989 Lahore 233 and Muhammad Umar v. The State and another PLD 2004 SC 477 ref.

Asghar Ali Gill for Petitioner.

Shahid Mehmood Khan, Dy. Prosecutor General with Shaukat Hayat, S.I. for the State.

P L D 2009 Lahore 18

Before Syed Asghar Haider, J

Mst. SITWAT CHUGHTAI and another---Petitioners

Versus

JUDGE, FAMILY COURT, LAHORE and another---Respondents

Writ Petition No.11373 of 2008, decided on 11th September, 2008.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

---Preamble---West Pakistan Family Courts Act, 1964, is a special statute and has been enacted with a specific purpose to ensure expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

---S.17-A---Interim maintenance---Determination---Principle---Family Court has power under S.17-A of West Pakistan Family Courts Act, 1964, to grant interim maintenance to concerned parties during pendency of proceedings---Section 17-A has also mandated that such maintenance has to be paid by 14th day of each calendar month---In case of default, defence of defendant can be struck off and the suit is decreed---Purpose behind such legislation is to ensure that during pendency of proceedings with Family Court, financial constraints faced by minors are ameliorated---Family Court should broadly look into social status of parties, earning of defendant, his capacity to pay and requirements of minor is the touchstone on which Family Court should fix interim maintenance---No right of appeal etc, has been provided against fixation of interim maintenance---Such order is tentative and interim in nature---Family Court should be more careful and precise in such context to ward off any injustice.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

---S.17-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Interim maintenance---Enhancement---Factual controversy---Petitioners were aggrieved of quantum of interim maintenance fixed by Family Court---Plea raised by petitioners was that Family Court fixed too meagre an amount as interim maintenance whereas expenses required for maintenance of minor were Rs.25000/- per month---Validity---No details were given in plaint regarding quantum of school fee and other expenses of the minor but only a figure of Rs.25000 had been stated; it was impossible to determine veracity of claim of either party without recording evidence---Such exercise was not possible in constitutional jurisdiction, especially if finding was only tentative and not final and order was also interim in nature---Proper fixation of maintenance had to be fixed by Family Court after recording of evidence---High Court, in exercise of constitutional jurisdiction, declined to interfere with interim maintenance fixed by Family Court---Petition was dismissed in circumstances.

Makhdoom Ali v. Mst. Razia Sultana and others 2007 MLD 41; Muhammad Sarwar v. Sughran Bibi and 2 others 1996 MLD 1057 and Mst. Shereen Masood v. Malik Naseem Hassan Judge, Family Court, Lahore and another 1985 CLC 2758 ref.

F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918, Khawaja Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt./Election Authorty (Tribunal) and another 1981 SCMR 291; Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476; Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Mst. Mariam Bai and others v. Islamic Republic of Pakistan and 5 others 1993 SCMR 515; Mushtaq Hussain Bokhari v. The State and 6 others 1991 SCMR 2136; Mohatrma Benazir Bhutto M.N.A. and Leader of the Opposition, Bilawal House, Karachi v. The State 1999 SCMR 1447; Mian Ghulam Dastgir Bari v. Rai Salah ud Din and others PLD 1987 Lah. 39 and Habib Arkady Ltd. v. Deputy Collector, Sales Tax Hub, Collectorate of Customs, Sales Tax and Central Excise, Quetta 2001 PTD 3948 rel.

Ms. Khalida Perveen for Petitioner.

P L D 2009 Lahore 22

Before Syed Shabbar Raza Rizvi, J

KHURRAM KHAN, Advocate---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 6 others---Respondents

Writ Petition No.3030 of 2007, heard on 17th September, 2008.

(a) Punjab Prohibition on Manufacture, Use, Sale and Import of Polythene Bags (Black Or Polythene Bags Below Fifteen Micron Thickness) Ordinance (IX of 2002)---

----S. 3---Constitution of Pakistan (1973), Art. 199(1)(i)(ii)(c) & (2), 9 & 38(d)---Public interest litigation---Constitutional petition---Maintainability---Contentions of the petitioner were that Polythene Bags were causing havoc in various areas of the society i.e. Sewerage System in the cities; agricultural in the rural life, marine life on the coastal areas, public health; spread of dangerous diseases like cancer; that use of bags was making soil infertile; that said bags could not be disposed of through recycling for many reasons, i.e. decomposition of polythene material was not possible; that disposal through burning of polythene was harmful as it released toxic gases like dioxins which had cancerous effects on health and could also cause respiratory problem, thus, after use of polythene bags for a short period, same could not be disposed of by throwing, dumping or by burning; that some legislation had been done in the Province of Punjab but neither same was effective nor was being implemented by the authorities and that authorities had failed to perform their functions as required under the Constitution and the law on the subject---Authorities had not denied the negative effects and damage being caused by manufacture and use of polythene bags and submitted that some measures had been taken but were not in favour of putting a complete ban on manufacturing and sale of the same on the ground of likely unemployment of thousands of people engaged in manufacture etc.---High Court expressed the destruction caused by polythene bags and observed that contents of constitutional petition and contentions of the petitioner, did not relate to his person or any individual instead they related to `life' of the people of Pakistan, hence to fulfil the requirements of pro bond publico and petitioner being an aggrieved party constitutional petition was maintainable under Art.199 of the Constitution; that "hanging from the branches, flying in the air, stuck in corners and racing along with vehicles on roads, one could see them everywhere; these were the polythene bags which had invaded every aspect of life; that it was all over the places messing up the streets and parks, clogging the drains and gutters; that hundreds and thousands of plastic bags were thrown away every day as waste, this otherwise innocent mistake of throwing them everywhere results in choke drains, bacterial germination, waterborne diseases and spread of mosquitoes; that deposited in high quantities in the fields, polythene bags cause soil infertility; that plastic waste when dumped or thrown into rivers, ponds or sea have disastrous effects; that threat to environment through pollution and other means was not allowed being threat to life of citizens, which was being done in the garb or name of business activity and that authorities had not really appreciated and realized gravity and depth of hazard and destruction being posed by the menace known as polythene bags that was why, though they did not deny threat or the damage being caused but still had taken a very lenient view---High Court, in circumstances, issued directions to the authorities to the effect that authorities shall ensure; that strict enforcement and compliance of provisions of the Punjab Prohibition on Manufacture, Use, Sale and Import of Polythene Bags (Black Or Polythene Bags Below Fifteen Micron Thickness) Ordinance, 2002 and also cause registration of criminal cases against the offenders under the provisions of the Ordinance and Pakistan Penal Code relevant provisions provided under Chapter XIV of the Code; that in view of catastrophic losses being caused by the polythene shopping bags, the authorities shall initiate necessary measures for required legislation, within six months, for an absolute ban on manufacture, sale, marketing, use and import, etc. of polythene shopping bags of all kinds whatsoever and there will be a complete prohibition, after six months from today, on manufacture, sale, use, stock, marketing and import, etc. of polythene shopping bags within the Punjab Province---Petitioner or any other citizen might file a contempt petition if present order of High Court was not complied with and in the meanwhile authorities shall substitute the polythene shopping bags with alternatives and that authorities were further directed to take some definite and positive steps to create awareness, amongst the people, of disastrous effects being caused by use of polythene bags.?

"Time" Magazine dated April, 9, 2000, at p.32; PLD 1994 SC 102; PLD 2004 SC 482; Ralph Branbiti, pp.42-43, published by Oxford in 1999; General Secretary v. Director Industries, 1994 SCMR2061; Shehla Zia v. WAPDA PLD 1994 SC 693 and Aamer Bano v. S.E. Highways PLD 1996 Lah. 592 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Public interest litigation---Concept.

Public interest is not that type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the court would be able to give effective relief to the whole or a section of the society. In the interest of administration of justice some of the old and well-established procedural rules and practices have been altered. Public interest litigation can now be initiated not only by filing formal petition in court but even by writing letters and telegrams.

Whenever the conscience of the court was shocked on account of action or inaction on the part of the Federation or Province, the court would exercise its jurisdiction under Article 199 of the Constitution. Public interest litigation has come to stay as one of the species of litigation in which redress may be found from the courts of law. However, this does not confer a general and untrammeled right to indulge in frivolous litigation without any genuine cause of action and the necessity of seeking redress of some real grievance. Consequently while recognizing such litigation, courts had taken care to add a word of caution that certain minimum conditions must be satisfied before the courts shall lend assistance to such litigant asking for relief.

Public interest litigation can be initiated for judicial redress for public injury by a person not personally hurt.?

A person can invoke the jurisdiction of the Superior Courts as pro bono publico provided he shows that he has approached the court in the public interest and for the public good or for the welfare of the general public.?

Public interest litigation in the recent years has increased not only in Pakistan rather one can see that all around in the world. There can be more than one reasons for that: Firstly, when people fail to get relief from other organs of the State, i.e. Executive and Legislature, they resort to the Judiciary; Secondly, the Constitution of the day provides fundamental rights as well as principles of policy. One of the functions of the Supreme Court/High Court is to enforce the Constitution of Pakistan and its provisions including fundamental rights guaranteed therein. The High Court under Article 199(1)(i)(ii)(c) & (2) is mandated to ensure protection and enforcement of fundamental rights i.e. "life" of people.?

"Mandamus and certiorari are flowers of paradise and the whole length and breadth of Pakistan is not wide enough to contain their perfume." God fulfils Himself in many ways and that Judges are the humble instruments of His fulfilment." The writ jurisdiction is a modern manifestation of God's pleasure and that God's Pleasure dwells in the High Court.?

PLD 1994 SC 102; PLD 2004 SC 482 and Ralph Branbiti, pp.42-43, published by Oxford in 1999 ref.

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

----Arts. 9 & 38(d)---Security of person---"Life"---Connotation.

According to Article 9 of the Constitution of Pakistan no person shall be deprived of his life' or property save in accordance with law. The expression "life" has been assigned expanded definition. Briefly,life' of a person does not mean only a vegetative life, life requires fulfilment of all requirements which are needed for a complete, normal and dignified life, including a healthy environment. Furthermore, Article 9 needs to be read with Article 38(d) of the Constitution---It is a requirement of the Constitution of Pakistan, that aspirations of these two Articles must reflect in the legislation and policies of both Federal as well as Provincial Government.?

The word "life" has to be given an extended meaning and cannot be restricted to vegetative life or mere animal existence.?

The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor it can be restricted to the vegetative or animal life or mere existence from start to death. Life includes all such amenities and facilities.?

General Secretary v. Director Industries, 1994 SCMR 2061 and Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

Petitioner in person.

Syed Iftikhar Hussain Shah, D.A.-G., Muhammad Nawaz Bajwa, A.A.-G. and Muhammad Afzal L. Adviser, City Government.

Date of hearing: 17th September, 2008.

P L D 2009 Lahore 34

Before Syed Hamid Ali Shah, J

MUHAMMAD SAJJAD BHATTI---Petitioner

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT DEPARTMENTAL, LAHORE and 3 others---Respondents

Writ Petition No.10033 of 2008, heard on 17th September, 2008.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 156(6), 48 & 68---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election of officiating Nazim---Procedure---Officiating Nazim can neither be removed, nor there is any provision for the election of another officiating Nazim, in his place---Subsequent election of officiating Nazim and recall of elected officiating Nazim, is in conflict with the law and thus has no sanctity--Principles.

Section 68 of Punjab Local Government Ordinance, 2001 provides that when the office of Town Nazim falls vacant, officiating Town Nazim is elected till a new Nazim is elected, under section 156(5) of Ordinance, 2001. Section 156(5) of the Ordinance provides for filling of the vacancy of Town Nazim through by-election, within 120 days of the occurrence of the vacancy in terms of section 148. In the present case period of 120 days, lapsed in the month of March, 2008 but despite the lapse of six months, no date of election had been announced by the Election Commission of Pakistan. The authority for Local Government Elections within the contemplation of section 150 was the Chief Election Commissioner, who had to issue notification under section 164 of Ordinance, 2001. The election of officiating Nazim, as against the election of Nazim, was conducted under section 156(6) read with sections 48 and 68 of the Ordinance. The election was not conducted by Chief Election Commissioner, nor the electoral college elected the officiating Nazim. It was a stopgap arrangement where an additional charge was entrusted to one of the members of the council for a specified period. Such member retained his membership besides his office as officiating Nazim. The only condition imposed upon such person was that he was debarred from taking part in the election of office of Nazim Election of Nazim and Naib Nazim was conducted by the Election Commission of Pakistan, while election for officiating Nazim, such power vested with the Council. Conduct of election, terms of office, electoral college and procedure for election of Nazim and officiating Nazim was altogether different. The officiating Nazim could not be equated with Nazim.

The terms Nazim and Naib Nazim were defined in section 2(xxiv) and (xxiii) respectively, in Ordinance 2001.The term "officiating Nazim" had not been defined by the Ordinance itself. There was no provision in Ordinance, 2001 whereby a procedure for removal or recall of the officiating Nazim was, provided. Non-mention of any procedure for the removal of the officiating Nazim, was not an accidental slip but was wilful omission. A recall motion against an elected Nazim or Naib Nazim, could not be initiated or set to motion within first six months of the assumption of the charge of such office. An officiating. Nazim assumed his office for the period till new Nazim was elected. Election of Nazim was required under the law, to be elected within 120 days, of the occurrence of the vacancy. Officiating Nazim had to leave the office, before lapse of six months' time, thus, the legislature had intentionally not provided any procedure for the removal of the officiating Nazim. Provisions of law under Ordinance, 2001 relating to the Nazim, could not be applied to officiating Nazim. There was no reasons to import, by implication, a provision of law which otherwise did not exist in the statute. The concept of removal of Nazim through a recall motion or otherwise was alien to the provisions of Ordinance, 2001. So the officiating Nazim could neither be removed, nor there was any provision for the election of another officiating Nazim, in his place. Subsequently elections of officiating Nazim and recall of officiating Nazim, was in conflict with the law and had thus no sanctity. The impugned resolutions were declared to be illegal and were thus set aside by allowing constitutional petition.?

(b) Interpretation of statutes---

---Provision of law which otherwise does not exist in the statute cannot be imported by implication.

(c) Punjab Local Government Ordinance (XIII of 2001)---

---Ss. 48, 68, 160(1) & 159(2)---Officiated Nazim being already on oath as a member and on being elected officiating Nazim does not lose his membership, therefore, he is not to take new oath---Principles.

An officiating Nazim is already under an oath as a member and on being elected officiating Nazim does not lose his membership, therefore, he is not to take new oath. Elected Nazim or Naib Nazim are required to take oath under section 160(1) of Punjab Local Government Ordinance, 2001. Similarly, section 159(2), provides that Government shall notify the assumption of office of Nazim or Naib Nazim. The word appointment of officiating Nazim is missing from these provisions of law. The officiating Nazim is temporary arrangement and oath for such office, does not seem to be the intention of legislature and that is why, it is not provided in the statute, the way Naib Nazim does not take oath, during temporary absence of Nazim. Naib Nazim exercises the powers of Nazim without requirement of the Notification or an oath. The Government, in order to avoid any confusion regarding signing of cheques, bills etc., by way of an abundant caution, can issue a notification under section 159(2) and notify the assumption of office by officiating Nazim but in case such notification was not issued, same would not invalidate the office of officiating Nazim.?

Ch. Muhammad Azeem Sarwar and Muhammad Boota for Petitioner.

Waqar A. Sh. For Respondent No.2.

Talat Farooq Sh. and Tahir Munir Malik, Addl. A.G. for Respondents.

Date of hearing: 17th September, 2008.

P L D 2009 Lahore 41

Before Syed Hamid Ali Shah, J

FAIZ MUHAMMAD through Legal Representatives and others---Petitioners

Versus

Mst. KHURSHID BIBI---Respondent

Civil Revisions Nos.715 and 716 of 1991, heard on 4th April, 2008.

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

----Arts.117 & 120---Pardanashin lady---Onus to prove---Shifting of onus--- Scope---Where a party wants to derive benefit from transaction, where a Pardanashin lady is a party, in such a transaction it is for opposite party to prove that such lady actually entered into transaction and consented to sanction of mutation---Onus is never static and shifts during trial.

Janat Bibi v. Sikandar Aliand others PLD 1990 SC 642 rel.

(b) Onus---

----Onus is never static and shifts during trial.

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

----S. 42---Declaration of title--Pardanashin lady---Identification---Judgment at variance---Plaintiff ladies claimed to be owners in possession of suit-land and assailed mutations of sale on ground of those being a result of fraud and collusion---Trial Court dismissed the suit but Appellate Court allowed the appeal and decreed the suit in favour of plaintiffs---Validity---Statements of two prosecution witnesses and one defence witness, negated the story of presence of ladies at the time of sanction of mutation in question--Lumberdar or local councilor was not called to identify plaintiffs---Absence of any close relative at the time of attestation of mutation to identify vendors, supported the stance of plaintiffs that mutations in question were attested through impersonation---Alleged sale consideration was paid without receipt and defendant stated that whole amount of sale consideration was paid at the time of sanction of mutation but mutation proved otherwise---Mutation mentioned that it was sanctioned for consideration without indicating that amount was paid at the time of sanctioning of mutation---No witness of defendant came forward to state in witness box that the consideration was paid in his presence at the time of attestation of mutation in question---Defendant neither produced Fard Patwar nor Pert Sarkar and had admitted that Roznamcha Waqiatti was also not available---In absence of relevant material record of Revenue Department, veracity and genuineness of mutation in question could not be established---No instance of misreading or non-reading of evidence was found in judgment passed by Lower Appellate Court and was free from any illegality or infirmity and did not call for interference in exercise of revisional jurisdiction of High Court.

Noor Muhammad v. Sarwar Khan PLD 1985 SC 124; Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591; Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Walyat v. Mst. Kaneez Fataima 1994 MLD 1955; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. PLD 2001 SC 1 and Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671 ref.

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

----S.42---Limitation Act (IX of 1908), S.18 & Arts.92 & 93---Declaration of title---Limitation---Fraud and misrepresentation---Land owned by Pardanashin ladies was allegedly sold in favour of defendant and mutation of sale was attested in year, 1974---Contention of defendant was that suit filed in year, 1987, assailing mutation attested in year, 1974, was barred by limitation- Validity---Mutation in question was effected through fraud and misrepresentation and was a void transaction---Pradanashin ladies, who were ignorant, weak and infirm, could not be deprived of their valuable rights on the basis of transaction which was improbable and unnatural---Such transaction did not attract provisions of Limitation Act, 1908, and could be challenged and period to challenge such transaction had to run from the date of knowledge of such transaction---Suit filed within three years of knowledge of fraudulent transaction was within time.

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

----S. 115 & O.XLI, R.27---Revisional jurisdiction of High Court---Additional evidence, producing of---Principle---During pendency of revision before High Court application was filed for permission to produce additional evidence---Validity---Document sought to be produced in additional evidence was available with petitioners and was not produced at the time of recording of evidence---Permission of such document at the time when adverse order had been passed against petitioners could not be allowed at belated stage---Application was dismissed in circumstances.

Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 and Muhammad Yousaf v. Mst. Maqsooda Anjum 2004 SCMR 1049 rel.

Syed Hamid Ali Mir for Petitioners.

Islam Ali Qurashi for Respondent.

Date of hearing: 4th April, 2008.

P L D 2009 Lahore 49

Before Mian Saqib Nisar, J

NAWAB ALI through General Attorney---Petitioner

Versus

JAVAID IQBAL NABI and others---Respondents

Civil Revision Petition No.999 of 2008, decided on 31st October, 2008.

(a) Punjab Preemption Act (IX of 1991)---

----Ss. 13, 14 & 3---Demand of Talbs through agent---Scope---Demand can only be made. by an agent who is previously authorized in this regard---Preemptor, in the present case, had not specifically authorized the agent prior to the sale that if it takes place, he should make the demand---Contention that because the power to file a suit for pre-emption had been given to the agent in the general power of attorney therefore it should necessarily be read to include the power of making Talbs was not correct, because power of attorney was to be construed strictly and nothing extra should be read therein---Authority to file the suit for preemption clearly meant the institution in its legal context i.e. signing, verification and the presentation of the plaint and engaging of the counsel, but by no stretch of interpretation, it could be held that the preemptor had given the power to his attorney to make the Talbs---Pre­emptor, in circumstances, had not made the valid Talbs before the institution of the suit, which in view of the provisions of S.13, Punjab Pre-emption Act, 1991 was sine qua non condition for maintaining such an action.

(b) Punjab Preemption Act (IX of 1991)---

----Ss. 13, 14 & 3---Talb-i-Ishhad---Requirements---Notice of Talb-i-Ishhad was not sent to the vendee, rather their mother, who in law or in fact was not shown to be the person to whom the said notice could be sent---If at the relevant time, vendees were not in the country, the notice should have been sent in their names at their permanent addresses in the country and if their addresses abroad could be ascertained, it could also be sent there as well, but in any case, the sending of the notice to mother of the vendees did not meet the requirement of law.

Mazher Abbas Bhatti, Advocate.

P L D 2009 Lahore 52

Before Mian Saqib Nisar and Khawaja Farooq Saeed, JJ

PAKISTAN INDUSTRIAL AND COMMERCIAL LEASING LTD. through Authorised

Manager Recovery---Appellant

Versus

HAQ KNITWEAR (PVT.) LTD. through Chief Executive and 2 others---Respondents

R.F.A. No.361 of 2007, heard on 13th October, 2008.

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

----Preamble---Object and scope of Limitation Act, 1908---Structure of law is founded upon legal maxim, that delay defeats equity, time and tide wait for none and law helps the vigilant not the indolent---Bar of limitation in the adversarial litigation creates valuable right in favour of other party---Principles.

While enacting the Limitation Act 1908; the legislature in its wisdom has fixed the period of limitation for a particular action. The structure of the law is founded upon the legal maxims, that delay defeats equity, time and tide wait for none and law helps the vigilant not the indolent. Besides, the bar of limitation in the adversarial litigations creates valuable right in favour of the other party. It is for such reason that according to section 3 of the Act, subject to sections 4 to 25, even if the bar of limitation has not been set out as a defence, it is the duty of the Court to reject the claim, which is beyond the time prescribed for an action by the relevant law.

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

----S. 14---Civil Procedure Code (V of 1908), O.VII, Rr. 6 & 11---Exclusion of time of proceeding bona fide in court without jurisdiction---Scope---Where a claim is out of limitation and the claimant seeks the exclusion in terms of S.14, Limitation Act, 1908, he has to bring his case squarely within the purview and mischief of S.14, which provision, must be strictly construed and applied---Conditions which must co-exist and be fulfilled to seek such exclusion elaborated---In the present case, earlier suit filed by the appellant was not dismissed on account of some defect of jurisdiction or on the cause of a like nature on account of which the court was unable to entertain it, rather it was dismissed by the Court, for having not been filed by the appellant through an authorized person, such matter was not covered by S.14, Limitation Act, 1908---Principles.

Where a claim is out of limitation and the claimant seeks the exclusion in terms of section 14 of the Act, he has to bring his case squarely within the purview and mischief of the noted section, which provision must be strictly construed and applied and the following conditions must co-exist and be fulfilled:--

(a) that the plaintiff has been prosecuting another civil proceedings against the defendant;

(b) that he has been proceeding it with due diligence;

(c) that these proceedings are founded upon the same cause of action;

(d) that these are prosecuted in good faith; and

(e) that these do not bear fruit, because the Court is unable to entertain them due to defect of jurisdiction and other cause of a like nature.

The plaintiff of the case, asking for the benefit of the noted section, must move an independent and a separate application along with plaint, with full particulars about the exact dates of institution of the earlier civil proceedings in original or appeal, and their termination and the cause on account of which the claim was dismissed/rejected; furthermore, affirming and establishing from the contents of the said application, that the conditions mentioned above have been met; if the requisite application is not made, the Court shall not be empowered to, exclude the time on the basis of section 14. In the present case this exercise had not been undertaken by it, therefore, on this score alone, the appellant was/is not entitled for the exclusion of the time in computing the limitation for its second suit. The earlier suit filed by the appellant was not dismissed on account of some defect of jurisdiction or the cause of a like nature on account of which, the Court was unable to entertain it, rather it was dismissed by the Banking Court, for having not been filed by the appellant through an authorized person, thus not covering the matter under section 14.

In addition to the above, the appellant was also not entitled to the exclusion of time under section 14, because according to the provisions of order VII, Rule 6, C.P.C, where a suit is admittedly instituted after expiry of the prescribed period of limitation, the plaint should show the ground upon which, the exemption from the limitation is claimed. If such exemption is not asked for in the plaint, the suit of the plaintiff shall be hit by the rule that no one can be allowed to plead and prove his case beyond the scope of his pleadings, therefore, in such circumstances, the plaint shall be liable to be rejected under Order VII, Rule 11, C.P.C, as being barred by time.

On account of vital lapses mentioned above and not making out or bringing its case within the purview of section 14 of the Limitation Act and Order VII, Rule 6, C.P.C, the appellant's appeal can be simply dismissed on this score alone without going into the question, whether the time consumed by the appellant in pursuing the writ petition (which is the civil proceedings) should be excluded in terms of section 14, as it was dismissed for the adequacy of other remedy, which should be equated with the defect of jurisdiction or the cause of the like nature.

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

----S. 14---Civil Procedure Code (V of 1908), O.VII, Rr. 6 & 11---Exclusion of time of proceeding bona fide in court without jurisdiction---Scope---Under O.VII, R.6, C.P.C., where a suit is admittedly instituted after expiration of the prescribed period of limitation, the plaint should show the grounds upon which, the exemption from the limitation is claimed---If such exemption is not asked for in the plaint, the suit of the plaintiff shall be hit by the rule that no one can be allowed to plead and prove his case beyond the scope of his pleadings, therefore, in such circumstances, the plaint shall be liable to be rejected under O.VII, R.11, C.P.C. as being barred by limitation.

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

----S. 23---Civil Procedure Code (V of 1908), O.II, R.2---Continuing breaches and wrongs---When the plaintiff earlier filed the suit, the cause of action in its favour had fully matured for relief and it could competently ask for the same, but this was not done---Effect---Held, leaving apart the effect of O.II, R.2, C.P.C., in such a situation, the 'cause of action in favour of the plaintiff had finalized, to all intents and purposes at the time of its first suit and it never continued thereafter.

Shehzada Mazhar for Appellant.

Respondent No.2 (in person).

Date of hearing: 13th October, 2008.

P L D 2009 Lahore 57

Before Mian Saqib Nisar, J

EJAZ INAYAT---Petitioner

Versus

Rt. Rev. Dr. A.J. MALIK and others---Respondents

C.R. Nos.2813 and 2999 of 2004, heard on 23rd September, 2008.

Civil Procedure Code (V of 1908)---

----S. 92, O. I, Rr. 8 & 10---Suit under S.92, C.P.C. relating to public charities---Nature, spirit scope and concept of the suit---Application under O.I, R.10, C.P.C. by applicant to be arrayed as co-plaintiff in the suit---Principles---Necessary parties---Scope.

A suit under section 92, C.P.C. inherently is representative in nature but having its own features and kind, it can neither be strictly termed as an ordinary civil lis between two adversary litigants nor can be equated to a representative suit generally filed under Order I, Rule 8, C.P.C. From the letter, spirit, scope and concept of the said section, its object being to safeguard the trust and the rights of the public in the trust; furthermore, the suits against the trustees of a public trust should be regulated by law and institution of indefinite number of vexatious, harassing and reckless suits in relation to the matters enumerated in the section must be prevented. It is for this reason that the Advocate-General, who is the principal law officer of the Proving and the most responsible person, has been empowered, authorized and conferred with the sole prerogative to invoke the legal mechanism for the protection of the trust etc; thus when he himself files a suit, it is a representative suit to all intents and purposes, with the same effects of the judgment/decision as rendered by the Court in ordinary representative suits, however, none of the persons having interest in the trust in this suit, shall be entitled to be arrayed as a co-plaintiff along with the Advocate-General by taking resort to section 92, Order I, Rules 1, 8 or 10, Cr.P.C.

The other mode envisaged for the institution of the suits under section 92, Cr.P.C. is on account of the permission of the Advocate-General obtained by two or more persons who are interested in the trust. In such eventuality, the Advocate-General, in line with the object of the law, is not expected to grant the permission as a matter of right or course or in routine, rather after being satisfied about the bonafide and the motive of the said persons and that they are not intending to assert any of their personal rights. Once the permission is granted and the suit is instituted, though it retains its special representative character, but at the same time, the Court shall not follow and adhere to the provisions of Order I Rule 8 C.P.C. in issuing notice to any other person or by public advertisement. In this situation too, the verdict of the Court shall carry the same effect as having been passed in an ordinary representative suit. The Court, however, in this category, can add or delete the persons to the suit on the touchstone of the rule of "necessary" or "proper" parties, obviously while exercising its discretion properly.

The necessary parties are those who ought to have been joined as a party and in whose absence, no effective decree or order can be passed. From the scheme of the law mentioned above, the petitioners had failed to satisfy the Court if the petitioners qualified the noted criteria. As regards the plea that the petitioners were the proper parties, being beneficiaries of the trust, if they met the condition and were able to show that their presence before the Court would facilitate the effective adjudication of the matter, the discretion could be exercised in their favour. The petitioners in their respective applications had only given one ground and the reason to be arrayed as the co-plaintiffs i.e. being in possession of certain documents.

The documents, which the petitioners wanted to produce still remained in mystery; and even the High Court had not been taken into confidence about the nature and the contents thereof. This had serious reflection upon the petitioners claim and on this score alone, when they were held not to be a necessary party, the requisite relief could be declined to them.

To implead or otherwise a "proper party" was the discretion of the Court. The trial Court had exercised such discretion against the petitioners and for whatever had been mentioned above, High Court declined in its revisional jurisdiction either to interfere in such order or to exercise its discretion in favour of the petitioners to be made a party to the case.

Dr. A. Basit for Petitioner.

Salma Akram Raja for Respondents.

Date of hearing: 23rd September, 2008.

P L D 2009 Lahore 63

Before Sayed Zahid Hussain, C J

Mst. MUMTAZ BEGUM and 6 others---Applicants

Versus

ADDITIONAL CUSTODIAN OF ENEMY PROPERTY FOR PAKISTAN and 6 others---Respondents

C.M. No.2297 of 2004 in Writ Petition No.117-R of 1998, decided on 26th November, 2008.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Invocation of S.12(2), C.P.C.---Scope---Held, for invoking S.12(2), C.P.C. qua a judgment, decree or order, it was to be shown that the same was result of fraud, misrepresentation or want of jurisdiction---Where the material on record failed to indicate that there was any element of "fraud" or "misrepresentation" in the matter or there was any "want of jurisdiction" of the court, the provisions of S.11(2), C.P.C. would not be attracted.

The Punjab Co-operative Bank Ltd. v. The Republic of Pakistan and 128 others PLD 1964 SC 616; Mst. Hafizan Mohsan Atta and 4 others v. Custodian of Enemy Properties and 3 others PLD 1983 Lah. 342 and Abdul Rauf and others v. Mst. Hafizan Mohsan Atta and others 1986 SCMR 1893 ref.

Muhammad Asif Bhatti for Appellants/Respondents Nos.4 and 5.

A.R. Shaukat for Respondents/Writ Petitioners.

Dates of hearing: 25th and 26th November, 2008.

P L D 2009 Lahore 67

Before Syed Asghar Haider, J

NIGAR BIBI through Legal Heirs-Petitioners

Versus

SALAH-UD-DIN KHAN ALIZAI and 3 others---Respondents

Writ Petition No.13499 of 2008, decided on 13th October, 2008.

Civil Procedure Code (V of 1908)---

----S. 113---Reference to High Court---Scope---Reference to High Court can be made only by or on the asking of a subordinate Court, if it entertains a reasonable doubt qua pure question of law and it too is limited to suits in which no appeal lies, appeals and execution proceedings---Contestants, no doubt, can make an application in this regard to the concerned Court praying for a reference but discretion in this context is only with the Court and the parties cannot venture into this arena---District Judge, in the present case, entertained, no doubt, in the law applicable on the subject and therefore, he was under no obligation to refer the matter for opinion in form of a reference to High Court.

AIR 1928 All. 371 ref.

Khan Atta Ullah Khan Tareen for Petitioners.

P L D 2009 Lahore 69

Before Syed Shabbar Raza Rizvi and M. Bilal Khan, JJ

HABIB-UR-REHMAN---Appellant

Versus

D.P.O. and 6 others---Respondents

I.C.A. No.322 in W.P.No.1215 of 2008, decided on 4th November, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A(6) & 25---Powers of Justice of Peace---Scope---Justice of Peace was not a court and it did not possess any judicial power---Special powers of Justice of Peace having been conferred upon Sessions Judge and Additional Sessions Judge under S.25, Cr.P.C. they had been vested with some executive powers which were given in S.22-A(6), Cr.P.C.---Regarding neglect, failure or excess committed by a police authority in relation to its functions and duties, the Justice of Peace could issue an appropriate direction---Justice of Peace had only executive powers and no judicial powers at all---If Justice of Peace had' noticed some illegality or excess of authority in the order of the D.S.P. (Legal), he could have referred the matter to an officer senior to the D.S.P. (Legal) to rectify the excess jurisdiction exercised by D.S.P. (Legal), instead of passing a judicial order considering or treating himself as a court---Justice of Peace could also, have alluded to Additional Inspector General, Police (Investigation) or SP Investigation concerned to consider the case for change of investigation.

PLD 2005 Lah. 470 ref.

Ch. Anees-ur-Rehman for Petitioner.

P L D 2009 Lahore 71

Before Zubda-tul-Hussain, J

KANIZ FATIMA---Petitioner

Versus

MUHAMMAD IQBAL and others---Respondents

Writ Petition No.8676 of 2008, heard on 10th October, 2008.

Civil Procedure Code (V of 1908)---

----S. 132, O.V, R.3 & O.XXVI, R.1---Perdahnashin lady---Concept---Examining a Pardahnashin lady on commission---Scope---Duty of Court.

The concept of being and claiming the privilege of a `Pardahnashin' lady has an old history and long standing practice which, of course, has its inception in the local custom, law or values including the religious dimensions. At the same time it is a hard fact and bare reality that the advent of time, advancement of social, cultural and economic life especially with the increasing and advancing educational culture, the faith, the thinking, disposition and the psychology of even the customary people and customary families (even the tribes) has undergone a substantial and radical change. Those ladies, who could never imagine of free and higher education at times happen to be the leading figures of social and political activity. The social as well as the legal concept of 'Pardahnashini' has essentially undergone a proportionate progressive change.

Section 132 of the C.P.C., of course, provides that the women who, according to the custom and manners of the country, are not to be compelled to appear in public shall be exempt from personal appearance in the court. Order V, Rule 3, C.P.C. can also be pressed in aid of the claim for non-appearance in the court, on the ground of being Pardahnashin lady'. Order XXVI, rule 1 read with these provisions of law, namely, section 132 and Order V, rule 3, C.P.C. may provide the scope for examining aPardahnashin lady' on commission. But at the same time it has to be borne in mind that the status and claim of being a `Pardahnashin lady' by itself is a question of fact which has to be determined on the basis of necessary evidence and the material produced on record.

Thus, the privilege of being a Pardahnashin' lady now cannot be claimed as a matter of presumption and in order to have the legal benefit of section 132, C.P.C. it has to be established as a fact with direct and rather much more strong evidence of fact. In the wake of changing social, political, economic, educational norms the courts have to look into this issue, receive evidence and decide the same more carefully, if not jealously, before taking measures for legal proceedings in relation to and recording evidence of a lady as aPardahnashin'.

Kissinlal Kankaria v. Purshottamdas Lialwasiay and another AIR (29) 1942 Cal. 143; Rahimannessa Bibi v. Sk. Halim AIR 1928 Cal. 814; Nathumal Chanumal v. Haribai AIR 1935 Sindh 205 and Smt. Sundar Devi v. Dattatraya Narhar Rege and another AIR 1933 All. 551 ref.

Mian Shah Abbas for Petitioner.

Ghulam Rasool Sial for Respondents.

Date of hearing: 10th October, 2008.

P L D 2009 Lahore 76

Before Sayed Zahid Hussain, C.J.

HIBBATUL MANNAN KHALID OMAR and others---Petitioners

Versus

DISTRICT JUDGE, LAHORE and others---Respondents

C.R.No.1094 of 2008, decided on 6th October, 2008.

Administration of justice---

----Delay in trial---Duty of Court---Scope---Justice delayed is justice denied---Code of Civil Procedure and Law of Evidence (Qanun-e-Shahadat, 1984), prescribed a meticulous procedure for initiation, defending, conducting of proceedings and conclusion of trial in suits and all possible steps required of a just and fair trial, had elaborately been mentioned in the laws---Very important and heavy duty was cast upon Presiding Officer of court to remain conversant, conscious and cautious about relevant provisions of law in conducting trial and to be vigilant that none of the parties should abuse/misuse process of law and of the court---Miscellaneous and interlocutory matters, some time, could take months and even years for their decisions, leaving main controversial issues aside---Such fragmentation of matters and piecemeal decisions resulted in delaying decisions upon real controversies at the cost of inconvenience to the parties and wastage of valuable time of courts---Such practices and tendencies needed to be curbed---High Court expected cooperation from parties to trial Court seized of matter so that suit could be decided within the time specified by High Court.

Dr. Anjum Habib Vohra v. Waseem Ahmad Khan PLD 2006 Lah. 255 rel.

Dr. A. Basit for Petitioners.

Mian Zafar Iqbal Kalanauri for Respondent No.2.

P L D 2009 Lahore 78

Before Sayed Zahid Hussain, C J

Syed HASSAN ASKARI---Petitioner

Versus

BOARD OF REVENUE, PUNJAB, LAHORE and 2 others---Respondents

Writ Petition No.2-R of 2005, decided on 22nd October, 2008.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Allotment, cancellation of---Allegation of fraud and forgery---Past and closed transaction---Authorities reopened the case of allotment of land in favour of petitioner on the plea of fraud and forgery---Validity---Mere allegation of fraud and forgery did not, ipso facto, vest the authorities with jurisdiction in a matter which had otherwise attained finality---If such a course was allowed to be adopted, then there would be no end to it---Issuance of memorandum and initiation of proceedings by authorities were without any factual or legal justification and were declared as of no legal effect---Official functionaries of State were expected to take maximum care before initiating proceedings in such matters on mere bald assertions of fraud and forgery---Due application of mind was necessary before issuing process so that abuse of law and misuse of power could be avoided and valuable time in conducting futile proceedings be saved-'-Constitutional petition was allowed in circumstances.

Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719; Syed Istijab Hassan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 2 others 1999 YLR 1627; Syed Ahmad Nusrat Ullah and others v. Member, Board of Revenue and others 2002 CLC 384; Begum Shams-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413 and Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450 rel.

Mirza Hafeez-ur-Rehman for Petitioner.

Muhammad Hanif Khatana, Addl. A.G. Punjab.

Rana Maqbool Hussain, for Sameer Ijaz for Settlement Department along with Muhammad Shabir, Dy. Secretary (S&R), Board of Revenue, Punjab for Respondent.

Respondent No. 3: ex parte.

Date of hearing: 22nd October, 2008.

P L D 2009 Lahore 82

Before Zubda-tul-Hussain, J

JAVED IQBAL---Petitioner

Versus

MUHAMMAD AKRAM---Respondent

Civil Revision No.1875 of 2007, decided on 7th October, 2008.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Right of pre-emption, exercise of---Talb-i-Muwathibat---Proof---Chance witness---Effect---Principle of waiver---Applicability---Suit and appeal filed by pre-emptor were concurrently dismissed by Trial Court and Lower Appellate Court on the ground of principle of waiver and failure to prove Talb-i-Muwathibat---Validity---Even if a person was present in a transaction of sale, that might not essentially mean that such person had given up or waived his right of pre-emption---Waiver had to be proved specifically and in positive terms---No presumption could be drawn in favour of such waiver merely on the basis of joint residence of vendee and pre-emptor---Talb-i-Muwathibat was a fact which had to be proved by positive evidence---Such Talb could not be presumed or based on the basis of shaky evidence which did not inspire confidence---Circumstances in which pre-emptor's witness claimed his presence in Tehsil office and then his arrival at the shop of pre-emptor did not co-relate with natural course of events, as in ordinary state of affairs he should not have been in Tehsil office, at the time when he professed to be there---Arrival of witness of pre-emptor in Tehsil office and then especially on shop of pre-emptor was simply by chance and it could not be safe to rely upon such depositions---Findings of Trial Court and those given by Lower Appellate Court while upholding judgment in relation to failure of pre-emptor, to perform Talb-i-Muwathibat were unexceptionable and the same were maintained---Both the courts below had rightly dismissed the suit and appeal filed by pre-emptor---Revision was dismissed in circumstances.

Abdul Rashid v. Mst. Bashiran and others 1996 SCMR 808; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Baqri and 4 others v. Salehoon and 3 others PLD 1972 SC 133 and Muhammad Askari v. Rehmatullah and others AIR 1927 All. 548 ref.

Syed Mukhtar Abbas for Petitioners.

Khalid Ali Khan for Respondent.

Date of hearing: 7th October, 2008.

P L D 2009 Lahore 87

Before Muhammad Akram Qureshi, J

ALLAH YAR---Petitioner

Versus

HUSSAIN ALI and another---Respondents

Criminal Revision No.757 of 2004, decided on 20th June, 2008.

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

----S. 494---Withdrawal from prosecution---Rule of caution---Guide lines---Court, in view of the discretionary power vested in the Public Prosecutor to withdraw from prosecution of a case under S.494, Cr.P.C. acts in a supervisory capacity to see that such power is not used arbitrarily and contrary to public interest causing interference with the ordinary course of justice---Court must satisfy itself about the reasons advanced by the public prosecutor for his withdrawal from the prosecution and existence of the said reasons on record---Supervisory function of the court can be exercised only considering all the facts and circumstances of the case, without disregarding any material factor or circumstance having a bearing on the issue---Court in undertaking such exercise cannot embark upon a detailed analysis of the evidence which can only be appropriately done at the conclusion of a judicial trial---Any such attempt would throttle the prosecution or interfere with the ordinary course of justice.

Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451 ref.

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

----S. 494---Penal Code (XLV of 1860), Ss.409/382---Prevention of Corruption Act (II of 1947), S.5---Trial Court had permitted Public Prosecutor to withdraw from the prosecution of the case---Validity--Trial Court had taken cognizance of the offence being of the opinion that sufficient reasons were existing to proceed with the trial---Any executive opinion of the District Prosecutor counselling the case should not have prevailed upon the said judicial order of the Trial Court---Trial Court should not have permitted the withdrawal of the case by a mechanical order---Impugned order being not in accordance with the dictums of Superior Courts, was illegal, incorrect and improper and the same was consequently set aside---Case was remanded to Trial Court with the direction to proceed with the trial in accordance with law.

Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451; The State v. Navid Asif and others PLD 1991 Lah. 268; Pahalwan Machhi v. Abdul Wahid and another 1991 PCr.LJ 728; Habib-ul-Wahab el Khairi v. Pakistan through Secretary, Interior Division Islamabad and others 1998 MLD 1523; Khizer Hayat v. I.G. Punjab Lahore PLD 2005 Lah. 470 and Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department and 4 others PLD 1987 SC 103 ref.

Ch. Asghar Ali and M. Nazir Kamboh for Petitioner.

Arif Saeed for Respondent No.1.

Farzana Shehzad Khan, DPG for the State.

P L D 2009 Lahore 92

Before Mian Muhammad Najum-uz-Zaman and Khurshid Anwar Bhinder, JJ

ABDUL SHAKOOR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2082 of 2005 and Capital Sentence Reference No.32-T of 2005, heard on 8th and 9th October, 2008.

(a) Anti-Terrorism Act (XXVII of 1997)---

----S. 7(e)---"Hostage-taking"---Connotation---Word "hostage-taking" used in S.7(e) of the Anti-Terrorism Act, 1997, means an innocent person held captive by one who threatens to kill or harm him if his demands are not met---Hostage taking is a federal crime---Term, when used with reference to person and in context in which it is used in kidnapping statute, implies unlawful taking, restraining or confining of person with intent that person or victim be held as security for performance or forbearance of some act by third person.

Black's Law Dictionary ref.

(b) Anti-Terrorism Act (XXVII of 1997)---

----S. 7(e)--Penal Code (XLV of 1860), S.365-A---Appreciation of evidence---Sentence, reduction in---Mitigating circumstance---Complainant was made hostage by using physical force and kept under fear and terror by using threat of firearm and was forcibly made to strip off his clothes for taking his nude photographs and also got signed a promissory note---All this was done while keeping the complainant as a hostage in the state of terror and fear---Accused had not only recovered Rs.15,000 from the complainant at the time of occurrence during the course of abduction, but had also demanded rupees five lacs from him to be paid in due course of time---Provisions of S.7(e) of Anti-Terrorism Act, 1997, and S.365-A, P.P.C. were, therefore, fully attracted in the case---Complainant abductee was corroborated by natural witnesses of the incident, who had no animosity or motive to implicate the accused falsely in the case---Receipt of ransom amount of Rupees two lac by accused from the complainant was also proved through true and confidence inspiring ocular testimony, which he had extorted by extending threats to kill the complainant and his children and to publish his nude photographs in newspaper---Complainant had fully explained the delay in lodging the F.I.R. occurring due to said threats---Convictions of accused were upheld in circumstances---However, threat of blackmailing the complainant in the public or in the people of the locality through his nude photographs was understandable, but he being a mature and educated person did not realize that the threat extended by the accused of publishing the nude photographs in the newspaper was not possible, and even then he had paid the entire demanded money to the accused---Such part of the prosecution story was not understandable, which could be considered to be a mitigating circumstance in favour of accused and his sentence of death was reduced to imprisonment for life accordingly.

Black's Law Dictionary; Muhammad Nabi and 4 others v. The State 2006 SCMR 1230 and State through Advocate-General, Sindh v. Mooso 2006 SCMR 1257 ref.

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

----S. 365-A---Kidnapping or abduction for extorting property, valuable security, etc.---Application of S.365-A, P.P.C.---Scope---Compelling any person to comply with any demand whether in cash or otherwise for obtaining release of the person kidnapped or abducted makes a person liable to be tried under S.365-A, P.P.C.

(d) Abduction---

----Connotation---Restraint of victim becomes "abduction" when it is done with intent to prevent liberation of victim.

Black's Law Dictionary ref.

Seerat Hussian Naqvi for Appellant.

Syed Zahid Hussain Bhokari for the Complainant.

Shan Gul S.S.P.

Dates of hearings: 8th and 9th October, 2008.

P L D 2009 Lahore 101

Before Khawaja Farooq Saeed, J

KHALID JAVED---Petitioner

Versus

BOARD through Deputy Inspector-General of Police (Investigation), Lahore and 5 others---Respondents

Writ Petition No.9792 of 2008, heard on 19th September, 2008.

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

----S. 156---Police Order (22 of 2002), Art.18(6)---Reinvestigation---Principles---Reinvestigation generally is not appreciated---Parties use influence, be it in any form, in such matters to get favourable reports and the reinvestigation is one of its major methods---Where investigation is defective or incomplete, may in itself be because of some influence at the early stage of proceedings, then reinvestigation, in fact, becomes necessary; however, if the earlier investigation is transparent, without any fault, independent and does not suffer from any illegality or irregularity and is complete in all respects, reinvestigation should not be allowed.

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

----S. 156---Police Order (22 of 2002), Art: 18(6)---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art.199---Constitutional petition---D.I.G. (Investigation) had directed for transfer of investigation in the case under Art.18(6) of the Police Order, 2002---Validity---Report of Inspector General of Police (Investigation) had clarified that the transfer of investigation in the case had been made on the basis of a formal request and after joining all the concerned parties---Requisite information had been obtained and change of investigation, investigation was recommended after due compliance of Art.18(6) of the Police Order, 2002---Order of reinvestigation in the case, held, was lawful and justified---Constitutional petition was dismissed accordingly.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Haq Nawaz and others v. Superintendent of Police and others 1999, PCr.LJ 1144; Asif Ali Zardari v. Federation of Pakistan and others 2002, PCr.LJ 310; Riaz Hussain others v. The State 1986 SCMR 1934; Abdul Aziz v. Muhammad Jamil and 7 others 1999 MLD 1831; Muhammad Akbar v. The. State and others 2004 PCr.LJ 1575; Muhammad Yousaf v. The State 2000 SCMR 453and Muhammad Ajmal Khan and 15 others v. Syed Asif Shah, Inspector General of Police AJ&K and 6 others 2003 MLD 1753 ref.

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

---S. 173---Report of police officer---Interim report---Effect---Interim report submitted by a police officer in the Court cannot be considered as a complete challan---Omission which may be in any form can be rectified subsequently by submission of report to the Trial Court.

Muhammad Ajmal Khan and 15 others v. Syed Asif Shah, Inspector General of Police AJ&K and 6 others 2003 MLD 1753 ref.

(d) Police Order (22 of 2002)---

---Art. 18(6)---Change of investigation---Such change was only possible if the same was based upon reasons, which must be supported by such arguments making that a belief and not just a thought that some party had been favoured in investigation.

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

----S. 173---Interim challan---Where certain witnesses were missing or certain legal formalities had been ignored and interim challan was submitted, the same can always be added subsequently---Term `interim challan' in itself spoke of status of challan---Interim challan could be completed subsequently.

Abdul Rasheed Sheikh for Petitioner.

Malik Ishrat Hussain for Respondent.

Rana Ameer Ahmad Khan, Asstt. A.G. with Shamus, S.I.

Date of hearing: 19th September, 2008.

P L D 2009 Lahore 107

Before Sh. Azmat Saeed, J

FARRUKH MEHMOOD SHAH and another---Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary, Department of Law, Punjab Civil Secretariat, Lahore and 8 others---Respondents

Writ Petition No.12570 of 2008, decided on 10th October, 2008.

(a) West Pakistan General Clauses Act (VI of 1956)---

----S. 13---Power and discretion under a statute---Scope---Power and discretion under a statute are not exhausted by their exercise and can always be exercised from time to time.

(b) West Pakistan General Clauses Act (VI of 1956)---

----S. 20---Notification, amendment of---Jurisdiction---Any notification issued can always be amended by the authority issuing such notification and such power is recognized under S.20 of West Pakistan General Clauses Act, 1956.

(c) Punjab Tribunal of Inquiry Ordinance (II of 1969)---

----Ss. 3, 5 & 11---Constitution of Pakistan (1973), Art.199---Constitutional petition---Inquiry by Tribunal---Provincial Government appointed Tribunal for making inquiry into release and utilization of government money and public funds during financial years, 2006-07 and 2007-08 for running print and electronic campaign of political advertisement---Validity---Purpose of Tribunal was to conduct inquiry by members who possessed requisite investigative skill as .well as financial knowledge to fulfil terms of reference---Nothing was on record to persuade to doubt competency, independence and integrity of members of Tribunal---Large amount of Rs.2.37 billion having been expended from public exchequer on advertisements and coincidently general elections 2008 was also on the cards and subsequently held within the same period, that was the reason why two specific financial years were chosen for inquiry---No illegality and infirmity having been found in notifications issued by Provincial Government nor inquiry being conducted by the Tribunal so constituted could be construed to be illegal or invalid---High Court declined to restrain the Tribunal from holding inquiry in the matter---Constitutional petition was dismissed in circumstances.

AIR 1955 SC 25 rel.

M. Raheel Kamran Sheikh for Petitioners.

Kh. Haras Ahmed A.G., Punjab assisted by Malik Zafar Iqbal Awan, Addl. A.-G.

PLD 2009 Lahore 114

Before Sayed Zahid Hussain, C J

ABDUL ALEEM and 4 others---Appellants

Versus

ABDUL GHAFOOR and 8 others---Respondents

R.S.A. No.70 of 2005, heard on 4th December, 2008.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Scope---Contents of the terms of agreement being clear and ascertainable, the agreement had neither lost its efficacy nor was frustrated and was enforceable in law---Grant of relief of specific performance though was discretionary with the court but such discretion could not be exercised arbitrarily---Relief of specific performance being an equitable relief, same could not be refused by the court only if the equities in the case were against the plaintiff---Court while refusing to grant a decree for specific performance to plaintiff must find something in the conduct of plaintiff which disentitled him to the grant of equitable relief of specific performance, or the court reached the conclusion that on account of delay in seeking relief, the circumstances had so materially changed that it would be unjust to enforce the agreement specifically---Specific performance of a contract could not be refused merely because it was lawful for the court to refuse it.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 fol.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Shah Hussain v. Abdul Qayum and others 1984 SCMR 427; Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75; Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others 2007 CLC 1372 and Messrs Karachi Gas Company Ltd. v. Messrs Fancy Foundation PLD 1984 Kar. 233 ref.

Rafique Javed Butt for Appellants.

Muhammad Anwar Ghumman, and Muhammad Shafique Akram Awan for Respondent No. 1.

Date of hearing: 4th December, 2008.

P L D 2009 Lahore 119

Before Mian Saqib Nisar, J

SHAHID ISRAR---Petitioner

Versus

Mst. MARYAM BIBI---Respondent

Civil Revision No.799 of 2005, heard on 10th November, 2008.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talbs---Proof---Exact date, time, place of Talb-i-Muwathibat had been mentioned in the plaint and through the pre-emptor's testimony, corroborated by the statement of informer its particulars had been proved---Other two witnesses of Talb-i-Muwathibat, had not given the exact date, but had mentioned it to be 3-1/2 years from the date of their statements, thus while calculating the period, the time so mentioned almost corresponded quite close to the date of Talb-i-Muwathibat and hardly a few days difference existed which could possibly be the result of lapse of human memory---Talb-i-Ishhad thus stood proved on behalf of the pre-emptor and no significant argument in that regard had been made by the defendant---Record failed to prove that defendant was a co-sharer in the khata out of which the sale had been made and on that account, the right of the pre-emptor to pre-empt the land stood established.

Mian Pir Muhammad and another v. Faqir Muhammad through LRs. And others PLD 2007 SC 302; Muhammad Sharif and others v. Meraj Din and others PLD 2005 Lah. 102 and Hayat Muhammad and others v. Mazhar Hussian 2006 SCMR 1410 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 30---Civil Procedure Code (V of 1908), S. 115---Pre-emption suit---Limitation---Revision---Plea of limitation was not raised by the defendant in his defence and it was on that account that no issue was framed on this point---Defendant had not taken the plea of limitation in memorandum of the first appeal nor even set out same in the grounds of revision before the High Court---High Court, however, deeming the question of limitation to be a pure question of law, allowed the argument on such issue at revisional stage.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 30---Registration Act (XVI of 1908), S. 60---Pre-emption suit---Limitation---Commencement of---Date of registration of sale-deed---Provision of S.60, Registration Act, 1908 provides that after having complied with certain requirements of law, the registering officer shall endorse thereupon a certificate carrying the date of registration, which is within the purview of S.30, Punjab Pre-emption Act, 1991, from where the limitation commences---Principles.

Section 30 of the Punjab Pre-emption Act, 1991 clearly prescribes that the period of limitation for a suit to enforce a right of pre-emption under the Act, shall be four months from the date of the registration of the sale-deed. Whether or not on account of section 47 of the Registration Act, this date of registration can be construed as the date of the execution and thus the limitation shall commence therefrom, suffice it to say that according to section 47 ibid, a registered document shall be operative from the time from which the same commences to operate, if no registration thereof had been required or made, and not from the time of its registration. This section has altogether different scope, object and connotation and is restricted to the legal concept as to when the rights and obligations founded on the basis of the registered document and the transaction covered thereby, shall emanate; this provision, however, in no manner, shall regulate or circumscribe the period of limitation as prescribed by section 30 of the Punjab Pre-emption Act, 1991, which is a very explicit provision of law and is independent in its application. In fact, the relevant provision of the Registration Act for the understanding as to what is the date of registration of the instrument is section 60 thereof, which provides that after having complied with certain requirements of law, the registering officer shall endorse thereupon a certificate containing the word "registered" and it is thus this certificate carrying the date of registration, which is, within the purview of section 30 of the Punjab .Pre-emption Act, 1991, from where the limitation would commence.

Fazal Din v. Abdul Hamid and another PLD 1967 Lah. 378 and Bhanjan Ram and another v. Gopala Ram and another Civil Judgment No.92 fol.

Ashfaq Qayyum Cheema for Petitioner.

Taqi Ahmed Khan for Respondent.

Date of hearing: 10th November, 2008.

P L D 2009 Lahore 124

Before Mian Saqib Nisar, J

SHAUKAT ALI and 2 others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Local Government and 5 others---Respondents

Writ Petition No.13754 of 2008, decided on 12th December, 2008.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 112 & 111---Constitution of Pakistan (1973), Arts.32 & 140-A---Where the council failed to pass the budget within the time provided by law, the situation warranted the exercise of authority by the Government in terms of S.112(7), Punjab Local Government Ordinance, 2001 and while adopting the extraordinary course, Government was not required to follow the prescribed procedure---Principles.

Section 111 of the Punjab Local Government Ordinance, 2001, in general, enunciates the principles to be followed while preparing the budget of the LG, whereas subsection (6) thereof specifies that before the commencement of a financial year each Local Government shall, from its funds, prepare in the "prescribed manner" a budget in conformity with the provisions of section 119, obviously meaning thereby strict adherence to the Ordinance and the Rules. The mechanism of the presentation of the budget and its approval or otherwise by the Council (except subsection (7)) and its authentication by the Nazim as given in sections 111 and 112. From the object and the spirit of the provisions of Articles 32 and 140-A of the Constitution and the Ordinance a considerable autonomy and authority should be construed to have been conferred upon the Local Government and the Council in preparing and approving the annual budget, and this is the "ordinary course" for the budget. However, section 112(7) is an exception to this "ordinary course" and shall automatically come into play, when for whatever reasons the Council fails to approve its budget within the prescribed time. The Government under this authority, which can be termed analogous to its statutory duty, with a view to meet an emergency situation caused and created due to the default of the Council itself in approving the budget, comes into motion, and under the command of the law steps in to prevent the catastrophic, financial impasse and the standstill of the Council; this undoubtedly is a rescuing measure, which the government imperatively is required to take in order to bailout the Council for a chaos. When the Government undertakes the responsibility of enforcing the budget under the said provision it is an "extraordinary course" envisaged by law and thus it is omnipotent to "prepare", "approve" and "authenticate" the budget and while doing so, it is not bound to follow the "prescribed procedure", as required to be adhered to by the Local Government in terms of subsection (6) of section 111, which reads "before the commencement of a financial year each Local Council shall, from its funds, prepare in the prescribed manner a budget for that year in conformity with the provisions of section 119". The condition of the "prescribed manner", is conspicuously missing in the subsection (7) which clearly depicts the intention of the legislature that the government has been absolved of all the restrictions/requirements, which are essential for the making of the budget in "ordinary course". Therefore, it is a clear case where due to the failure of the Council to pass the budget within the time provided by law, the situation warranted the exercise of authority by the Government in terms of section 112(7) and while adopting the extraordinary course, it was not required to follow the prescribed procedure.?

(b) Punjab Local Government Ordinance (XIII of 2001)---

----S. 112(7)---Government, in terms of S.112(7), Punjab Local Government Ordinance, 2001 adopting the extraordinary course to prepare the budget of the Local Council---Council was not debarred to revise the said budget at all as such a bar shall not only be against the spirit and object of the law for which the Local Government was created, but shall also reflect upon financial autonomy of the Council and shall amount to reading in S.112(7) a prohibition which was not specifically there---Principles.

Admittedly the election of both the Nazim and Naib Nazim of the Council had been annulled by High Court. The Naib Nazim was restored by the Supreme Court on 21-8-2008 and according to section 22, Local Government Ordinance, 2001 he automatically has to act as the Nazim till an officiating Nazim or new Nazim was elected. There is no discord between the parties that till the date the Nazim as per section 156 of the Ordinance has not been elected. Thus, for all intents and purposes the Naib Nazim remains to act as the Nazim and ceased to be the Naib Zila Nazim and under the law was precluded to hold two offices simultaneously by wearing two caps on one head, therefore, in terms of section 42-A of the Ordinance, he could neither convene the meeting nor could preside over the same, but it was so done. Resultantly, the meetings of the Council dated 8-9-2008, 9-9-2008 and 25-9-2008, even if requisitioned by the members (which is not clear from the record), were not legally convened and chaired and thus, any proceedings conducted thereby or the resolution passed i.e. 25-9-2008 is unauthorized, illegal, having no sanctity and existence in the eye of law. Therefore, the question of the annulment of such a resolution by the Chief Executive does not arise. Even otherwise, Rule 56 sub-rule (2) of the Punjab Local Government Rules provides that a supplementary budget shall be presented in the same form and manner as prescribed for the annual budget. According to section 112(1), it is the Nazim of a Council, who has to present the budget for the approval, but in this case, the revision of the budget has been attempted through a table resolution, which is not in accord with the above. It is not established from the law, if the revision in the annual budget could be done in the noted manner. However, contention that as the Government in terms of section 112(7) of the Punjab Local Government Ordinance, 2001 is empowered to enforce the budget for full year, therefore, it cannot be revised by the Council at all; was repelled as such a bar shall not only be against the spirit and object of the law for which Local Government is created, but shall also reflect upon financial autonomy of the Council moreover, it shall amount to reading into the section ibid a prohibition which is not specifically there.?

(c) Punjab Local Government Ordinance (XIII of 2001)---

----S. 112(7)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Government in terms of S.112(7) of the Punjab Local Government Ordinance, 2001 adopting the extraordinary course to prepare the budget of Local Council---Plea of mala fide---Bald allegations of mala fide had been made in the petition without any proof on the record---Only for the reasons that some new projects had been undertaken in the budget of Local Council and other ongoing projects had been left out, as alleged, by itself, could not be considered a sole factor to impute mala fides to the Government.?

(d) Punjab Local Government Ordinance (XIII of 2001)---

----S. 112(7)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Locus standi---Government in terms of S.112(7) of the Punjab Local Government Ordinance, 2001 adopting the extraordinary course to prepare the budget of Local Council---Out of 155 members of the Council, only three had come forward to challenge the budget and they, in the Constitutional petition, had not been able to specifically pinpoint and show any personal loss to themselves or to their Union Councils---Held, when the entire House had not agitated the budget of the Government, only three would not have a sufficient locus standi to impugn the same.?

Dr. M. Mohy-ud-Din Qazi and Azam Nazir Tarar for Petitioners.

Muhammad Hanif Khatana, Add. A.-G. for Respondents Nos. 1 and 2.

Ch. Aamer Rehman for Respondents Nos. 3 to 5.

Baby Tabassum, Litigation Officer on behalf of Respondents Nos. 1 and 2.

Khalid Mehmood Chaudhry, E.D.O. (Finance) on behalf of Respondents Nos. 3 to 6.

P L D 2009 Lahore 132

Before Kazim Ali Malik, J

MUHAMMAD RAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.222 of 2004, heard on 6th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of bail bond---Scope---Accused for whom petitioner stood surety having absented himself without any information to the court, bail petition of accused was dismissed in default and a notice to the petitioner/surety under S.514, Cr.P.C. was issued---Surety having also failed to appear, Trial Court forfeited the bail bond in favour of the State and imposed penalty of Rs.25,000 upon him---Trial Court also directed concerned Tehsildar to attach and sell standing crops of the surety and auction them in order to realize forfeited amount---Validity---Trial Court adopted a self-styled procedure unwarranted by law---Under S.514, Cr.P.C., forfeiture of bail bond in favour of the State on the basis of evidence and proof was a condition precedent to call the surety to pay penalty or to show cause as to why it should not be paid---Trial Court called upon the surety to show cause without forfeiting bail bond---Said order of the Trial Court being violative of mandatory provisions of S.514, Cr.P.C., was not sustainable---Trial Court forfeited the bail bond in favour of the State, which it should have forfeited before issuance of show-cause notice and order for attachment and sale of the standing crops owned by the petitioner/surety---Subsection (2) to S.514, Cr.P.C. had clearly laid down that the court could proceed to recover the forfeited amount by issuance of a warrant for the attachment and sale of the movable property belonging to the surety---Trial Court was not competent to direct the Tehsildar to attach and sell immovable property of the surety in utter disregard of the provisions of S.514(2), Cr.P.C.---Accused in the case was allowed interim pre-arrest bail by High Court and proceedings against petitioner/surety, were still in progress---Petition was allowed for the reason, firstly that orders of the Trial Court were violative of law; secondly, the surety had suffered a lot at the hands of the Trial Court and the Revenue staff---Impugned orders were set aside and proceedings against the petitioner, were dropped.

Saghir Ahmad Bhatti for Petitioner.

Nadir Manzoor Duggal, D.P.G. for the State.

Date of hearing: 6th October, 2008.

P L D 2009 Lahore 135

Before Khurshid Anwar Bhinder, J

RASOOLAN BIBI---Petitioner

Versus

ADDITIONAL SESSION JUDGE and others---Respondents

Writ Petition No.14672 of 2008, decided on 28th October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Penal Code (XLV of 1860), Ss.324/354/337-A(i)/337-F(i)/337-L(ii)/34---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (XXIX of 2006), S.9(7)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner had called in question order passed by Ex-Officio Justice of Peace, dismissing the petition under Ss.22-A & 22-B, Cr.P.C. filed against order passed by the District Public Prosecutor concerned deleting S.324, P.P.C. in the case F.I.R. registered under Ss.324/354/337-A(i)/337-F(i)/337-L(ii)/34, P.P.C.---Validity---Under provisions of S.9(7) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, District Prosecutor had the powers to scrutinize the available evidence and applicability of offences against all or any of accused as per facts and circumstances of the case---Deletion or insertion of any offence fell within the exclusive domain of the District Prosecutor---Question whether the District Prosecutor had rightly deleted S.324, P.P.C., would be seen by the Trial Court at the time of framing the charge, but petitioner could not assail such an order either under provisions of Ss.22-A & 22-B, Cr.P.C. or in constitutional jurisdiction of the High Court as it would amount to interfering with the process of investigation which was not the mandate of law---Ex-Officio Justice of Peace had rightly dismissed the application of the petitioner, in circumstances.

Ali Ahmad v. The State and another 2001 MLD 1125 rel.

Khalid Nawaz Ghuman, Advocate.

P L D 2009 Lahore 137

Before Khurshid Anwar Bhinder, J

KAMRAN IQBAL---Petitioner

Versus

D.G., F.I.A. and others---Respondents

Writ Petition No.11056 of 2008, decided on 13th November, 2008.

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

----Ss. 489-F & 21---Federal Investigation Agency Act (VIII of 1974), S.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Jurisdiction of Federal Investigation Agency---Scope---Quashing of F.I.R.---Federal Investigation Agency had no jurisdiction, whatsoever to register and investigate the case for the reason that under S.3 of Federal Investigation Agency Act, 1974, the agency could investigate into the offence as given in the Schedule attached to the said Act---Section 489-F, P.P.C. had duly been incorporated per Notification---Under S.3 of Federal Investigation Agency Act, 1974, only those cases were involved where offences were alleged to have been committed by a public servant as defined in S.21, P.P.C. or those offences allegedly committed in connection with the matter pertaining to the Federal Government or the same were committed by the employees of the corporation set up, controlled and administered by Federal Government but in the present case situation was altogether different---Petitioner had established a private concern which was neither affiliated with any of the Federal Government organizations nor had any concern directly or indirectly with any of the Federal Government departments---Petitioner being the owner of private concern, was not liable to be tried or investigated by Federal Investigation Agency as jurisdiction of said Agency was restricted only to the Federal Government employees as enumerated in S.21, P.P.C.

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

----Ss. 489-F & 21---Federal Investigation Agency Act (VIII of 1974), S.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Section 489-F, P.P.C., was no doubt Scheduled offence as narrated by Gazette notification; but it pertained to only Federal Government employees---Petitioner having been established as a private concern which had no concern with any of the Federal Government department, F.I.R. registered against the petitioner by the Federal Investigation Agency, in circumstances was illegal and without jurisdiction---Logic behind incorporating S.489-F, P.P.C. in the Scheduled offences pertaining to Federal Investigation Agency Act, 1974, was that any of the employees of the Federal Government or any organization attached or affiliated with the Federal Government could be tried under said provision of law---Investigation and submission of challan in the Trial Court emanating out of said F.I.R. was also illegal and without jurisdiction---Entire proceedings were declared coram non judice and F.I.R. as well as all subsequent proceedings emanating from said F.I.R., were quashed, in circumstances.

Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1999 PCr.LJ 1584; Haji Muhammad Yousaf v. M. Abbas Khan and others PLD 1968 Lahore 482 and 1994 SCMR 798 ref.

Ch. Naseer Ahmed Sindhu for Petitioner.

Muhammad Nawaz Waseer, Standing Counsel for Federal Government with Gul Snober Khan, Inspector, F.I.A.

Arif Saeed for Respondent No.4.

P L D 2009 Lahore 140

Before Fazal-e-Miran Chauhan, Hasnat Ahmad Khan and Muhammad Ahsan Bhoon, JJ

Syed KHURRAM SHAH---Petitioner

Versus

Mian MUHAMMAD SHAHBAZ SHARIF and 4 others---Respondents

Writ Petition No.6470 and C.M. Nos. 1260, 1276 of 2008, decided on 20th June, 2008.

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

----O. I, R.10(2)---Impleading of necessary and proper party in proceedings---Principles.

Under Order I, rule 10(2), C.P.C. the court may at any stage of the proceedings order that the name of any person, who ought to have been joined, whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit, be added. A party can be impleaded only if he is necessary or proper party.

A necessary party is one without whom no order can be made effectively, while the proper party is one in whose absence an effective order can be made, but whose presence is necessary for a complete and final decision of the question involved in the proceedings. A person is a necessary to a lis, if he has such an interest in the matter in controversy that it cannot be determined without either affecting that interest or leaving the interest of those who are before court in a situation that may be embarrassing and inconsistent with equity. A person having rights; which must be affected by the final order or the decree can be dispensed with.

In general sense, every decision of the court on a point of law is likely to affect every one in whose case a similar point of law ,arises, but this does not give every person a right to intervene in every proceedings before the court merely because it is likely to affect him in some future proceedings.

The principle of Order I, Rule 10, C.P.C. clearly spells out the conditions upon the fulfilment of which a party can be impleaded. An applicant for impleadment as respondent has to satisfy the court that his impleadment is necessary for an effective and complete adjudication of all questions involved in the case.

Persons who are indirectly or remotely interested are not necessary or proper parties.

Bashir Ahmad and others v. Ghulam Ali and others 1991 SCMR 1656; Metropolitan Corporation of Lahore through Administrator v. Syed Bhais (Pvt.) Limited through Managing Director and 5 others 2004 MLD 1395; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Muhammad Siddique v. Yahya Khan 1994 CLC 1374; Chairman Regional Transport Authority Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14 and Salah-ud-Din and 2 others v. Frontier Sugar Mills and Distillery Limited and 10 others PLD 1975 SC 244 ref.

Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others 2003 SCMR 965; The Bakkarmandi Union (Regd.), Lahore v. Metropolitan Corporation/LMC through Mayor and 4 others 2000 SCMR 1716; Mst. Rani and another v. Mst. Razia Sultana 1994 SCMR 2268; Ghulam Muhammad and another v. Mehtab Beg and others 1983 SCMR 849; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Muhammad Sharif v. Dr. Khurshid Anwar Mian 1996 SCMR 781; Messrs Jans Cateres v. The Islamic Republic of Pakistan through The Chairman, Pakistan Western Railway, Lahore and 2 others PLD 1972 Lah. 169 and Syed Ahmad Saeed Karmani v. Punjab Province and others 1982 CLC 590 rel.

(b) Constitution of Pakistan (1973)---

----Art. 199--Civil Procedure Code (V of 1908), S.9 & O.I, R.10(2)---Constitutional petition or suit challenging vires of law or authority of government---Government would be a necessary party in such petition or suit.

(c) Representation of the People Act (LXXXV of 1976)---

----Ss. 14 & 54---Constitution of Pakistan (1973), Art.199---Civil Procedure Code (V of 1908), O.I. R.10(2)---Constitutional petition---Provincial Assembly, election of--Challenging order of Election Tribunal regarding qualification of returned candidate--Applications by Provincial government and Speaker of Provincial Assembly to be impleaded as party in such petition---Validity---In election matter, necessary party to such petition would be contesting candidates, whose nomination papers were accepted or rejected by Returning Officer---High Court dismissed such applications in circumstances.

Dr. Saleem Javed and others v. Mst. Fauzia Nasim and others 2003 SCMR 965 and Syed Ahmad Saeed Karmani v. Punjab Province and others 1982 CLC 590 rel.

Kh. Haris Ahmad for Petitioner (in C.M. No.1260 of 2008).

Muhammad Akram Sheikh (in C.M. No.1276 of 2008).

Dr. M. Mohy-ud-Din Qazi and Raza Kazim, for Writ Petitioner.

P L D 2009 Lahore 147

Before Sh. Azmat Saeed, J

MANZAR LATIF MIAN---Appellant

Versus

Ms. MASARRAT MISBAH---Respondent

F.A.O. No.176 of 2008, decided on 30th October, 2008.

(a) Partnership Act (IX of 1932)---

----S. 43---Partnership, dissolution of---Scope---Assertion in appeal that both parties desired such dissolution---Effect---Partnership stands dissolved.

B.A. Sheikh v. The Custodian Evacuee Property West Pakistan and others PLD 1960 SC 330 rel.

(b) Partnership Act (IX of 1932)---

----Ss. 46, 48 & 49---Partnership firm, dissolution of---Effect---During interregnum of dissolution of firm and its eventual winding up, its assets and properties including its name and goodwill would be held jointly and In common by all partners---Principles.

B.A. Sheikh v. The Custodian Evacuee Property West Pakistan and others PLD 1960 SC 330 and Bruchell v. Wilde 1900-3 All ER Ext.1744 rel.

(c) Partnership Act (IX of 1932)---

----S. 53---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Dissolved partnership firm---Grant of temporary injunction to restrain use and possession of assets of firm by one partner or stranger to the exclusion of other partners---Scope---Section 53 of Partnership Act, 1932 prohibited use of firm's property and name by a partner for his own benefit till completion of all its winding up affairs---Such temporary injunction could not be claimed as a matter of right in absence of irreparable loss and injury and subject to balance of convenience---Court in appropriate cases could pass only a regulatory order to protect and preserve assets and properties of firm and balancing rights of all concerned parties---Principles.

Kasuma Gupta v. Sarla Devi AIR 1988 All. 154 and Rajindra Kumar Sharma v. Brinjendra Kumar Sharma AIR 1994 All. 62 rel.

Raza Kazim and Usman Raza Jamil for Appellant.

Ali Sibtain Fazli and Nasar Ahmad for Respondent.

Date of hearing: 14th October, 2008.

P L D 2009 Lahore 157

Before Sh. Azmat Saeed and Syed Asghar Haider, JJ

MEHMOOD AHMED---Appellant

Versus

GOVERNMENT OF PUNJAB through Secretary LG&CD Lahore and another---Respondents

I.-C.A. No.238 in Writ Petition No.8330 of 2008, decided on 4th December, 2008.

Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 156, 68, 63 & 72---Resignation of original 'Nazim' of Tehsil Council---Election of an "officiating Nazim" in accordance with S.68, Punjab Local Government Ordinance, 2001 wherein 'Naib Nazim' of the Tehsil Council was elected as "officiating Nazim"---Motion of recall was moved against said "officiating Nazim" which was carried by the majority of the House---Validity---Held, Tehsil Council could remove a 'Tehsil Nazim' through a recall motion in terms of S.63 of the Ordinance and, a 'Naib Nazim' could be removed through expression of no confidence by majority of the members of Tehsil Council in accordance with S.72 of the Ordinance and there was no provision in the Ordinance for the removal of an "officiating Tehsil Nazim"; such provision was conspicuous by its absence---Said proceedings of the Tehsil Council purporting to express no confidence in the "officiating Tehsil Nazim" both in fact and in law were and could only be with reference to office of "Naib Nazim" and as a consequence thereof the "officiating Nazim" (originally Naib Nazim before election as "officiating Nazim") obviously ceased to hold the office of "Naib Nazim" of the Tehsil Council and continued to hold the office of the "Officiating Tehsil Nazim"---Order of Provincial Government directing the election of "officiating Tehsil Nazim" was not only factually incorrect but of no legal consequence and the result of an error---Principles.

Muhammad Ramzan Chaudhri for Appellant.

Malik Zafar Iqbal Awan Addl. A.-G. and Naseem Kashmiri, D.A.G.

Ch. Ibrar Ahmed for Respondent No.1.

Zahid Sultan Khan for Respondent No.2.

P L D 2009 Lahore 160

Before Syed Hamid Ali Shah, J

ABDUL GHANI---Appellant

Versus

RANA M. BASHIR---Respondent

R.S.A. No.194 of 1982, heard on 2nd July, 2008.

(a) Punjab Pre-emption Act (I of 1913)---

----S. 7---Determination of existence of custom of pre-emption under Punjab Pre-emption Act, 1913 in a particular area---Considerations---Proof---Held, in considering the custom of pre-emption prevailing, in a particular Mohallah or a sub-division, within the meaning of S.7, Punjab Pre-emption Act, 1913, the proof of an adjoining area or neighbouring Mohallah or sub-division carries no value---Such can be supplementary proof but by itself is not sufficient to establish the existence of custom in neighbouring sub-division---Proof of prevailing custom, must relate to the town where town is not divided into sub-division and in such circumstances, the inquiry can not be confined to a particular Mohallah or street---Onus to prove prevailing custom lies heavily on the plaintiff in a pre-emption suit.

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

----Art. 56---Evidence Act (I of 1872), S.43---Relevancy and effect of judgments, orders or decrees---Judgment, decree or order, which relates to a matter of public nature e.g. the existence of a right of way or of a general custom or usage, falls within the exception clause of Art.56 of Qanun-e-Shahadat, 1984.

(c) Punjab Pre-emption Act (I of 1913)---

----S. 7---Existence of custom of pre-emption in certain area---Determination---Proof---Pre-emptor had failed to prove that customs of pre-emption prevailed in the specified area---Witnesses of pre-emptor had not stated any thing with references to any official record or on the basis of authentic material that custom of pre-emption prevailed in the said area---Held, custom of pre-emption did not exist in the area at the relevant time.

Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others PLD 1981 SC 302; Dr. Iqbal Ahmad Chaudhry v. Muhammad Inayat through Legal Heirs and another 1993 SCMR 1477; Diwan Chand v. Nizamdin and others AIR 1923 Lah. 443; Lal Chand and others v. Hans Kumar and others AIR 1926 Lah. 108; Lal Chand v. Karter Singh AIR 1947 Lah. 265; Lal Chand and other's case AIR 1926 Lah. 109; AIR 1937 Lah. 443; Chiragh Din v. Fazal Karim RSA No.58 of 1996; Ata Muhammad and 6 others v. The State 1985 SCMR 181 and Mt. Subhani and others v. Nawab and others AIR 1941 PC 21 ref.

Ch. Mushtaq Ahmad Khan for Appellant.

Mujeeb-ur-Rehman Kiyani for Respondent.

Date of hearing: 2nd July, 2008.

P L D 2009 Lahore 166

Before Syed Shabbar Raza Rizvi, J

Sufi MUHAMMAD ALAM---Petitioner

Versus

CITY DISTRICT GOVERNMENT, FAISALABAD through District Coordination Officer and 3 others---Respondents

Writ Petition No.8115 of 2007, decided on 29th October, 2008.

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

----S. 5(2)---Punjab Local Government Ordinance (XIII of 2001), Preamble---Appointment of one Nikah Khawan in a ward'---After introduction of Punjab Local Government Ordinance, 2001 provision ofward' having been abolished and every town/city having been divided into different union councils and corresponding changes having not been introduced in the Muslim Family Laws Ordinance, 1961, contention that only one Nikah Khawan was envisaged in a ward stood evaporated---Likewise, no specific qualifications were prescribed in Muslim Family Laws Ordinance, 1961 for appointment of Nikah Khawan.

Mian Muhammad Saeed for Petitioner.

Shabbir Ahmad Khan for Respondent No.3

. Muhammad Nawaz Bajwa, A.A.-G.

P L D 2009 Lahore 168

Before Mian Saqib Nisar, J

ZAHIDA BIBI and 4 others---Petitioners

Versus

NEAR SULTANA and 15 others---Respondents

Writ Petition No.141 and C.Rs. Nos. 39, 379 of 2006, heard on 4th December, 2008.

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

----Ss. 12(2) & 115---Application under S.12(2), C.P.C. challenging the judgment and decree wherein consent decree was procured according to which the disputed property was declared to have been gifted to the respondents by the deceased owner---Facts on record (detailed in the judgment) spoke loud about the fraud practised by the respondents in obtaining the impugned judgment and decree, which had been glaringly ignored by the two courts below---Case, in circumstances, squarely fell within the purview of non-reading and misreading of the evidence on the record, thus the impugned orders, were set aside with the result that the application of the petitioners under S.12(2), C.P.C. shall be deemed to have been accepted and they shall be entitled to file written statement in the matter and the case shall proceed on merits.

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

----S. 115---Revision---Dispute as to existence of marriage of one R and Z---All important aspects (detailed in the judgment) had not been considered by the two courts below which had totally ignored to read evidence in its true legal perspective---R and Z, admittedly were married and the respondents had failed to prove the termination of the marriage during the life time of the former, therefore, the suit of respondents was liable to be dismissed, resultantly, by allowing the revision the impugned judgments and decrees of the two courts below were set aside and the suit of the respondents was dismissed.

Miss Shazia Hassan for Petitioners.

Ahmad Waheed Khan for Respondents.

Date of hearing: 4th December, 2008.

P L D 2009 Lahore 176

Before Mian Saqib Nisar, J

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN, through Vice-President I.D.B.P.---Plaintiffs

Versus

Messrs CRYSTAL CHEMICALS LIMITED through Director/Guarantor Crystal Chemical Ltd. and 9 others---Defendants

C.M. No.420-B of 2005 in C.O.S. No.66 of 2000, decided on 26th November, 2008.

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

----S. 47---Application of judgment-debtors seeking relief from the court to determine the share of the decree-holder bank in the forced sale value of the assets held jointly under its charge with another financial institution---Validity---Provision of, S.47, C.P.C. makes no distinction between a decree-holder' and ajudgment-debtor' when it comes to the invocation of jurisdiction of the executing court---Generally, it is a decree holder who comes to the court for execution of his decree against a judgment-debtor, however, there is no bar against a judgment-debtor filing an objection petition and initiating execution proceedings---Object of legislature is to provide an opportunity to judgment-debtor to make an objection petition even if the decree-holder withholds the execution petition and gets the decree satisfied through some other modes---Contrary view limits the scope of S.47, C.P.C. and thus militates against the object and intention of the legislature---Restriction on filing an objection petition under S.47, C.P.C. in the absence of an execution application would have placed the judgment-debtors in unenviable position of having no remedy and forum for redressal of their grievance---Court executing a decree includes proceedings initiated by decree-holder and by judgment-debtor.

Riaz Hussain v. Muhammad Akbar 2003 SCMR 181 and. Erusappa Mudallar v. Commercial and Land Mortgage Bank Limited 1899 Mad. Series Vol. 23 ref.

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

----S. 47---Jurisdiction of executing court---Object and scope.

Under section 47, C.P.C. the executing court has the exclusive jurisdiction to look into the execution, discharge or satisfaction of the decree and settle all questions related thereto. S. 47 provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Therefore the application which seeks determination of the fundamental question as to whether after a payment of Rs.140.564 million, made by the judgment-debtors to the decree-holder bank, inclusive of rebate of Rs.7.485 million, calculated at the rate of 6% against 90% of the payment made in lump sum, the decree stands satisfied and the liability of the decree-holder is fully extinguished, falls within the exclusive jurisdiction of the court. The court, in order to avoid endless litigation between the parties and to provide relief without unnecessary delay and expense, would entertain all questions requiring determination arising out of the decree. The law is absolutely clear that no technicalities are to stand in the way of meeting the ends of justice. Under the law the court is the only forum where all questions raised in the petition relating to the execution, discharge and satisfaction of the decree may be effectively determined. Legislature had empowered courts executing decrees to determine all questions relating to execution, discharge or satisfaction of decree and not by a separate suit. Provisions of S.47, Civil Procedure Code, 1908, do not bar the remedy but only regulates the forum for enforcement of rights insofar as it channelizes all matters relating to the execution, discharge or satisfaction of the decree to the executing court and leaves unimpaired the jurisdiction of the Civil Court to entertain suit in relation to matters other than those mentioned in S.47 Civil Procedure Code. Two conditions which are sine qua non for application of section 47 of the Civil Procedure Code, 1908 are; that the question should have arisen between the parties to the suit in which decree was passed or their representatives and the question should relate to the execution, discharge or satisfaction, of the decree. The object of S.47 of the Civil Procedure Code 1908 is to check and avoid endless litigation and with this view it enables the parties to obtain adjudication of questions relating to execution without unnecessary expense or delay with a fresh trial. It deals with the enforcement of judgments and lays down that questions specified in it shall be tried in execution and not by a separate suit. When its object is to accord relief to the parties finally, cheaply and speedily without the necessity of a fresh suit it must be construed as liberally as the language would reasonably admit.

Haji Abdul Wali Khan and another v. Muhammad Hanif and another 1991 SCMR 2457; Wali Muhammad and 3 others v. Muhammad Nawaz Khan and another PLD 1993 Pesh. 197 and Muhammad Saeed v. Yasin and another PLD 1996 (W.P.) Kar. 308 ref.

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

----S. 47---Execution of compromise decree---Objection petition by judgment debtors---Effect of the events, understanding, agreement arrived at between the decree-holder and the judgment-debtors after passing of the decree.

Executing Court, in exercise of its jurisdiction under S.47, C,P.C. could take into consideration subsequent events even after passing of the decree. Such jurisdiction could be exercised in order to ensure that the process of law might not be abused and the judicial pronouncements should be implemented effectively instead of making them ineffective on account of their inexecutability. All questions between parties relating to execution, discharge or satisfaction of decree would be determined by executing court in terms of S.47, C.P.C, while adjustment and satisfaction of decree would be possible under Order XXI, Rule 2, C.P.C. Parties were thus at liberty to adjust their rights and liabilities accrued under decree or decree-holder can discharge judgment-debtor of his obligation under decree. The Code contains no general restriction on the parties' liberty of contract with reference to their rights and obligations under the decree. In the absence of express statutory authority it is not possible to regard, Order XX, Rule 10 as excluding any possibility of parties coming to a valid agreement for the time to which the court under S.47 will have regard. Executing, Court under S.47, C.P.C. can look into events subsequent to the passing of the decree and to give effect to agreements arrived at between the decree-holder and the judgment-debtors. The court can also look into and implement agreements which have been made by the parties for the satisfaction of the decree subsequent to the passing of the decree.

In the present case, parties by their agreement, subsequent to the passing of compromise decree changed the figure of Rs.174.04 million, asked entitlement of the decree-holder, to receive and the liability of the judgment debtors to pay.

Oudh Commercial Bank Ltd. Fyzabad v. Thakurain Bind Basni Kaur and other AIR 1939 PC 80; Allah Diwaya and others v. Allah Diwaya and others 1996 CLC 1399; Fakir Abdullah and others v. Government of Sindh PLD 2001 SC 131 ref.

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

----S. 47---Execution of compromise decree---Objection petition by judgment-debtors---Powers of executing court---Scope and extent.

Power to execution of decree includes the power to construe the decree in order to determine its true intent. Reference to pleadings, documents and judgment was permissible. This principle holds good notwithstanding the fact that the exercise involves appraisal of evidence on record or even production of fresh evidence especially when a fresh suit is barred under S.47 of the Civil Procedure Code. After all, how can an Executing Court execute a decree without determining its intent and import by a process of construction?

Where the language of a judgment is doubtful, the benefit of the doubt ought to go to the judgment-debtors. Court had not only the authority but was under an obligation to render true and correct interpretation of the compromise decree. In so doing, the court was to take into consideration all the relevant facts including subsequent events and the understanding and agreements arrived at between the judgment debtors and the decree-holder bank.

Muhammad Inayat v. Ghulam Murtaza PLD 1987 Lah. 537 and Gokaran Singh v. Mangli and others AIR 1921 Oudh 138 ref.

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

----S. 47---State Bank of Pakistan BPD Circular No.9, dated 15-10-2002, para. 9(iii)(c)---Application of judgment-debtors seeking the relief of court to determine the share of the decree-holder bank in the forced sale value of the assets held jointly under its charge with another financial institution---Determination of the liability of a judgment-debtor vis-a-vis a decree-holder who is a joint pari passu charge holder over the assets of judgment-debtors, when the settlement is arrived at under para. 9(iii)(c) of BPD Circular No.29---Scope---Decree holder batik, in the present case, made claim on the basis of the amount of loan that it claimed against the judgment-debtors, irrespective of its validly created charge against the jointly held properties of the judgment-debtors---Such contention of the bank was clearly against the provisions of para.9(iii)(c) of BPD Circular No.29 under which the settlement between the parties was arrived at as a result whereof the compromise decree was passed---Principles.

Hashwani Hotels v. Federation of Pakistan and others PLD 1997 SC 315 ref.

Mahmood A. Sheikh and Ms. Sidra F. Sheikh for Applicant/Judgment-debtors.

Sardar Mashkoor Ahmad for the Respondent/decree-holder.

P L D 2009 Lahore 197

Before Khurshid Anwar Bhinder, J

ZAHEER HUSSAIN ADIL---Petitioner

Versus

PUNJAB COUNCIL OF THE ARTS through Executive Director and another---Respondents

Writ Petition No.5774 of 2008, decided on 18th November, 2008.

(a) Dramatic Performances Act (XIX of 1876)---

----S. 3---Performance of sequential or situational live dances and songs in stage drama and film---Scope.

Display of songs in films have direct link with the story and are also subject to the approval by Film Censor Board, which does not allow the exhibition of vulgar and obscene dances. Performance of dances by the dancing girls at private houses are restricted to the four walls of the house and there is no display of obscenity or vulgarity as such type of dances are performed only to entertain the family on special occasions, but performance of songs on stage is a live performance, which crosses all norms and limits of decency. Display of vulgar, obscene and indecent dances of Punjabi and Indian films and indecent songs on live stage performance not only incites the sentiments of public, but also promotes sexual perversion and frustration by viewing semi nude private parts of the body of dancing women. Drama Producers, for the sake of material gains, are literally causing frustration and sexual perversion in the public without realizing that it is being done in an Islamic Republic of Pakistan, which also injures the feelings of millions of religious minded people, who can simply admonish this practice, but practically cannot do anything except to show their displeasure and anguish to the concerned department of the Provincial Government.

There are certain channels on television, which display recording of die semi nude dances, which are being exhibited on the stage round the clock, which cannot be viewed with the family members. It is hazardous to the children's idiosyncrasies as their immature mind is attracted to vulgarity and obscenity. Children are more prone to spontaneous adoptability and reaction. Above all, it is absolutely deplorable to have this kind of cheap entertainment in an Islamic country like Pakistan, where millions of religious minded people's feelings are injured. Display of semi nude private parts of the body of women is highly deprecated in Islam. As it is being done on the stage plays by exhibiting and exposing women, it is certainly great humiliation to the womenfolk to be exposed in any manner publicly. Islam has attached great importance to the respect and honour to women, as she is a mother, a sister and a daughter. Even otherwise, womenfolk are restrained in exposing themselves before men of prohibited degree as is mentioned in Verses 26, 27 of Sura "A 'raf' and Verse 31 of Sura `Al-Noor"'

(b) Dramatic Performances Act (XIX of 1876)---

----S. 3---Punjab Rules of Business, 1974---Punjab Local Government Ordinance (XIII of 2001), S.141 & 10th Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Performance of sequential or situational live dances and songs in stage drama---Validity---High Court deprecated and restrained such performances with immediate effect while directing all DPOs and DCOs to implement its order in letter and spirit---Principles.

Nadeem Kausar for Petitioner.

Sarfraz Ali Khan, A.A.-G. with Muhammad Iqbal Khalid, Deputy Director, Punjab Arts Council, Lahore.

P L D 2009 Lahore 204

Before Syed Shabbar Raza Rizvi, J

Ch. TARIQ BASHIR CHEEMA---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and Community Development Department, Lahore and 3 others---Respondents

Writ Petition No. 11561 of 2008, decided on 28th November, 2008.

Punjab District Government and Tehsil Municipal Administration (Budget) Rules, 2003---

----Rr. 31 & 57---Punjab Local Government Ordinance (XIII of 2001), Ss. 112 & 127---Annual budget not approved by Council before commencement of financial year---Interference in such 'matter by Provincial Government---Scope---In such case, Council could spend money for 30 days in manners prescribed in S.112(6) of Punjab Local Government Ordinance, 2001---In case of Council's failure to pass budget in such 30 days/extended period, only Provincial Government could approve and authenticate budget for full year---In case of approval of budget by Council in disregard of S.112(4) of Punjab Local Government Ordinance, 2001, or Punjab District Government and Tehsil Municipal Administration (Budget) Rules, 2003, Provincial Government could review the same and require Council to rectify budget, but could not approve budget instead of Council---Principles.

Abdul Qayyum Khan v. Government of the Punjab, 2007 YLR 1407; Zila Nazim, Kasur v. Government of the Punjab 2008 CLC 81 and Zulfiqar Ali Babu v. Government of the Punjab PLD 1997 SC 11 rel.

Syed Ali Zafar and Mian Abdul Manan for Petitioner.

Kh. Haris Ahmad, Advocate-General, Punjab.

Manzoor Hussain Dogar, Director Legal, Local Government.

P L D 2009 Lahore 213

Before Syed Shaheen Masud Rizvi, J

Mst. PARVEEN AMANUAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-III, RAHIMYAR KHAN and 2 others---Respondents

Writ Petition No.227 of 2006/BWP, decided on 19th March, 2008.

Divorce Act (IV of 18419)---

----Ss. 10 & 22---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of Christian marriage---Suit by wife was decreed by the Family Court merely on her statement in which she deposed on oath that she was not ready to live with defendant at any cost---Appellate Court, on appeal, remanded the case to Family Court on the ground that dissolution of marriage was not in accordance with provision of Divorce Act, 1869 applicable to the parties and directed the Family Court to decide the suit afresh in view of Divorce Act, 1869---Validity---Mere statement of plaintiff that she was not willing to live as a wife with defendant was not sufficient for the purpose of dissolution of Christian marriage---Bond of marriage between Christian husband and wife being of permanent nature, wife had to prove her case on the concrete facts after leading reliable and cogent evidence to the facts on which the claim of dissolution of marriage was based---Only then the court could grant a decree for a judicial separation within the meaning of S.22 of the Divorce Act, 1869 or to dissolve the marriage under S.10 of said Act---Appellate Court in circumstances, had rightly remanded case to the Family Court which would proceed with the case from the stage on which the plaintiff made better statement in which she had deposed that she was not ready to live with defendant at any cost---Family Court after framing the issues and recording evidence, would decide the matter afresh in accordance with the law applicable.

Rana Sher Afgan for Petitioner.

John Williams for Respondent No.3.

Date of hearing: 19th March, 2008.

P L D 2009 Lahore 215

Before Syed Shabbar Raza Rizvi, J

Mirza IFTIKHAR MEHMOOD---Petitioner

Versus

AREA MAGISTRATE, POLICE STATION NEKAPURA, SIALKOT and 3 others---Respondents

Writ Petition No.14721 of 2008, decided on 24th November, 2008.

Extradition Act (XXI of 1972)---

----Ss. 6, 7, 8, 10 & 12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Fugitive offender---Petitioner, who was arrested by the police, was produced before the Magistrate and since then petitioner was in detention---Later on, petitioner was informed that he was arrested for commission of offence under Ss.393, 394 & 397 of Belgium Penal Code---Main contention of the counsel for the petitioner was that petitioner could not have been arrested without following the procedure provided by Extradition Act, 1972, if after the enquiry under S.8 of the said Act, the Magistrate was of the opinion that a prima facie case had not been made out in support of the requisition for surrender of the fugitive offender, he would discharge the fugitive offender and make a report to that effect to the Federal Government; and if a prima facie case had been made out in support of such requisition, he would report the result of his enquiry to the Federal Government---If upon receipt of said report and statement under clause (b) of S.10 of Extradition Act, 1972, the Federal Government was of the opinion that the fugitive offender ought to have been surrendered, it could issue a warrant for the custody and removal of fugitive offender and for his delivery to a place and to a person to be named in the warrant---Fugitive offender, however would not be so delivered until after the expiry of fifteen days from the date he had been taken in custody under such warrant under S.12 of the Extradition Act, 1972---High Court had been empowered that it could order such prisoner to be discharged, unless sufficient cause was shown to the contrary, if the fugitive offender was not conveyed out of Pakistan within two months after such commission---Deputy Attorney General, had frankly conceded that said provisions of Extradition Act, 1972 had not been followed---Detention of the petitioner was declared improper and without any lawful authority by the High Court and he was directed to be released, in circumstances.

Muhammad Irfan Malik for Petitioner.

Aamir Rehman, Dy. Attorney-General.

Muhammad Nawaz Bajwa, A.A.-G.

Asif Mehmood Cheema, Dy. Prosecutor-General Muhammad Riaz, S.-I.

Rashad Munir Shehzad, S.O. (Law), Ministry of Interior.

P L D 2009 Lahore 218

Before Syed Shabbar Raza Rizvi, J

NOOR HUSSAIN---Petitioner

Versus

CHIEF PROSECUTOR GENERAL, PUNJAB and 5 others---Respondents

Writ Petitions Nos.4697 and 12508 of 2008, decided on 28th October, 2008.

Criminal Procedure Code (V of 1898)---

----S. 173---Constitution of Pakistan (1973), Art.199---Constitutional petition---Question was that whether after opinion of the Prosecutor General, submission of challan could be kept pending for seeking an opinion from DSP Legal and whether the same was required---Accused in initial investigation had been found innocent---Subsequently investigation was entrusted to SSP (Investigation)---Recommendation made by Deputy Prosecutor-General that accused be challaned and supplementary challan be submitted before the court, had been approved by the Prosecutor-General, Punjab, however, respondent police officer had moved an application for legal opinion from DSP Legal---Validity--Opinion of Investigating Officer would not make any accused person guilty or innocent as his job is only to collect some material and to place it before the competent court, which can declare an accused guilty or innocent, yet people waste time and delay legal proceedings to get favourable opinion of Investigating Officer---Prosecutor-General was incharge of prosecution in Punjab Province and he was duly supported by Deputy Prosecutor-General---Seeking opinion from DSP Legal in circumstances was either mala fide or based on total ignorance of law of the concerned police officer---DPO concerned was consequently directed to ensure that challan or supplementary challan be submitted in the court in the light of the final investigation conducted by SSP (Investigation) and approved by the Prosecutor-General---Constitutional petition was allowed accordingly.

PLD 2005 Lah. 470 ref.

Syed Farooq Hassan Naqvi for Petitioner.

Ch. Irshad Ullah Chatha for Petitioner (in W. P. No.12508 of 2008).

Muhammad Nawaz Bajwa, A.A.-G. with Inspector Ilyas.

P L D 2009 Lahore 220

Before Syed Shabbar Raza Rizvi, J

Rao KHALID JAVAID---Petitioner

Versus

FAIZ AHMAD and 6 others---Respondents

Writ Petition No.5916 of 2006, decided on 19th December, 2008.

Illegal Dispossession Act (XI of 2005)---

----S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Complaint---Maintainability---Scope---Illegal dispossession is lawful basis of filing complaint---Illegal Dispossession Act, 2005 is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of the owner and lawful occupant of the property as against the unauthorized and illegal occupant---All cases of illegal occupants, without any discrimination, would be covered by Illegal Dispossession Act, 2005 except the cases which were already pending before any other forums---Filing of civil suit after illegally dispossessing the occupant from the property and to cover the same with mala fide, intention, does not affect the maintainability of the complaint---Principles.

PLD 2008 Lah. 392 distinguished

2006 PCr.LJ 636 and PLD 2007 SC 423 ref.

Mian Abdul Quddous for Petitioner.

Mian Sheraz Mehmood for Respondents.

Muhammad Nawaz Bajwa, A.A.-G.

P L D 2009 Lahore 223

Before Zubda-tul-Hussain, J

Mst. RABIA KHIZER and others---Petitioners

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.17027 of 2008, decided on 29th December, 2008.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Scope--Protection of matrimonial alliance---When law does not prohibit the parties from marrying each other and they have entered into a valid contract of marriage, it is the duty of the State to protect the marriage and the family, and at the same time it is the duty of the Court to satisfy itself that fundamental rights guaranteed to the parties under the Constitution are not infringed and violated by any Government or State functionary---In such a situation the extraordinary jurisdiction under Article 199 of the Constitution can be exercised to the rescue of the petitioners.

Mst. Dilshad Akhtar and another v. State and others PLD 1996 Lah. 145 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Penal Code (XLV of 1860), S.365-B---Constitutional petition---Quashing of F.I.R.---Nikahnama was admitted by both the accused petitioners and law did not allow any third party to challenge its validity---Nikah of sui juris girl could not be invalid in the absence of permission of the "Wali"---Accused girl had already attained the age of majority as per report of the Special Medical Board and even if she was not yet over the age of 18 years, she was admittedly a pubert lady and as such was entitled to enter into a contract of marriage by her choice with her co-accused--Allegation of abduction and the occurrence as alleged in the F.I.R. having totally been refuted by the alleged abductee, the impugned F.I.R. had no basis for legal proceedings---F.I.R. was consequently quashed in order to save the accused from the abuse of process of law---Constitutional petition was accepted accordingly.

Mst. Dilshad Akhtar and another v. State and others PLD 1996 Lah. 145; Shabbir Hussain alias Papu v. Station House Officer, Police Station Bumbanwala District Sialkot and 3 others 2006 PCr.LJ 1260; Muhammad Musa v. The State and 5 others 2007 PCr.LJ 1342 and Mst. Hajran Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316 ref.

(c) Islamic Law---

----Marriage---Validity---Nikah of sui juris girl cannot be invalid for he reason that the "Wali" had not extended his permission.

(d) Islamic Law---

----Marriage---Validity--Female though not having attained the age of majority but having attained puberty, cannot be compelled to sever her Nikah/marriage entered by her own free-will.

Mst. Hajran Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316 ref.

Mian Abdul Khaliq for Petitioner.

Hassan Ahmad Khan Kanwar for the Complainant.

Rana Abdul Hameed, Addl. A.-G. Punjab.

Miss Aysha Saeed, Asstt: Superintendent Darulaman.

Muhammad Sadiq; Sub-Inspector.

P L D 2009 Lahore 227

Before Syed Asghar Haider, J

Rana SHAHNAWAZ KHAN---Petitioner

Versus

JUDGE, FAMILY COURT, LAHORE and another---Respondents

Writ Petition No.2064 of 2007, decided on 25th November, 2008.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 10(4)---Muslim Family Laws Ordinance (VIII of 1961), Form II, Column 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage by way of `Khula'---Restoration to the husband the dower received by the wife---Execution of decree---Held, dower paid at any other time except at the time of marriage cannot be recovered through process of execution on the basis of a decree obtained in terms of S.10(4), West Pakistan Family Courts Act, 1964 granting dissolution of marriage---Principles.

The precise proposition for adjudication was to determine the powers of an Executing Court in terms of proviso to S.10(4) West Pakistan Family Courts Act, 1964 regarding satisfaction of a decree in case of dispute qua Haq Mehr and that was the Court empowered under the enactment referred to above and the contentions stated, undertake this exercise, or the same had to be conducted by another forum. The Executing Court, in the present case, declined to entertain the execution petition, on the ground that it lacked jurisdiction in this respect and the petitioner should approach a Court of competent jurisdiction for adjudication and decision of this dispute.

Held, right to exercise `Khula' by the wife is dependent upon return of Haq Mehr to the husband, but it is qualified with the words "at the time of marriage". It was not the case of either party that Haq Mehr was paid at the time of marriage, but was paid later, pursuant to an agreement and, therefore, the same did not fall within the ambit or purview of proviso to section 10(4) of the Family Courts Act, 1964 and be made basis for recovery by way of execution. In fact, the legislative intent is very clear, the incorporation of the words "at the time of marriage" correspond with amount of dower paid and entered in Column No.15 of the Nikah Nama, contained in Form II of the Muslim Family Laws Ordinance, 1961, which reads:

"(15) Whether any portion of the dower was paid at the time of marriage If so, how much?"

Thus, the process of execution of a decree passed pursuant to the above stated enactment can be initiated by the Executing Court only, if it is in consonance with the amount referred to in Column No.15 of the Nikah Nama and that too is subject, to raising of a prompt demand in the written statement and at the time of reconciliation proceedings by the husband.

Therefore, dower paid at any other time except at the time of marriage cannot be recovered through process of execution on the basis of a decree obtained in terms of section 10(4) of West Pakistan Family Courts Act, 1964 granting dissolution of marriage.

Fazal Hussain v. Mst. Asmat Bibi and another 2002 CLC 40 ref.

Ch. Khurshid Ahmed for Petitioner.

Ms. Naheeda Mehboob Elahi for Respondents.

Date of hearing: 27th October, 2008.

P L D 2009 Lahore 232

Before Khawaja Farooq Saeed, J

Syeda NASREEN AKHTAR QAZI---Petitioner

Versus

CHIEF CAPITAL POLICE OFFICER, LAHORE and 4 others---Respondents

Writ Petition No.11578 of 2008, heard on 2nd December, 2008.

Criminal Procedure Code (V of 1898)---

---Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Justice of Peace in his order directed the S.H.O. concerned to look into the matter and then decide as to whether a cognizable offence was made out or not---Petitioner had challenged the authority of the Justice of Peace directing S.H.O. for looking into the matter, contending that same would amount to delegation of power to the S.H.O., while it was directly within the power of the Justice of Peace to issue direct instructions---Case of the respondent was that it was a case of clear fraud and that giving directions to S.H.O. was not a delegation of power at all as S.H.O. was independent in his working; and he by his own right was competent to register or refuse a case whenever it was brought to his notice and that Justice of Peace being not an Investigating Agency, he was only to determine a prima facie nature of the case and his direction to S.H.O. did not amount to delegation of powers---Validity---Justice of Peace had done nothing beyond his jurisdiction; he had in fact left the doors open for the petitioner---Had Justice of Peace given a direct order for registration of F.I.R. to S.H.O. that would have been more damaging to the petitioner---Observation that "if any cognizable offence was made out then to register a case in accordance with taw", was a safe direction and could be in favour of petitioner or respondent---Petitioner should better join proceedings before the Police Authorities, who would proceed only if a cognizable offence was made out after preliminary probe---No reason for interference being apparent, High Court declined interference in the matter.

Syed Arif Ali Sabri v. Abdul Samad through L.Rs. and 2 others 2008 YLR 2309; Rana Inamullah Khan v. S.H.O. and others 2008 YLR 2406; Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC.539 and Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621 ref

Tallat Farooq Sheikh and Waqar A. Sheikh for Petitioner.

Zahid Sultan Khan Minhas and Rana Ameer Ahmad Khan Asstt. A.-G. for Respondents with Muhammad Shafi A.S.-I.

Date of hearing: 2nd December, 2008.

P L D 2009 Lahore 235

Before Kazim Ali Malik, J

MUHAMMAD HABIB---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE JAMPUR, DISTRICT RAJANPUR and 2 others---Respondents

Writ Petition No.6837 of 2008, heard on 5th December, 2008.

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

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Powers of Justice of Peace---Scope---Complainant who claimed to be owner of plot in dispute which allegedly was occupied by the petitioner forcibly, made application before Justice of Peace praying for restoration of possession of said plot---Justice of Peace took cognizance of the dispute as an Addl. District Judge after having received report from the Patwari to the effect that petitioner was in illegal occupation---If the complainant was dispossessed from her plot by the petitioner, she should have filed a suit under S.8 of Specific Relief Act, 1877 on the basis of her entitlement---If she was not possessed with title interest in plot in dispute, the speedy remedy for restoration of possession was available to her under S.9 of Specific Relief Act, 1877---One other remedy available to the complainant was to file a private complaint under S.3 of Illegal Dispossession Act, 2005, but despite availability of said alternative remedies, complainant chose to invoke the jurisdiction of Justice of Peace---Additional District Judge/Ex-officio Justice of Peace, after taking cognizance of the matter passed a decree for recovery of possession of immovable property on an application without trial of the dispute in terms of S.9 of the Specific Relief Act, 1877 and thus had encroached upon the functions of civil court---No provision of law could be fixed which could empower or authorize an Ex-officio Justice of Peace or Addl. Sessions and District Judge to pass a decree for possession of immovable property summarily on an application---Addl. District Judge/Ex-officio Justice of Peace had adopted a self-styled procedure in the case, unwarranted in law---Impugned order being illegal and without jurisdiction, could not be allowed to remain in field---Impugned order was set aside and application filed by complainant was dismissed, with the observation that she would be at liberty to agitate her case and cause, in accordance with law before the competent forum.

Khizer Hayat's case PLD 2005 Lah. 470 ref.

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

----Ss. 22-A & 22-B---Powers, jurisdiction and role of Justice of Peace---Scope---Role statutorily defined for a Justice of Peace was to make arrest in circumstances mentioned in Ss.54 & 55, Cr.P.C. and to hand over custody of the arrested person to the Officer Incharge of the nearest Police Station; to call upon any member of the police force on duty to aid in arresting or preventing the escape of a person involved in commission of a cognizable offence; to call upon .any member of the police force on duty to aid him in the prevention of crime, breach of the peace or disturbance of the public tranquility; and to issue a certificate of identification of a person to verify any document and to attest any document---Ex-officio Justice of the Peace; had the powers to issue appropriate directions to the police authorities concerned on a complaint regarding non-registration of criminal case, transfer of investigation from one police official to another; and for neglect, failure or excess committed by a police authority in relation to its functions and duties---Justice of Peace or Ex-officio Justice of Peace, was not a court as envisaged under S.6 of the Cr.P.C. or the relevant provision of the C.P.C.

Rana M. Nazeer Khan Saeed for Petitioner.

M. Mubashir Latif Gill, A.A.-G. for Respondent.

Date of hearing: 5th December, 2008.

P L D 2009 Lahore 240

Before Mian Saqib Nisar and Abdul Shakoor Paracha, JJ

Ch. MUHAMMAD ISHAQUE, ADVOCATE, ---Appellant

Versus

CANTONMENT EXECUTIVE OFFICER, CHUNIAN, DISTRICT KASUR and another---Respondents

I.-C.A. No.470 in W.P. No.17094 of 2005, decided on 19th November, 2008.

(a) Works of Defence Act (VII of 1903)---

----Ss. 7, 39(4) & 3---Works and Defence Rules, R.556---Army Regulations, Vol. II (1991), Instructions---Constitution of Pakistan (1973), Arts. 23, 8 & 199---Imposition of restrictions on a private owned land---Land in question which had a considerable frontage towards the road, had been blocked by the authorities, by affixing the barbed wire and only a small access had been left for the entry---Contention of the authorities was that with reference to S.39(4) of the Act and according to R.556 framed under the Act' and the Army Regulations, Vol. II (Instructions), 1991, such restriction could be imposed---Validity---Provision of S.7, Works of Defence Act, 1903 was quite germane in this behalf, which enunciated that it was from and after the publication of the notice mentioned in S.3(2) of the Act that such of the restrictions referred to in the said section (which did not even otherwise provide for the fixation of wire), as the Federal Government may in its discretion declare and attach shall be applicable---No declaration/notification in terms of S.3 of the Works of Defence Act, 1903 had even been made regarding the land of landowner---Land in question was not shown to be located in A-Class Zone---Effect---When no restrictions had been imposed, under any provision of the Works of Defence Act, 1903, how could R.556, which was subservient thereto, be invoked to imply the restriction---Action of authorities to put wire/hedge against the landowners' property was not under any lawful authority.

(b) Constitution of Pakistan (1973)---

----Arts. 23, 8 & 199---Works of Defence Act (VII of 1903), Ss.7, 39(4) & 3---Works of Defence Rules, R.556---Army Regulations, Vol. II (1991), Instructions---Fundamental right of provision as to property---Scope---Expressions hold',keep', retain' oroccupy' the property occurring in Art. 23 of the Constitution---Connotation---Imposition of restrictions on a private owned land---Land in question which had a considerable frontage towards the road, had been blocked by the authorities, due to the barbed wire and only a small access had been left for the entry---Validity on the touchstone of Art.23 of the Constitution---Held, when a restriction, which was not otherwise imposed by the law, is thrusted upon the owner qua the free user of his property, it was a clear case of the breach of his fundamental right---Access from public road could not be curtailed and on account of the action of the authorities not only that the landowner's fundamental right had been breached, but his right to way had also been violated---High Court, while allowing the Intra Court Appeal, set aside the order of the Single Judge of High Court and action of fixing/installing the wire/hedge across the frontages of the owner's land was declared as without lawful authority, with direction to the authorities to remove the wire/hedge with immediate effect.

Ramhari Mandal v. Nilmoni Das AIR (39) 1952 Cal. 184; Bhaurao Atmaram Patil v. Sub-Divisional Officer, Chandur-Morsi and another AIR 1955 Nag. 1; Nasirabad Properties Ltd. v. Chittagong Development Authority and another PLD 1966 Dacca 472; The Municipal Board, Manglaur v. Mahadeoji Maharaj AIR 1965 SC 1147; Pakistan National Oils and another v. Sattar Muhammad 1980 SCMR 686 and Lahore Cantonment Cooperative Housing Society Limited through Secretary v. Messrs Builders and Developers (Pvt.) Ltd. and another PLD 1999 Lah. 305 ref.

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

----Part II, Chap. 1 [Arts.8 to 40]---Fundamental rights---Interpretation---Principles---While construing and enforcing such rights, generous and Purposive interpretation should be made and fullest possible meaning and amplitude must be given conforming to the real spirit of these rights.

Syed Muhammad Kaleem Ahmad Khurshid for Appellant.

Naveed Inayat Malik, Deputy Attorney General with Lt.-Col. Khawar Amin Malik, Asstt. Adjutant and Quarter Master General Sta Headquarter Chairman Cantonment.

Rana Muhammad Anwar, Advocate/Local Commission.

P L D 2009 Lahore 245

Before Maulvi Anwarul Haq, J

PUNJAB ELECTRICAL CONTRACTORS ORGANIZATION (REGISTERED) through Vice-President---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Irrigation and Power, Lahore and 2 others---Respondents

Writ Petition No.3145 of 2002, decided on 19th December, 2008.

Electricity Act (IX of 1910)---

----S. 36(2)---Electricity Rules, 1937, R. 48---Notification dated 17-9-2002 issued by Punjab Government prescribing amongst others conditions for granting licenses to Electrical Wiring Contractors and governing their role---Validity---Such notification was not ultra vires as Government had sufficient authority to issue the same, restricting role of Electric Inspector and further regulating matters in relation to Electrical Contracts---Such notification was beneficial to Electrical Contractors and categorization of licenses made therein was proper---Principles.

I.C.A. No.124 of 2005 and Civil Petition No.2311 of 2005 ref.

Muhammad Amir Butt for Petitioner.

Muhammad Abid Raja, Asstt. A.-G. with Mumtaz Ali for Respondent No.3 and Ali Bashir Bangish, Chief Executive.

Dates of hearing: 16 and 19th December, 2008.

P L D 2009 Lahore 254

Before Muhammad Ahsan Bhoon, J

ALAMGIR KHALID CHUGHTAI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.56 of 2008, heard on 3rd December, 2008.

(a) Electronic Transactions Ordinance (LI of 2002)---

----Ss.3, 5, 29, 36, 37 & Sched.-II---Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), S.31---Penal Code (XLV of 1860), Ss.420/109---Qanun-e-Shahadat (10 of 1984), Art.73---Reappraisal of evidence---Electronically generated evidence---Admissibility---Primary evidence---Scope---Report prepared by staff of Pakistan Telecommunication Corporation Limited---Worth and effect---On the allegation of operating illegal International Voice Traffic Transmission (gateway), accused was convicted and sentenced by Trial Court---Plea raised by accused was that documents produced by prosecution in evidence were computer generated, which were not proved in accordance with the provisions of Qanun-e-Shahadat, 1984---Validity---It was only relevant technical staff who could analyze working of electronic articles and such facility was available with Pakistan Telecommunication Corporation Limited---Report prepared by staff of Pakistan Telecommunication Corporation Limited was admissible as a primary evidence as legislature, keeping in view the intricacy of crime, had made major changes in Qanun-e-Shahadat, 1984, as provided in S.29 and Schedule-II of Electronic Transactions Ordinance, 2002---Extensive changes were brought by legislature in Qanun-e-Shahadat, 1984, through Second Schedule of Electronic Transactions Ordinance, 2002, to meet with situations---Electronically gathered evidence was to be treated as primary evidence, so documents tendered in evidence were admissible' and duly proved and there was nothing on record which could show that narration-therein was altered---Such was a case of cyber crime wherein latest technology was used whereby whole operational system of State was by-passed---Advance and most revenue generating department of State was set at naught by accused with illegal installations---Prosecution having successfully proved its case against accused beyond any shadow of doubt, High Court maintained conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

(b) Electronic Transactions Ordinance (LI of 2002)---

----Ss. 3, 5, 29 & Sched.-II---Qanun-e-Shahadat (10 of 1984), Art.2(e) [as amended]---Electronically generated evidence---Admissibility---Scope---Cyber crime has become rampant in society and that is the reason legislature in its wisdom has provided a different criterion about admissibility of evidence in such cases as without any wire one can have facility of connection all over world as whole business of world is going on through inter-net, E-mail---Due to development in science and technology, it is not possible to bring on record physical existence of every-thing as whole technology is based on satellite operational net works---Legislature has amended provisions of Art.2(e) of Qanun-e-Shahadat, 1984, in terms of S.29 of Electronic Transactions Ordinance, 2002, and various changes have been made in definition clause---All documents prepared, produced or generated through modern devices are admissible in evidence.

Syed Zaheer Hussain Shah for Appellant.

M. Tabrez, Dy. Attorney General for the State.

Muhammad Umar Khan for the Complainant.

Date of hearing: 3rd December, 2008.

P L D 2009 Lahore 263

Before Maulvi Anwarul Haq, J

GHULAM MUHAMMAD and 3 others---Appellants

Versus

SHER MUHAMMAD through Legal Heirs and 27 others---Respondents

E.F.A. No.274 of 2004, heard on 21st November, 2008.

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

----S. 148 & O.XXI, R.32---Specific Relief Act (I of 1877), S.35(c)---Execution ac decree for specific performance of sale agreement---Decree dated 4-11-1997 required plaintiff to deposit uptil 15-12-1997 balance sale amount after deducting therefrom at specified rate amount of some defendants, otherwise suit would stand dismissed---Stay of execution of decree on 24-11-1997 on defendant's application by High Court in his pending appeal---Dismissal of appeal by High Court on 3-3-2004 without attending to time for deposit of amount---Filing of execution petition on 5-4-2004 after obtaining copy of judgment of High Court---Summoning of record of suit by Executing Court for 23-4-2004---Executing Court being on leave on two consecutive dates of hearing it examined record on 1-6-2004 and directed plaintiff to deposit specified amount by 8-6-2004, which was deposited on 7-6-2004---Defendant's application that plaintiff ought to have deposited such amount within time fixed by Trial Court, which time had not been extended by High Court while dismissing appeal, thus, suit stood dismissed---Validity---Trial Court in its judgment had not worked out amount to be deposited by plaintiff---Executing Court on 1-6-2004 for the first time had undertaken such exercise while directing plaintiff to deposit specified amount---High Court stayed execution of decree, but while dismissing appeal stated nothing in judgment or decree regarding time for such deposit---Such deposit itself was a step in execution of decree or for performance of contract contained in decree---Stay of execution of decree on defendant's application by High Court had absolved plaintiff of such obligation till stay remained in force---High Court had not attended to such time while dismissing appeal---Executing Court, after receipt of record of suit, had passed order for deposit of such amount, which was duly complied with---Plaintiff, in circumstances had not committed any default enabling court to adjudge contract as rescinded---High Court set aside impugned order, resultantly execution petition would be deemed pending before Executing Court.

Shabbir Ahmed and another v. Zahoor Bibi and others PLD 2004 SC 790 rel.

Tasneem Ismail and others v. Messrs Wafi Associates and others 2007 SCMR 1464 and Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953 distinguished.

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

----Ss. 12 & 35---Civil Procedure Code (V of 1908), O.XXI, R.32---Decree for specific performance of sale agreement---Imposition of condition of deposit of amount by trial Court while passing such decree---Scope---No form for such decree prescribed in Appendix-B to C.P.C.---Trial Court not barred from imposing such condition.

Mian Dilwar Mehmood for Appellant.

Ch. Khurshid Ahmed for Respondents.

Date of hearing: 21st November, 2008.

P L D 2009 Lahore 268

Before, Sayed Zahid Hussain, C.J, Syed Hamid Ali Shah and Syed Asghar Haider, JJ

MUHAMMAD UMER RATHORE---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

Writ Petition No.18196 of 2002, decided on 23rd December, 2008.

Per Syed Hamid Ali Shah, J., Sayed Zahid Hussain, C.J. and Syed Asghar Hadier, J, agreeing

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

----S.15---Sale of mortgaged property---Analysis of S. 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

An analysis of S.15, Financial Institutions (Recovery of Finances) Ordinance, 2001 gives a clear inference that:

(i) The provision is invoked against the mortgagor for recovery of mortgage money, which includes finance, penalties, damages, charges or pecuniary liabilities. In case of default in payment by customer/mortgagor the Financial Institution can proceed for the sale of the mortgaged property, after serving three notices upon him (mortgagor).

(ii) By issuance of notice of demand, the power of mortgagor regarding collection of rents and profits vests with Financial Institution.

(iii) Financial Institution, after issuance of notice and in the event of non-payment in response thereto, can proceed to sell the mortgaged property without intervention of Court.

(iv) Financial Institution is entitled to:-

(a) participate in auction;

(b) purchase mortgaged property;

(c) take its possession;

(d) apply to the Banking Court to be put in possession of mortgaged property, if there is resistance by mortgagor;

(e) execute sale deed and get it registered;

(f) transfer the mortgaged property without encumbrance;

(g) adjust all expenses of sale; and

(h) distribute sale proceeds amongst the mortgagees and pay to the mortgagor surplus, if any.

(v) Financial Institution is required to file accounts and disputes relating to mortgage and the detail of distribution of the proceeds amongst the mortgagees are to be resolved by the Banking Court: An embargo has been placed on the powers of the Banking Court and also of the High Court, to issue or grant injunction restraining sale, unless the Court is satisfied that no mortgage has been created or mortgage money has been paid or the same is deposited in the Banking Court.?

(b) Banker and customer---

----Statement of account cannot be taken as gospel's truth and not sufficient to prove the claim of the Bank; the presumption of correctness attached to its entries is rebuttable and corroboration is necessary.?

Messrs Muhammad Siddiq Muhammad Umar v. The Australasia Bank Ltd. PLD 1966 SC 684; Allied Bank of Pakistan v. Masood Ahmad Khan 1994 MLD 1557; Citi Bank N.A. A Banking Company through Attorney v. Riaz Ahmad 2000 CLC 847 and Messrs United Dairies Farms (Pvt.) Limited 4 others v. United Bank Limited 2005 CLD 569 ref.

(c) Transfer of Property Act (IV of 1882)---

----S. 69(1)(b)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.15---Sale of mortgaged property---Provision of S.69(1), Transfer of Property Act, 1882 arms the mortgagee with the power to sell or concur in sale of mortgaged property in certain cases---Clause (b) of subsection (1) of the Act relates to the matters, where mortgagee is the Federal Government or a Provincial Government or a Banking Company---Sale of mortgaged land, without intervention of the court, where mortgagee is a Banking Company is permissible only when prescribed conditions, as notified by Federal Government are met---Banking company, therefore, can proceed to sell mortgaged property, as envisaged in proviso to S.69(2), Transfer of Property Act, 1882.?

(d) Interpretation of statutes---

----Banking law---Banking transactions in today's world being complex and intricate, laws were required to be interpreted according to the prevailing banking system, rather than what it used to be when Transfer of Property Act, 1882 was promulgated.?

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

----S.15---Transfer of Property Act (IV of 1882), S.69---Constitution of Pakistan (1973), Chap.1 [Arts.8 to 28] & Art. 199---Constitutional petition---Vires of S.15, Financial Institutions (Recovery of Finances) Ordinance, 2001---Held, Provisions of transfer of Property Act, 1882, no matter how old they are, hardly remain a justification for the validation and constitunality of S.15, Financial Institutions (Recovery of Finances) Ordinance, 2001---Provisions of Transfer of Property Act, 1882, will therefore, be irrelevant consideration to validate S.15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001---Principles.

The mere fact that the provision of section 69 of the Transfer of Property Act, 1882 is century old law and has not been declared invalid over such a long period, by itself would not be a justification for validation of another enactment, empowering the mortgagee with the same powers to deal with the mortgaged property as the Acts referred to are strictly not in pari materia and there are several exceptions in this context. The Legislature in its wisdom, distinguished banking transactions being complex and intricate in nature, has not equated it with simple transactions of mortgage, inter se two individuals. The provisions of section 69 of Transfer of Property Act, 1882 were, therefore, found insufficient to cover the disputes of mortgage in a banking transaction and thus, a change was made by adding a proviso to subsection (2). This itself clearly establishes that the legislature itself felt the need to amend the Transfer of Property Act, 1882. Consequently, the proviso was incorporated through Presidential Order No.4 of 1975. Therefore, it is clear that Transfer of Property Act, 1882 was inadequate to deal with banking matters and to harmonize it with 'the present banking transactions an amendment was incorporated. It is also noteworthy that the Constitution is the supreme law of the land and any law in conflict with any provision of the same cannot hold field. The rights enacted in the Constitution contain an over-riding effect qua all other laws, therefore, any provision in any other law, which is in conflict with the supreme law, especially the fundamental rights cannot survive. The provisions of Transfer of Property Act, 1882 no matter how old they are, hardly remain a justification for the validation and constitutionality of Section 15 of Ordinance, 2001. That Transfer of Property Act, 1882 was enacted when the constitutional provisions regarding fundamental rights of the citizen were not the part of the Constitution and conditional sales were permissible under law. Provisions of Transfer of Property Act, 1882 will, therefore, be irrelevant consideration to validate impugned provision of the Ordinance.?

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

----S.15---Constitution of Pakistan (1973), Chap.1 [Arts. 8 to 28] & Art.199---Constitutional petition---Vires of S.15, Financial Institutions (Recovery of Finances) Ordinance, 2001---Held, considering the validation of provisions of S.15 of the Ordinance on the basis of other alike statutes, will be wholly conjectural inference.?

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

----S.15(12)---Constitution of Pakistan (1973), Art.199---Power of Judicial review of High Court---Provision of S.15(12), Financial Institutions (Recovery of Finances) Ordinance, 2001 purport to take away from the High Court its power of Judicial review.?

(h) Constitution of Pakistan (1973)---

----Arts. 4 & 199---Due process of law---Access to justice is a fundamental right, any thing to the contrary is not permissible and the tribunals of limited jurisdiction are required to follow due process of law---"Due process of law" means that individuals are not required to be only dealt with in accordance with law but it qualifies further that the process adopted in this context is open, fair and transparent therefore due determination of the default by an unbiased Tribunal or a Court is sine qua non and anything to the contrary is offensive to the legal parameters of settled law.?

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

----S.15---Constitution of Pakistan (1973), Arts. 2-A, 3, 4, 9, 18, 23, 24, 25, 175 & 199---Vires of S.15 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Section 15 of the Ordinance is against the principles of equity and treats one of the parties in a disadvantageous position---Where the parties are not treated alike, both in privileges conferred and liabilities imposed, such discrimination is not only against the principles of equity but also offends the provisions of Supreme Law i.e. Arts. 2-A, 3, 4, 9, 18, 23, 24, 25 & 175 of the Constitution.?

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

----S. 15---Constitution of Pakistan (1973), Arts.2-A, 3, 4, 9, 18, 23, 24, 25, 175 & 199---Vires of S.15 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 confers upon Financial Institution arbitrary unbridled and uncontrolled powers to follow either of the two procedures in the matter of recovery of amount debt/finance, secured through a mortgage---First procedure is the filing of recovery suit under S.9 of the Ordinance, where the liability of borrower/customer is determined through court and thereafter the process of recovery of the ascertained amount is initiated, by adopting the procedure of execution of decree as envisaged in S.19 of the Ordinance, while the second procedure is resort to S.15 by the sale of the mortgaged property, through its auction, after issuance of three notices and adjustment of sale proceeds towards liability of customer, without intervention of the court and without ascertainment of liability and the, Ordinance furnishes no guidance for the exercise of this discretion---No criteria is mentioned in S.15 of the Ordinance for filing of suit against one customer and proceeding under S.15 against the other customer, leaving choice in the hands of creditor (Financial Institution) of pick and choose, which is discriminatory resulting into .treating borrowers/customers of a bank, unequally, who are otherwise similarly placed---Financial Institution selects either of two modes of recovery, which is discriminatory and infringes the fundamental rights of citizen.?

Waris Meah v. State Bank of Pakistan PLD 1957 SC 157 and Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 ref.

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

----Ss.15 & 9---Constitution of Pakistan (1973), Arts.2-A, 3, 4, 9, 18, 23, 24, 25, 175 & 199---Vires of S.15 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Visible and striking conflict and repugnancy exists between the two provisions of the Ordinance i.e. S.9 and S.15 of the Ordinance---Such conflict attracts the application of theory of "Reading Down", which is rule of interpretation, resorted to by the courts, when provision of law is found to be such that it offends fundamental rights or it falls outside the ambit of competence of a particular legislature---Section 9 of the Ordinance provides for procedure for ascertainment of liability through proper adjudication keeping in view the principles of natural justice, fair play and equity---Provision of S.15 of the Ordinance are plainly discriminatory, provides no procedural machinery for ascertainment or determination of amount due and violates fundamental rights of the citizens and does not conform to the Constitution and the . same cannot survive or exist in view of the provisions of the Constitution---When there is conflict between two provisions, the one which obeys to prescription of natural justice, reasonableness, equality between citizens and yields to due process of law, has to survive as against the one which is unjust, arbitrary and deprives a person of his property without due process of law.?

(l) Interpretation of statutes---

----Theory of "Reading Down"---Applicability---Scope---"Reading Down" theory is a rule of interpretation, resorted to by the courts, when provision of law is found to be such that it offends fundamental rights or it falls outside the ambit of competence of a particular legislature.?

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

----S. 15(1)(a)---Terms "mortgage"; "obligation", and phrase "gives rise to a pecuniary liability"---Meanings.?

Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Muhammad Ayub Butt v. Allied Bank Ltd. Peshawar and others PLD 1981 SC 359 and Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 ref.

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

----S.15---Constitution of Pakistan (1973), Arts.2-A, 3, 4, 9, 18, 23, 24, 25, 175 & 199---Vires of S.15, Financial Institutions (Recovery of Finances) Ordinance, 2001---Section 15 of the Ordinance reflects that the parties to dispute are not equal, in fact, the status of Bank is elevated at par with the Court of law and it becomes a judge of its own cause, rather it has been bestowed with even more arbitrary authority than a court of law---Section 15 bestows upon the -Bank the powers to participate in the auction proceedings, which is a departure from the rules of natural justice and equity---Such is an indicator that a right has been given to the Bank, which compromises the principles of transparency and determination which is clearly in conflict with the Constitution---Status of customer, in the present scenario, is relegated to that of a litigant before a Bank with the rider that he is left defence-less and cannot raise objection in any manner, whatsoever, to the process adopted by the Bank in terms of S.15---Provision of S.15 is thus clear discrimination against the principles and norms of justice and as such cannot sustain scrutiny of the Courts.?

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

----S.15---Constitution of Pakistan (1973), Arts.2-A, 3, 4, 9, 18, 23, 24, 25, 175 & 199---Vires of S.15, Financial Institutions (Recovery of Finances) Ordinance, 2001---Provisions of S.15 of the Ordinance are repugnant to the provisions of the Constitution and is in conflict with fundamental rights and thus S.15 cannot survive on the touchstone of Arts.2-A,3, 4, 9, 23, 24, 25 & 175 of the Constitution and is ultra vires of the Constitution and of no legal effect---Infirmities and vices found in S.15 on comparison with other similar provisions of law and viewed S.15 on the touchstone of Arts. 2-A, 3, 4, 9, 23, 24, 25 & 175 of the Constitution enumerated---Cases which have attained finality i.e. where the possession of the mortgaged properties have already been delivered, sale proceeds stood adjusted towards outstanding amounts and sale-deed have been registered, under S.15, are past and closed transactions and present judgment will not affect such sales---Other sales under S.15, which have not attained finality are declared illegal and are set aside---Auction price received by the Financial Institutions in respect of the sales, which have not attained finality shall be refunded to the auction purchasers within a period of one month from the date when he approaches the Financial Institution.

Section 15, Financial Institutions (Recovery of Finances) Ordinance, 2001 compared with other similar provisions of law and viewing the provision of section 15 on the touchstone of Articles 2-A, 3, 4, 9, 23, 24, 25 and 175 of the Constitution and analysis yields the clear inference that suffers from various legal infirmities and vices:--

Firstly, no procedure is provided to be adopted for public auction.

Secondly, the provision is silent as to the manner of fixing reserve price.

Thirdly, the Financial Institution is conferred with the authority to sell and itself purchase the mortgaged property, transfer the same and get the sale deed registered in the name of purchaser. The omnibus powers of the Financial Institution are also against the public policy. Financial Institution by virtue of impugned provision becomes the buyer, the seller and the registering or transferring authority. Unbridled powers in the hands of the mortgagee to sell the property, purchase the same and. get it transferred in its name, by all means is unequal treatment and the rights of mortgagee are preferred over the interest of mortgagor. The Financial Institution in this exercise sits as judge of its own cause.

Fourthly, a loan, which is also secured by pledge, is to be recovered from sale of the pawner's pledged goods. The pawnee can legally recover its debt only when such pawnee is in a position to deliver back or return the pledged goods. Financial Institution through impugned provision, can recover the debts through sale of mortgage property, even when the Financial Institution is unable to deliver the pledged goods.

Fifthly, the impugned enactment prescribes the mechanism of recovery from mortgagor and principal borrower but is silent about recovery from Financial Institution or its obligation to pay. Both the parties are not treated equally which is against the spirit of Articles 4 and 25 of the Constitution.

Sixthly, a time barred debt can be recovered under the impugned provision and valuable rights of the borrower are snatched, smothered and stymied, which have accrued to customer with the flux of time. Snatching away of such rights is against the mandate of Articles 4, 23 and 24 of the Constitution.

Seventhly, the mortgagee can recover the penalties, other charges and damages without any proof thereof, which is exploitative on its part and violation of Articles 2-A, 3 and 4 of the Constitution.

Eighthly, the mortgaged property is auctioned for recovery of an amount, which is unascertained and undetermined. Financial Institution can sell the mortgaged property without proving that the mortgage was created for the loan sought to be recovered through sale or it related to some other loan between the same parties. The powers of the Financial Institution are clearly violative of Articles 2-A, 3, 4, 23 and 24 of the Constitution.

Ninthly, the impugned provision has failed to save the borrower from mala fide action of the lender, which offends Articles 2-A, 3, 4 and 9 of the Constitution.

Lastly, the powers of the courts are curtailed and a bar is imposed on the Court to restrain sale under the impugned provision. The provision is impinging upon the power of the Court, as enshrined in Articles 2-A and 175 of the Constitution.?

Sh. Abdul Sattar Lasi v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 6 others 2006 CLD 18; A. Batcha Saheb v. Nariman K. Irani and others AIR 1955 Mad. 491; Mst. Ameer Khatun v. Faiz Ahmed and others PLD 1991 SC 787; Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582; Sunil Batra v. Dehli Administration and others AIR 1978 SC 1675; Wajahat Ikram and others v. The State 1999 SCMR 1255 and Rauf Bukhsh Qadri v. The State and others 2003 MLD 777; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan and others PLD 1989 Kar. 404; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and others 1993 PLD SC 341; Province of Punjab and others v. National Industrial Cooperative Credit Corporation and others 2000 SCMR 567; National Industrial Cooperative Credit Corporation Ltd. v. Province of Punjab/Government of Punjab through Secretary PLD 1992 Lah. 462; Pakistan through Secretary v. Muhammad Umar Khan and others 1992 SCMR 2450; Naseem Mehmood v. Principal King Edward Medical College Lahore and others 1965 PLD (W.P.) Lah. 272; Gul Khan v. Government of Balochistan through Secretary PLD 1989 Quetta) 8; Abdul Raheem and 2 others v. Messrs United Bank Limited of Pakistan PLD 1997 Kar. 62; Messrs Chanab Cement Product (Pvt.) Ltd. v. Tribunal Lahore and others PLD 1996 Lah. 672; Khan Asfand Yar Wali v. Federation of Pakistan through Cabinet Division PLD 2001 SC 607; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Asif Ali Zardari and others v. The State PLD 2001 SC 568; Nek Muhammad v. Roda PLD 1986 SC (AJ&K) 23; Messrs Faridsons Ltd v. Government of Pakistan through Secretary PLD 1961 SC 537; Abdus Saboor Khan v. Karachi University and other PLD 1996 SC 536; Ghulam Mitstafa Jatoi v. Additional District and Sessions Judge/Returning Officer 1994 SCMR 1299; A.D.B.P. and others v. Abid Akhtat 2003 SCMR 1547; The Province of West Pakistan v. Muhammad Ayub Khuhro PLD 1967 Kar. 673; A.D.B.P. v. Sanaullah Khan 1988 PLD SC 67; Egmore Benefit Society, 3rd Branch Ltd. through Damodara Mudaliar v. K. Aburupammal AIR (30) 1943 Mad. 301; Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. and another 2003 CLD 1693; Messrs Nizamuddin & Company and four others' v. The Bank of Khyber 2003 CLD 914; Muhammad Rafiq v. United Bank Ltd and another 2005 CLD 1162; Hudabiya Textile Mills Ltd. and other v. Allied Bank of Pakistan Ltd. and other PLD 1987 SC 512; Mrs. Aziz Fatima and three other v. Rehana Chughtai and three other 2000 CLC 863; Brig. (R) Mazhar-ul-Haq and another v. Muslim Commercial Bank PLD 1993 Lah. 706; Messrs A. M. Rice Corporation and others v. Bank of Punjab and others 2003 CLD 1783; Waris Meah v. State Bank of Pakistan PLD 1957 SC 157; Miss Benazir Bhatto v. Federation of Pakistan and another PLD 1988 SC 416; Abdul Latif v. Government of West Pakistan PLD 1962 SC 384; Syed Ali Shah v. Abdul Saghir Khan Shervani PLD 1990 SC 504; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Muthialpet Benefit Fund Limited v. Devarajulu Chetty and others AIR 1955 Mad. 455; Haji Ghulam Zamin and another v. A. B. Khondkar and others PLD 1965 Dac.165; Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another 2000 SCMR 597; Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1988 SC 67; Messrs Grain System (Pvt.) Ltd. Karachi v. Agricultural Development Bank of Pakistan Islamabad 1993 MLD 1,031; Asim Textile Mills Ltd and others v. NAB and others PLD 2004 Kar. 638; Waris Meah v. State Bank of Pakistan PLD 1957 SC 157; I. A. Sherwani v. Government of Pakistan through Secretary Finance Division Islamabad and others 1991 SCMR 1041; Umer Ahmad Ghuman v. Government of Pakistan and others PLD 2002 Lah. 521; Miss Shehla Zia and others v. WAPDA PLD 1994 SC 693; New Jubilee Insurance Company Ltd Karachi v. National Bank of Pakistan Karachi PLD 1999 SC 1126; Yousaf Textile Mills v. Trust Leasing Corporation 2006 CLD 1191; Pakistan Muslim League (Q) and others v. Chief Executive of Islamic Republic of Pakistan and others PLD 2002 SC 994; R. K. Garg v. Union of India and others AIR 1981 SC 2138; Messrs Master Foam (Pvt.) Ltd. and 7 others v. Government of Pakistan through Secretary, Ministry of Finance and others PLD 2005 SC 373; Marida Chemicals Ltd. and others v. Union of India and others (2004) 120 CC 373; Saiyyid Abul Ala Maudoodi and others v. The Government of West Pakistan and another PLD 1964 SC 673; Universal Tobacco Company, Par Hoti, Mardan through Manager and 9 others v. Pakistan Tobacco Board and 3 others 1998 CLC 1666; Chitta Ranjan Sutar v. The Secretary, Judicial Department, Government of East Pakistan and 2 others PLD 1967 Dac. 445; Narasimhachariar v. Egmore Benefit Society, 3rd Branch Ltd. AIR 1955 Mad. 135; Alka Ceramics, Piplodi, Himatnagar v. Gujarat State Financial Corporation, Ahmedabad and others AIR 1990 Gujarat 105; Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd (Bar Council Malaysia, intervener) (2004) 2 MLJ 257; Ocean Industries Limited and another v. Industrial Development Bank PLD 1966 SC 738; Messrs Bank of Oman Ltd. v. Messrs East Trading Co. Ltd. and others PLD 1987 Kar. 404; Messrs R. K. Industries Plot No. SPL 35, Industrial Estate, Kallur v. A. P. State Financial Corporation and others AIR 1991 AP 174; Haryana Financial Corporation and another v. Jagdamba Oil Mills and another (2002). 3 SCC 496; The Director of Industries, U. P. and others v. Deep Chand Agarwal AIR 1980 SC 801; S.K. Kamiruddin and others v. Union of India and others AIR 1993 Orissa 238; Messrs Surprise Hotel (Pvt.) Ltd. v. U.P. Financial Corporation and others AIR 1998 Allahbad 24; Messrs Kharavela Industries (Pvt.) Ltd v. Orrisa Finance Corporation and others AIR 1985 Orissa 153 and Messrs Muhammad Siddiq Muhammad Umar v. The Australasia Bank Ltd. PLD 1966 SC 684 ref.

Per Sayed Zahid Hussain, C.J. agreeing with Syed Hamid Ali Shah, J

(p) Interpretation of statutes---

----While construing a law or its provisions, the legislative history and progression of law assumes significant importance.?

(q) Financial Institutions (Recovery of Finances) Ordinance (XLV of 2001)---

----S.15---Background of provision of S.15, Financial Institutions (Recovery of Finances) Ordinance, 2001 and peculiar and special features stated.?

Messrs Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Muhammad Ayub Butt v. Allied Bank Ltd. Peshawar and others PLD 1981 SC 359; Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109 and Agricultural Development Bank of Pakistan and another v. Abid Akhtar and others 2003 SCMR 1547 ref.

(r) Banker and customer---

----Obtaining loan or availing financial facility---Rights and obligations of Banker and customer.

If anybody has obtained loan or availed financial facility, it becomes his moral and legal obligation and duty to return the same in accordance with the terms and conditions, on which the same was obtained and availed; and in case of failure and default, the Banking Company/Institution is entitled to seek the remedy for securing its interest and recover the amount due. Whereas the creditor has the right to recover whatever is due, the borrower/customer is entitled to get the determination made of the due amount. Both have certain rights and obligations to be dealt in a just and fair manner.?

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

----S. 15---Constitution of Pakistan (1973), Arts.2-A, 3, 4, 9, 18, 23, 24, 25, 175 & 199---Vires of S.15, Financial Institutions (Recovery of Finances) Ordinance, 2001---Term "default" as used in S.15 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Significance and connotation---Unguided arbitrary and unreasonable power, which is amenable to discretionary and discriminatory exercise is contrary to all norms of justice and need to be tested on the touchstone of the constitutional provisions, being the fundamental and basic law of the land---Section 15 of the Ordinance is in conflict with the constitutional provisions---Issue of vires or validity of S.15 of the Ordinance having not arisen in the case, observations appearing in the judgment in United Bank Ltd. v. Defence Housing Authority PLJ 2004 Lah. 323 = 2004 CLD 215, held, cannot be treated as a precedent for the proposition in the present case.

The term "default" has got special significance in the context of provisions of S.15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. "Default" as commonly understood is a large and loose word i.e. failure to do or pay what one should do. Every failure on the part of a person without any ulterior design and mala fide intention would not equate with the expression "default" as used in its strict legal sense. Before a person is declared to be in default, it is absolutely necessary that there should have been a demand to make payment of a determined sum which should have remained un-responded and unattended for a period beyond the period prescribed by law. Even under the laws which provide for the recovery through the coercive process i.e. as land revenue, it is necessary to make determination of the amount due and a mere claim by one party to a particular amount, cannot be made basis for the enforcement of coercive procedure. Bank cannot be equated with a proper judicial forum for determination of the amount due against a borrower notwithstanding the fact that summary power of recovery of amount due has been conferred on it by law with a view to obviate cumbersome procedure of execution of .decree as contained in Order XXI of the Code of Civil Procedure, 1908 and the Banking Law in the event of substantial dispute between the parties, the recovery of such procedure would be available only where the amount claimed was found due, ascertained and determined by a competent judicial forum. The rationale behind was that unbridled, unjust and arbitrary power could not be attributed to have been conferred on such functionaries. The provisions of section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 indeed vest the Financial Institutions with a vast and extensive power to selling the properties of mortgagers without intervention of the court and without due determination of amount. This unguided, arbitrary and, unreasonable power, which is amenable to discretionary and discriminatory exercise is contrary to all norms of justice and need to be tested on the touchstone of the constitutional provisions, being the fundamental and basic law of the land.?

The Financial Institutions (Recovery of Finances) Ordinance, 2001 is in conflict with the constitutional provisions.?

Chief Justice observed that "I am not oblivious of my judgment in United Bank Limited v. Defence Housing Authority (PLJ 2004 Lahore 323 = 2004 CLD 215) and consider it my duty to refer to the same. In that case after the decree by the Banking Court, the decree holder bank had disposed of the property through auction and issue arose about the implementation of the said sale wherein provisions of sections 15 and 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 were cited. As the perusal of the judgment would show, issue of vires or validity of provisions of section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 did not arise in that case. It may thus be clarified that the observations appearing in that case cannot be treated as a precedent for the proposition in the instant case. This is what I thought fit to add for amplification and clarification through this note, concurring with the conclusions of my learned brother". ?

Irfan Gul Magsi v. Haji Abdul Khaliq Soomro and others 1999 PTD 1302; Agricultural Development Bank of Pakistan and another v. Abid Akhtar and others 2003 SCMR 1547; Miss Benzair Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66; Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563; Messrs Chenab Cement Product (Pvt.) and others v. Banking Tribunal, Lahore and others PLD 1996 Lahore 672 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and S.M. Zafar in "Understanding Statutes-Canons of Construction" revised Edition-2008 at Page-832 ref.

United Bank Limited v. Defence Housing Authority 2004 CLD 215 clarified.

Shahid Ikram Siddiqui, Barrister Zafar Ullah Khan, Salman Aslam Butt, Iftikhar Ullah Malik, Gohar Siddiq, Nadeem Ahmad Sheikh and Abdul Hameed Chauhan for Petitioner.

Iftikhar Hussain Shah, Deputy Attorney General of Pakistan, Uzair Karamat Bhandari and Mian Muhammad Kashif for Respondent.

Dates of hearing: 23rd, 26th, 27th May, 9th June and 12th September, 2008.

P L D 2009 Lahore 312

Before Asif Saeed Khan Khosa, Tariq Shamim and M.A. Zafar, JJ

ALI MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.717-B of 2009, decided on 20th February, 2009.

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

----S. 337-N(2)---Criminal Procedure Code (V of 1898), S.498---Hurt--Post arrest bail---Scope---Interpretation of S.337-N(2), P.P.C. and effect of proviso to subsection (2) of S.337-N, P.P.C. [as inserted by Criminal Law (Amendment) Act, 2004)---Non-obstante clause in subsection (2) of S.337-N, P.P.C. has given subsection (2) of S.337-N, P.P.C. an overriding effect and sway over all the other provisions dealing with hurt contained in Chap. XVI, P.P.C.---Provision of S.337-N(2), P.P.C. (as to date), contemplates that in all cases of hurt the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment provided for the relevant offence can he awarded to an offender only where the offender is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour---Subsequent addition of the proviso to subsection (2) of S.337-N, P.P.C. had done nothing more than stipulating that if the offender is a previous convict, habitual, hardened, desparate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour then the sentence of imprisonment to be awarded to him as Ta'zir shall not be less than one third of the maximum period of imprisonment provided for the hurt caused---Said proviso only fixes the minimum sentence of imprisonment to be awarded to an offender who is a previous convict, habitual, hardened, desparate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour---Nothing in the said proviso exists which may detract from the overriding effect of the main subsection (2) of S.337-N, P.P.C. or create any exception for cases of cruelty or brutality etc.---Cases of brutality, etc. already stood catered for in subsection (2) of S.337-N, P.P.C. and the proviso only fixes the minimum sentence of imprisonment in such cases---High Court observed that such is the only interpretation of the provisions of S.337-N(2), P.P.C. (as these stand today) and if the legislature intends otherwise then it may suitably and appropriately amend the relevant previsions---Principles.

The non-obstante clause contained in subsection (2) of section 337-N, P.P.C. has indeed given the provisions of the said subsection an overriding effect and sway over all the other provisions dealing with hurt contained in Chapter XVI of the Pakistan Penal Code, 1860. The provisions of subsection (2) of section 337-N, P.P.C., as they stand today, contemplate that in all cases of hurt the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment provided for the relevant offence can be awarded to an offender only where the offender "is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour". The subsequent addition of the proviso to subsection (2) of section 337-N, P.P.C. had done nothing more than stipulating that if the offender "is a previous convict, habitual, hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour" then the sentence of imprisonment to be awarded to him as Ta'zir shall not be less than one-third of the maximum period of imprisonment provided for the hurt caused. The said proviso only fixes the minimum sentence of imprisonment to be awarded to an offender who "is a previous convict, habitual, hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour". There is nothing in the said proviso which may detract from the overriding effect of the main subsection or create any exception for cases of cruelty or brutality, etc. The cases of cruelty or brutality, etc. already stood catered for in subsection (2) of section 337-N, P.P.C. and the proviso only fixes the minimum sentence of imprisonment in such cases.?

The consideration regarding some offences pertaining to causing of hurt being non-bailable are extraneous to the issue because even in a case involving a bailable offence an accused person can be arrested during the investigation but he is entitled to be admitted to bail as of right. Bailable nature of an offence does not mean that the accused person involved in such offence cannot be arrested in connection with investigation of such a case. As a matter of fact the provisions of section 496, Cr.P.C. expressly contemplate arrest or detention of accused persons even in cases involving bailable offences and then go on to provide for their release on bail in such cases as of right. It goes without saying that arrest of an accused person involved in a case of hurt may be necessitated by the requirements of a proper investigation but such arrest cannot be equated with punishment so as to conclude or infer that upon his ultimate conviction such accused person can also be visited with a sentence of imprisonment at the end of the day. Arrest or detention of an accused person during an investigation has no relevance to the issue whether the accused person could or could not be imprisoned after recording of his conviction. Offences carrying punishments of Hadd, Qisas or Diyat do not contemplate imprisonment of the convict. An accused person can be detained in jail pending investigation or decision provided the dictates of Justice and public good so demand; hence refusal or grant of bail will be regulated by the Court in accordance with the well-settled principles." The question of arrest during an investigation, thus, could not be bracketed with the question of imprisonment after conviction and by tagging the two together.?

In all cases of hurt provided for in Chapter XVI of the Pakistan Penal Code, 1860 the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment as Ta'zir provided for the relevant offence can be awarded to an offender only where the offender "is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour" and in the case of such an offender the sentence of imprisonment as Ta'zir is not to be less than one-third of the maximum imprisonment provided for the hurt caused. This is the only interpretation of the provisions of subsection (2) of section 337-N, P.P.C. as they stand today and if the legislature intends otherwise then it may suitably and appropriately amend the relevant provisions.?

Cases of hurt attracting only punishments of Arsh or Daman are ordinarily to be treated differently in the matter of post-arrest bail than cases of hurt attracting the optional additional sentence of imprisonment as Ta'zir where the accused person "is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour" within the purview of subsection (2) of section 337-N, P.P.C. In order to determine as to whether an accused person falls in those categories or not for the purposes of imposition of the optional additional sentence of imprisonment as Ta'zir, it is sufficient to refer to section 337-N(2) of P.P.C. which provides, amongst others, the cases/circumstances in which punishment of imprisonment is to be awarded as Ta'zir. The factors to be seen for awarding Ta'zir punishment are the facts and circumstances of the case, the nature of the injury/hurt caused, the weapon used and the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience, or adversely affecting harmony among different sections of the people.?

In a case attracting the above mentioned factors a court may have an option to award an additional sentence of imprisonment against a convict besides the punishment regarding payment of Arsh or Daman and the minimum sentence of imprisonment to be awarded in such a case would be governed by the proviso to subsection (2) of section 337-N, P.P.C. In such a case of a possible optional additional sentence of imprisonment bail may legitimately be refused to an accused person keeping in view the circumstances of the case. The hypothetical example of an accused person chopping off the hands and legs of his victim in a rage would probably fall in this category of cases attracting the optional additional sentence of imprisonment and, thus, such a case is to be treated differently from the case of an accused person who is not a previous convict, habitual or hardened, desperate or dangerous criminal or, where the offence has not been committed by him in the name or on the pretext of honour.?

Robert M. Brady v. United states (1970) 397 Us 742 fol.

Ikramullah v. Samiullah alias Shanai 1998 MLD 1184; Aurangzeb v. The State and another 1999 PCr.LJ 230; Muhammad Saeed v. The State 2006 YLR 1591 and Muhammad Yaqoob and 4 others v. The State 2007 MLD 1067 approved.

Bakhshu v. The State (Criminal Miscellaneous No.1625-B of 2008) dissented from.

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

----S. 498---Penal Code (XLV of 1860), S.337-N(2)---Bail, grant of, subject to deposit of requisite amount of Arsh and appropriate amount of the Daman---Accused/petitioner, in the present case happened to be the husband of the complainant and there was no premeditation on the part of the petitioner---First Information report showed that the situation had degenerated into violence at the spur of the moment upon arrival of the petitioner's son (complainant's step son) at the matrimonial home of the petitioner and the complainant where they were present together quite peacefully immediately prior to the occurrence---Petitioner had allegedly picked up a sota from the spot and he and his son had then collectively given only three injuries to the complainant---Case was, thus, a run of the mill case of domestic violence based upon estranged matrimonial relations---Petitioner had no credentials or antecedents of being a previous convict, habitual or hardened, desparate or dangerous criminal and admittedly the offence in the case had not been committed by him in the name or on the pretext of nonour and, thus, keeping in view the provisions of subsection (2) of S.337-N, P.P.C., even in case of his ultimate conviction the petitioner was not likely to be awarded any sentence of imprisonment as Ta'zir and the only sentence likely to be awarded against him would be payment of Arsh or Daman to the victim---Petitioner was ready to deposit the requisite amount of Arsh or Daman with the trial court in order to secure his ultimate sentence, if any---Keeping the petitioner, in circumstances, behind the bars at such stage would amount to nothing, but, in the words of Shakespeare, "insisting upon a pound of flesh" (to insist on getting something that they were legally entitled to have, even though that may bring them little or no benefit and may cause great distress to the someone from whom it is demanded)---Petitioner, in circumstances, was admitted to bail subject to deposit of the requisite amount of Arsh and appropriate amount of daman (to be determined tentatively by the trial court) with the trial court and furnishing a bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court.?

(c) Criminal jurisprudence---

----"Plea-bargaining"---Origin, concept, its classifications, scope and applicability---Plea of nolo contendere (accused person does not contest the charge but he also does not accept any responsibility for the outcome)---Origin, applicability and scope---Driving factors behind all classes of plea-bargaining are saving time of the court, cutting down the expenses involved in the trial and expeditious delivery of justice---Critical advantage of adoption of such a process is that the accused person feels satisfied with what he gets and this generally precludes the possibility of filing of appeal---`Plea bargaining' already stands formally introduced in Pakistan criminal justice system through S.25, National Accountability Ordinance, 1999---Under the Islamic system of dispensation of criminal justice in vogue in Pakistan many offences, including some serious offences like murder and hurt, are compoundable---Compoundability of such offences, particularly those of causing hurt, provide monetary compensation to the victim as the main sentence and imprisonment has been provided for such offences as an additional, but optional, sentence---Availability of an option about additionally sentencing an accused person to a term of imprisonment or not carries a big scope for introducing 'plea bargaining' in such cases without any legislative intervention at all---Detail of such offences and the sentences provided for in the Pakistan Penal Code recorded---High Court observed that availability of a room for plea bargaining in all such cases is quite obvious and such an opportunity should ordinarily be grabbed by the court upon its own initiative as it does not involve any legislative intervention---Plea of nolo contendere is not incompatible with the preexisting statutory law in Pakistan---Held, offering no contest for the purpose of avoiding a full trial may be recognized as different from admission of guilt and in all cases of hurt if the only punishment to be awarded to an accused person upon his conviction would be payment of the requisite amount of Arsh or Daman to the victim and if the accused person agrees to pay the requisite amount to victim without pleading guilty to the charge and at the same time without contesting the charge also so as to avoid a trial then ordinarily he should be convicted and sentenced accordingly straightaway without holding a full trial---Disposal of trial of hurt cases, in such a manner, is likely to fulfil the obligation of State under Art.37(d) of the Constitution regarding ensuring inexpensive and expeditious delivery of justice inasmuch as through such process the victim shall receive the requisite compensation promptly, the accused person shall be handed down his lawful punishment without necessary loss of time and the trial court shall be saved of the time and effort likely to be consumed in the trial which is to end in that result in any case---Overgrowing volume of criminal cases before courts in the country is already stretching the capacity of courts to its limits and the capability of judges to its edge and the issue therefore, abegs ingenuity and necessitates innovative approaches to deal with the problem---Principles.

The concept of plea-bargaining in criminal cases is generally explained as pre-trial negotiations that take place between an accused person and the prosecution, during which the accused person agrees to plead guilty to the charge in exchange for certain concessions to be extended by the prosecution. Academics classify plea-bargaining in three categories, i.e. charge bargain, sentence bargain and fact bargain. In charge bargain the accused person is given an option to plead guilty to a lesser charge or only to some of the charges framed against him. In sentence bargain the accused person pleads guilty to the charge framed against him but there is a bargain on the quantum of sentence. Fact bargain, which is not very common, is concerned with admission of a relevant fact by the accused person in exchange for a concession by the prosecution. The driving factors behind all classes of plea-bargaining are saving time of the court, cutting down the expenses involved in the trial and expeditious delivery of justice. A critical advantage of adoption of such a process is that the accused person feels satisfied with what he gets and this generally precludes the possibility of filing of an appeal.?

In Pakistan plea-bargaining already stands formally introduced in criminal justice system through section 25 of the National Accountability Ordinance, 1999.?

Under the Islamic system of dispensation of criminal justice in vogue in Pakistan many offences, including some serious offences like murder and hurt, are compoundable. Compoundability of such offences inherently carries some seeds of resorting to plea-bargaining in respect thereof. Apart from that many offences, particularly those of causing hurt, have monetary compensation to the victim as the main sentence and imprisonment has been provided for such offences as an additional, but optional, sentence. Availability of an option about additionally sentencing an accused person to a term of imprisonment or not carries a big scope for introducing plea-bargaining in such cases without any legislative intervention at all. A detail of such offences and the sentences provided for the same by the Pakistan Penal Code, 1860 is as follows:--

Section 334:???????????????????????????? Punishment for Itlaf-i-udw:

Qisas, or (if Qisas is not executable) Arsh + optional additional sentence of imprisonment up to 10 years as Ta'zir.

Section 336:???????????????? ??????????? Punishment for Itlaf-i-salahiyyat-i-udw: Qisas, or

(if Qisas is not executable) Arsh + optional additional sentence or imprisonment up to 10 years as Ta'zir.

Section 337-A(i):????????????????????? Punishment for Shajjah-i-khafifah:

Daman + optional additional sentence of imprisonment up to 2 years as Ta'zir.

Section 337-A(ii);???????????????????? Punishment for Shajjah-i-mudihah:

Qisas, or

(if Qisas is not executable) Arsh equal to 5 per cent of Diyat + optional additional sentence of imprisonment up to 5 years as Ta'zir.

Section 337-A(iii): ?????????????????? Punishment for Shajjah-i-hashimah:

Arsh equal to 10 per cent of Diyat + optional additional sentence of imprisonment up to 10 years as Ta'zir.

Section 337-A(iv): ?????????????????? Punishment for Shajjah-i-munaqqillah:

Arsh equal to 15 per cent of Diyat + optional additional sentence of imprisonment up to 10 years as Ta'zir.

Section 337-A(v):???????????????????? Punishment for Shajjah-i-ammah:

Arsh equal to one third of Diyat + optional additional sentence of imprisonment up to 14 years as Ta'zir.

Section 337-A(vi): ?????????????????? Punishment for Shajjah-i-damighah:

Arsh equal to one half of Diyat + optional additional sentence of imprisonment up to 14 years as Ta'zir.

Section 337-D:???????????? Punishment for Jaifah:

Arsh equal to one third of Diyat + optional additional sentence of imprisonment up to 10 years as Ta'zir.

Section 337-F(i):????????????????????? Punishment for Damiyah:

Daman + optional additional sentence of imprisonment up to 1 year as Ta'zir.

Section 337-F(ii):???????????????????? Punishment for Badiah:

Daman + optional additional sentence of imprisonment up to 3 years as Ta'zir.

Section 337-F(iii): ??????????????????? Punishment for Mutalahimah:

Daman + optional additional sentence of imprisonment up to 3 years as Ta'zir.

Section 337-F(iv):??????????????????? Punishment for Mudihah:

Daman + optional additional sentence of imprisonment up to 5 years as Ta'zir.

Section 337-F(v):???????????????????? Punishment for Hashimah:

Daman + optional additional sentence of imprisonment up to 5 years as Ta'zir.

Section 337-F(vi):??????????????????? Punishment for Munaqqillah:

Daman + optional additional sentence of imprisonment up to 7 years as Ta'zir.

Section 337-G:???????????? Punishment for causing hurt by rash or negligent driving:

Arsh/Daman + optional additional sentence of imprisonment up to 5 years as Ta'zir.

Section 337-H:???????????????????????? Punishment for causing hurt by rash or negligent act driving:

Arsh/Daman + optional additional sentence of imprisonment up to 3 years as Ta'zir.

Section 337-J:????????????? ??????????? Punishment for causing hurt by means of a poison:

Arsh/Daman + optional additional sentence of imprisonment up to 10 years as Ta'zir.

Section 337-K:???????????????????????? Punishment for causing hurt to extort confession or to compel restoration of property:

Arsh/Daman + optional additional sentence of imprisonment up to 10 years as Ta'zir.

Section 337-L(1):???????????????????? Punishment for causing other hurt:

Daman + optional additional sentence of imprisonment up to 7 Years as Ta'zir.

Section 337-L(2):???????????????????? Punishment for causing other hurt not covered by section 337-L(1):

Daman and/or imprisonment up to 2 years.?

There is already an indication available in the Pakistan Penal Code itself as to when the option may be exercised regarding awarding punishment of imprisonment as Ta'zir in addition to the punishment requiring payment of Arsh or Daman to the victim. By virtue of the provisions of subsection (2) of section 337-N, P.P.C. in all those cases of hurt where the offender is not a previous convict, habitual or hardened, desperate or dangerous criminal or where the offence has not been committed by him in the name or on the pretext of honour, the court may not award any punishment of imprisonment as Ta'zir to the offender in addition to the punishment of payment of Arsh or Daman to the victim. In other words, in all such cases no sentence of imprisonment may be awarded to the offender and he may be burdened only with payment of monetary compensation to the victim by way of Arsh or Daman.

It is also relevant to mention here that under Section 337-I of the Pakistan Penal Code the only punishment provided for causing hurt by mistake (khata) is payment of Arsh/Daman and the said offence does not carry any optional additional sentence of imprisonment as Ta'zir.

Availability of a room for `plea-bargaining' in all the above mentioned cases is quite obvious and such an opportunity should ordinarily be grabbed by the court upon its own initiative as it does not involve any legislative intervention.?

There is, however, a problem in this respect which needs to be addressed. It may be argued that by virtue of the provisions of section 304, P.P.C. read with Article 17 of the Qanun-e-Shahadat, 1984 a confession made before the court in cases of hurt may lead to a sentence of Qisas and, thus, a plea of guilty by an accused person may be treated as a confession and may entail punishment of Qisas. Qisas has been defined by section 299(k) of the Pakistan Penal Code, 1860 as "punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd in exercise of the right of the victim or a wali". It is obvious that an accused person willing to pay Arsh or Daman to the victim would like to avoid the sentence of Qisas and, therefore, for any meaningful introduction of `plea-bargaining' in cases of hurt such a consequence is to be avoided and a way is to be found whereby without pleading guilty to the charge an accused person may avoid full trial as well as the sentence of Qisas and may obtain an early conclusion of his prosecution through the court handing down a punishment of payment of monetary compensation to the victim by way of Arsh or Daman. A simple and convenient solution to this problem is offered by the North American experience of introduction of the plea of nolo contendere (pronounced as noh-loh kuhn-ten-duh-ree) which, literally speaking, means that the accused person does not contest the charge but he also does not accept any responsibility for the outcome. That plea authorizes a court to sentence an accused person as if he is guilty even though the accused person does not admit the guilt. Nolo contendere is a legal term that comes from the Latin for "I do not wish to contend." It is also referred to as a plea of "No Contest." Derived from English Common Law, several Common Law jurisdictions, including the United States, also adopted the nolo contendere concept. In criminal trials, and also in some other common law matters, it is a plea whereby the accused person or the defendant neither admits nor disputes a charge, serving as an alternative to pleading guilty or not guilty. A no contest plea, while not technically a guilty plea, has the same immediate effect as a guilty plea, and is often offered as a part of a plea-bargain. In an essay on the origin of the nolo contendere plea Anthony J. Fejfar argues that the nolo contendere plea has biblical origins. Fejfar maintains that it entered English Common Law "based upon English Eccliastical Law which is modeled after the encounter of Jesus with Pilate during Holy Week". In the encounter Jesus neither agreed nor denied guilt to the charge of calling himself the messiah, effectively pleading "no contest".?

Introduction of the plea of nolo contendere in criminal jurisprudence in Pakistan does not appear to be offensive to the relevant statutory provisions existing in Pakistan. Dealing with trials before a Magistrate section 242, Cr.P.C. provides as follows:

"When the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offenco of which he is accused and he shall lie asked whether he admits that he has committed the offence with which he is charged." (underlining has been supplied for emphasis)

Section 243, Cr.P.C. goes on to provide that

"If the accused admits that he has committed the offence with which he is charged his admission shall be recorded as nearly as possible in the words used by him; and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly." (Underlining has been supplied for emphasis)

Similarly, dealing with trials before a High Court or a Court of Session, section 265-E, Cr.P.C. provides as under:

"(1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.

(2) If the accused pleads guilty the Court shall record the plea, and may in its discretion convict him thereon." (Underlining has been supplied for emphasis)?

While taking the plea of nolo contendere an accused person neither admits that he has committed the offence with which he is charged nor he pleads guilty and, thus, taking of such a plea may not amount to confession for the purposes of Qisas in terms of section 304, P.P.C. read with Article 17 of the Qanun-e-Shahadat, 1984 and may also not attract the consequences contemplated by section 243, Cr.P.C. or subsection (2) of section 265-E, Cr.P.C. It can, therefore, be concluded with some degree of confidence that the plea of nolo contendere may not be incompatible with the pre-existing statutory law in Pakistan. Offering no contest for the purpose of avoiding a full trial may be recognized as different from admission of guilt and in all cases of hurt if the only punishment to be awarded to an accused person upon his conviction would be payment of the requisite amount of Arsh or Daman to the victim and if the accused person agrees to pay the requisite amount to the victim without pleading guilty to the charge and at the same time without contesting the charge so as to avoid a trial then ordinarily he should be convicted and sentenced accordingly straightaway without holding a full trial.?

The manner of disposition of trial of hurt cases proposed above is likely to fulfil the obligation of the State under clause (d) of Article 37 of the Constitution regarding ensuring inexpensive and expeditious delivery of justice inasmuch as through this process the victim shall receive the requisite compensation promptly, the accused person shall be handed down his lawful punishment without unnecessary loss of time and the trial court shall be saved of the time and effort likely to be consumed in the trial which is to end in that result in any case. Ever-growing volume of criminal cases before courts in Pakistan is already stretching the capacity of courts to its limits and the capability of Judges to its edge and the issue, therefore, abegs ingenuity and necessitates innovative approaches to deal with the problem. It is proverbial that those shy of innovation and experimentation are condemned to the dustbin of history.?

Robert M. Brady v. United States (1970) 397 US 742; Rudolph Santobellow v. New York (1971) 404 US 257 and Stanley Blackledge v. Gary Darrell Allison (1977) 431 US 63 ref.

(d) Nolo contendere, plea of---

----Origin, scope and applicability.?

(e) Plea bargaining---

----Origin, concept, classifications, scope and applicability.

?

Robert M. Brady v. United States (1970) 397 US 742; Rudolph Santobellow v. New York (1971) 404 US 257 and Stanley Blackledge v. Gary Darrell Allison (1977) 431 US 63 ref.

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

----S. 337-N(2)---Criminal Procedure Code (V of 1898), S.498---Hurt---Plea bargain and plea of nolo contendere---Applicability---High Court directed that at the time of hearing of an application for post-arrest bail in a case of hurt where the accused person is not a previous convict, habitual or hardened, desperate or dangerous criminal or where the offence has not been committed by him in the name or on the pretext of honour if the accused person offers to deposit the requisite amount of Arsh or Daman with the trial court in order to secure the relevant amount of money due as punishment in case of his ultimate conviction, if any, and if the period of his physical remand is over and the statutory period of investigation has expired then ordinarily he should be admitted to bail subject to making of the requisite deposit and furnishing of bail bond---Such a bargain shall, however, not be available to an accused person for his post-arrest bail if he is a previous convict or in the tentative assessment of the court he is a habitual or hardened, desperate or dangerous criminal or where the offence has been committed by him in the tame or on the pretext of honour---At the time of framing of the charge in all cases of hurt where the accused person is not a previous' convict, habitual or hardened, desperate or dangerous criminal or where the offence has not been committed by him in the name or on the pretext of honour the trial court should ask the accused person whether or not he is ready to plead nolo contendere (No Contest) if the only punishment to be awarded to him would be payment of the requisite amount of Arsh or Daman to the victim---If the accused person agrees to take that plea on that basis then ordinarily he should be convicted and sentenced accordingly straightaway without holding a full trial---Such a bargain shall, however, not be available to an accused person if he is a previous convict or in the assessment of the court he is a habitual or hardened, desperate or dangerous criminal or where the offence has been committed by him in the name or on the pretext of honour---High Court further directed to send the copy of the present order to all the Sessions Judges, Additional Sessions Judges and Judicial Magistrates in the Province of Punjab for their information and guidance.?

Rai Muhammad Hussain Kharal for Petitioner.

Mrs. Farzana Shahzad Khan, Dy. Prosecutor-General for the State with Nazir Sukhera, A.S.I. with record.

Manzar Abbas Khokhar for the Complainant.

Muhammad Naseem Kashmiri, Dy. Attorney-General for Pakistan.

Muhammad Hanif Khatana, Addl. A.-G. Punjab.

P L D 2009 Lahore 344

Before Khurshid Anwar Bhinder, J

ATTIQUE RABBANI BUTT---Petitioner

versus

Mst. SADIA BUTT and others---Respondents

Criminal Miscellaneous No.1056-H of 2007, decided on 13th February, 2009.

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

----S. 491---Guardians and Wards Act (VIII of 1890), S.25---Habeas corpus petition by father for the recovery of his son from the custody of his mother who, after divorce, was putting up separately---Maintainability---Habeas corpus---Connotation---Petitioner/father had filed an application under S.25, Guardians and Wards Act, 1891 before the Guardian Judge, which was pending adjudication---Held, mother being the natural guardian of a child having preferential right of hizanat was entitled to the custody of a minor in case of separation or divorce between the parties---No body could look after the child better than mother, therefore, there was no question of son being in illegal custody of mother---Habeas corpus petition against the mother was not maintainable in such like cases---Both the parties, however, were at liberty to contest the case regarding the custody of child on merits and in support of their arguments whatever material they wanted to produce they could do so before the Guardian Judge where the matter was already pending--High Court, in circumstances, declined to decide the issue of custody of the child.

Ms. Louise Anne Fairley through Special attorney v. Sajjad Ahmed Rana and 2 others PLD 2007 Lah. 293; Sara Palmer v. Muhammad Aslam 1992 MLD 520 and Blacks Law Dictionary ref.

(b) Habeas corpus---

----Meaning.

Habeas corpus is defined as a writ employed to bring a person before a court, most frequently to ensure that the party's imprisonment or detention is not illegal (habeas corpus and subjiciendum). In addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain review of (1) the regularity of extradition process, (2) the right to or amount of bail, or (3) the jurisdiction of a court that has imposed a criminal sentence.

Ms. Louise Anne Fairley through Special attorney v. Sajjad Ahmed Rana and 2 others PLD 2007 Lah. 293 quoted.

Salman Akram Raja for Petitioner.

Malik Muhammad Suleman Awan for Respondent No.1.

P L D 2009 Lahore 347

Before Syed Hamid Ali Shah, J

SAFDAR HUSSAIN---Petitioner

Versus

MUHAMMAD AZAM KHAN---Respondent

Civil Revision No.251 of 2007, heard on 16th October, 2008.

(a) Land Record Manual---

----Para. 7.4(E)---Wajibul Arz---Scope---Wajibul Arz prepared by public servant at the time of settlement, carries statutory presumption of correctness attached to it---Wajibul Arz describes rights and liabilities of villagers inter se, such as enjoyment of proceeds of common land and rights of grazing on common land etc.

Mian Ali Nawaz and 20 others v. Khalid Hussain and 28 others PLD 1985 Rev. 1 (Punjab); Kallan Khan v. State AIR 1961 Allah. 207; Sher Singh v. Thakar Singh and others AIR 1930 Lah. 150; Mst. Bhagh Bhari and others v. Mst. Bhaggan and another PLD 1954 Lah. 356 and Avadh Kishore Dass V. Ram Gopal and others AIR1979 SC 861 rel.

(b) Maxim---

----"Tout ce que la loi ne defend pas est permis"---Meaning---Everything that is not forbidden is permitted.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Land Record Manual, Para.7.4 (E)--- Qanun-e-Shahadat (10 of 1984), Arts.100 & 101---Transfer of Property Act (IV of 1882), S.41---Civil Procedure Code (V of 1908), S.115---Entries in mutation---Thirty years old entries---Presumption---Partition of Shamlat land---Suit land consisted of land included in Shamlat Deh, which was partitioned in year, 1910 among the owners---Plea raised by plaintiffs was that according to Shart Wajibul Arz the land was Charagah (pasture) and reserved for general use of residents of village, therefore, the land could not be partitioned---Validity---Partition proceedings were carried with consensus of parties and no one raised objection at the relevant time, resultantly after going through lengthy process mutation in question was attested on 19-5-1910-Record regarding partition of Shamlat was public record and was more than thirty years old, therefore, presumption of truth was attached to it, as envisaged in Art.101 of Qanun-e-Shahadat, 1984---Record negated the stance of plaintiffs that mutation in question was fraudulent---Property remained unchallenged, since its partition, for over three quarters of a century and ownership changed hands during that period on number of occasions---Sale in favour of bona fide purchaser, on the basis of longstanding entries in revenue record was protected under S.41 of Transfer of Property Act, 1882---Entry in Wajibul Arz, prohibiting partition of Shamlat lands did not operate as bar to partition---Duty was cast upon Revenue officer dealing with partition of such land to decide whether such clause should prevail or not---Concurrent findings of two courts below against plaintiffs, did not suffer from defect of misreading or non-reading of evidence and were based on correct appreciation of law, which were not open to exception in revisional jurisdiction of High Court---Revision was dismissed in circumstances.

Imam Din and 4 others v. Bashir Ahmad and 10 others PLD 2005 SC 418; Muhammad Aslam and others v. Senior Civil Judge, Gujrat. (Mian Naisar Hussain) and 2 others 2000 MLD 1581; K.B. Muhammad Abdul Rahim Khan v. Humaira and others PLD 1949 Lah. 352; Lal Hussain and others v. Pakistan and 6 others 1990 MLD 223; Shoukat Zaman Khan and others v. Karam Din 1997 CLC 423; Mian Ali Nawaz and 20 others v. Khalid Hussain and 28 others PLD 1985 Rev. 1 (Punjab); Maskin and another v. Mst. Bagh Sultan and 15 others PLD 2001 Lah. 481; Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, Lahore and others 2003 SCMR 1857 and Lal Khan and another v. Rehmat 1994 CLC 1419 ref.

Mrs. Shaista Altaf for Petitioner.

Sardar Muhammad Ghazi for Respondent.

Date of hearing: 16th October, 2008.

P L D 2009 Lahore 356

Before Mian Saqib Nisar, J

KARAMAT ALI SHAHZAD---Petitioner

Versus

MUHAMMAD ZULQARNAIN and 4 others---Respondents

Writ Petition No.16937 of 2008, heard on 4th March, 2009.

Punjab Pre-emption Act (IX of 1991) ---

----S. 13---Civil Procedure Code (V of 1908), O.VI, Rr.17 & 9---Pre­emption suit---Talbs---Talb-i-Muwathibat had not been averred in the plaint---Effect---Both the Talbs have different significance and connotations and must be specifically and separately averred in the plaint and proved---Assertions of the two Talbs and the averments in this behalf in the plaint are foundational and vital to the case of the pre-emptor to propound and sustain his right at the very inception of the lis and any omission is fatal---Such an omission is not a mere defect, which can be termed to be inadvertent or a curable, rather it is a fundamental flaw, which cannot be allowed to be supplied and rectified---If it is so permitted through an amendment of the plaint, it shall tantamount and shall be analogous to the change of the nature of the case and/or the defence, which cannot be granted---Besides it shall defeat the mandate of S.13, Punjab Pre-emption Act, 1991---Principles.

The making of Talb-i-Muwathibat is sine qua non for the maintainability and sustainability of a pre-emption action, a right which otherwise under section 13 of the Punjab Pre-emption Act, 1991 shall be extinguished. Thus, in order to propound and sustain a claim of pre-emption, it is imperative, mandatory and essential for the plaintiff to mention the requisite particulars of the Talbs in the plaint, because if those are missing, the provisions of section 13 of the Act, shall automatically come into play and the Court, at the first hearing of the suit, even without issuing notice to the other side on account of non-making of the Talbs and lack of reference in the plaint, can straightaway dismiss the suit, because in view of section 13 the pre-emptor's right stands extinguished, meaning thereby that such right has come to an end, cancelled, aborted, wiped out, stultified and stands annulled.

The assertions of the two Talbs and averments in this behalf in the plaint are foundational and vital to the case of the pre-emptor to propound and sustain his right at the very inception of the lis and any omission is fatal; thus, such an omission is not a mere defect, which can be termed to be inadvertent or a curable, rather it is a fundamental flaw, which, in the pre-emption cases, cannot be allowed to be supplied and rectified. And if it is so permitted through an amendment of the plaint, it shall tantamount and shall be analogous to the change of the nature of the case and/or the defence, which according to the settled laws regarding the amendment of the pleadings cannot be granted; besides, it shall defeat the mandate of section 13 of the Act; and where a proposed amendment amounts to infringe and frustrate the law and destroy a right accrued to the opposite, such an amendment is impermissible by virtue of Order VI, rule 17, C.P.C.

Contention of the petitioner that as Talb-i-Muwathibat has been mentioned in the notice of Talb-i-Ishhad, therefore, such statement be deemed to be the part of the averment of the plaint, was not convincing, suffice it to say that both the Talbs have different significance and connotations and must be specifically and separately averred in the plaint and proved. Even the effect of the notice had not been mentioned in the plaint as required under Order VII, rule 9, C.P.C., so that the contention could be appreciated in the context of above law.

Saleem Khan Cheehi for Petitioner.

Muhammad Nadeem Sheikh for Respondents.

Date of hearing: 4th March, 2009.

P L D 2009 Lahore 359

Before Muhammad Ahsan Bhoon, J

MUHAMMAD SHAFQAT---Petitioner

Versus

SHAHNAZ BIBI and another---Respondents

Writ Petition No.6040 of 2008, decided on 19th January, 2009.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. Part I, Item No.8 & S.19---Suit for recovery of dowry or its price in alternative---Appeal against decree for recovery of Rs.2,00,000 passed in such suit---Non-payment of ad valorem court-fee on memo. of appeal---Validity---Provisions of Court Fees Act, 1870 would not apply to such decree as decretal amount was in alternative of dowry articles.

Aftab Mohyuddin v. Additional District Judge and 2 others 2004 MLD 696 rel.

Ch. Saleem Akhtar Warriach for Petitioner.

Bashir Ahmad Chaudhry for Respondent No. 1.

P L D 2009 Lahore 362

Before Asif Saeed Khan Khosa, Tariq Shamim and M.A. Zafar, JJ

GHULAM MURTAZA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.284-J of 2008, decided on 27th March, 2009.

(a) Administration of justice---

----Principles---Quintessence of the Civilization's evolution and growth in the legal field is a progression from dispensation of justice according to the principle of "justice, equity and good conscience" to "justice according to law"---Rationale or raison d'etre for this momentum, quite easy to discern and comprehend, is that justice ought not to be administered according to whims, caprice or subjective standards of an individual judge but it should be dispensed according to some codified or stipulated standards so as to render the outcome consistent and reasonably predictable---Predictability of judicial response to an action or inaction of a person is important because, by and large, people living in a community adapt or mould their conduct keeping in view the law of the land and a probable judicial reaction to their actions or inactions---Essence, therefore, is that, proverbially speaking, justice should not vary with the size of the chancellor's foot but a person inviting a legal intervention into his conduct should be able to appreciate in advance as to how he is likely to be treated by a judge dealing with application of the relevant law to that persons' conduct---Uniformity and standardization of judicial response to similar legal situations cannot, thus, be overemphasized.

(b) Control of Narcotic Substances Act (XXVII of 1997)---

----S. 9(a)(b) & (c)---Sentence---High Court, after having pondered and mulled over the issue of sentence from diverse angles including legal, social and economic perspectives, approved and prescribed the normal and standard sentences for different quantities of various contraband narcotic substances recovered in connection with the control of Narcotic Substances Act, 1997 and provided charts and principles therefor.

On the basis of the Reference made by the Division Bench of the High Court the Chief Justice constituted the Full Bench for the purpose of formulating a sentencing policy for cases involving recovery of contraband narcotic substances under the Control of Narcotic Substances Act, 1997.

Of late it had been noticed by the High Court that in the matter of passing sentences in cases of recovery of contraband narcotic substances under the Control of Narcotic Substances Act, 1997 different Judges, both at the trial and the appellate stages, had been passing sentences upon convicts placed in similar situations which sentences were quite often hideously variable as they oscillated and fluctuated between unduly lenient and grossly oppressive. Such discrepant and vacillating judicial responses to similar situations not only gave rise to confusion and uncertainty but they also encouraged unscrupulous litigants and lawyers to try to shop for a suitable Judge.

High Court carried out a survey of all the cases reported in various Law Reports/Journals of the country to find out the sentencing trends of different courts and Judges in cases involving recovery of contraband narcotic substances under the Control of Narcotic Substances Act, 1997 and the information gathered through the said survey showed, and showed quite strikingly, that the sentencing trends in cases of recovery of contraband narcotic substances vary quite sharply and judicial responses in that regard differ quite drastically even in situations which may be similar, if not identical. Such variable approaches clearly underscored the importance of uniformity and standardization in the matter of sentencing in this area and, thus, the efficacy and necessity of adopting a sentencing policy in that regard could not be overstated.

The maximum sentences provided by the Control of Narcotic Substances Act, 1997 for different quantities of the recovered contraband narcotic substances were as follows:

Section 9(a): (if the recovered quantity is 100 grams or less). Imprisonment up to 2 years or fine or both.

Section 9(b): (if the recovered quantity exceeds 100 grams but does not exceed 1 kilogram). Imprisonment up to 7 years and fine.

Section 9(c): (if the recovered quantity exceeds 1 kilogram). Death or imprisonment for life or imprisonment up to 14 years and fine up to one million Rupees.

If the recovered quantity exceeds 10 kilograms then the sentence is not to be less than imprisonment for life.

It was conspicuously noticeable that the sentences provided for by the Control of Narcotic Substances Act, 1997 were prescribed with reference to quantity of the recovered contraband narcotic substance and not with reference to the kind or nature of the recovered contraband narcotic substance. Different kinds of contraband narcotic substances covered by the Control of Narcotics Substances Act, 1997 vary sharply in their harmful nature or dangerous effects as a huge quantity of one substance may be less harmful or dangerous than a small quantity of another substance. Thus, in many situations a sentencing approach based only upon quantity of the recovered substance may lead to unjust and oppressive results and to punishments which may be unduly cruel and harsh.

In the above mentioned backdrop, keeping in view the accumulated judicial wisdom and experience and balancing the same with the interests of justice in the overall social and economic context, sentences were approved and prescribed by the High Court as the normal and standard sentences for different quantities of various contraband narcotic substances recovered in connection with the Control of Narcotic Substances Act, 1997.

Chart showing sentence as to cases under S.9(a) of the Control of Narcotic Substances Act, 1997.

Chart showing sentence as to cases under S.9(b) of the Control of Narcotic Substances Act, 1997.

Chart showing sentence as to cases under S.9(c) of the Control of Narcotic Substances Act, 1997.

Consolidated chart showing sentences under S.9(a)(b)(c) of Narcotic Substances Act, 1997.

Principles to be followed as regards a previous convict, a woman and a child while sentencing them.

(c) Control of Narcotic Substances Act (XXVIII of 1997)---

----S. 9(a), (b) & (c)---Sentence---Principles to be followed as regards a previous convict, a woman and a child while sentencing them.

Following principles are to be followed while sentencing a previous convict, a woman and a child:

A previous convict is to be awarded 1/3rd more sentence of imprisonment, fine and sentence in default of payment of fine than the normal sentence prescribed above.

If the sentence of imprisonment against a previous convict calculated on the basis of the above principle exceeds the maximum sentence of imprisonment prescribed by the law then the convict is to be awarded the maximum sentence of imprisonment prescribed by the law and the fine to be imposed upon him and the sentence of imprisonment in default of payment of fine are to be double the fine and double the sentence of imprisonment in default of payment of fine prescribed as the normal sentence.

A woman and a child, because of their gender and tender age, are to be awarded 1/3rd less sentence of imprisonment, fine and sentence in default of payment of fine than the normal sentence prescribed above.

The sentence of imprisonment to be passed against a woman or a child is to be a sentence of simple imprisonment and the sentence of death may not be passed against them.

If a woman or a child is a previous convict then the sentence to be awarded is to be the same as for a male previous convict except that the sentence of imprisonment for a woman or a child is to be a sentence of simple imprisonment and the sentence of death may not be passed against them.

In a particular case carrying some special features relevant to the matter of sentence a Court may depart form the norms and standards prescribed above but in all such cases the Court concerned shall be obliged to record its reasons for such departure.

Muhammad Akram Khan Umar with Rana Afzal Razzaq Khan for Appellants.

Farzana Shahzad Khan, Dy. Prosecutor-General for the State.

Date of hearing: 27th March, 2009.

P L D 2009 Lahore 382

Before Kazim Ali Malik, J

JAVED IQBAL---Petitioner

Versus

CRESCENT COMMERCIAL BANK LTD. ISLAMABAD through Manager and 3 others---Respondents

Writ Petitions Nos.3321 and 2922 of 2005, heard on 25th February, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 523 & 550---Constitution of Pakistan (1973), Art.199---Constitutional petition---Seizure of property suspected to be stolen---Procedure by Police upon seizure of such property---Car in question in the case was neither alleged nor suspected to have been stolen---No circumstance whatsoever was available which could create suspicion of commission of offence---Bona fide civil dispute was about the vehicle between the purchaser/petitioner and the leasing Bank/respondent arising out of terms and conditions of lease-purchase agreement between them---No occasion existed for S.H.O. concerned to seize the vehicle till resolution of their said dispute---Seizure of vehicle being in utter disregard of the mandate of S.550, Cr.P.C. was amenable to judicial scrutiny in exercise of constitutional jurisdiction of the High Court--S.H.O. had adopted self-styled procedure over and above the law---Under S.523, Cr.P.C., S.H.O. was duty bound to report seizure of the car to the area Magistrate without wasting a single moment so that the Magistrate could make an appropriate order regarding the disposal of the car or the delivery of the seized car to the person entitled to its possession---Magistrate was legally bound to quash the proceedings conducted by the S.H.O. being offensive to Ss.550 & 523, Cr.P.C. and to return the car to his purchaser from whose possession it was seized by the S.H.O.---Impugned orders being arbitrary, perverse, illegal and offensive to the established principles governing the subject of seizure of movable property by the Police and its disposal, could not be allowed to hold the field---Impugned orders were set aside by the High Court with direction to the local Police to hand over the vehicle to the purchaser/the petitioner.

Ch. Muhammad Waris Khan for Petitioner.

Malik Muhammad Siddique Awan for Respondents.

Date of hearing: 25th February, 2009.

P L D 2009 Lahore 386

Before Sayed Zahid Hussain, C.J. and Raja Muhammad Shafqat Khan Abbasi, J

Ch. MUHAMMAD ASLAM---Petitioner

Versus

ISLAMIC REPUBLIC OF PAKISTAN and another---Respondent

Writ Petition No.10168 of 2005, heard on 12th March, 2009.

Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Art. 32---Constitution of Pakistan (1973), Art.199---Constitutional petition---President, while performing his functions under Art.32, Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 acts in quasi judicial and not in administrative capacity---Scope of such function of the President---Recording of reasons while setting aside the recommendations of the Ombudsman is the minimum requirement under the law which is in consonance with the principles of natural justice---Question of limitation has to be dealt with, as a vested right accruing to either of the parties on expiry of limitation---Order of the President would suffer flaw of serious nature if question of limitation is not dealt with---Where the person/party concerned had notice/opportunity of filing comments/reply to the representation, the decision of the President cannot be annulled simply for the reason that personal/oral hearing was not offered, but where the person/party concerned had no notice/opportunity of filing comments or reply and decision was made without affording him such opportunity, the representation needed to be reconsidered and decided after notice and affording him an opportunity of filing reply/comments to the same---Non-application of mind to the issues emerging from the reply filed by the petitioner, was apparent in the present case which needed to be decided afresh in accordance with law---High Court declared the order of the President as of no legal effect with the observation that representation filed by the respondent-company will be deemed to be pending before the President, which will be considered and decided afresh in accordance with law; contents of the reply to the representation filed by the petitioner may also be given due weight while deciding the representation.

Federation of Pakistan v. Dr. Anwar 2006 SCMR 382; Hafiz Muhammad Arif Dar v. Income Tax Officer (PLD 1989 SC 109; Federation of Pakistan v. Muhammad Tariq Peerzada 1999 SCMR 2189; Federation of Pakistan v. Muhammad Tariq Peerzada 1999 SCMR 2744and Commissioner of Income Tax, Faisalabad Zone, Faisalabad and another v. Akhlaq Cloth house, Faisalabad and another 2008 PTD 965 ref.

Allah Rakha for Petitioner.

Aamir Rehman, Deputy Attorney General for Pakistan and Umar Sharif, Advocate for Respondents.

Date of hearing: 12th March, 2009.

P L D 2009 Lahore 389

Before M. Bilal Khan, J

Sheikh ALLA-UD-DIN---Petitioner

Versus

CANTONMENT EXECUTIVE OFFICER, Walton Road, Lahore---Respondent

Writ Petition No.17606 of 2005, heard on 18th November, 2008.

Registration Act (XVI of 1908)---

----S. 17---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of sale deed---Value of property---Determi­nation---Suit for specific performance of agreement to sell was filed in year, 1965 and final verdict was given in the matter by Supreme Court in year, 2004---Executing Court prepared sale deed on which authorities demanded transfer of immovable property tax at current market value of the land for the purposes of registration---Validity---High Court in exercise of Constitutional jurisdiction directed that judgment and decree upheld up to Supreme Court be implemented both in its letter and spirit---Order passed by authorities demanding transfer of immovable property tax at current market rate was declared without lawful authority and was of no legal effect---High Court directed the authorities to charge transfer of immovable property tax from petitioner as per contents of sale-deed presented by Court official at the instance of Executing Court---Petition was allowed in circumstances.

Muhammad Aslam v. Sub-Registrar and others 1995 CLC 674; Abdul Sattar v. Province of the Punjab through Registrar/Deputy Commissioner, Lahore and another 1995 CLC 187; Province of Punjab through Secretary, Revenue Board of Revenue, Punjab, Lahore and 2 others v. Messrs Marhaba Dawakhana Regd., Lahore and another 1999 CLC 450 and Writ Petition No.774 of 2008 ref.

Additional Executive Officer, Cantonment Board Walton Cantt. Lahore v. Mrs. Nargis Moeen and others 2006 SCMR 1599. distinguished.

Ahmad Waheed Khan for Petitioner.

Muhammad Rashid Ahmad for Respondent.

Date of hearing: 18th November, 2008.

P L D 2009 Lahore 393

Before Mian Saqib Nisar, J

JOSIP STIMAC and others---Petitioners

Versus

MELITTA SYED SHAH and others---Respondents

Writ Petition No.4297 of 2009, decided on 3rd April, 2009.

Constitution of Pakistan (1973)---

----Art. 199(1)(b)(i)---Criminal Procedure Code (V of 1898), S.491---Guardians and Wards Act (VIII of 1890), S. 25---Constitutional petition---Custody of minors---Mother of minors (an Austrian national), accompanied by her children was arrested at the Airport; on search of luggage, 20 Kgs. and 875 grams heroin was recovered, on which F.I.R. under Ss.9(c) & 15, Control of Narcotic Substances Act, 1997 was registered against her and since then she was confined in jail as an under trial prisoner; the minors were also so confined with their mother, especially for the reason that at the time of her remand before the Magistrate she requested that "I want to keep my children along with myself in judicial lock-up, because I am foreigner and has no relation or friend in Pakistan at this time who will take care of my children"---Mother of minors wrote a letter to the Austrian Embassy for sending the minors to Austria so that they could live with her parents (the petitioners)---Austrian Embassy could not succeed to get the minors released without the court's order for custody---Maternal-grandparents of the minors through their counsel, moved the High Court with reference to Art.199(1)(b)(i) of the Constitution and S.491, Cr.P.C. contending that the minors were in an improper and illegal custody, therefore, they should be released and given in the custody of their grand-parents and that their mother herself having made a request that the minors be sent to her parents abroad, it was in the welfare of the minors to live with their grand-parents and elder brother and to have proper education as the parents of minors were involved in drug trafficking and had blatant track record---Grand-parents had obtained a custody order by Austrian Courts for the said minors---Visa of minors for visit to Pakistan had expired---Father of minors whose whereabouts were not known, had moved a superficial custody petition before the Guardian Judge for the minors and . it seemed that the mother and father were in league on the custody issue---Held, it prima facie seemed in the welfare of the minors that they should be sent back to their home country, which, undoubtedly, was a welfare State and capable of taking care of even those children whose parents were not there---High Court observed that there was apprehension that the minors may not be used as a shield or carrier for any sordid business and if it so happened, the life of the minors shall be ruined, therefore, it was in the best interest of the minors that their custody be given to the grand-parents as requested, particularly when elder brother of the minors, was there and was old enough to look after them---Deputy Head of Mission, Austrian Embassy, was allowed to take the custody of the minors from the jail authorities and was directed to make arrangements for sending them to Austria to enable the petitioners to take their custody---Constitutional petition was, allowed accordingly.

Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCMR 268 and Mst. Sultan Zari v. Nisar Muhammad and 2 others 1998 MLD 1173 ref.

Aftab Ahmad Bajwa for Petitioners.

Raja Rizwan Abbasi for Respondent No.1.

Ch. Muhammad Sadiq, Addl. A.-G. for the State.

A.D. Naseem, for the ANF.

Alfred Bratranek, Deputy Head of Mission, Austrian Embassy, Islamabad.

Mian Sagheer Ahmad, Asstt. Superintendent Kot Lakhpat, Jail, Lahore.

Melitta Syed Shah/Respondent No.1, Sana Saleem Syed Shah (minor daughter) and Abrash Syed Shah (minor son) of Respondent No.1, in lady police custody.

P L D 2009 Lahore 401

Before Kazim Ali Malik, J

MUHAMMAD KHAN---Petitioner

Versus

MAGISTRATE SECTION 30, PINDI GHEB, DISTRICT ATTOCK and 3 others---Respondents

Writ Petition No.815 of 2008, heard on 3rd March, 2009.

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

----S. 489-F---Criminal Procedure Code (V of 1898), Ss.63, 169 & 173---Constitution of Pakistan (1973), Arts. 199 & 270-AA---Constitutional petition-Object of S.489-F, P.P.C.---Scope---Magistrate while refusing to give judicial remand of the accused respondent had discharged him inter alia on the ground that after expiry of a period of four months, the Criminal Law (Amendment) Ordinance, 2002, through which S.489-F, P.P.C. had been inserted in Pakistan Penal Code, had automatically died---Validity---Combined examination of the Provisional Constitution Order No.1 of 1999, Provisional Constitution (Amendment) Order (9 of 1999), Criminal Law (Amendment) Ordinance (LXXXV of 2002), Art.270-AA(2) of the Legal Framework Order, 2002 and Art.270-AA of the Constitution as amended by 17th Amendment, had proved that S.489-F, P.P.C. was alive---Parliament had validated and affirmed the Ordinance and it was not required to be re-­promulgated---Delayed F.I.R., civil nature of the controversy between the parties and availability of alternate remedy to the complainant were also additional reasons, which weighed with the Magistrate while passing the discharge order---Case was still under investigation when the accused was produced before the Magistrate for obtaining his judicial remand---Before submission of challan in the Court and taking cognizance of the offence, it was not permissible for the Magistrate to examine and analyse the evidence with reference to delay in lodging the F.I.R. by holding mini trial of the case before the inception of regular trial---Civil nature of the dispute also could not estop the complainant to invoke the criminal law---Section 489-F, P.P.C. had clearly laid down that whoever dishonestly issued a cheque towards repayment of a loan or fulfilment of an obligation, was liable to face the legal consequences on its being dishonoured---Issuance of a cheque towards repayment of a loan or fulfilment of an obligation was primarily a civil matter---Object of S.489-F, P.P.C. was not to affect recovery of the amount in question under the dishonoured cheque, but to punish a person who dishonestly issued the cheque with reference to his civil liability---Similarly, availability of an alternate remedy to the complainant was no ground to discharge the accused, because the aggrieved complainant could invoke civil and criminal law simultaneously---Impugned discharge order passed by Magistrate was, consequently, set aside being illegal and without lawful authority and the police request for judicial remand of the accused would be deemed as pending before the Magistrate for disposal in accordance with law---Constitutional petition was accepted accordingly.

2005 YLR 1565 ref.

Ch. Zulifqar Ali v. Chairman NAB and others PLD 2003 593 rel.

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

----S. 489-F---Dishonestly issuing a cheque---Civil nature of dispute cannot estop the complainant to invoke criminal law---Section 489-F, P.P.C. clearly lays down that whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation, is liable to face the legal consequences on its being dishonoured---Issuance of a cheque towards repayment of a loan or fulfilment of an obligation is primarily a civil matter---Object of S.489-F, P.P.C. is not to affect recovery of the amount in question under the dishonoured cheque and it has been brought on the statute book in order to punish a person, who dishonestly issues a cheque with reference to his civil liability---Civil nature of dispute cannot estop the complainant to invoke criminal law.

Sheikh Waqar Azim Siddiqui for Petitioner.

Budha Khan and Raja Muhammad Abid, Addl. Prosecutor General for Respondents.

Date of hearing: 3rd March, 2009.

P L D 2009 Lahore 407

Before Syed Asghar Haider, J

ABDUL SATTAR and another---Appellants

Versus

MUHAMMAD IQBAL---Respondent

Regular Second Appeals Nos.4, 5 and 6 of 2008, decided on 30th January, 2009.

(a) Evidence--

----Number of witnesses---Principle---Quality of evidence decides fate of dispute---Numerical strength of witnesses or documents, if they are doubtful and open to dispute do not help the cause.

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

----S. 17---Registered power of attorney-Effect-Mere registration of power of attorney in Pakistan is rebuttable presumption and cannot give credence to transaction which is legally void.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Civil Procedure Code (V of 1908), O.XLI, R.33 & S.100---Concurrent findings of two courts below---Non-filing of cross­-objection---Interference by Appellate Court---Principle---Suit and appeal filed by pre-emptor were dismissed by both the courts below on issues pertaining to Talb-e-Muwathibat and Talb-e-Ishhad but decided issue regarding power of attorney of pre-emptor in his favour---Vendees neither filed any appeal nor cross-objection against issue of validity of power of attorney which was executed from abroad and was not properly endorsed by Pakistan Embassy---Validity---If cross-objections were not filed, such matters could not be touched but such rule was not absolute---If High Court had perceived that ultimate relief prayed for emerged from incidental and collateral issues not under challenge on which findings were illegal but were not assailed by other party, however such findings could affect maintainability of suit, then High Court had manifest power to set right any illegality committed in law by courts below while deciding specific issue in such context by exercising corrective powers as contained in O.XLI, R.33, C.P.C.---Power of attorney produced on behalf of pre-emptor was legally invalid, therefore, findings on such issue were reversed---Issues relating to Talb-e-Muwathibat and Talb-e-Ishhad did not fall within the parameters of second appeal under S.100, C.P.C., therefore, findings on the same were unexceptionable---High Court declined to interfere in concurrent judgments and decrees passed by two courts below in favour of vendees---Second appeal was dismissed in circumstances.

Abdul Aziz v. Sheikh Fateh Muhammad 2007 SCMR 336; North-West frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghatoor Khan through legal heirs and 2 others PLD 1993 SC 418; Qurban Hussain and others v. Hukam Dad 1984 PSC 939 = PLD 1984 SC(AJ&K) 157; Ghulam Hussain and another v. Faiz Muhammad and 7 others PLD 1991 SC 218; Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590; Province of Punjab through Collector, Rajanpur District and 2 \others v. Muhammad Akram and others 1998 SCMR 2306; Muhammad Aslam and 2 other v. Syed Muhammad Azeem Shah and 3 others 1996 SCMR 1862 and Muhammad Nawaz v. Mst. Ahmad Bibi and 3 others 1995 SCMR 266 ref.

Mian Israr-ul-Haq for Appellants.

S.M. Masud for Respondent.

Date of hearing: 4th December, 2008.

P L D 2009 Lahore 415

Before Umar Ata Bandial, J

KHURSHID BIBI---Petitioner

Versus

Ch. M. NAZIR CHEEMA and others---Respondents

Civil Revision No.1385 of 2002, heard on 9th October, 2008.

(a) Constitution of Pakistan (1973)---

----Art. 189---Judgment of Supreme Court deciding a legal point after noting its earlier conflicting views thereon---Binding effect---High Court in such case would follow more recent view expressed by Supreme Court---Principles.

High Court is governed by the terms of Article 189 of the Constitution. Every judgment delivered by the Supreme Court irrespective of the size of the author Bench deserves and receives the highest respect from other courts including the High Court. However, in a case where the Supreme Court itself notes that its earlier conflicting view omits to consider important point about the legal position decided, then it is appropriate for the High Court to follow the more recent view expressed by the Supreme Court.

Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KBCA) Karachi and 4 others 1999 SCMR 2883 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talb-i-Muwathibat, performance of---Plaint not containing particulars of date, time and place of such Talb---Effect---Such default would constitute a fatal defect rendering suit non-maintainable.

Altaf Hussain v. Abdul Harmed alias Abdul Majeed through Legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977 and Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR.362 ref.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431 Jamshed Ahmed Malik v. Shaukat Aziz 2007 CLC 1192 fol.

Ch. Muhammad Siddique Minhas for Petitioner.

Manzoor Hussian Bassa for Respondents.

Date of hearing: 9th October, 2008.

P L D 2009 Lahore 418

Before Mian Saqib Nisar, J

Mst. MUMTAZ BEGUM through Legal Heirs and others---Petitioners

Versus

MUHAMMAD SHAFIQUE and others---Respondents

Whit Petition No.11041 of 1994, decided on 27th April, 2009.

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

----S. 18---West Pakistan Land Revenue Act (XVII of 1967), S 163---Fraud---Person aggrieved of an order procured by fraud can challenge the same subject to the law of' limitation, if the case falls within the purview of S.18, Limitation Act, 1908, its requirements should be specified in the plaint/petition and if a matter is governed by some special law which prescribed its own period of limitation, such law should be followed---Principles.

The fraud vitiates even the most solemn proceedings and that the for urn upon which the fraud has been practised in obtaining the order has the inherent jurisdiction to set aside the stone and undo what has been obtained from it through such an act; however, at the same time, the rule of limitation and the law in the specific field under which the review of a mutation is being sought cannot be ignored, furthermore, like a contract, which is the product of fraud and order procured through fraudulent means is voidable and not void, therefore, a person aggrieved of such an order cannot sit hack for an indefinite period of time and challenge it at his own choice and convenience on the ground of the general rules that such orders are vitiated. The challenge has to be subject to the law of limitation, if the case falls within the purview of section 18 of the Limitation Act, 1908, its requirements should be specified in the plaint/petition and if a matter is governed by some special law which prescribes its own period of limitation, such law should be followed.

(b) Fraud---

----Limitation---In the present case though general allegation about the concealment of the mutation and fraud had been mentioned in the application, but there was no proof on record to establish the "sufficient cause"---Effect---Held, if a cause was not propounded within the prescribed limitation, a vested right was created in favour of the opposite side.

(c) Fraud---

----Contesting party to the allegation of fraud was not shown to have ever been associated with the inquiry or given any chance to produce evidence to show that the mutations were valid and not based on fraud---Entire edifice of the order accepting the allegation of fraud was structured upon certain assumptions which, were rebuttable in nature if a chance was given to the contesting party---Held, it was quite easy to allege baud but it must be established though evidence---Party alleging fraud produced no evidence in that behalf and the contesting party had not been provided with any opportunity, which violated the rules of natural justice.

Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Azizullha v. Ghulman & others 1941 ILT 54; Ghulam Muhammad v. Mst. Ghulamn Sarwar Naqvi PLD 1990 SC 1; Aswar Muhammad and others. v. Sharif-ud-Din and others PLD 1983 SCMR 626; Ch. Fateh Khan v. Mst. Shehzad Begum PLD 1167 W.P (Rev) O and Nawab Ronaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 ref.

(d) Land Record Manual---

----Para. 7.30--Mutation of correction---Admissibility--Scope ---Land Record Manual---Legal status---Land Record Manual is the statutory instructions having force of law which are binding upon all the Revenue Authorities---When the mutations had taken due effect in the successive jamabandis and the entire case of' the party was not set out on the basis of any clerical error etc. but on the foundation of fraud, such intricate questions (of fraud, etc.) could not be determined by the Revenue Authorities after lapse of 19 years time in a summary manner and in summary proceedings and that too without enabling the affected party to produce any evidence---No exception could be taken to the impugned order of Board of Revenue to the effect that application was time barred; that no application was submitted for condonation, giving reasons for the delay; that no determination was on record by the District Collector as to why the time was being condoned; and that after 20 years mutation had been incorporated in successive Jamabandis and longstanding entry in the Revenue Record should not be changed by the Revenue Officers and for such cases the appropriate forum was the civil court---Issues involved in the matter thus, could only be resolved by Civil Court, where the parties shall have full chance of proving and disproving their respective pleas.

Khan Faizullah Khan v. Govt. of Pakistan through the Establishment Secretary, Cabinet Secretariat and another PLD 1974 SC 291; Sub. Muhammad Asehar v. Mst. Safia Begum and another PLD 1976 SC 435; Muhammad Ayyub and another v. Muhammad Yaqoob and another PLD 1975 Lahore 445 Altaf Ahmad Asmat v. Sarfraz Hussain and 2 others 1981 CLC 1308; Muhammad Aslam and others. v. Muhammad Ali 1980 CLC 1551 and Lever brothers Ltd. and another v. Government of Punjab through Secretary Health Department and 3 others PLD 1000 Lah. 1 ref.

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

----O. I, R. 10(2)---Dispute as to mutation---Application by interveners to be impeladed as necessary of proper party---Interveners at no stage having assailed the mutation in question, their application for impleadment was dismissed.

Rana Muhammad Samovar for Petitioners.

Taki Ahmed Khan, Muhammad Zakaria Sheikh and Ch. Shaukat Hayat Wathra for Respondents.

Date of heating: 11lth March, 2009.

P L D 2009 Lahore 426

Before Maulvi Anwarul Haq, J

BANK ALFALAH LIMITED---Petitioner

Versus

ADMINISTRATOR GENERAL, ZAKAT ADMINISTRATION, GOVERNMENT OF PAKISTAN, ISLAMABAD and another---Respondents

Writ Petition No.20364 of 2001, decided on 26th March, 2009.

Zakat and Ushr Ordinance (XVIII of 1980)---

----Ss. 2(xxiii)(n) & 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Zakat, deduction of---Amounts deposited on the direction of Court---Grievance of petitioner was that amount in question was deposited on the directions of court in proceedings pending decision and after decision authorities deducted Zakat from the principal amount so deposited---Validity---Amount kept with Court or utilization whereof was subject to order of Court pending decision of case squarely fell within the mischief of excluding clause of S.2(xxiii)(n) of Zakat and Ushr Ordinance, 1980; as the law excluded amount in question from term "nisab", no Zakat would be chargeable and consequently to be collected---Act of authorities in deducting Zakat from principal amount in investment under the order of Supreme Court and then under orders of High Court, was declared to be without lawful authority and void---High Court directed the authorities to refund amount deducted as Zakat from the amount deposited by petitioner---Petition was allowed in accordingly.

Ali Zafar Syed for Petitioner.

Ashraf Khan, Dy. Attorney-General for Pakistan for Respondent No.1.

Abdul Rasheed Mian for Respondent No.2.

Dates of hearing; 24th and 26th March, 2009.

P L D 2009 Lahore 429

Before Mian Saqib Nisar, J

Messrs WATEEN TELECOM (PVT.) LTD., through Attorney---Petitioner

Versus

Malik ABDUL AHAD and 2 others---Respondents

Writ Petition No.5378 of 2009, decided on 15th April, 2009.

(a) Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 5 & 9---Civil Procedure Code (V of 1908), O.I., R.10--Agreement between landlord and tenant Unregistered lease agreement---Non-compliance of provisions of S.5, Punjab Rented Premises Ordinance, 2007---Effect. Where the lease agreement was not registered in compliance with S.5 of the Punjab Rented Premises Ordinance, 2007, effect of S.9 of the said Ordinance shall come into plat, and any application, even tinder O.I., R.10, C.P.C. wherein applicant was claiming to be the tenant of the demised premises, shall be hit by the said law and would not be entertainable until and unless a fine equivalent to five (5) percent. of the annual value of the rent of the premises was deposited by the tenant in government treasury.

(b) Landlord and tenant---

----Lease agreement---Not in the nature of deed poll---Lease instrument is a bilateral document in which, the rights and obligations of the landlord and tenant as stipulated between the parties are already spelt out; if it is not so, such document cannot be considered to have been duly executed in terms and the context of the law of contract.

A lease agreement is not in the nature of deed poll i.e. "those documents in which there is one party only and are so-called because they were at one time polled or cut level at the top. They are chiefly used for the purpose of granting powers of attorney and for exercising powers of appointment or setting out an Arbitrator's Award. They are drawn in first person", rather a lease instrument is a bilateral document an which, the rights and obligations of the, landlord and tenant, as stipulated between the parties, are clearly spelt out; if it is not so such document cannot be considered to have been duly executed in terms and the context of the law of contract.

(c) Punjab Rented Premises Ordinance (XXI of 2007)---

----S. 15---Civil Procedure Code (V of 1908), O. I, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Petitioner moved an application under O.I, R.10, C.P.C. for impleadment of the tenant as a, party in the ejectment petition by landlord against tenant, claiming therein that the demised premises in fact had been rented out to it through a lease agreement and that ejectment petition had been initiated by suppressing and concealing material facts so as to get unilateral verdict against the petitioner---Validity---Held, petitioner had not been able to prove its bona fides to be impleaded as a necessary (which it was not) or proper party to the eviction petition; it seemed that, in order. to save its sister concern from the consequences of default, the petitioner had filed the application for impleadment based upon certain documents, the genuineness of which was not beyond doubt, besides the vice of invalidity---Constitutional petition was dismissed with the remarks that any observation made in the present order shall not cause any prejudice to the petitioner in any other proceedings.

Qazi Abdul Hameed and Muhammad Nouman Shams Qazi for Petitioner.

S. Abid Mumtaz Tirmizi for Respondent No.1.

P L D 2009 Lahore 433

Before Sayed Zahid Hussain, C.J. Mian Saqib Nisar, Asif Saeed Khan Khosa, Moulvi Anwarul Haq, Nasim Sikandar, Ijaz Ahmed Chaudhry and Fazal-e-Miran Chauhan, JJ

ZAIIID HIUSSAIN MALIK---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law, Islamabad and others---Respondents

Writ Petitions Nos. 4383, 4384 and 5538 of 2009, decided on 31st March, 2009.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Changed prevailing events and happenings touching the subject-matter of the cause during pendency of constitutional petition; leaving no live issue or controversy---Effect---Field, practice normally followed by the High Court was that where there remained no live issue or controversy, the court need not embark upon academic discussion and instead dispose of the matter in the light of changed prevailing events touching the subject-matter of the cause; a futile or infructuous writ was not issued by the Court, which would be of no use.

Martial Law Administrator, Zone `D' and others v. Muhammad Niaz PLD 1979 SC 921 fol.

Miss Asma Jilani v. Government of The Punjab and another PLD 1972 SC 139; Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others PLD 1988 Lahore 725 and Sumedico Corporation and another v. Regional Provident Fund Commr. (1998) 8 SC 381 ref.

Dr. Farooq Hassan, Barrister-at-Law and Muqatadir Akhtar Shabbir for Petitioners.

Tariq Aziz for Petitioner (in Writ Petition No.4384 of 2009).

Mustafa Ramday for Petitioner (in Writ Petition No. 5538 of 2009).

Muhammad Nasim Kashmiri, Deputy A.-G. Pakistan for Respondents Nos.1 and 2.

Muhammad Hanif Khatana, Advocate-General Punjab for Respondents Nos. 3 and 4.

Muhammad Asif Ismail on behalf of Fawad Hussain Chaudhry for Respondents.

Syed Ali Zafar for Respondents.

Shahid Karim, Amicus Curiae.

Dates of hearing: 25th, 27th and 31st March, 2009.

P L D 2009 Lahore 440

Before Maulvi Anwarul Haq, J

ALLAH DITTA BHATTI---Petitioner

Versus

AMJAD SATED and others---Respondents

Writ Petition No.39 of 2005, heard on 9th April, 2009.

Stamp Act (II of 1899)---

----S. 27 A---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for specific performance of agreement to sell---Payment of additional stamp duty---Pending suit, defendant died and his legal representatives entered into compromise with the plaintiff and suit was decreed as prayed for----Pursuant to the said decree, sale-deed was executed by said legal representatives of deceased defendant---Consideration was mentioned as Rs.40,00,000 instead of Rs.35,00,000 and stamp duty of Rs.80,000 was paid Grievance of the plaintiff in his constitutional petition was that legal representatives of the deceased defendants were not registering sale-deed and were insisting that the plaintiff should pay stamp duty according to the current valuation list issued under S.27-A of the Stamp Act, 1899---Sub-Registrar was not competent to ignore the decree of the court or to direct parties to pay stamp duty on self-inflated rates and valuation tables issued by the Collectors, had no legal basis or sanctity---Defendants had no lawful authority to call upon the plaintiff to pay additional stamp duty---Defendants were bound by the terms of the decree and the sale-deed which had been executed in accordance with the terms thereof and otherwise was hearing proper stamp duty, would be registered by them, of course, on payment of other requisite charges like registration fee etc.

Province of Punjab, through Secretary Revenue, Board of Revenue Punjab, Lahore and others v. Messrs Marhaba Dawakhana and others 1999 CLC 450; Major (Rtd.) Muhammad Suleman Khan v. D.G./ Registrar, Lahore District 2002 CI.0 226 and Muhammad Aslam v. Sub-Registrar and others 1995 CLC 674 ref.

Muhammad Younas Bhatti for Petitioner.

Shahid Hussain Kazmi, A.A.-G. for Respondents.

Date of hearing: 9th April, 2009.

P L D 2009 Lahore 442

Before Umar Ata Bandial, J

ABDUL HUSSAIN SHALL-Petitioner

Versus

ALLAH DITTA---Respondent

Civil Revision No.1152 of 2002, heard on 29th October, 2008.

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

----Ss. 14 & 17---Making award rule of the court---Legal effect of award---Award would acquire legal effect only when it was made a rule of court through the procedure visualized in Ss.14 & 17 of Arbitration Act, 1940.

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

----S. 8---Civil Procedure Code (V of 1908), S. 11---Arbitration Act (X of 1940), Ss.32 & 33---Suit for possession---Res judicata---Making award rule of the court---Appellate Court had found that suit for possession was not barred by res judicata under S.11, C.P.C. on account of an arbitration award rendered earlier inter parties on the same dispute that was raised in the suit for the plaintiff---In the present case, neither any arbitration agreement existed to block the suit nor could the arbitration award delivered on the dispute become a bar; because the award had already been declared unenforceable and ineffective by the court---Bar under Ss.32 & 33 of Arbitration Act, 1940 was not attracted to the case----Immunity from the special bar under Arbitration Act, 1940, however, would not spare the original cause of action of the plaintiff from the ordinary legal bar against commencing legal proceedings---Fresh suit on its original cause of action would be maintainable, in circumstances, if it was within the prescribed limitation from the date of plaintiff's cause of action---Suit filed within 15 months of the date of accrual of cause of action, could not be barred under res judicata because the rejected arbitration award had been declared by the civil court to be unenforceable and ineffective---No surviving determination of the dispute existed between the parties that could block the plaintiff from seeking an effective and binding adjudication of the same dispute---Appellate order made in the case was correct and was affirmed on its merits as also on the direction of remand given therein.

Hafiz Khalil Ahmad for Petitioner.

Qazi Khurshid Alam for Respondent.

Date of hearing: 29th October, 2008.

P L D 2009 Lahore 444

Before Syed Shabbar Raza Rizvi, J

ABID SHAH and 9 others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE SHEIKHUPURA and 2 others---Respondents

Criminal Revision Nos. 466 and 468 of 2008, decided on 21st January, 2009.

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

----S. 204---Penal Code (XLV of 1860), Ss.354-A, 452, 506, 148, 149, 337-A(i)(ii), L(2) & E(i)---Process issued to accused in private complaint---Validity---After having considered the statement on oath of the complainant and the result of investigation or inquiry (if any) under section 202 Cr.P.C. if sufficient grounds appeared for proceeding, Trial Court might issue summons for the attendance of accused---Considering the impugned order in conjunction with the language of Ss.203 and 204, Cr.P.C., the same was not found to suffer from any illegality or irregularity, which High Court was required to see in a Criminal Revision---Revision petition was dismissed accordingly.

2006 PCr.LJ 902; PLD 1996 Kar. 669; PLD 1970 SC 173; 2001 SCMR 1738; 1991 SCMR 1608; PLD 2007 SC 9 and AIR 1931 Cal. 607 ref.

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

----Ss. 203 & 204---Application and scope of Ss. 203 & 204, Cr.P.C.---Proceedings under Ss.203 and 204, Cr.P.C. depend upon the existence or non-existence of sufficient grounds, which have been taken by the Courts as the existence of "prima facie" case Both the expressions, i.e. the existence of "sufficient ground" and "prima facie" case have been construed by the Courts interchangeably.

PLD 2007 SC 9 ref.

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

----S.204---Issue of process---Sufficient ground for proceeding---Prime facie case only means that there is ground for proceeding, it is not the same thing as proof which comes later when the Court has to find whether accused is guilty or not guilty.

AIR 1931 Cal. 607 ref.

Syed Mazahir Ali Akhar Naqvi for Petitioner (in Criminal Revision No.468 of 2008).

Raja Muhammad Munir for Petitioner (in Criminal Revision No.466 of 2008).

S. M Khawar Khan for Respondent/Complainant.

Naeem Tariq Sanghera, DPG.

P L D 2009 Lahore 467

Before Mian Saqib Nisar, J

MUHAMMAD NAWAZ---Petitioner

Versus

GHULAM MUSTAFA ANSARI and 7 others---Respondents

Writ Petition No.2509 of 2009, heard on 29th April, 2009.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 163(2), proviso a(ii)---Review---Scope---Decree for partition of property by Tehsildar---Temporary injunction granted by Tehsildar---Validity---Power of review can only be exercised, if the necessary sanction in this behalf has been first obtained by the Reviewing Authority, which is a condition precedent and sine qua non for the review, thus to all intents and purposes, no final relief of review can he granted without the sanction---Where a forum has power to grant the final relief, it has inherent power to grant any interim relief, vice versa, where the forum itself does not have power to grant the final relief, it shall have no power even to grant interim relief---Tehsildar, thus, in the circumstances, without first seeking the sanction, could not pass the impugned order, which was declared by the High Court to be without lawful authority and jurisdiction and could not sustain in law.

(b) Administration of justice---

----Where a forum has power to grant the final relief, it has inherent power to grant any interim relief vice versa, where the forum yet itself does not have power to grant the final relief, it shall have no power even to gent interim relief.

Erum Sajjad Gull for Petitioner.

Ejaz Anwar for Respondents Nos. 2 to 6.

Khushhal Khan, Patwari for Respondent No.7.

Date of hearing: 29th April, 2009.

P L D 2009 Lahore 469

Before Maulvi Anwrul Haq, J

YOUNAS SIDDIQUE---Petitioner

Versus

Mst. TAHIRA JABFEN---Respondent

Writ Petition No.314 of 2009, heard on 10th April, 2009.

Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 19 & 21(i)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Application for ejectment of tenant---Prescribed notice to be issued to the tenant---Procedure---Guidelines---Said prescribed notice more or less is in accordance with the Form B-IV in which a notice is issued by a court in suits filed under O.XXXVII, C.P.C.; apart from this the notice has to be issued through process-server, registered post A.D. and courier service---Mandatory requirement is that the notice has to be accompanied by the copy of the application and the documents annexed with the application---Such documents are mentioned in S.19(3) & (4) of the Punjab Rented Premises Ordinance, 2007 which include the affidavit of the landlord and affidavits of not more than two witnesses---In order to invoke the penal provisions of the Ordinance, it was absolutely necessary for the Rent Tribunal to have issued a notice in accordance with S.21(1) read with Schedule to the Ordinance and further such a notice could have been issued only after examining the petition and satisfaction that it is accompanied by the requisite documents as mentioned in S.19 of the Ordinance---Where such exercise had not been clone by the Rent Tribunal, there was no question of causing of an appearance by the tenant in court so as to make 10 days time for filing of the application for leave to contest running---Where notices under registered cover A.D. and courier service were not issued at all and the tenant was proceeded against ex parse on the basis of a report by the process-server, the filing of reply by the tenant cannot be at all said to he beyond the statutory period---Impugned orders, were, therefore, without lawful authority and void and were declared as such - High Court directed that copy of the present judgment he circulated to all the District Judges in the Province, who will direct the Rent Tribunals to deal with the cases filed under the Punjab Rented Premises Ordinance, 2007, with due care and caution; upon presentation of an application first of all it should be ensured that all the documents particularly the affidavits of the landlord and the witnesses are appended with the ejectment application, after being so satisfied or alter getting the said provisions complied with, notices shall be issued to the respondent in the case in Form provided in the Schedule read with S.21(1) of the Punjab Rented Premises Ordinance, 2007, under registered A.D.; through courier service and through the process-server and alter ensuring that the service has been effected through the said process to proceed further in the matter in accordance with law and further to ensure that where the said statutory provisions stand complied with the application is filed by the tenant/respondent for leave to contest in the manner prescribed.

Raja Muhammad Tariq Khan for Petitioner.

Ansar Mehmood Raja for Respondent.

Date of hearing: 10th April, 2009.

P L D 2009 Lahore 473

Before Mian Saqib Nisar, J

AFTAB AHMAD KHAN and others---Appellants

Versus

GHAFOOR AHMAD and others---Respondents

R.S.A. No.157 of 1988, decided on 30th April, 2009.

(a) Punjab Pre-emption Act (I of 1913)---

----S. 15---Pre-emption, right of---Persons entitled to pre-empt in order of succession-- Under S.15 (thirdly), Punjab Pre-emption Act, 1913 applicable to the cases of Muslim pre-emptor, it is not the person, who at the time of sale, presuming the death of the vendor, shall be the one alone having the right of pre-emption, rather the entire line of successors shall have the right of pre-emption, howsoever low in the degree he (such successor) may stand, notwithstanding his position in the queue of succession and even then he may never he able to inherit the estate due to which legal representative who may he nearer in relation and may exclude him from the succession when the sale was made; this is so because their (pre-emptors) contest, in the context of pre-emption law, is with the vendee who is a stranger and shall have no right of succession at all---If any of the near kins (L.Rs.) has not initiated a pre-emption action, it may be for multiple reasons, such as paucity of funds; not being interested in the purchase, etc. but this shall not block the rights of the other L.Rs. in queue to exercise their right.

Mst. Raz Khanum Bibi v. Nazir Ahmad and other 1985 SCMR 1725 and Muhammad Shafi and 3 others v. Muhammad Hussain and another 2006 CLC 899 rel.

(b) Punjab Pre-emption Act (I of 1913)---

----S. 15---Pre-emption, right of---Right of minors to pre-empt---Scope---Waiver or estoppel---Waiver is an intentional relinquishment of one's known right and unless there is cogent evidence reflecting the persons' conduct clearly indicative of the abandonment of his right he cannot be said to have deliberately forgone his right---Mere presence of the pre-emptor at the time of sale, by itself, would not be suggestive of his participation in the transaction, to denude him on the ground of waiver of his legal right to pre-empt the sale---Right of minors to pre-empt the suit property, cannot be given up by their father, even on account of his participation in the negotiation of sale---Even if assumed that father of the minor pre-emptors had waived to pre-empt the sale, it would only be to the extent of his own rights and not qua the plaintiff, who were minors, and he in law had no authority to waive their rights---Simple withdrawal of the matter without the evidence about the intention/consideration behind it cannot be presumed---Non-suiting such plaintiffs on that ground of waiver was a serious error in law by the court.

Noor Muhammad and 3 others v. Jahangir Ali and others PLD 1987 Lah. 473 fol.

Sadhu Wahab and others v. Aladad Khan, (No.1 Punjab Record 1) and Sham Singh v. Suhel Singh (No.143 Punjab Law Reporter 1913) distinguished.

Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403; Jalal Din v. Saeed Ahmad and others PLD 1979 SC 879; Muhammad Shafi and 3 others v. Muhammad Hussain and another 2006 CLC 899; Jan Muhammad and others. V. Kundan Main and 14 others PLD 2007 SC 535; Muhammad and another v. Muhammad Yar and another PLD 1986 SC 231; Allah Dad v. Muhammad Khan 1986 SCMR 707; Mst. Raz Khanum Bibi v. Nazir Ahmad and others 1985 SCMR 1725; Nascer Ahmed v. Arshad Ahmad PLD 1984 SC 403; Jam Pad v. Muhammad Abdullah 1992 SCMR 786; Noor Muhammad and 3 others v. Jahangir Ali and 8 others PLD 1987 Lah. 473; Jalal Din v. Saced Ahmad and others PLD 1979 SC 879 and Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478 ref.

(c) Waiver---

----Concept---Waiver is an intentional relinquishment of one's known right and unless there is cogent evidence reflecting the person's conduct clearly indicative of the abandonment of his right he cannot be said to have deliberately forgone his right.

(d) Punjab Pre-emption Act (I of 1913)---

----S. 15---Pre-emption, right of---Superior right of plaintiff as against defendant---Plaintiffs, through a pedigree table which was conceded by the vendee having proved the claimed relationship with the vendor, had a superior right of pre-emption.

Mirza Naseer Ahmed for Appellants.

Dr. A. Basit for Respondents.

Date of hearing: 7th April, 2009.

P L D 2009 Lahore 484

Before Zubda-tul-Hussain, J

MUHAMMAD KALEEM ASIF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE---Respondent

Writ Petition No.3676 of 2008, heard on 8th April, 2009.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5, 7(2), Second Proviso & Sched.---Recovery of maintenance and dower claimed in separate suit, but not claimed by wile in earlier suit for dissolution of marriage----Validity---Non-filing or separate filing of suit for dissolution of marriage would not bar joining of remaining causes of action in one suit---Purpose of permitting parties to join various causes of matrimonial disputes in one suit would be to avoid multiplicity of proceedings and advance cause of convenience of parties and courts--Principles.

(b) Interpretation of statutes---

----Meanings and interpretation of a statute are to be attributed in a manner, which would advance cause of provisions thereof---Interpretation rendering provision futile would be ignored.

(c) Islamic Law---

----Khula' claimed due to fault of husband---Effect---Wife in lieu ofKhula' would not be liable to restore dower or other benefits received by her at marriage's time from husband----Principles.

Khula' in fact, is a right available to a wife for dissolution of marriage in contradistinction to the right of divorce vesting in a husband. Where the disputes and differences, in the family life, arise because of an attitude of the wife not acceptable to the husband, the latter has the power to divorce her. The right ofKhula' accrues to a wife for the redressal of irreconcilable grievance against her husband.

Need to seek Khula' can arise in two situations. First, the wife may be aggrieved of the unbecoming attitude of her husband and, secondly, she may, for her own personal reasons such as abhorrence or disliking for the husband, may claimKhula'. In the history of Muslim Jurisprudence, the well reputed case of Habiba Bint-e-Sohail, seeking 'Khula' against her husband namely Sabit (may Allah be pleased with him), provides as guidance that in the case, where the disliking or hatred of the wife is not because of coercion, duress or other untoward behaviour of the husband, the wife may seek separation by the restoration of the dower/the benefits drawn by her from the husband, at the time of the marriage, but the in-depth analysis of the circumstances leads to infer that the case where the wife is constrained to seek divorce because of the obnoxious nature or behaviour of the husband, her position and rights are decipherable from the case of Habiba Bint-e-Sohail and she is not under a compulsion to compensate her husband in terms of the restoration of the benefits.

Powers of the Family Court, in relation to the consideration for dissolution of marriage, could not be curtailed and the Court could dissolve the marriage on the basis of Khula' even without any compensation, if it found thatKhula' was being claimed due to fault on the part of the husband.

Khalid Mahmood v. Anees Bibi and 2 others PLD 2007 Lah. 626 and Muhammad Zafar v. Judge, Family Court and another 2005 CLC 1844 rel.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Suit for dissolution of marriage on ground of Khula'---Wife's statement before Court alleging her husband to be extremely cruel, due to which she could not continue to live with him---Validity---Wife was entitled toKhula' without restoring benefit of dower to husband---Separate suit by wife for recovery of dower, if un­paid, would be maintainable---Suit was decreed in circumstances----Principles.

Khalid Mahmood v. Anees Bibi and 2 others PLD 2007 Lah. 626 rel

Mst. Shumaila Samreen for Petitioner.

Muhammad Mushtaq for Respondent No.3.

Date of hearing: 8th April, 2009.

P L D 2009 Lahore 489

Before Umar Ata Bandial, J

Mirza MUHAMMAD ARIF and others---Petitioners

Versus

CHIEF ENGINEER and others---Respondents

Writ Petition No.12171 of 2008, decided on 15th October, 2008.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Award of a public contract---Departmental process for award of a public contract that is laden with personal discretion or infected with personal bias cannot be termed as a transparent fair or lawful process as mandated by law---What is necessary for the Authority holding the auction is to hold completely transparent and fair auction of public largesse which demonstrates that the competition is open, based on previously disclosed rules of the auction that provide equal and fair opportunity to all bidders to vie for the projects that are available for execution---Where such attributes were missing, High Court declared the auction proceedings held by the Authority to be illegal and directed that fresh bid shall accordingly be invited for the projects advertised by the Authority under a new Schedule to be announced---Principles.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Messrs Ramna. Pipe and General Mills (Pvt.) Limited v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274 fol.

(b) Constitution of Pakistan (1973)---

---Art. 199---Constitutional jurisdiction---Object---Constitutional jurisdiction of High Court is meant to promote substantial justice---Any steps taken by a party during the proceedings must not be allowed to circumvent the process of the court or its finding or else judicial determination of live controversies shall be rendered to be of an academic value only---Such direction is issued by the court as a means to mould the relief in order to render effective adjudication of the dispute arising for determination in the matter.

Mian Jameel Akhtar for Petitioner.

Muhammad Jehanzeb Wahlah for Respondent No.3.

Syed Nayyar Abbas Rizvi, A.A.G. with Nazeer ud Din Gill, XEN, PWD, Faisalabad.

P L D 2009 Lahore 494

Before Mian Saqib Nisar and Ali Akbar Qureshi, J

ALL PAKISTAN TEXTILE MILLS ASSOCIATION through Secretary---Appellant

Versus

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

I.C.A. No.549 of 2008, heard on 13th May, 2009.

(a) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), O.VII, R.7--Constitutional petition---Moulding of relief---Theory of subsequent event---Applicability---Scope---Court seized of a matter, which is competent and maintainable before it, can always mould the relief as is warranted by the facts of the case, even taking into account the subsequent developments occurring during the pendency of the Lis---Such rule, however, is subject to important limitations; that no prejudice is caused to the defendant/respondent by doing so; such events must have nexus with the cause of action or the defence of the case and should not amount to setting up a new case by the parties; either side must get a chance of meeting the effect of the subsequent events, which, in ordinary course should be incorporated by appropriate amendment of the pleadings.

Ch. Riyasat Ali, Advocate v. Returning Officer and 2 others 2003 CLC 1730; Capt. S.M. Aslam and others v. Karachi Building Control Authority through Chief Executive Nazim-e-Aala and others 2005 CLC 759; Mehrab Khan through Attorney v. Province of Sindh through Secretary, Irrigation and Power Department, Government of Sindh and 5 others 2005 CLC 441; Ardeshir Cowasjee v. Province of Sindh 2002 CLC 684; Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 and Salahuddin and 2 others v. Fronteir Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Theory of subsequent event, applicability of---Moulding of relief---Scope---Vires of specific order of the Commission had not been challenged in the constitutional petition, rather no ground, at all, had been set out on the basis of which it could, especially by the court, be ascertained, assessed, determined and adjudicated as to what was the illegality or vices (legal or factual) of the Commission's order, not only the court shall be in disadvantageous position to examine the order in this behalf, even the respondent shall not be in a position to defend the case on the basis of the present pleadings.

(c) Maxim---

----Ubi jus ibi remedium---Lex semper dabit remedium---No concept of a wrong without a remedy---Principles.

According to the maxim ubi jus ibi remedium there is no concept of a wrong without a remedy and the "remedium" may be defined to be the right of action, or the means given by law, for the recovery or assertion of a right; besides, in view of another maxim lex semper debet remedium, if a man has a right, he must have means to vindicate and maintain it, and should have a remedy if he is injured in the exercise and enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal, thus, it appears, that "remedium" in the above maxims has a more extended signification than the word "action" in its modern sense and an "action" is, in fact, one peculiar mode pointed out by the law for enforcing a remedy, or for prosecuting a claim or demand in the Court of law.

Broom's Legal Maxims 10th Edn. P.118 ref.

(d) Constitution of Pakistan (1973)---

----Art. 199---Anti-Dumping Duties Ordinance (LXV of 2000), S.64(5)---Non-establishment of Appellate Tribunal by Federal Government under S.64 of Anti-Dumping Duties Ordinance, 2000---Remedy---Maxims ubi jus ibi remedium and lex semper debet remedium---Applicability---In the present case, Association of Textile Manufacturers, subject to its locus standi undoubtedly had a right of appeal under the statute, which was the most sacred right, however, if for any reason the forum of appeal had not been established enabling the exercise of such valuable right, the right, could not be allowed to be frustrated or stultified, for the lapse on part of the Federal Government as it was the fundamental principle of law that the rights and the remedies of the parties could not be left in vacuum, thus, in the situation the Association (Subject to its locus standi) shall have an independent right to challenge any such order under Art.199 of the Constitution, if it had been passed by a forum which could be construed to be a forum against which a writ of certiorari would lie, otherwise before the courts of plenary civil jurisdiction under S.9, C.P.C.

(e) Constitution of Pakistan (1973)---

----Art. 199(4), (4-A)---Constitutional jurisdiction---Interim injunction, grant of---Scope---Provisions of Art.199(4) or(4-A) of the Constitution would .only be relevant, if a case for the grant of interim injunction is made out on the basis of the contents of the main petition---Where however, the statutory body was not under challenge in the petition, how could the interim injunction beyond the scope of pleadings be granted against the said body even ignoring the rule that Civil Procedure Code was applicable to the proceedings under Constitutional jurisdiction.

?

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 ref.

(f) Anti-Dumping Duties Ordinance (LXV of 2000)---

----S. 64---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cause of action and entire structure of the case was rested upon one single grievance i.e. for the constitution of the Appellate Tribunal within the parameters of S.64, Anti-Dumping Duties Ordinance, 2000 which could not be granted particularly when the Bill for amendment of the same section of the Ordinance had been approved by the Standing Committee and also for the reason that as per the decision of the National Judicial Policy Making Committee dated 18/19-4-2009, may be the retired Judge of the Supreme Court could not be appointed as the Chairman of the Appellate Tribunal---If any such direction was given by the High Court, it shall be difficult to cope with and reverse a situation, which might emerge on account of the amendment.

Majid Ali Wajid for Appellant.

Ch. Aamir Rehman, D.A.G., Muhammad Nawaz Waseer, Standing Counsel, Shahzad A. Elahi and Ahmed Sheraz for Respondents.

Date of hearing: 13th May, 2009.

P L D 2009 Lahore 501

Before Umar Ata Bandial, J

Syed SHABBIR TAQI KAZMI---Petitioner

Versus

Mst. SADAF ZAHRA and others---Respondents

Criminal Miscellaneous No.963-H of 2008, decided on 22nd September, 2008.

Criminal Procedure Code (V of 1898)---

----S. 491---Alleged detenu, who was suffering from a serious brain disorder and was in a vegetative condition and no specific medical treatment was stated to be available in Pakistan or abroad to cure his condition was living with his second wife who had been caring for him in his presently critical condition since his cerebral haemorrhage four months back---Son of the alleged detenu from his first marriage sought his custody through an application---Central question, in the present case, was whether the alleged detenu was in illegal custody of his second wife and collateral points were the children of the alleged detenu from his first marriage had a superior "right to his custody and in any event whether they had a right to access to the alleged detenu---Alleged detenu was unable to express any preference as to which family should care for him---Court must, therefore, arrive at its finding about the best means of safeguarding the rights of the alleged detenu by drawing its inference from surrounding circumstances so as to make relief workable in the peculiar circumstances of the case until a definitive opinion was given in the matter by a competent court---Held, alleged detenu was living voluntarily with the second wife at the time of his cerebral accident four months ago---Second wife had cared for him bravely against logistical odds and financial constraint---Custody of alleged detenu, in circumstances, could not be termed as hostile, forcible or illegal and his second wife held his lawful custody---Son from his first marriage and his family had a right to visit and care for the alleged detenu---High Court ordered that during the day-time the son and immediate family members of the alleged detenu may visit the latter to provide personal and nursing care for him---By consent of both the counsel, High Court further directed that pursuant to the advice given by the second consultant, the alleged detenu shall be admitted to the clinic for further tests prescribed in order to assess whether any additional medical treatment for his condition was available and possible---Costs of such treatment shall be borne by the son---High Court clarified that the present order constituted a tentative arrangement subject to an order passed by a competent court in the matter of custody and care of the alleged detenu---Order accordingly.

M. Zafar for Petitioner.

Ch. Muhammad Zafar Iqbal and Syed Zafar Abbas Gillani, for Respondent No.1.

P L D 2009 Lahore 504

Before Iqbal Hameed-ur-Rehman and Mazhar Hussain Minhas, JJ

UNITED BANK LTD.---Petitioner

Versus

MUHAMMAD AKRAM and others---Respondents

Criminal Revision No.596 of 2008, decided on 28th April, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 203 & 439---Penal Code (XLV of 1860), Ss.420/467/468/34---Criminal revision---Complaint of the petitioner-Bank had been dismissed by Special Court after recording preliminary statement of the complainant on the ground that non-compliance of terms and conditions of loan facility agreement did not constitute any criminal offence under the law---Validity---Respondent had entered into an agreement for home finance facility with the petitioner-Bank---Special Court constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984, had rightly held that non-compliance of terms and constitutions of the loan facility did not constitute any criminal offence under the law---Remedy available to the petitioner-Bank under the law in the given circumstances was of civil nature by filing a suit of recovery against the respondent---Petitioner Bank had failed to establish a prima facie criminal liability against the respondents---Impugned order did not suffer from any illegality or material irregularity---Revision petition was dismissed in limine accordingly.

Ashar Elahi, Advocate.

P L D 2009 Lahore 506

Before Umar Ata Bandial, J

MUBASHAR IQBAL CHEEMA---Petitioner

Versus

CANTONMENT BOARD---Respondent

Writ Petition No.13148 of 2008, decided on 30th October, 2008.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Public auction of government contract---Essentials---Auction of public property must be conducted with complete transparency to secure the highest price therefor---Overriding obligation of public functionaries in the sale of public property, is to act reasonably, fairly, justly, without discrimination and without adopting unfair procedure.

New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan Karachi PLD 1999 SC 1126 and Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Scope---Auction of public property---Contention of the Authority holding auction was that a bidder had no locus standi to maintain constitutional petition as he had no concluded contract in his favour---Validity---Held, such plea would be relevant if a contract was being sought to be enforced by the petitioner---Petitioner, as a highest bidder, in public auction, had a proprietary interest in enforcing the Authority's legal duty to conduct the public auction fairly, transparently and without discrimination, it was such duty of the Authority that was to be enforced by the petitioner, which emanated from the law and Authority's own published rules and procedure for the auction of public property.---Petitioner had locus standi to enforce a legal duty of the Authority that affected the petitioner's proprietary interest.

Talib H. Rizvi for Petitioner.

Syed Nayyar Abbas Rizvi, A.A.-G.

Muhammad Umar Riaz for Respondent.

Mir Baz Khan, Superintendent Cantonment Board Sargodha.

P L D 2009 Lahore 509

Before Iqbal Hameed-ur-Rahman, J

BILAL KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3643-B of 2009, decided on 16th April, 2009.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 381---Pre-arrest bail, grant of---Complainant and a partner of the company/firm on account of a dispute regarding rendition of accounts and partnership were involved in criminal and civil litigation, in view of which false involvement of the accused in the case could not be ruled out---Some missing documents, receipts, invoices and electronic items were stated to have been handed over by the accused to the said partner of the Firm, who being himself a partner had got an easy access to the said documents, and why he would ask the accused to be a carrier for him, did not appeal to mind---Said documents admittedly being with the aforesaid partner of the Firm, no recovery was to be effected from the accused---Allegation with regard to misappropriation of Rs.5,00,000 by accused had also created doubts, because according to normal practice in business community cash payments were immediately confirmed and could not be ignored for 24 days after encashment of the cheque---Guilt of accused, therefore, required further inquiry---Accused had been involved in the case due to mala fides on the part of the complainant---Ad interim bail already granted to accused was confirmed in circumstances.

2004 SCMR 1185; 2007 YLR 1306; 2000 SCMR 1412; 2006 PCr.LJ 584; 2002 SCMR 442 and 2009 SCMR 174 ref.

C.M. Sarwar assisted by Imran Sarwar for Petitioner.

Munir Ahmed Bhatti for the Complainant.

Ghulam Qadir Bari, Asstt. Prosecutor-General for the State.

Ghafran Ali S.-I. with record.

P L D 2009 Lahore 514

Before Umar Ata Bandial, J

M/s. BHIMRA TEXTILE MILLS---Appellant

Versus

JAMEEL AHMED and others---Respondents

F.A.O. No.320 of 2006, decided on 3rd February, 2009.

Specific Relief Act (I of 1877)---

---Ss. 12 & 54---Suit for specific performance of agreement to sell land---Vendee had paid earnest money and Trial Court directed the deposit of the balance sale price as condition for grant of stay against further alienation of the suit property---Vendee being aggrieved of the said order complained that the vendors stood unduly benefited as they shall continue to, derive advantage from the usufruct of the land and shall also have the use of full price for the land fixed in the agreement to sell, on the other hand, as a condition of stay, vendee was out of pocket for the entire sale price of the land and also without its possession---In the present case, there was an allegation that vendors had applied dilatory tactics in the suit in order to aggravate the injury of the vendee who was out of possession and had not derived any benefit under the agreement to sell---Held, present case involved a grievance about the conduct of vendors and imbalance in greater benefit accruing to them under the condition for grant of interim relief, such were the aspects that merited notice in fixing the terms of interim relief, if any---Appropriate course, in circumstance, would, therefore, be to allow the Trial Court to apply its mind afresh to the relevant criteria for settling the terms of an interim order, if any, in the present case---Matter was accordingly sent back to the Trial Court to reconsider the terms, if any, upon which an interim injunction ought to be granted to the vendee---Trial Court was directed to invite the parties to state their respective stands and entitlement as to terms of interim relief by filing fresh application and reply thereto which shall be determined without prejudice to or delay in the proceedings in the main suit---Principles.

Ibrar Ahmad and another v. Munawar Ahmad 1998 MLD 601; Khizar Hayat Khan v. Mussarat Rabbani PLD 1995 Lah. 438; Fateh Muhammad v. Muhammad Hanif and others PLD 1990 Lah. 82; Sh. Muhammad Taqi v. Muhammad Anwar Khan Ghouri 1983 CLC 1085 and Ibrar Ahmad Khan Tareen v. Munawar Saeed 1994 SCMR 1764 ref.

Abid Aziz Sheikh for Petitioner.

Rana Muhammad Arif for Respondents.

P L D 2009 Lahore 518

Before Syed Hamid Ali Shah and Syed Ali Hassan Rizvi, JJ

GOVERNMENT OF PUNJAB through Secretary Health Department, Lahore and 2 others---Appellants

Versus

KHYBER INTERNATIONAL PRINTER through Proprietor---Respondent

Regular First Appeal No.208 of 2005, decided on 20th February, 2009.

Contract Act (IX of 1872)---

----S. 10---Constitution of Pakistan (1973), Art.173(3)---Purchase Manual of Government of Punjab, Chapter I, para. 2(note)(I)---Oral agreements---Proof---Plaintiff filed suit for recovery of price of printed banners supplied to government on oral order---Suit was decreed by Trial Court, in favour of plaintiff but authorities assailed the judgment and decree on the ground that under Art.173(3) of the Constitution no agreement with government could be made orally---Validity---Oral agreement was not prohibited under the provisions of Art.173(3) of the Constitution---It was not the case of authorities that oral agreement was not made with free consent of parties or parties were not competent to contract or consideration of the contract was not lawful or its object was not lawful or oral agreement was otherwise void---Oral contract was not excluded under S.10 of the Contract Act, 1872, from being enforced, although in case of oral contract, clearest and more satisfactory evidence would be demanded by Court---Provision of Chapter I, para. 2 (note)(I) of Purchase Manual (of Government of Punjab) was also apt and it dealt with transactions in case of emergency situations---Document produced by authorities showed' post facto transaction of oral purchase order---High Court declined to interfere in the judgment and. decree passed by Trial Court in favour of plaintiff---Appeal was dismissed in circumstances.

Bhikraj Jaipuria v. Union of India AIR 1962 SC 113; Yelamanchili Siva Panchaksharamma v. Yelamanchili Chhinabbayi AIR 1967 SC 207; Province of Punjab through District Collector and 2 others v. M/s Sajid Traders 2006 YLR 484; Maqsood and others v. Salman Ali PLD 2003 SC 31; Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160; Malik Muhammad Akram v. Khuda Bakhsh 2000 CLC 759; Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170; government of N.-W.F.P. and 3 others v. Bahadur Khan 1985 CLC 1457 and Bashir Ahmad v. Muhammad Yousaf through Legal Heir 1993 SCMR 183 ref.

Rizwan Mushtaq Ch. Asstt. A.G. for Appellants.

Abdul Wahid Ch. for Respondent.

Date of hearing: 22nd January, 2009.

P L D 2009 Lahore 522

Before Umar Ata Bandial, J

MUHAMMAD IQBAL KHOKHAR---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.12075 of 2008, decided on 18th December, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court, under its constitutional jurisdiction, makes declarations of law and issues directions based thereon and it is inappropriate in the exercise of such jurisdiction to dissect the minute details of pronouncements made by another competent Tribunal in order to ensure that obligations cast upon the parties before the Tribunal are performed precisely by them---Such consideration and scrutiny for implementation lies in the province of the Tribunal itself---Principles.

Ashfaq Qayyum Cheema for Petitioner.

Syed Nayyar Abbas Rizvi, A.A.-G.

P L D 2009 Lahore 524

Before Mian Saqib Nisar and Ali Akbar Qureshi, JJ

Mst. AMTUL HASEEN and another---Appellants

Versus

LAND ACQUISITION COLLECTOR, HIGHWAY DEPARTMENT, LAHORE

and 3 others---Respondents

R.F.As. Nos. 338 to 340 of 2006, heard on 20th May, 2009.

(a) Land Acquisition Act (I of 1894)---

----S. 23---Compensation, determination of---Appreciation of evidence---"Aust Yaksala"---Evidentiary value---"Aust Yaksala" was not the only piece of evidence for determining the price, though it may be one of the relevant factors to be considered; no presumption in law could be drawn against the landowners if "Aust Yaksala" had not been produced as the landowners may earnestly have believed that the registered title documents were more credible in this regard; the authorities, in order to disprove the sale price of the transactions adduced by the landowners, had also not produced "Aust Yaksala", when they had the opportunity to do so and, therefore, the court was bound to decide the matter on the basis of the evidence available on the record, rather than on the basis of something which was not there.

(b) Land Acquisition Act (I of 1894)---

----S. 23---Compensation, determination of---Land commercial in nature---Strip of land which belonged to another Mauza fell in between main road and land acquired which provided access to the Appellant's land from the Road---Such strip of land was for the widening of the Road, the landowners had right of access from the Road through the strip which could not be blocked under the law and, therefore, for all intents and purposes, the acquired land as a compact unit shall be considered abutting towards the Road.

(c) Land Acquisition Act (I of 1894)---

----Ss. 23, 28 & 28-A---Compensation, determination of---Documentary as well as oral evidence of the landowners, and the admission made by the authorities' witnesses, had established that the land acquired was of prime quality, which almost was located on the main commercial Road and/or was in the close proximity thereof, thus, it was the commercial property, and even if assuming it was not, still the price of land sold in the Mauza of any nature (as proved through the sale-deeds) was above Rs.85,000 per Marla---Landowners, therefore, were entitled to the compensation adjudging the property as commercial and on that basis, beside, keeping in view the future potential of the property---Future prospects of the land in question undoubtedly were of immense commercial value, therefore, the landowners, if not entitled to Rs.1,00,000 per Marla as demanded by them, at least the court below should have granted them Rs.85,000 per Marla---Request of landowners for compound interest at the rate of 8% per annum was in line with the provisions of S.28, Land Acquisition Act, 1894, therefore for the enhanced compensation of Rs.85,000 per Marla, the landowners were allowed the compound interest in terms of S.28, Land Acquisition Act, 1894---Court below having failed to grant the additional compensation to the landowners according to S.28-A, Land Acquisition Act, 1894, they were also granted the amount of 15% of the enhanced compensation by the courts (inclusive of the Trial Court and High Court), which shall be paid to the appellants from the date of notification under S.4 of the Act till the date of the payment thereof.

Land Acquisition Collector and another v. Abdul Wahid Chaudhry and 3 others 2004 YLR 608; Nisar Ahmad Khan and others v. Collector, Land Acquisition, Swabi and others PLD 2002 SC 25 and Muhammad Saeed and others v. Collector, Land Acquisition and others 2002 SCMR 407 rel.

Municipal Committee, Toba Tek Singh through Tehsil Nazim and others v. Mirza Ghulam Sarwar and others 2003 SCMR 1341; Lahore Cantonment Cooperative Housing Society Limited through Secretary v. Messrs Builders and Developers (Pvt.) Ltd. and another PLD 1999 Lah. 305; Pakistan National Oils Ltd. and another v. Sattar Muhammad 1980 SCMR 686; Muhammad Saeed and others v. Collector, Land Acquisition and others 2002 SCMR 407; Nisar Ahmad Khan and others v. Collector, Land Acquisition, Swabi and others PLD 2002 SC 25 and Land Acquisition Collector and another v. Abdul Wahid Chaudhry and 3 others 2004 YLR 608 ref.

Khawaja Saeed-uz-Zafar for Appellant.

Rizwan Mushtaq, Assistant Advocate-General for Respondent.

Date of hearing: 20th May, 2009.

P L D 2009 Lahore 531

Before Rana Zahid Mahmood, J

RIASAT ALI and 2 others-Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1524-B of 2009, decided on 11th February, 2009.

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

----S. 498---Penal Code (XLV of 1860), Ss.395/355/353/186/342/148/149---Pre-arrest bail, refusal of---Accused allegedly had committed a grave offence by snatching public record from the public functionary, Girdawar Halqa, an employee of Revenue Department, simply because he had refused to the accused an excess to Revenue Record without lawful course---Despite the offence having been committed in District Nankana Sahib, accused had got protective bail from an Additional Sessions Judge, Lahore, who had no territorial jurisdiction to grant such bail, allowing them to appear before Sessions Court Nankana Sahib till a specified date---Accused, however, did not avail the said facility and had directly come to High Court for pre-arrest bail---Accused had not approached the Sessions Court concerned since registration of the case and had been trying to play hide and seek with the Court bypassing the concerned Sessions Court---No ground for pre-arrest bail was made out---Petition was consequently dismissed in limine with the direction to accused to approach the Sessions Court concerned in the first instance.

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

----Ss. 497/498, 7, 8 & 9---Interim pre-arrest bail or protective bail---Territorial jurisdiction---Sessions Court has no jurisdiction to grant interim pre-arrest bail or protective bail to an accused of offence registered through F.I.R. out side the District where it is situated, simply because the jurisdiction of Sessions Court is limited to its District only and not outside.

Rana Hadayat Ali with Petitioner.

P L D 2009 Lahore 535

Before Hasnat Ahmad Khan, J

TAUSEEF alias CAPTAIN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.104 of 2008, heard on 26th February, 2009.

(a) Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Penal Code (XLV of 1860), Ss.302/337/D/337(i),(ii)/148/149---Determination of age of accused---School Leaving Certificate produced by accused had been discarded by Trial Court without holding any enquiry into the genuineness of the same---Birth certificate of accused issued by Union Council, relied upon by the complainant, was preferred to the medical report of Medical Board without holding any enquiry regarding the genuineness of the birth certificate---Even in the absence of the objection of accused regarding the genuineness of the birth certificate, Trial Court was bound to hold an enquiry in terms of S.7 of the Juvenile Justice System Ordinance, 2000, especially when the same was contradicted by the Medical Board comprising six doctors including a dental surgeon---Accused, as per report of the Medical Board, was minor on the date of occurrence, which had even reconciled with the date of birth of accused recorded by the police at the time of his arrest---Observation of Trial Court to the contrary, therefore, was not only against the mandatory provision of Juvenile Justice System Ordinance, 2000, but also against the principles of law settled by the Superior Courts---Moreover, where two views were possible regarding the age of accused, the one in favour of accused was normally accepted---Impugned order of trial Court was consequently set aside and the accused was declared to be a juvenile offender under the Juvenile Justice System Ordinance, 2000, with the direction to try his case separately---Petition was accepted accordingly.

Umar Hayat v. Jahangir and another 2002 SCMR 629; Muhammad Jafar Ali v. The State 2007 YLR 1679; Muhammad Akram v. Muhammad Haleem alias Hamayun and others 2004 SCMR 218; Subedar Sabir Ali v. The State and another 2005 YLR 821; Altaf Hussain v. The State 2003 PCr.LJ 1898 and Sanaullah v. The State 2006 PCr.LJ 430 ref.

(b) Juvenile Justice System Ordinance, (XXII of 2000)---

----S. 7---Penal Code (XLV of 1860), Ss.302/337/D/337(i),(ii)/148/149---Age of accused, determination of---Where two views regarding the age of accused are possible, the one in favour of accused is normally accepted.

Umar Hayat v. Jahangir and another 2002 SCMR 629; Subedar Sabir Ali v. The State and another 2005 YLR 821 and Sanauliah v. The State 2006 PCr.LJ 430 ref.

Muhammad Nadeem Kanju for Appellant.

Asjad Javed Ghuraal, D.P.G. for the State.

Qazi Iftikhar Ahmed for Respondent No.2.

Date of hearing: 26th February, 2009.

P L D 2009 Lahore 541

Before Rana Zahid Mahmood, J

MUHAMMAD IQBAL---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION HAJIPURA, SIALKOT and 2 others---Respondents

Writ Petition No.1239-Q of 2009, decided on 30th March, 2009.

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

----S. 7---Penal Code (XLV .of 1860), S.489-F---Aims and objects of both the provisions---Banks debarred from taking advantage of S.489-F, P.P.C.---Aims and objects of Financial Institutions (Recovery of Finances) Ordinance, 2001 and S.489-F, P.P.C. are entirely different - and both the enactments cannot be amalgamated or confused with each other by their application at the whims of either party---Financial Institutions (Recovery of Finances) Ordinance, 2001, is a complete Code providing procedure for the Banking Courts, specially constituted under the said Ordinance, for recovery of loans from the defaulters or taking stock of the situation at the instance of the aggrieved party which may be the loanee against the Bank and for the commission of any offence as enumerated under S.7 of the said Ordinance---Banks or their administrations, therefore, are debarred from taking the advantage of S.489-F, P.P.C. through initiation of proceedings against the defaulter merely on the dishonouring of any cheque issued by the loanee who had availed any finance facility, as scheme of both the enactments is poles apart from each others.

Major Rtd. Javed Inayat Khan Kiani v. The State PLD 2006 Lah. 752 ref.

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

----S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Accused petitioner had taken a loan of Rupees Fifty lac from the complainant-Bank, but due to recession in business he could not deposit four monthly instalments and on demand of Bank furnished a guarantee cheuqe of Rupees fifty lac, which was not meant for immediate encashment---However, Bank on the said cheque having been dishonourned got the present case registered against the petitioner under S.489-F, P.P.C. vide the impugned F.I.R.---Validity---Aims and objects of Financial Institutions (Recovery of Finances) Ordinance, 2001, and S.489-F, P.P.C. being entirely different, could not be amalgamated or confused with each other at the whims of either of, the parties---Financial Institutions (Recovery of Finances) Ordinance, 2001, was a complete Code providing procedure for the Banking Courts, specially constituted under the said Ordinance, for recovery of loans from the defaulters and dealing with the commission of any offence as enumerated under S.7 of the said Ordinance---Banks or their administrations, therefore, were debarred from taking the advantage of S.489-F, P.P.C. through initiation of proceedings against the defaulters on dishonouring of any cheque issued by the loanee, who had availed any finance facility---Registration of the present case by the complainant-Bank through its Manager was a mala fide action against the petitioner, as it could avail remedy through the - Banking Court under the Financial Institutions (Recovery of Finances) Ordinance, 2001---Registration of case under S.489-F, P.P.C. against the accused petitioner being mala fide and abuse of process of law, could not be allowed to sustain on record---Impugned F.I.R. was consequently quashed and constitutional petition was accepted accordingly.

Major Rtd. Javed Inayat Khan Kiani v. The State PLD 2006 Lah. 752 ref.

Shahid Mir for Petitioner.

Khan Salim Mitha Asstt. A.-G. along with Muhammad Yousaf A.S.I.

Malik Asghar Ali Awan for Respondent No.3.

P L D 2009 Lahore 546

Before Iqbal Hameed-ur-Rehman, J

ZARJUMA alias JAMNA BIBI---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SADDAR DISTRICT BHAKKAR and 4 others---Respondents

Writ Petition No.5724/Q of 2009, decided on 9th April, 2009.

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

----S. 365-B---Constitution of Pakistan (1973), Art.199---Constitutional petition--Quashing of F.I.R.---Star prosecution witness, the alleged abductee, while appearing in High Court had categorically stated that no one had abducted her and that she being sui juris had contracted marriage with the respondent with her free-will and consent and was in her family way for four months---Contents of the Nikahnama had been admitted by the husband and the wife and other persons could not challenge the validity of the same under the law---Statement of the alleged abductee as well as the Nikahnama had belied the prosecution story as narrated in the F.I.R. which could not be believed---Nikah of an adult girl was not invalid for want of permission of Wali and marriage was also not invalid on account of the alleged absence of the consent of Wali---Impugned F.I.R. was quashed in circumstances and the constitutional petition was accepted accordingly.

Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316 ref.

Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 and Hafiz Abdul Waheed v. Mrs. Asma Jahangir and another PLD 2004 SC 219 rel.

(b) Islamic Law---

----Marriage---Nikahnama---Validity---Law does not permit others to challenge the validity of the Nikahnama, when its contents are admitted by the husband and the wife.

Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638 ref.

(c) Islamic Law---

----Marriage---Validity---Nikah of an adult girl is not invalid for want of permission of\ Wali and marriage is also not invalid on account of the absence of the consent of Wali.?

Mst. Hajra Khatoon and another v. Station House Officer, Police Statin Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 and Hafiz Abdul Waheed v. Mrs. Asma Jahangir and another PLD 2004 SC 219 rel.

Ch. Imran Raza Chaudhry for Petitioner.

Sarfraz Ahmad Khan Asstt. A.-G. for Respondent.

Date of hearing: 9th April, 2009.

P L D 2009 Lahore 549

Before Mian Muhammad Najam-uz-Zaman and Irfan Qadir, JJ

ALTAF ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.41 of 2009, heard on 8th April, 2009.

(a) Control of Narcotic Substances Act (XXV of 1997)----

----S. 9(c)---Appreciation of evidence---Except the statement of co-accused under S.164, Cr.P.C., prosecution had not collected an iota of evidence to establish the involvement of accused in the case---Said statement of co-accused under S.164, Cr.P.C. having been recorded in the absence of accused, no opportunity had been provided to accused to cross-examine the co-accused---Statement of co-accused, therefore, could not be used against the accused as a substantial piece of evidence, especially when co-accused while confessing his guilt before Trial Court had not named the accused as one of his co-accused---Sole testimony of an approver or accomplice could not safely be relied upon in the absence of a corroborative piece of evidence---Accused was acquitted in circumstances.

Jahangir Malik, v. The State 2005 YLR 3258 and Federation of Pakistan v. Muhammad Shafi Muhammad, Advocate and 3 others 1994 SCMR 932 ref.

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

----Art. 16---Evidence---Testimony of approver or accomplice, 'assessment of---Principle---Evidence of an approver or accomplice cannot be accepted for convicting a co-accused, unless the same is corroborated by other cogent and reliable evidence in material particulars.

Jahangir Malik, v. The State 2005 YLR 3258 and Federation of Pakistan v. Muhammad Shafi Muhammad, Advocate and 3 others 1994 SCMR 932 ref.

Raja Nadeem Haider for Appellant.

Rana Sohail Iqbal for A.N.F.

Date of hearing: 8th April, 2009.

P L D 2009 Lahore 552

Before Mian Saqib Nisar and Ali Akbar Qureshi, JJ

KHURSHEED BEGUM and others---Appellants

Versus

INAM-UR-REHMAN KHAN and others---Respondents

R.F.A. No.174 of 2005, decided on 28th May, 2009.

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

----S. 100, O. VIII, R. 10 & O. I, R. 8---Second appeal---Without passing a formal order setting aside first preliminary decree against the appellants, their defence had been illegally and erroneously struck off under O.VIII, R.10, C.P.C., for non-filing of the written statement, when they were not supposed to or even required to do so under O.I, R.8, C.P.C.---Order striking off the defence of appellants had not been signed by the Presiding Officer, yet High Court declined to interfere for setting aside of the second preliminary decree for the reasons that throughout this period the appellants had never come forward to either join the proceedings or even to inquire about the fate of the matter, so as to avoid adverse proceedings and the final decision against them; such conduct of appellants could not be justified---Rule of past and closed transaction, in circumstances, could be safely applied in this behalf.

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

----O. XXI, Rr.90, 66 & 85---Auction sale of property---Non-issuance of notice and non-compliance of the provisions of O.XXI, R.66, which is mandatory, shall vitiate the sale on account of material irregularity, present case being a classic one of the nature, attracted O.XXI, R.90, C.P.C., therefore, auction sale is liable to be set aside---Reasons.

Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. through Branch Manager and 3 others 2003 CLD 1693; 2003 CLD 704; AIR 1956 Ajmer 33; AIR 1943 Lah. 129 and AIR 1940 Lah. 394 fol.

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

----O. XXI, Rr.85, 86, 66 & 90---Auction sale of property---Court auctioneer, without any authority, rather against the provision of O.XXI, R.85, C.P.C. of his own had fixed 30 days' time for the payment of the balance consideration, which otherwise was required to be paid in terms of O.XXI, R.85, C.P.C. within a period of 15 days and court had overlooked the same without any logical reason---Other very material violations of law and procedure which had taken place in the auction sale of the property, were also noticed by the High Court---Such being very important and glaring violations of the law rendered the sale as vitiated---High Court, in circumstances, declined to set aside the preliminary judgment and decree, however, by accepting the appeal, final judgment and decree and impugned order rejecting the objections of the appellants and confirming the sale in favour of auction-purchaser, were set aside by the High Court and matter was sent back to Trial Court while appointing new court-auctioneers---High Court observed that sale was set aside on the ground of material irregularity and fraud in this regard---Role of the Court-auctioneer had been highlighted, which was not above board---Court-auctioneer was held to be bound to return the entire fee which he had received, within a period of one month---Glaring act of omission and commission on part of Presiding Officer of Trial Court as had been highlighted in the judgment, copy of the judgment was desired to be placed before the Chief Justice for appropriate action.

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

----O. XXI, R. 90, proviso---Logic and wisdom behind the proviso to O.XXI, R.90, C.P.C.--Auction sale of property---Order for the deposit of 20% should not have preceded, rather succeeded the objection---Tenor of the order of the court showed that court virtually before examining the objections had shunned and stultified the appellant's remedy of filing objections and such order could aptly be termed as placing a horse before the cart which was absolutely impermissible and against the spirit of law---Object of deposit etc. was to check the bona fides of the claims and to preclude that frivolous pleas should not impede the process of execution and also the confirmation of the sale in-favour of the auction purchaser, who had bought the property from the court, which embodied an element of sanctity and guarantee---In the present case, on account of the sale proceed, the appellants had much more to their share as against 20% (maximum), which amount could always be appropriated and taken to be akin to the deposit---Principles.

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

----O. XXI, R. 89---Auction sale of property in partition suit---Objection---Auction purchaser had withdrawn the money and did not seem to be much interested to have property back except a submission that his interest should be protected under O.XXI, R.89, C.P.C. by granting him 5%---Provision of O.XXI, R.89, C.P.C. had no application in such a case, besides contention of the auction-purchaser that 75% share-holders had not objected to the auction sale and the price, therefore, the claim of the appellants should be discarded, was repelled, if the inaction on part of the others had any reflection upon the appellants, and when a clear case about the material irregularity and fraud in the conduct of sale, was floating on the surface of record---Present case was not a case of simply about the inadequacy of the consideration, rather was a matter wherein the law had been flouted in a glaring and unparalled manner, which could not be overlooked by the High Court and allow the subordinate judiciary to decide the rights of the parties in breach of law and on the basis of their whims and caprices and in an arbitrary way, as justice and arbitrariness were sworn enemies and could not co-exist.

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

----O. XXI, R. 66---Partition Act (IV of 1893), Preamble---Auction sale of property in a partition suit---Procedure---Sales in partition suit are to be conducted according to the provisions of O. XXI, R.66, C.P.C.---No different procedure was provided for sale of the joint properties in partition decrees---No other mode was resorted to by the court in the present case, therefore, the objection of the court-auctioneer that the sale in such litigation was governed and regulated by the Partition Act, 1893, was overruled by High Court.

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

----O. XXI, Rr.84 & 71---Auction sale of property---Contention of the court auctioneer was that the payment of 1/4th amount on the date of auction could be received by him through cheque---Validity---Order XXI, R.84, C.P.C. was a mandatory provision providing that 1/4th should be deposited with the court-auctioneer in cash and payment through cheque could not be conceived, however, because of changed circumstances, it being a real risk and peril to carry huge money, payment through cheques could be read into the provision as that shall not militate the spirit of O.XXI, R.84, C.P.C.---Successful bidder along with the cheque should also establish by providing the latest bank statement to the court-auctioneer that he had the requisite funds in the account from where the cheque was issued and if it was otherwise, the Court-auctioneer in the light of the command of law should re-sell the property forthwith, otherwise the law for the resale shall be infringed; besides the consequences of O.XXI, R.74, C.PC. shall go waste and frustrated.

Syed Najam-ul-Hassan Kazmi for Appellants.

S.M. Nasim, Ahmad Awais, Muhammad Ghani, Nusrat Javed Bajwa, Sh. Muhammad Ismail, Sh. Sajid Mahmood, M. Sohail Dar, Umer Khan and Jamil Ahmad Khan, Advocates for Respondents.

Fakhar-uz-Zaman Tarrar, Advocate/Court-auctioneer.

Date of hearing: 18th May, 2009.

P L D 2009 Lahore 572

Before Mian Saqib Nisar, J

MUHAMMAD FAROOQ WARIND---Petitioner

Versus

PAKISTAN BAR COUNCIL through Vice-Chairman and 5 others---Respondents

Writ Petitions Nos,.5757 and 1679 of 2009, decided on 12th May, 2009.

(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

---Rr. 108-O & 175---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petition was directed against the order passed by Pakistan Bar Council whereby the petitioner had been declared ineligible to contest election for the Secretary-ship of the District Bar Association on the ground that he was a full time employee of an Organization in BS-18 and thus, his election as. the returned candidate had been annulled---Validity---Held, record showed that engagement of the petitioner was not the "legal advisership" for which he was drawing retainership alone, rather his service was of a full fledged nature, because the salary was payable to him; he was entitled to certain allowances; he was bound by the duty roster; his duty hours were fixed; he had casual and earned leave, medical allowance/facilities; T.A./D.A. as admissible to BS under the relevant rules---If all this was considered to be within the purview of "legal advisorship", it shall be farcical and a fraud thereto---Such arrangement rather corresponded to the performance of certain duties in connection with the internal legal work of the organization and may be equated as an "in-house law officer", but it could not be held that the petitioner had not joined the service of the organization---Petitioner, according to Rule 108-O read with R.175 of Pakistan Legal Practitioners and Bar Councils Rules, 1976, was obliged to apply for the suspension of the certificate but having not done so, irrespective of any liability under second proviso to R.108-O, his certificate of enrollment as an Advocate shall be deemed to have been suspended automatically disentitling him to practice in the courts, notwithstanding that two certificates had been issued to the petitioner by the organization that his non-practising allowance was not deducted or that he had the permission to practice, as the permission by an organization to practice would not be relevant for overriding the provision of law, which provided otherwise---Petitioner, in circumstances, was in service as contemplated by Rule 108-O read with Rule 175, Pakistan Legal Practitioners and Bar Councils Rules, 1976 and therefore, was not eligible voter or eligible candidate on the relevant date, thus, his election was void---Principles.

Muhammad Muazzam Butt, Advocate v. Qazi Muhammad, Anwar, Advocate and 4 others 1998 CLC 1810; Mian Tariq Ahmad v. The Executive Committee, Punjab Bar Council through Chairman and 8 others PLD 1999 Lah. 527; Chaudhry Riayasat Ali v. Returning Officer/Advocate-General Punjab and 2 others PLD 2001 Lah. 365; Riaz Hanif Rahi and others v. Registrar, Lahore High Court, Lahore and others PLD 2008 SC 587; Sanaullah Qureshi, Advocate, v. Pakistan Bar Council through Secretary and another PLD 1998 Kar. 245; PLJ 2001 Tr.C.(E.C) 461; Nawab Raunaq Ali and others. v. Chief Settlement Commissioner and others PLD 1973 SC 236; Rehmatullah and others v. Mst. Hameeda Begum and others PLD 1986 SCMR 1561; The Chief settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Overseas Pakistanis Foundation and others. v. SQN. LDR (RTD) Syed Mukhtar Ali Shah and another 2007 SCMR 569; Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28; Dr. Mrs. Zahida Mir. v. The Punjab Public Service Commission, Lahore through Secretary and 2 others) 1992 PLC (C.S) 1010; Dewasn Ali and 7 others. v. Barkat Ali and 10 others PLD 1976 Lah. 147; Black Law Dictionary, 6th Edn. P.1368 and Corpus Juris Secuindum (1952) Edn. Vo LXXIX ref.

(b) Punjab Rules of Business of Association Memorandum of Association Rules, 1981---

----R. 66---Bar Council (First Elections) Rules, 1973, R.66---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner, in the present case, claimed that, she was runner up in the election and the Pakistan Bar Council should have granted her the relief in view of R.66, Bar Council (First Elections) Rules, 1973---Validity---Held, R.66, Bar Council (First Elections) Rules, 1973 was not applicable to the election of the Bar Associations and no other law had been shown on account of which the relief could be granted to the petitioner particularly in the light of R.46, Punjab Rules of Business of Association Memorandum of Association, Rules, 1981---Principles---Constitutional petition having no merit was dismissed.

Shehram Sarwar Chaudhry for Petitioner.

Mushtaq Ahmad Mohal and Muhammad Shafiq Piya for Respondent No.6.

P L D 2009 Lahore 585

Before Hafiz Tariq Nasim, J

SADDDAR DIN---Petitioner

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE (INVESTIGATION), CAPITAL CITY POLICE, LAHORE and 6 others---Respondents

Writ Petition No.4542 of 2009, heard on 3rd April, 2009.

(a) Administration of justice---

----Each and every case is to be decided on its own merits.

(b) Administration of justice---

----If the law requires to do a thing in a particular manner, it must be done in that manner only and not otherwise.

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

----Ss. 156 & 173---Reinvestigation and submission of subsequent challan in the Court---Extent and scope---Investigation can be conducted even after the submission of the challan in the Court.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

(d) Constitution of Pakistan (1973)---

----Art. 189---Binding effect of decisions of Supreme Court---Judgment of a Larger Bench of Supreme Court would be preferred over the judgment of a Smaller Bench of Supreme Court.

Azmat Ullah through L.Rs. v. Hamidan Bibi and others 2005 SCMR 1201 ref.

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

----Ss. 156 & 173---Police Order (22 of 2002), Art.4---Duties of Investigating Officer---Nature, extent and scope---Investigating Officer of a criminal case is not to render any opinion regarding guilt or innocence of an accused person and under the relevant statutory provisions contained in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules, 1934, he is only to collect all the relevant evidence and to submit his report and the collected evidence and material before the concerned Magistrate, so that he or the Trial Court can then form their own independent opinion regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of he offence and of the case or not, to summon any person to face a trial or not and to frame a charge against a person or not--Opinion of police officer regarding guilt or innocence of an accused person is inadmissible in evidence being irrelevant.

Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 ref.

(f) Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 18989), Ss. 156 & 173---Police Order (22 of 2002), Art. 18(6)---Penal Code (XLV of 1860), S.376---Constitutional petition---After completion of investigation and submission of challan before trial Court DIG had transferred the investigation and entrusted the same to DSP, vide the impugned order---Under Art.18(6) of the Police Order, 2002; the duly constituted Board was lawfully empowered to recommend for reinvestigation and if the said Board would recommend for re-investigation of the case, then even after the submission of the challan the reinvestigation could not be debarred---Jurisdiction of High Court under Art.199 of the Constitution, therefore, was not attracted in the case for setting aside the impugned order of reinvestigation---However, it was observed by High Court that trial Court would decide the case on the basis of evidence and would not be bound to agree to the opinion of any police officer---Constitutional petition was dismissed in circumstances.

Aziz Ahmad v. Provincial Police Officer (I.-G.P.), Punjab Lahore and 6 others PLD 2005 Lah. 185; Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 and Azmat Ullah through L.Rs.' v. Hamidan Bibi and others 2005 SCMR 1201 ref.

Syed Zain-ul-Abidein Bokahri for Petitioner.

Muhammad Hanif Khatana, A.G. with Ijaz D.S.P. For Respondents Nos. 1 to 6.

Aftab Ahmad Bajwa for Respondent No.7.

Date of hearing: 3rd April, 2009.

P L D 2009 Lahore 590

Before Muhammad Khalid Alvi, J

SHAUKAT RASOOL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1829-B of 2008, decided on 16th February, 2009.

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

----S. 91---Power to take bond for appearance--Scope---Section 91, Cr.P.C. empowers a Court to require "any person" to execute a bond with or without surety for his appearance in such Court---Such person may or may not be an accused in the inquiry or trial before such Court, he is merely being bound down by such bond to appear before the Court as and when required.

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

----Ss. 204, 497 & 91--Distinguishing features---Person accused of a non-bailable offence summoned by the Court under S.204, Cr.P.C. is not only required to execute bond under S.91, Cr.P.C. for his appearance, but it is also required that either he be taken into custody by the Court, or if he is to be released on bail then before such release a notice to prosecution is to be issued and the grant or refusal of bail is then to be examined on its own merits---Person accused of a non-bailable offence should either be in the custody of the Court or in the custody or a surety in terms of S.496 or S.497, Cr.P.C.---Execution of bond under S.91, Cr.P.C. does not qualify, the said test.

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

----Ss. 497, 91 & 176---Penal Code (XLV of 1860), Ss.302/109/148/149---Bail, refusal of---Furnishing of bond by the accused under S.91, Cr.P.C. was not sufficient for their release on bail, because conditions necessary to be examined for admitting a person accused of non-bailable offence to bail, were not considered while requiring him to execute a bond under S.91; Cr.P.C.---Investigating agencies had expressed divergent views about the involvement of accused in the offence---Magistrate under S.176, Cr.P.C. could only ascertain the cause of death of the deceased and not the actual culprits---Accused were named in the F.I.R. with a specific role, which had been witnessed by the mother of the deceased herself besides other witnesses---Offence allegedly committed by accused was of a heinous and brutal nature---Bail was declined to accused in circumstances.

Maqbool Ahmad v. The State and another 1997 PCr.LJ 1074; Muhammad Ejaz v. Nadeem and 3 others PLD 2006 Lah. 227 and Zahid Yousaf v. The State and another PLD 2008 Lah. 384 ref.

Ch. Aftab Pervez, Badar Raza Gilani and Zafar Ahmad Lund for Petitioners.

Ch. Zulfiqar Ali Sidhu, Addl. Prosecutor General, Sardar Mehboob for the Complainant.

Khalil Ahmad, A.S.I. with record.

P L D 2009 Lahore 595

Before Kazim Ali Malik, J

ALLAH JAWAYA---Petitioner

Versus

JUDICIAL MAGISTRATE, POLICE STATION ISLAMPURA, LAHORE and 3 others---Respondents

Writ Petition No.5894 of 2009, decided on 3rd April, 2009.

Penal Code (XLV of 1860)---

----S. 384---Punishment for extortion---Essentials---Essence of the offence of extortion is actual delivery of possession of property, movable or immovable, by the person under threat.

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

----Ss. 383 & 506---Criminal Procedure Code (V of 1898), Ss.169, 173 & 22-A(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Magistrate agreeing with the police request had cancelled the case got registered by the complainant petitioner---Validity---Police had registered the case under Ss.384 & 506, P.P.C.---Neither the offence of extortion nor that of criminal intimidation was made out against the accused, even if the complainant's version set up in the F.I.R. was believed in toto---Self-assertion of the complainant could not be the substitute of evidence---Occurrence had allegedly taken place in the office of the accused factory owner on 7-1-2006 and the F.I.R. was drawn up on 18-11-2007---Complainant had completely failed to prove his allegations during investigation---Dispute between the parties undoubtedly was about wages---Said dispute between the complainant and the factory owner should have been laid for adjudication before the labour Court, but complainant under some wrong advice appeared to have invoked criminal law for its resolution---Ex-officio Justice of Peace had also disposed of successive applications of the complainant casually without looking into their contents, otherwise the only appropriate order for him to pass was to direct the complainant to lay his grievances before the Labour Court---Mechanical approach of Ex-officio Justice of Peace towards the point in issue had contributed towards initiation of frivolous litigation between a labourer and the factory owner before wrong forum---Investigating Officer, thus, had rightly recommended cancellation of the case and the order of the Magistrate agreeing with the result of investigation was not open to any factual or legal exception---Constitutional petition was dismissed in limine accordingly.

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

----S. 22-A(6)---Appropriate direction---Ex-officio Justice of Peace under S.22-A(6), Cr.P.C. is required to issue appropriate direction to the police---Phrase "appropriate direction" has not been defined in the Criminal Procedure Code. 1898, however, the logical interpretation and meanings could be to take suitable action in the light of given circumstances.

Asif Mahmod Khan for Petitioner.

Hashim Sabir Raja, A.A.-G. for Respondents with Kamran, S.H.O. and Allah Rakha, S.I.

P L D 2009 Lahore 601

Before Umar Ata Bandial, J

RUKSHANA MANZOOR---Petitioner

Versus

EXCISE AND TAXATION DEPARTMENT and others---Respondents

Writ Petition No.11880 of 2008, decided on 24th February, 2009.

Stamp Act (II of 1899)---

----S. 27-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Surrender deed valuation for purpose of stamp duty---Executants of the surrender deed, in the present case, where adults having capacity to make contract, therefore, there was no possibility of subsequent renunciation of , transaction---Provisions of S.27-A, Stamp Act, 1899 did not apply to a transfer by surrender deed---Executants of a surrender deed, therefore, were at liberty to choose the valuation of property forming the subject-matter of the deed---Objection taken by the Excise department to the effect that deed of surrender was not valued Properly and on that ground refused to make the transfer entry was not supported by law and was, therefore, declared to be illegal, without lawful authority and of no legal effect---Excise Department was directed by High Court to act strictly in accordance with law for recording the transfer of title of the subject-matter property to the name of petitioner.

Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609 ref.

Zaheer-ud-Din Babar for Petitioner.

Syed Nayyar Abbas Rizvi, A.A.-G.

Malik Zafar, ETO and Malik Muhammad Aslam, AETO.

P L D 2009 Lahore 603

Before Maulvi Anwarul Haq, J

Haji MUHAMMAD SALEEM---Appellant

Versus

MUHAMMAD SHAFIQ---Respondent

Regular Second Appeal No.86 of 2004, heard on 27th February, 2009.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption, right of---Talbs---Time, place and date had been mentioned in the plaint---Sale, in the present case, having admittedly taken place on 12-10-2000 and notice having been proved to be issued on 14-10-2000, question/dispute as to whether second Talb had been made within the statutory period or not would not, arise at all.

Talib Haider Rizvi for Appellant.

Zahid Hussain Khan for Respondent.

Date of hearing: 27th February, 2009.

P L D 2009 Lahore 606

Before Umar Ata Bandial, J

MUHAMMAD SAFDAR BUTT---Petitioner

Versus

ELECTION TRIBUNAL and others---Respondents

Writ Petition No.12542 of 2006, decided on 16th December, 2008.

Punjab Local Government Ordinance (XIII of 2001)---

----S. 15(1)(m)---Punjab Local Government Elections Rules, 2003, R.68---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Election Tribunal in an ex parte judgment, disqualified the petitioner, a returned candidate in the Local Government Election held in 2005 to the office of General Councillor, on the ground of his failure to have filed a return of election expenses incurred in the Local Government Election contested by him in the year 2001, under R.68, Punjab Local Government Elections Rules, 2003---Held, petitioner had lost that Election of 2001, therefore, he was not under obligation to file a statement of expenses for that election and thus did not incur the disqualification under S.152(1)(m) of the Punjab Local Government Ordinance, 2001---Principles.

Muhammad Abbas Gujar v. District Returning Officer/District Judge, Sheikhupura and 2 others 2004 CLC 1559 ref.

Ch. Akbar Ali Shad for Petitioner.

Muhammad Zaman Khan Vardag and Muhammad Nouman Shams Qazi for Respondent No.2.

P L D 2009 Lahore 608

Before Mian Saqib Nisar and Ali Akbar Qureshi, JJ

MUHAMMAD ARSHAD MEHMOOD---Appellant

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF INDUSTRIES, LAHORE through Inspector of Explosive and 4 others---Respondents

I.-C.A. No.79 arising from W.P. No.2146 of 2009, decided on 4th June, 2009.

Petroleum Act (XXX of 1934)---

----Ss. 2(a), 3 & 4---Petroleum Rules, 1937, Rr. 90, 115---S.R.O.1(KE)2007, dated 22-12-2006---Punjab Local Government Ordinance (XIH of 2001), Preamble---Object, purpose and scheme of Petroleum Act, 1934 and Petroleum Rules, 1937---Establishment of Petrol Pump/CNG---Competent Authority to approve---Any site plan for the purpose of establishment of a petrol pump and particularly for the CNG' including its design and construction for the installation, etc., shall be exclusively approved by the authority contemplated by Petroleum Act, 1934 and Rules thereunder---Because of the sensitivity and danger involved in the handling of the petroleum, an expert and specialized knowledge of its storage and design etc., is undoubtedly conceived and required under the law, it is therefore, a special department which is conferred with the power for .the approval of plan and design---Building plan of a petrol pump/CNG is within the exclusive domain of the Chief Inspector or the Inspector of Explosives Department under the Petroleum Act, 1934 and Rules thereunder and for the approval of the building premises of the petrol pump and CNG station, general law enunciated by the Punjab Local Government Ordinance, 2001 or any rules framed or regulations thereunder, shall be absolutely inapplicable---Principles.

Dr. Abdul Basit for Appellant.

Naveed Inayat Malik, Deputy Attorney-General along with Abdul Ali Khan Inspector of Explosives, Lahore.

Kh. Muhammad Afzal, Advocate for City District Government/Respondent No.4.

Iftikhar Ahmad Mian for Respondent No.5.

P L D 2009 Lahore 615

Before Umar Ata Bandial, J

BAGGA SHER---Petitioner

Versus

MUHAMMAD HANIF---Respondent

Civil Revision No.1350 of 2002, heard on 14th October, 2008.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption. suit---Relevant event to precipitate a 'Talb-e-Muwathibat is the knowledge of the pre-emptor about the fact of sale through any source---In the present case, the oral evidence indicates that the vendor offered the property under sale to the pre-emptor before finalizing the same---Effect---Mere oral assertion of the vendor in such behalf is not sufficient to saddle the pre-emptor with knowledge of sale transaction for which corroborative evidence is required to dislodge a claimant of his statutory right.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---General Clauses Act (X of 1897), S.27---Civil Procedure Code (V of 1908), O.VI, R.15---Pre-emption suit---Talb-e-Ishhad---All three vendees received the notices either personally or through male members of their families---Irrespective of the presumption available to the pre-emptor under S.27, General Clauses Act, 1897 there was cogent evidence on record through the statement of the postman, an independent witness, that each vendee was duly served in accordance with the requirements of Civil Procedure Code, 1908---Held, three vendees having been duly served with notices of Talb-e-Ishhad, there did not remain any strength in the objection to the valid expression of the statutory Talbs by the pre-emptor.

Sh. Naveed Shahryar for Petitioner.

Malik Noor Muhammad Awan for Respondent.

P L D 2009 Lahore 619

Before Maulvi Anwarul Haq, J

ASIAN MUTUAL INSURANCE COMPANY (GUARANTEE) LTD. through Chief

Executive and 2 others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary Excise and Taxation, Government of Punjab and 4 others---Respondents

Writ Petition No.15709 of 2004, heard on 15th June, 2009.

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 28 & 34---Refusal/suspension of registration---Application and scope of Ss.28 & 34, Motor Vehicles Ordinance, 1965---Section 28, Motor Vehicles Ordinance, 1965 empowers the Registering Authority to refuse to register any motor vehicle on the grounds narrated therein---Non-presentation of insurance certificate as contemplated in S.28, Motor Vehicles Ordinance, 1965 is not one of the grounds for refusal of registration, however, S.34 of the Ordinance authorises the Registering Authority to suspend the registration certificate of a motor vehicle if the motor vehicle is not insured as required by law---Section 34 takes effect at a point of time after the registration of the vehicle---High Court desired that Provincial Government in Transport Department as also Excise and Taxation Department to take steps to frame Rules for policy on insurance which would not be inconsistent with the provisions of S.28 of the Ordinance so that the entire Chapter III of the Ordinance shall stand harmonized.

Kh. Saeed-uz-Zafar for Petitioners.

Ch. Muhammad Sadiq, Addl. A.-G. and Sadaqat Ali Shah, AETO (Legal Cell) for Respondents.

Date of hearing: 15th June, 2009.

P L D 2009 Lahore 622

Before Khawaja Muhammad Sharif C J

Havaldar (Retd.) CHIRAGH DIN BABAR---Petitioner

Versus

MUHAMMAD ASLAM and 3 others---Respondents

Writ Petition No.37388 of 2009, decided on 1st June, 2009.

High Courts Establishment Order [P.O.8 of 1970]---

----Art. 3(3-A), (3-B) & (3-C) [as substituted by S.3 of High Courts (Establishment) Order (Punjab Amendment) Ordinance (I of 1981)]---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Contention of the petitioner's counsel was that since order impugned before the High Court was passed by the Provincial Board of Revenue (Lahore) which is working very much within the territorial jurisdiction of the Principal Seat of Lahore High Court and under Art.199(1)(a)(ii) of the Constitution Principal Seat of High Court was competent to entertain the constitutional petition---Validity---Held, petitioner was resident of the place within territorial jurisdiction of Circuit Bench; land in dispute was located in the said area; original mutation was sanctioned at the same place and appellate jurisdiction of the revenue hierarchy was also within the domain of the Circuit Bench---Proper place, in circumstances, was the relevant Circuit Bench and not the Principal Seat of High Court---Purpose of establishment of the Benches would become useless if the contention of the petitioner's counsel was accepted---Chief Justice with the above observations, upheld the objection raised by the High Court office.

1996 CLC 47 ref.

Khawaja Saeed uz Zafar for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. for Respondent.

P L D 2009 Lahore 625

Before Kazim Ali Malik and Saifur Rehman, JJ

ADAMJEE INSURANCE COMPANY LTD. KARACHI through Sarfraz Ali---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.282 of 2009, heard on 24th June, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 517---Penal Code (XLV of 1860), S.381-A---Control of Narcotic Substances Act (XXV of 1997), Ss.22; 32, 33 & 74, Proviso---Temporary custody of vehicle---Car in question which allegedly was used in transportation of narcotics was stolen away by unknown thief---Said car before incident of theft was insured with appellant/Insurance Company---Trial Court dismissed the request for temporary custody of car by Insurance Company on two grounds; firstly that the company could dispose of the car after obtaining it on superdari and secondly the request of the company was barred by proviso to S.74 of Control of Narcotic Substances Act, 1997---Validity---Under proviso to S.74 of Control of Narcotic Substances Act, 1997, vehicle used in transportation of narcotic drugs would not be given on custody to; (i) accused; (ii) an associate of accused; (iii) a relative of accused; and (iv) any private individual--Said provision of law did not stand in the way of the Insurance Company to make a request for custody of car because the company could not he termed or considered as an accused, or associate of accused, or a relative of accused or even a private individual---Contention of law officer that Insurance Company was a legal person was misconceived because legal person could not be equated with private individual--Insurance Company had paid the claim of registered owner thereof because of its theft---Registered owner of the car or 'the Insurance Company had no concern with the crime committed by the drug-pusher who was caught red handed while transporting charas in the stolen car---By disallowing superdari of the car to the Insurance Company, the Trial Court had forced the company to stand in the dock along with the culprit without any fault on its part---Only object to discourage superdari of vehicle used in carrying narcotics, was to enable the Trial Court to confiscate such vehicles in terms of S.33 read with S.32 of Control of Narcotic Substances, Act, 1997---While deciding the request of appellant Insurance Company of the car in question, proviso to S.32 of the Control of Narcotic Substances Act, 1997 escaped notice of the Trial Court which had clearly laid down that no such vehicle would be liable to confiscation unless it was proved that owner thereof knew that the offence was likely to be committed through said vehicle---Such being not the position in the present case, impugned order of the Trial Court was set aside and the Trial Court was directed to hand over the vehicle to the appellant Insurance Company on superdari.

Rai Sarfraz Ali Khan for Appellant.

Imran Nasir Waraich, D.P.G. for the State.

Date of hearing: 24th June, 2009.

P L D 2009 Lahore 629

Before Ch. Mahmood Akhtar Khan, J

Malik TARIQ MEHMOOD---Petitioner

Versus

Messrs ASKARI LEASING LTD.---Respondent

Writ Petition No.777 of 2007, heard on 5th June, 2009.

Penal Code (XLV of 1860)---

----S.489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 20, 7 & 2(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Object and reasons for enacting Financial Institutions (Recovery of Finances) Ordinance, 2001 and Penal Code, 1860, were different---Cheques issued by customer to Leasing Company in connection with lease of vehicle were dishonoured---Leasing Company got registered F.I.R. against the customer---Validity---Lessee of the vehicle was a "customer" within the meaning of S.2(c) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and case of the lessee clearly fell within the ambit of provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001---Section 7, Financial Institutions (Recovery of Finances) Ordinance, 2001 had conferred criminal jurisdiction to the Banking Court, to try offences, punishable under the Ordinance---Whenever an offence was committed under S.20(4) of the Ordinance, Banking Court would take cognizance upon a complaint filed by the authorised person and complaint would be tried by concerned Banking Court, appeal against which was provided before High Court---F.I.R. against the customer under S.489-F, P.P.C. or allowing the same to exist was only wastage of time and abuse of process of law---High Court allowed the constitutional petition of the customer and directed the police not to take law in its own hands in cases covered within the ambit of Financial Institutions (Recovery of Finances) Ordinance, 2001---Principles.

Qausain Faisal Mufti for Petitioner.

Rahil Sikander Khawaja for Respondent.

Muhammad Abid Raja, A.A.-G. with Hasan Askri, S.-I with Record.

Date of hearing: 5th June, 2009.

P L D 2009 Lahore 632

Before Syed Shabbar Raza Rizvi and Habib Ullah Shakir, JJ

MUBARAK ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2009 in Criminal Appeal No.202-J of 2008, decided on 11th May, 2009.

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

----Ss. 426 & 497---Bail---Distinguishing features of Ss.426 & 497, Cr.P.C.---Section 426(1), Cr:P.C. is not divided into categories or classes as S.497(1), Cr.P.C.---There is no. concept of offences falling in prohibitory clause in S.426, Cr.P.C. as provided in S.497, Cr.P.C.---Court while considering a bail application under S.497, Cr.P.C. is conscious of presumption of innocence in favour of accused, whereas no such presumption exists in favour of a convict having been found guilty by a competent Court---Under S.497(1), Cr.P.C. bail is generally granted as a rule in cases not falling within the prohibitory clause and refusal is an exception, whereas no such demarcation is made in S.426(1), Cr.P.C.---Court in both sections has discretion, but language of the same shows that discretion under section 497(1), Cr.P.C. is more liberal and lenient than under S.426(1), Cr.P.C.---Leniency becomes more stringent in cases where a convict seeks suspension of his sentence in narcotic cases in view of effect of Ss.51 & 47 of the Control of Narcotic Substances Act, 1997, on S.497, Cr.P.C. read with S.426, Cr.P.C.

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

---Ss. 426, 496 & 497---Bail---Powers under S.426, Cr.P.C. are not controlled by the provisions of Ss.496 & 497, Cr.P.C.

1969 SCMR 151 ref.

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

----S. 426---Suspension of sentence---Practice and procedure---Scope---Appellate Court while deciding petition for suspension of sentence would not undertake reappraisal of entire evidence but would confine its consideration to the infirmities in the judgment of trial Court with reference to the grounds urged in the memo. of appeal, which would show that conviction was not sustainable in law, and on reaching such conclusion Appellate Court can suspend sentence---While suspending sentence Appellate Court can also consider the fact that the sentence awarded was short and the appeal was not likely to be disposed of soon.

1986 PCr.LJ 64 and PLD 1982 BJ 28 ref.

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

----S. 426---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Suspension of sentence, refusal of---Appeal of accused was filed in year 2008---Sentence awarded to accused was imprisonment for life---Accused was arrested red-handed with huge quantity of narcotics---Petition for suspension of sentence of accused was dismissed in circumstances.

1970 SCMR 540; 1969 SCMR 151; 1984 PCr.LJ 1503; 1986 PCr.LJ 64; 1983 PCr.LJ 22; 1981 SCMR 859; 1986 PCr.LJ 64; PLD 1982 BJ 28; 1970 PCr.LJ 1139; 1970 SCMR 5407; 1984 PCr.LJ 1122; 1983 PCr.LJ 184; 1969 SCMR 312; 2008 YLR 1255 and 2008 SCMR 660 ref.

Hafiz Anwar-ul-Haq for Petitioner.

P L D 2009 Lahore 638

Before Khawaja Muhammad Sharif, C J

MUHAMMAD FAHEEM FAZLI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3546-B of 2009, decided on 6th May, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(1)---Penal Code (XLV of 1860), Ss.399 & 491---Bail, refusal of---Accused was named in the F.I.R., there was no reason on the part of complainant to falsely implicate him, when he was taken into custody he led to the recovery of mobile phone belonging to the complainant and Rs.1,000 and there was also a recovery memo. on record regarding pistol along with five bullets, then he led to the recovery of motorcycle---Present was not a first case in which petitioner had been named as an accused but there were four other cases of similar nature against him---Such type of accused person could not be let loose in the society to repeat the offence---Offence alleged against the petitioner fell within the ambit of S.497(1), Cr.P.C.---No ground for bail having been made out, bail was declined to the accused---High Court had called for the record of the Trial Court and had noticed that accused was not produced before the Trial Court on a number of dates fixed for hearing by the Jail Authorities and challan was also presented after a considerable delay---High Court, in circumstances, reminded that Chief Justice of Pakistan, on his visit to the said jail, had observed that Jail Authorities and Home Secretary of the Province should make it sure that all the accused persons, who were confined in jail and facing trial, should be produced regularly before the Trial Court---Direction was also given to Inspector-General of Police that he should make it sure that challan of all the accused should be submitted in the Trial Court within two weeks as required under the law---High Court directed that copy of the present order be communicated to Home Secretary of the Province to get the needful done and also to follow the instructions given by the Chief Justice of Pakistan.

Ch. Muhammad Jawad Zafar, Advocate.

Rana Bakhtiar Ahmed, DPG for the State with Sadiq S.-I. and Muhammad Naeem, Ahlmad.

P L D 2009 Lahore 641

Before Mian Saqib Nisar and Hafiz Tariq Nasim, JJ

Dr. ZIA-UR-REHMAN KHAN and another---Appellants

Versus

Dr. ATIQ-UR-RAHMAN KHAN---Respondent

R.F.A. No. 469 of 2006, decided on 22nd June, 2009.

(a) Pleadings---

----No one can substantiate and prove a case beyond the scope of his pleadings and even if any evidence has been brought on the record outside the purview thereof, it shall be ignored and overlooked by the Court.

(b) Suit---

----Purport, determination of---Considerations---Held, for the purpose of ascertaining the nature of suit, it is not the title or the caption thereto, which must be restrictively seen, rather the whole of the plaint must be looked into and the substance, rather than the form should be examined.

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

----O. XX, R.18---Partition suit---Relief of partition is specifically asked for in the prayer clause of the suit and in a partition lis if an issue is joined by the defendant about, the joint ownership of the suit properties, it shall be for the court to resolve that---If the suit properties are common thus, partitionable or otherwise; for this purpose the nature of the transaction can be looked into by the court.

(d) Benami---

---Meaning---Term "Benami" is loosely and ordinarily used for such a transaction in which the property does not belong to the one in whose name it ostensibly stands but to another who is the true and the actual owner thereof.

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

---O. XX, Rr. 13 & 18---Decree in administration suit---Scope---Order XX, R.13, C.P.C. empowers the court when passing a preliminary decree, to order such accounts and "inquiries to be taken and made and to give such other directions as it thinks fit"---Court would be at liberty to pass a decree in accordance with the circumstances of each case---For ascertaining the objects of an administration suit, it would be incorrect to rely too much on O.XX, R.13, C.P.C. or the Forms of plaints and Decrees prescribed in the First Schedule of C.P.C.---Apart from the plaintiffs' right to seek his remedy in any form permitted by law, if the choice is between a partition suit and an administration suit,, the latter should be preferred.

Mahbub Alam v. Fazia Begum and others PLD 1949 Kar. 263 quoted.

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

----O. XX, R. 13---Administration suit---Object---Object of administration suit is the distribution of assets between more than one person and if the defendants to a suit be only transferers and the plaintiff is the person solely entitled there can be no administration suit by such a plaintiff against such defendants---While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right, and adversely to the deceased, there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is negatived---Question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit.

Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291 quoted.

(g) Islamic law---

----Gift---Conditions sine qua non for the validity of the gift were in whose presence and how the declaration of the gift was made by the donor, which was accepted by the donee and the possession of the property was delivered to the donee on the basis of gift.

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

----O. XX, Rr. 13 & 18---Administration suit---Suit for partition---No proof of any gift ever having been made by the deceased father in favour of the respondent (son); essentials of gift were conspicuously missing in the transactions as well; only for the reason that bald claim of the gift had been made by the respondent in defence without proving or substantiating the transactions to be of that nature, shall not take the case out of the scope and realm of the "administration suit" or the "suit for partition", which could be said to be a suit of composite nature, therefore, in the circumstances, it was not necessary for the appellants to have first asked for the relief of declaration to challenge the ostensible ownership of the respondent qua the properties in question---Appellants had brought a family settlement envisaging in unequivocal and in unambiguous terms the acknowledgment by the parties as to what were the properties, which formed part of estate left by the deceased father; respondent himself had brought on record same document in original---,Plea of respondent that the said document was got executed from him on account of any coercion was absolutely not spelt out from any independent evidence produced by him, rather there was a vital and visible contradiction and shifting of the stance set out in the written statement and his deposition---Such was a complete departure from the pleadings of the respondent---Respondent was a highly educated person, thus, when he had admitted the, execution of the settlement, he could not take up the plea that he was not aware of the contents of the document, besides the story propounded in the statement that the document was got signed the next month after the burial of the father before boarding the plane was beyond the scope and contrary to his pleadings, which had to be ignored by the court---Execution of family settlement was admitted by respondent but he wanted to avoid the effects of the contents ,pf documents on any ground such as lack of free consent etc.---Heavy burden thus, lay on the respondent to prove his version, which burden had not been discharged by him rather from his contradictory stance and also for the reasons that he himself had brought on the record the said document, thus, he shall be bound by the acknowledgment and the admission about the estate of his father given therein---Trial Court had glaringly overlooked such important piece of evidence and had disallowed the suit only for the reasons that the properties in question were ostensibly in the name of respondent---Such approach of Trial court was absolutely against the law because the production of the family settlement in fact had knocked the bottom out of respondent's case about the alleged gift as he had claimed---High Court set aside the judgment and decree of the Trial Court through which the. relief regarding certain properties/assets was refused to the appellants and upheld it to the extent the relief was allowed to them, the preliminary decree for administration and partition vis-a-vis the immovable properties as also for the Bank accounts under the head movable assets, if the accounts were in the name of deceased father, as the same had not been denied in the written statement was also passed in favour of appellants and against the respondent.

(i) Family settlement---

----No right or interest in any property was being created or transferred in the family settlement but was only an acknowledgment and admission of the fact that the properties mentioned therein were the estate of the deceased father of the parties---Such settlement can always be arrived at orally, which can be subsequently acknowledged and translated through a written instrument and in such a situation, it needed no compulsory registration---Assuming that its registration was compulsory, yet the document could always be looked into and used for collateral purposes of finding out and locating the estate of the father, when it cannot be utilized as an instrument of division/partition thereof.

Muhammad Rashid Ahmad for Appellants.

Ch. Inayat Ullah for Respondent.

Date of hearing: 8th May, 2009.

P L D 2009 Lahore 657

Before Mian Saqib Nisar, J

AHMAD KHAN NIAZI---Petitioner

Versus

TOWN MUNICIPAL ADMINISTRATION, LAHORE through Town Municipal Officer and 2 others---Respondents

Writ Petitions Nos.16189, 16113, 17375, 14858, 13495 and 7414 of 2008, heard on 22nd June, 2009.

(a) West Pakistan Municipal Committees (Cattle Market) Rules, 1969---

----Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---Punjab Local Government Ordinance (VI of 1979), Preamble---Punjab Local Government Ordinance (XIII of 2001), Preamble---Contract for collection of fee of the Cattle Markets---On the enforcement of Punjab Local Government Ordinance, 1975 and thereafter, West Pakistan Municipal Committees (Cattle Market) Rules, 1969 remained in force and the collection of the fee of the cattle markets when awarded on the basis of the contract, was always governed by said Rules which had been the consistent perception and practice of the Local Government' Department and also the Municipal Committees entitled to hold/award on contract the cattle markets, which continued to remain in force till the enforcement of Punjab Local Government (Auctioning Collection Rights) Rules, 2003 issued pursuant to the Punjab Local Government Ordinance, 2001---Contention that as the Municipal Committees (constituted under Punjab Local Government Ordinance, 1975) were entitled to hold the cattle shows and fairs through the bylaws to be framed by the Committees, thus the West Pakistan Municipal Committees (Cattle Market) Rules, 1969 should be considered to have been repealed was repelled---West Pakistan Municipal Committees (Cattle Market) Rules, 1969 only laid down the broader parameters of granting the rights of collection of cattle market fee and the bylaws, if any, (though no such bylaws had been brought on the record) would only be relevant for the purpose of prescribing the procedure and in any case, no inconsistency was substantiated in this behalf---Principles.

(b) Interpretation of statutes---

----Rules framed under any statute are its progeny and upon the repeal of the parent law shall automatically extinguished (repealed) until and unless are adopted and/or saved by another law.

(c) Interpretation of statutes---

---Rules under a statute---Rule of consistency---Applicability---Such rule of consistency shall not be restricted to the provision of the statute itself, rather it would extend even to the rules framed thereunder because the rules framed under the specific law had to take precedence over the rules of some previous law.

(d) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---

---Rr. 3, 4, 5, 7 & 8---West Pakistan Municipal Committees (Cattle Market) Rules, 1969, R.6, Proviso---Scope and applicability---Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 are comprehensive, conclusive, vast encompassing and omnibus in nature, which cover the entire field of the collection of the Town Municipal Administration income regarding the items mentioned in Second Schedule Part-III, (Item No.2) to Punjab Local Government Ordinance, 2001---Complete mechanism has been provided for the award of the contracts for such purpose---Only concept and legal permission thus available in Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 about the collection of income of a Local Government on the item mentioned in the Second Schedule to the Punjab Local Government Ordinance, 2001 is through a public auction; after a public notice in the prescribed manner; the award of contract only to a highest bidder and the contract should not exceed the period of one financial year---Such is not prescribed in West Pakistan Municipal Committees (Cattle Market) Rules, 1969 rather alien thereto, therefore, said rules are vitally, fundamentally and manifestly inconsistent to the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, thus, are repealed on account of the enforcement of these Rules by express mandate of law---Irrespective whether the new markets have been established or otherwise in these cases, as the Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 do not permit for the collection of the income of the Local Government in the manner of awarding the contract for the collection of the cattle market fee other than the said Rules and undoubtedly not under proviso to R.6 of West Pakistan Municipal Committees (Cattle Market) Rules, 1969, therefore, no extension in that situation too shall be available.

(e) Interpretation of statutes---

---Repeal by express mandate of the law---Where the old enactment was alien to the new enactment and old enactment was vitally, fundamentally and manifestly inconsistent with the new enactment, to attribute this kind of the repeal governed by the concept/doctrine of "implied repeal" shall be a misnomer, rather shall fall within the domain of the rule of "express repeal", obviously on the criteria of inconsistency; where the inconsistency is vivid and imminent, the repeal shall be deemed to be "express" by all means.

(f) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---

----R. 27-A---West Pakistan Municipal Committees (Cattle Market) Rules, 1969---Extension of contract---Scope---Local Government, under no circumstances, shall have any power to grant the extension of contract---Even on the establishment of new market, the extension cannot be granted either as per the West Pakistan Municipal Committees (Cattle Market) Rules, 1969 or on the basis of R.27-A, Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---Principles.

(g) Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---

----R. 27-A---Extension of contract by Provincial Secretary Local Government---Scope---Local Government itself having no authority under Punjab Local Government (Auctioning of Collection Rights) Rules, 2003 to extend the contract beyond the period of one year, Secretary, Local Government had no power to do the same---Principles.

Aftab Gul, Muhammad Shan Gul, Kh. Saeed-uz-Zafar, Asjad Saeed, Dr. M. Mohy-ud-Din Qazi, Ch. Muhammad Yaqoob Sindhu, Muhammad Shahid Chaudhry and Yaseen Zahid for Petitioners.

Ch. Muhammad Sadiq, Addl. A.-G., Khadim Hussain Bhatti Asad Ullah Siddiqui and Munib Iqbal for Respondents.

Date of hearing: 22nd June, 2009.

P L D 2009 Lahore 677

Before Mian Saqib Nisar, J

SHAWAR KHILJI---Petitioner

Versus

MUNAWAR IQBAL GONDAL and 2 others---Respondents

Writ Petition No.9231 of 2009, decided on 25th May, 2009.

(a) Rules of High Court Bar Association, Lahore---

----Rr. 20 & 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quo warranto, writ of---Maintainability---Office of the President of High Court Bar Association, Lahore, fell vacant on account of elevation of the elected President to the Supreme Court---Petitioner, a member of the Bar Association, seeking the direction in the nature of quo warranto, contented that whenever the President would be absent or the office of the President became vacant, the Vice-President shall act as the President until the President returned or another election took place, therefore, on account of elevation of the elected President of the Association to the Supreme Court, the office had to be filled up by holding fresh elections and the assumption of office by the Vice-President was without lawful authority, and that keeping in view the tenure of office, which was only for one year, such election be directed to be held within a period of 15 days---Counsel for the Vice-President contended that it was the past practice of the Association that whenever the vacancy had occurred qua the office of the President, the Vice-President always took over the Presidentship and it was only once in 150 years' history of the Bar Association when the Vice-President also resigned and fresh elections were held; that such practice was in the nature of a convention, a tradition and a custom of the Bar Association; that the Vice-President and others were lawful holders of the office and such practice/convention etc. shall take precedence over the Rules of High Court Bar Association, Lahore and that constitutional petition was not maintainable---Validity---Held, that under Rules 20 & 21 of the Rules of the High Court Bar Association, Lahore the Vice-President shall only act as the President till such time another election for filling up the office was held and the Vice-President shall not ipso facto become the President for the remaining tenure of office; he. shall only act till the time another election in the same year for filling the vacancy was conducted---When the vacancy, in the present case, had occurred, the election had to be necessarily and impartially held for filling that vacancy---Rules of the High Court Bar Association, Lahore, were meant to be followed, obeyed and were made in order to avoid and eliminate the traditional or customary elements in the performance of an activity--If on account of any mutual understanding of the Bar, in the past, Vice-President had been allowed to act as the President and none had raised any objection or demanded another election, that did not mean that the relevant Rule, which was express and clear on the subject and a part of the Rules of the High Court Bar Association, Lahore stood annulled and extinguished and should not be followed---When the mandate of Rules clearly provided otherwise, any practice, which might have prevailed for any length of time, with the consent of the stakeholders (in the present case the members of the Bar), could not be considered to take precedence over the Rules---Such express or tacit consent was nothing more than allowing something to happen in a given situation, but would not mean that it had matured into a practice/custom which shall override the Rules---Principles---"Convention", "tradition", "usage", "law" and "rule"---Connotations---Office of the President of High Court Bar Association was not a "public office" qua which, a writ for quo warranto, could be maintained and issued.

From Rule 20 of the Rules of High Court Bar Association, Lahore it is vividly simple and obvious that if the President is absent, to perform his functions, the Vice-President shall act as the President till the time the President returns and in case the office of the President becomes vacant for any reason, he again can act as the President but till the, time another election is held. In this regard, the conspicuous and vital expression of Rule 20 "another election takes place as the case may be" is fundamental, foundational and conclusive and leaves no room for any other interpretation except that in the eventuality of the vacancy of the office of the President, the Vice-President shall only act as the President till such time another election for filling up the office is held; by no rule of construction it. can be construed that the Vice-President shall ipso facto become the President for the remaining tenure of office; he shall only act till the time another election in the same year for filling the vacancy is conducted. This interpretation is fortified from the language of Rule 21, which envisages that in case of vacancies occurring regarding other offices such as the Vice-President, Secretary etc., the process of another election shall not be followed and adhered to, rather it is the Managing Committee, which finds mentioned in Rule 18, that shall make the appointments to the vacant offices and the appointee shall continue till the next election. The expression "next election" does not mean "another election" but the election for the subsequent year, whereas another election is the one, which should be in the same year. Therefore, according to the correct and true interpretation of the noted Rules, when the vacancy, as in issue, shall occur, the election shall have to be necessarily and imperatively held for filling it up.?

The convention, tradition, usage, shall only emerge and develop on account of a continuous, common and homogenous practice by a class of persons for a long period regarding a subject before it attains some sanctity, recognition and backing of law; it shall only come in existence and being, if there is no law to govern a particular subject; but if a law is intact and in place to meet a given situation and an eventuality, then there shall be no concept or room for the emergence of a tradition, practice etc. No one can claim a right on the basis of a practice or a custom, if it is against the law; even the principles of equity shall give way and shall be subservient to the specific mandate of the law and cannot be resorted to for granting relief to a party if it shall be in infringement of the law/rules. The above are mutually inconsistent concepts and under the true interpretation of law, a right or duty founded on the law has to prevail, rather what is based on custom etc., which otherwise cannot emerge in violation of the law. In the present case, the rules of the Association have been approved by the Judges of the High Court of Judicature at Lahore vide Letter No.10124-R/XIII-F-2, dated 11th November, 1938. The very purpose of framing the Rules, which provide for most of the eventualities related to, connected and concerned with the functions of the Bar Association, is that the affairs of the Bar should be conducted on the basis of the Rules and not on account of any tradition, custom or the practice. If the tradition etc. are allowed to take precedence over the Rules, which, as mentioned earlier, are (the rules) the actual law for the running/functioning of the Association, the said Rules shall be held nugatory and redundant, which is not permissible under the law. When the mandate of the Rules clearly provides otherwise, any practice, which may have prevailed for any length of time, with the consent of the stakeholders (in this case the members of the Bar), cannot be considered to take precedence over the Rules. Such express or tacit consent is nothing more than allowing something to happen in a given situation, but would not mean that it has matured into a practice "custom" which shall override the Rules. The Rules are meant to be followed, obeyed and are made in order to avoid and eliminate the traditional or customary elements in the performance of an activity. If on account of any mutual understanding of the Bar, in the past, a Vice-President has been allowed to act as the President and none has raised any objection or demanded for another election, it does not mean that the relevant Rule, which is express and clear on the subject and a part of the Rules of the Association, stands annulled and extinguished and should not be followed.?

Black's Law Dictionary (Eighth Edition); The Usages of American Constitution 22 (1925) by Hebert W. Horwill; Restatement (Second) of Contracts 219, cmt. A (1979) and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 ref.

(b) "Usage"---Connotation, emergence .and development---Principles.?

Black's Law Dictionary (Eighth Edition) ref.

(c) "Law"---Connotation, emergence and development---Principles.?

Black's Law Dictionary (Eighth Edition) ref.

(d) "Rule"---Connotation, emergence and development---Principles.?

Black's Law Dictionary (Eighth Edition) ref.

(e) "Custom"---Connotation, emergence and development---Principles.?

Black's Law Dictionary (Eighth Edition) ref.

(f) "Tradition"---Connotation, emergence and development---Principles.? & D?????????? .

Black's Law Dictionary (Eighth Edition) ref.

(g) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Office of the President of High Court Bar Association was not a public office qua which, a writ for quo warranto could be maintained and issued.?

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 ref.

Shawar Khilji, Advocate/Petitioner.

Ahmad Awais, Advocate

Malik Saeed Hassan for Respondents Nos.1 and 2.

Muqtedir Akhtar Shabbir, Advocate/Secretary, Lahore High Court Bar Association.

P L D 2009 Peshawar 1

Before Said Maroof Khan and Syed Musadiq Hussain Gillani, JJ

SIDDIQULLAH---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.794, 799 and M.R.No.30 of 2006, heard on 2nd July, 2008.

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

----Ss. 302/34/109/120-B---Anti-Terrorism Act (XXVII of 1997), Ss.7(a), (d), (g) & 11-F(2)(g)---Criminal Procedure Code (V of 1898), S.164---Appreciation of evidence---Confession---No direct or indirect evidence was available on record against accused persons except the retracted confessional statements of two accused persons, which were recorded during police custody by Illaqa Qazi---Illaqa Qazi did not mention the time of recording the confessional statement of both accused persons---Confessional statements, in circumstances were exculpatory in nature---Confessional statement of one of accused persons was recorded after four days in police custody, while that of the other was recorded after eleven days of police custody---Such delay in recording confession was not explained---Confessions in circumstances were not voluntary---Conviction could be recorded on the basis of confessional statement alone and it could be used against accused, provided it was proved, inspiring confidence and corroborated by the other reliable and cogent evidence---Corroborative evidence was lacking in the case and it was not safe to rely only on the retracted and un-corroborated confessional statements for the conviction of the makers and co-accused---No other incriminating evidence was available against accused persons to connect them with the crime---Prosecution, in circumstances was unable to prove its case against accused persons to the hilt---Accused were not liable to conviction---Convictions and sentences recorded against accused persons by the Trial Court were set aside in circumstances and accused were acquitted and released.

2003 SCMR 1419; PLJ 2006 SC 9(sic); 2007 SCMR 670 and PLD 2007 SC 202 ref.

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

----Art.43---Under Art.43 of Qanun-e-Shahadat, 1984, on the basis of confessional statement alone, conviction can be recorded, and it could be used against to-accused, provided it is proved, inspiring confidence, and corroborated by the other reliable and cogent evidence.

Zahoorul Haq for Appellant.

Fahad Khan for the State.

Date of hearing: 2nd July, 2008.

P L D 2009 Peshawar 10

Before Syed Yahya Zahid Gillani, J

ARSHAD---Appellant

Versus

AKBAR ALI and another---Respondents

Criminal Appeal No.80 of 2006, decided on 16th May, 2008.

Penal Code (XLV of 1860)---

----Ss. 324 & 337-D---Appreciation of evidence---Benefit of doubt---Previous enmity existed between the parties and the complainant being inimical towards accused, his statement could not be taken as- gospel truth and circumstantial corroborative evidence was required to augment his version on all material points---No blood or spent bullets were recovered from the spot---Venue of occurrence was shrouded in doubt and it could not be decided with certainty that occurrence took place at the pointed place---Statement of prosecution witness with regard to time of occurrence was in direct conflict with testimony of complainant---Statement of complainant with regard to venue and time of occurrence was not corroborated by circumstantial and medical evidence---Doubtful circumstances revolving around the incident led to the hypothetical probability that the complainant was fired at by someone who had ambushed in the cluster of bushes---Such hypothetical view was bound to be given importance because the statement of injured complainant was not getting corroboration from circumstantial evidence to prove the alleged venue of occurrence, time of occurrence as well as the circumstances in which the police was informed---Place where the report was recorded was also highly doubtful---Statement of complainant and the scribe of report indicated two different places, where the report was recorded---Complainant, no doubt was fired at; but the remaining episode of complainant could not be proved beyond shadow of doubt which also cast serious doubt on nomination of accused against whom motive for false charge existed due to previous enmity---Benefit of doubt, in circumstance, must go to the accused---Extending benefit of doubt to accused he was acquitted.

Khawaja Muhammad Khan Gara for Appellant.

F.M. Sabir for Respondent.

Noor Alam Khan for the Complainant.

Date of hearing: 2nd May, 2008.

P L D 2009 Peshawar 14

Before Muhammad Raza Khan, C. J. and Shahji Rahman Khan, J

Syed MEHMOOD SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.582 and Murder Reference No.22 of 2007, decided on 18th June, 2008.

(a) Control of Narcotic Substances Act (XXV of 1997)---

---Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Sentence, reduction in---Material prosecution witnesses, were unanimous on the point of time, place of occurrence, recovery of arms and ammunitions and seizure of narcotics from the secret cavities of the vehicle driven by accused---Samples of contraband articles sent for chemical analysis were also found by the Chemical Examiner to be charas and opium---Planting of such a huge quantity of narcotics was next to impossible for the Police officials---Even otherwise it was not claimed by accused in his statement recorded under S.342, Cr.P.C. that same was planted on him by the police officials---Case being of nakabandi/checking and the prosecution witnesses being members of the checking party, their presence at the spot was natural---Police officials being competent witnesses like any other independent witness, their evidence could not be discarded merely for the reason that they were the police employees---Contention of Defence Counsel regarding non-joining of private witness had no force because S.25 of Control of Narcotic Substances Act, 1997 had excluded the application of S.103, Cr.P.C.---Testimony of prosecution witnesses had been corroborated by the report of Chemical Analyst which was positive---Delay of few days in sending the samples to Laboratory due to rush of work, was of no consequence, in view of the huge quantity of narcotics recovered from the secret cavities of vehicle in possession/in the charge of the accused---Objection regarding non-production/exhibition of case property was not tenable as case property was destroyed in accordance with law and samples obtained therefrom had been exhibited on record---Prosecution had successfully established the guilt of accused to the hilt by producing evidence and defence counsel had not been able to point out any error or illegality, misreading or non-reading of evidence in the impugned judgment of the Trial Court---However keeping in view the quantity of narcotics and old age of 65 years of accused and the fact that he was the driver of the vehicle in question, ends of justice would be met if death sentence awarded to accused by the Trial Court was reduced to the imprisonment for life---Death sentence was converted to imprisonment for life maintaining conviction of accused.

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

----Ss. 486 & 471---Sentence---Accused did not challenge his conviction and sentence recorded against him under Ss.486 & 471, P.P.C.---Sentences awarded to accused under said sections were maintained, in circumstances.

Naseer Ahmad v. The State 2004 SCMR 1361; Riaz Ahmad v. The State 2004 SCMR 988; Fida Jan v. The State 2001 SCMR 3fj; Muhammad Azam v. The State PLD 1996 SC 67 and PLD 2007 Pesh. 160 rel.

Noor Alam Khan and Zia-ud-Din Siddiqui for Appellant.

Ishtiaq Ibrahim, Addl. A.G. for Respondent.

Date of hearing: 18th June, 2008.

P L D 2009 Peshawar 20

Before Hamid Farooq Durrani and Muhammad Alam Khan, JJ

ALIF GUL---Appellant

Versus

NOOR AFZAL and others---Respondents

Criminal Appeal No.31 of 2006, decided on 11th July, 2008.

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

----S. 302(b)/34-Appreciation of evidence---Abscondence---Only evidence against accused was the confessional statement of his female co-accused who remained in police custody for about four days---Co­-accused who remained in, police custody for such a long time, her confession would not ring true and was not voluntary, which was liable to be straightaway ruled out of consideration---Such confessional statement could not be made basis for conviction of accused---Mere abscondence of accused could not be made the basis for his conviction as accused could run away due to fear or suspicious circumstances---Conviction and sentence recorded against accused by the Trial Court, were set aside and they were set free.

(b) Criminal trial---

----Abscondence---Mere abscondence of accused could not be made the basis for his conviction as accused could run away due to fear or suspicious circumstances.

Mst. Zafran v. The State 1999 PCr.LJ 163; Shabi-ul-Hassan v. The State PLD 1991 SC 898; Rahimullah Jan v. Kashif and another PLD 2008 SC 298 and Muhammad Israr and other v. The State" 2002 PCr.LJ 1072 rel.

Khawaja Muhammad Khan Gara for Appellant.

Malik Manzoor Hussain for Respondent.

Nemo for the Complainant.

Date of hearing: 9th July, 2008.

P L D 2009 Peshawar 24

Before Ghulam Mohy-ud-Din, J

MUHAMMAD AZIM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.18 of 2008, decided on 13th October, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 265-K---Penal Code (XLV of 1860), S.365-A---Inherent powers under S.561-A, Cr.P.C.---Scope---Quashment of F.I.R.---Lady who had been introduced as alleged abductee, was neither in possession M her identity card nor there was any reliable person to identify her in court for the purpose of disposal of the petition---Inherent powers of the High Court under S.561-A, Cr.P.C., were not supposed to be exercised to override the express provisions of law---Ordinary course of law should not be allowed to be deflected, nor High Court was required to stifle the prosecution case at the very initial stage of the proceedings---On completion of investigation, the case could be put in court where it would be open for the parties to apply for consideration of the case within the meaning of S.265-K, Cr.P.C.; and in case the charge was found groundless, then naturally the Trial Court would be competent to exercise its powers lawfully and judiciously.

1999 MLD 465; PLD 1967 SC 317 and PLD 1997 SC 275 ref.

Sahibzada Asadullah for Petitioner.

Rovez Akhtar for the State.

Date of hearing: 13th October, 2008.

P L D 2009 Peshawar 26

Before Shahji Rehman Khan and Muhammad Alam Khan, JJ

JEHANZEB KHAN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through Secretary and 8 others---Respondents

Writ Petition No.274 of 2008, decided on 7th March, 2008.

Representation of the People Act (LXXXV of 1976)---

----S. 52---Constitution of Pakistan (1973), Arts.199 & 225---Constitutional petition---Maintainability---Petitioner had prayed for declaration that the entire election of constituency be declared as illegal, null and void and ab initio illegal---Grievance of the petitioner was that Authority suddenly changed the Notified Polling Stations and that was done in order to do favour to the respondent at the cost of other contesting candidates and that change of Polling Station had created great hardship to the voters of the area---Petitioner also contended that the change of venue of polling and shifting of Polling Stations were not within the competence of Election Commission---Validity---Allegations of the petitioner regarding the change of the Polling Station, allegedly made to favour certain candidates, pertained to the factual controversy requiring the recording of evidence, which could not be done in extraordinary constitutional jurisdiction of the High Court---Such like grievance could only be agitated before Election Tribunal constituted under S.52 of Representation of the Peoples Act, 1976, which had provided that no election would be called in question except by election petition---Article 225 of the Constitution also had provided that no dispute arising in connection with election to a House or any Provincial Assembly would be called in question, except through an election petition---Since factual controversy was involved in the case and alternate adequate and efficacious remedy was available to the petitioner under S.52 of Representation of the People Act, 1976 and Article 225 of the Constitution, petitioner had to redress his grievance before Election Tribunal and he could not question the validity of the same under Art.199 of Constitution---Constitutional petition being not maintainable was dismissed.

Election Commission of Pakistan through Secretary v. Javed Hashmi and others PLD 1989 SC 396 rel.

Shakeel Ahmed and Muhammad Karim Mahsud for Petitioner.

P L D 2009 Peshawar 28

Before Dost Muhammad Khan, J

HAYATULLAH---Petitioner

Versus

LAL BADSHAH and another---Respondents

Criminal Miscellaneous No.886 of 2008, heard on 26th September, 2008.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/34/148/149/427---Bail, grant of---Except the bald statement of the complainant expressing satisfaction about the involvement of accused, which was based on figment of his imagination uncorroborated and unsupported by any shred of evidence, no evidence of any nature was available involving accused in the crime---Mere heinousness of a crime and charging of accused directly in the F.I.R., was no ground for refusal of bail but the other materials collected during investigation exonerating him from the crime would have direct bearing on the charge against him---Magistrates and the Trial Judges, would discontinue the stereotype approach by jumping at the conclusion that accused was directly charged in the F.I.R., they should carefully read the provisions of S.497, Cr.P.C.---Bail was granted.

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

----S. 497(1) & (2)---Grant or refusal of bail---Principles---Legislature in its wisdom had used the phrase "reasonable grounds for believing", which were words of high degree, meaning and import of which were not to be taken lightly---Bail could only be refused to an accused person, if sufficient material had been brought on record, showing reasonable ground to believe him guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, while subsection (2) of S.497, Cr.P.C. created an exception to the prohibition contained in the said subsection, which provided that if no reasonable grounds existed for believing that accused had committed a non-bailable offence, but there were sufficient grounds for further inquiry into his guilt, accused would be released on bail---True line of distinction drawn by the Legislature in both the provisions of S.497(1) & (2), Cr.P.C. could be conveniently perceived by a judicial mind because in subsection (1) of S.497, Cr.P.C. grant of bail to an accused person, who was charged for offence/offences, not punishable with ten years imprisonment or more, was discretionary with the court---Prohibition imposed on such discretion was with regard to three categories of offences i.e. punishable with death or imprisonment for life or imprisonment for ten years, but that prohibition too was strictly qualified by the words, if reasonable grounds existed to believe that an accused person had been guilty of such offence/offences---Trial Court in circumstances, would take pain while deciding bail petitions and would not decide it in a mechanical and routine manner, but with careful judicial approach by making tentative assessment of all the material available on record in each case and would not be deterred by the fact that the offence was of heinous nature or because accused was directly charged in the F.I.R.---Deep appreciation of evidence and drawing conclusions therefrom though was not warranted, but tentative assessment of materials brought on record, including the defence plea was a permissible course.

Hafiz Khuda Bakhsh and another v. The State PLD 1988 SC 413; Syed Ahmed Ali Rizvi and another v. The State PLD 1995 SC 500 and Khalid Javed Gillani v. The State PLD 1978 SC 256 ref.

Astaghfirullah Khan for Petitioner.

Niaz Ali Khan for the State.

Shaukat Ali Khan for the Complainant.

Date of hearing: 26th September, 2008.

P L D 2009 Peshawar 33

Before Dost Muhammad Khan and Jehan Zaib Rahim, JJ

SALEH SHAH---Petitioner

Versus

SUPERINTENDENT JAIL, CENTRAL JAIL HARIPUR and 2 others---Respondents

Writ Petition No.1456 of 2008, decided on 27th October, 2008.

(a) Locus poenitentiae, principle of---

----Authority competent to grant a concession or to confer a benefit on a party or on an individual, could not rescind or retrace by withdrawing it at a stage when it had reached to a logical conclusion and the order had been acted upon whereby irreversible vested right had accrued to the beneficiary of the order---What was important to be determined was the legal sanction of law investing the Authority with powers to grant concession or confer benefit/benefits on a party or an individual.

Muhammad Arif v. Superintendent Central Jail, Lahore and 2 others PLD 2006 Lah. 561 ref

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

----Ss. 401 & 382-B---Remission in sentence---Entitlement---All orders/notifications issued by the President/Government granting remissions in sentences to prisoners, had clearly stated that the remissions would be allowed to the prisoners undergoing sentences of different kinds---Under trial prisoners under the Jail Manual were a privileged class apart, from the legal analogy that they, under no circumstances could be treated convict prisoners---As the remissions were granted and remained confined only to the cases of those prisoners who were already undergoing sentences of imprisonment awarded to them by the competent court of law, stretching its scope beyond the clearly laid down parameters by extending that benefit to under-trial prisoners, would be in violations of the very orders/proclamations and notifications issued by the President or the Government in that regard at different occasions.

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

----Ss. 401 & 382-B---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Remission in sentence---Recalling of concession---Counting of detention period---Legislature had extended the benefit of counting the detention period towards the sentences of the prisoners, when awarded by the court and had granted relief on the principles of equity and justice so that the period of detention undergone by the under-trial prisoners would not go awaste, but they must be compensated for that---Such relief/concession, however was only confined to 'add the period of detention towards the length of sentence awarded to a prisoner, but it would not include the remission in sentence granted to prisoners facing trial, because detention and sentences were altogether two different terms, which could not be intermingled nor the clear intent of the Legislature, in that regard, could be defeated by giving it extended scope of meaning---If Legislature, wanted to extend the benefit in remissions of sentences, then it could have done it through express words and necessary intendment which was not the case---Jail Authorities, not only had disregarded the orders/proclamation/remissions in sentences issued by the President/Government, but had also acted in clear violation of the provisions of S.382-B, Cr.P.C.; and also against the relevant rules contained in Jail Manual, where prisoners sentenced to imprisonment and those facing trial were placed poles apart from each other; and in that way the Jail Authorities, without the sanction of law and legal authority inadvertently and under entire misconception added the remission in sentence in the remission sheets of the prisoners---Petitioner in the case, was not the only one, but hundreds and hundreds of prisoners were therefrom whom the concession granted illegally was withdrawn---Element of discrimination, in circumstances was not available in the case---Once it was found that the Jail Authorities were not legally competent nor they were authorized by the provision of law or by the very orders granting remissions in the sentences, then granting the said concession to the petitioner by the Jailer, was absolutely without lawful authority and ab initio void and it was not competent to grant the concession/confer benefit on the petitioner---When 'the order was coram non judice, then its withdrawal was within the jurisdiction and competency of the Jailer---In the present case petitioner being still undergoing the remaining part of the sentence, the principle of recalling the concession would be attracted---Jailer was not competent to grant the concession of remission to the petitioner, under the statutory law, the rule of the Jail Manual and also in view of clearly understandable order/notification/proclamation, issued by the President/ Government--Concession granted to the petitioner, held, was without lawful authority and being ab initio void the Jailer was competent to withdraw it to which no exception could be taken.

(d) Interpretation of statutes---

----Once the Legislature had deliberately omitted something from a statute; the court or any other Authority had no powers to add same in the statute nor it was supposed to supply the deliberate omission.

Nazeem Khan V. Inspector General of Prisons, Government of N.-W.F.P. and 2 others PLD 2004 Pesh. 47; Farid Khan v. The State PLD 1965 (W.P.) Pesh. 31; Venkatesh Yeshwat Deshpande v. Emperor AIR 1938 Nag. 513 and Lt. Col. G.L.I. Bhattacharva v. The State PLD 1963 Dacca 422 ref

Muhammad Jehangir Khan Mohmand for Petitioner.

P L D 2009 Peshawar 39

Before Tariq Parvez Khan, C.J. and Syed Musaddiq Hussain Gillani, J

YOUSAF GUL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.547, 574 and 659 of 2005, heard on 14th October, 2008.

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Criminal Procedure Code (V of 1898), S.516-A----Appreciation of evidence---Sentence, reduction in---Charge against accused persons was regarding recovery of 406 Kgs. Charas and one Kg opium---Inspector though had admitted that there were 406 packets of Charas and each packet was weighing one Kg., but instead of preparing 406 samples, the Norcotic Inspector prepared 16, i.e. 15 parcels of 25 grams each and one parcel of 31 grams of Charas and third parcel of opium---If the Norcotic Inspector was taking one gram from each packet of one Kg, what stopped him not to take more than one gram from each packet and to prepare as many number of parcels as were the packets--In the present case, besides 17 samples, two parcels were prepared by the Magistrate, while he was proceeding under S.516-A, Cr.P.C. and he had admitted in his certificate that he took 10 grams each from 16 packets---Purpose of taking samples by the Magistrate before the case property was destroyed, was to preserve the samples for its production before the Trial Court as statutory presumption was that samples taken under S.516-A, Cr.P.C. were to be taken, not as a part, but as whole of the case property---Magistrate, who supervised the destruction of the case property, should have been examined as a witness to prove, not only that the case property was destroyed in his presence, but also to prove that it was the case property of the case under trial and also to prove that the samples taken by him were part of the case property destroyed---When the prosecution could have produced the Magistrate, but failed to produce him in given circumstances depending on case to case, the evidentiary value with regard to the destruction of case property would lose its sanctity---Prosecution could produce better evidence to prove that the whole quantity recovered was nothing, but narcotics, but the prosecution had failed to discharge its duties, except to the extent of taking samples by the Magistrate and the samples received by the Laboratory Jul chemical analysis---Magistrate had prepared two samples under S.516-A, Cr.P.C, but when accused persons were examined under S.342, Cr.P.C. they were confronted with the sample of opium and not regarding the samples of the Charas---Prosecution had proved guilt of accused, but to the extent of total recovery of 6.660 Kg of narcotics---Conviction of accused recorded by the Trial Court stood maintained under first part of S.9(c) of Control of Narcotic Substances Act, 1997 and not under its Proviso---Sentence of life imprisonment was reduced to six years each---Fine amount of Rs.2 lac each was also reduced to Rs. one lac each.

Miss Farhana Marwat for Appellant.

Salahuddin Khan, Special Prosecutor for the State.

Date of hearing: 14th October, 2008.

P L D 2009 Peshawar 44

Before Tariq Parvez Khan, C. J. and Syed Yahya Zahid Gilani, J

ABDUL GHANI alias FAZAL GHANI---Appellant

Versus

MUHAMMAD SHARIF and another---Respondents

Criminal Appeal No.173 of 2006, heard on 28th October, 2008.

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

----S. 302/34---Appreciation of evidence---Benefit of doubt---Accused was not charged in the F.I.R., but he was for the first time named after one month by the father of deceased who did not appear for evidence in the court at the trial---Identification parade in the case was held after seven days 'of arrest of accused and said delay in the identification parade had not been explained---Complainant though had stated in the F.I.R. that he could identify accused, who fired at the deceased, but he had given no description of features etc., which could be made a base for future recognition---In the test identification parade, the complainant had only pointed out accused to be an accused, but had not specified the role played by him---Complainant did not state that it was the accused who had fired at the deceased---Said statement of the complainant belied the medical evidence and the site plan---It was belatedly stated that accused was the one who had fired at the deceased, presuming that he was available to the prosecution for the time being qua identification---Conviction and sentence recorded by the Trial Court against accused, were set aside extending him the benefit of doubt and he was acquitted of the charge and was set at liberty.

(b) Criminal trial---

----Appreciation of evidence---Mere fact that a witness was disinterested, by itself, was not a certification that what he would speak, would he true, unless his statement intrinsically rang true---Where a very responsible and respectable person would make a statement which was not acceptable to common sense, would be believed by the court, because the court of law would evaluate the evidence on the basis of prudence.

Assadullah Khan Chamkani for Appellant.

Altaf Khan and Amin-ur-Rehman for the State.

Date of hearing: 28th October, 2008.

P L D 2009 Peshawar 48

Before Muhammad Alam Khan, J

MUHAMMAD KARIM and 6 others---Petitioners

Versus

IZZAT JAMAL and 9 others---Respondents

Revision Petition No.206 of 2007, decided on 19th March, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11 & S.11---Suit for declaration and prohibitory injunction---Rejection of plaint---Res judicata, principle of---Applicability of---Procedure---Defendants raised a preliminary objection that the suit was barred by res judicata which was to be dismissed---Trial Court came to the conclusion that the question of res judicata as well as applicability of O. VII, R.11, C.P.C. could not be resorted to unless and until evidence was recorded in the case and that objection was over-ruled by the Trial Court---Appellate Court, however, set aside order of the Trial Court on appeal and dismissed the suit---Validity---Neither a preliminary issue with respect to res judicata had been framed nor the parties had been afforded opportunity to lead pro and contra evidence---If Appellate Court wanted to decide the case on preliminary issue it ought to have framed a preliminary issue with respect to res judicata and applicability of the provisions of O.VII, R.11, C.P.C. and should have remanded the case to the Trial Court with direction to afford the parties an opportunity of leading evidence in support of their respective contentions---Short cut adopted by the Appellate Court, was not in consonance with the established principles of law---Impugned judgment and decree of Appellate Court were set aside and that of the Trial Court, was restored, with the direction to the Trial Court to record evidence and decide lis on merits in accordance with law.

Zahir Shah and others v. Bahadar Khan and others 2001 MLD 1985; Ghulam Dastgir and others v. Mst. Mariam and others 1993 MLD 1005 and Messrs Hoechst Pakistan Ltd. v. Messrs Cooperative Insurance Societies and others 1993 MLD 2464 ref.

Petitioners in person.

Ikramuddin, Attorney for Respondents.

Date of hearing: 19th March, 2008.

P L D 2009 Peshawar 50

Before Muhammad Alam Khan, J

Haji MUHAMMAD SALEEM KHAN---Petitioner

Versus

S.D.O./A.M.O., PESCO, SUB-DIVISION TIMERGARA, DISTRICT DIR LOWER and 10 others---Respondents

C.R. No.60 of 2008, decided on 4th February, 2008.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Civil Procedure Code (V of 1908), O.XLI, R.25, Ss.151 & 115---Suit for declaration, prohibitory and mandatory injunction---Remand of case by the Appellate Court---Plaintiff filed suit to the effect that he being the consumer of electricity, 'imposition of amount as arrears outstanding against him, were baseless,. against facts, mala fide and against the rules and regulations, hence not binding on the plaintiff---Plaintiff had also requested for the issuance of prohibitory/mandatory injunction that in view of the arrears, defendants should be restrained from disconnecting the electric supply to the premises of the plaintiff---Plaintiff had also prayed for the recovery of Rs.1,50,000 as damages against the defendants---Trial Court granted a decree only to the effect that plaintiff was liable to be assessed on 15 KW and that said rate should be charged from him and he would be liable to pay the arrears---Trial Court,. however dismissed the suit with respect to the damages of Rs.1,50,000---Appellate Court accepting appeal filed by the defendants against judgment of the Trial Court, remanded case to the Trial Court for decision afresh on merits after affording the parties opportunity to lead evidence---Plaintiff had impugned order of the Appellate Court whereby case was remanded---Validity---Question that the plaintiff would be liable to pay at the rate of 15 KW or 19 KW was the sole point involved in the litigation between the parties, which matter related to the record, but no record had been produced to substantiate and clarify that question---In absence of evidence no effective adjudication between the parties could be passed---No other alternative was left with the Appellate Court, except to remand the case for de novo trial in order to effectively adjudicate and determine the respective rights of the parties---Contention of the plaintiff that Appellate Court was not well within its powers to remand the case, was repelled, because under S.151, C.P.C. the Appellate Court had got inherent power to remand the case in order to do complete justice to the parties and any order passed under S.151, C.P.C. was purely discretionary in nature not liable to be impugned in the revisional jurisdiction of the High Court---Order of the Appellate Court was perfectly sound, legal, judicious and was in consonance with the established principles of appreciation of evidence,- which called for no inference.

Gul Baz v. Abdur Raziq PLD 1985 Pesh. 38; Haji Muhammad Ashiq Bhutta v. Dr. Ajazul Haq Qureshi 1989 CLC 19 and Nasir Ahmad and another v. Khuda Bakhsh and another 1976 SCMR 388 ref.

Hidayat Ullah Mohammadzai for Petitioner.

Nemo for Respondents.

Date of hearing: 29th January, 2008.

P L D 2009 Peshawar 54

Before Said Maroof Khan and Muhammad Alam Khan, JJ

SADEED-UR-REHMAN---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 12 others---Respondents

Writ Petition No.218 of 2008, decided on 14th March, 2008.

Representation of the People Act (LXXXV of 1976)---

----S. 52---Constitution of Pakistan (1973), Arts.199 & 225---Constitutional petition---Maintainability---Allegation of using corrupt practice and illegal means in election---Petitioners had contended that in order to achieve success in the election, the respondents had used corrupt practices and illegal means; that they had managed to cast bogus votes in their favour; that the election material, including the original statements of counts of various Polling Stations, were burnt; that said fact had clearly indicated that election was not conducted honestly, fairly and in accordance with law; and that the petitioners submitted applications for recounting, but their applications were illegally dismissed---Validity---None of the points raised by the petitioners and the allegations levelled against the respondents, could be appreciated in constitutional petition and commented upon by the High Court in exercise of its powers under Art.199 of the Constitution, because the facts agitated in the petition being controversial questions of facts, required detailed inquiry and recording of evidence and High Court in its constitutional jurisdiction, could not resolve such like complicated disputed questions of facts requiring elaborate inquiry---Petitioners had contested the election under the provisions of Representation of the People Act, 1976 and they had questioned the validity of election mainly on the grounds that respondents had used corrupt practices and illegal means for winning the election---Chapter VII of Representation of the People Act, 1976 had revealed that when there was a dispute about the conduct or validity of election and there were allegations of corrupt or illegal practice, it could only be challenged through election petition which was the only statutory remedy as provided under S.52 of the Representation of the People Act, 1976---Where a right was created by a statute which itself provided the procedure for enforcement of that right, resort must be had to that procedure before invoking the jurisdiction of the High Court---Section 52 of the Representation of the People Act, 1976 had specifically mentioned that no election would be called in question, except by an election petition by a candidate for that election---Article 225 of the Constitution had also provided that the election disputes had to be dealt with by the Election Tribunal---Since disputed questions of facts were involved in all five cases and alternate adequate remedy of election petitions were available to the petitioners for redressal of their grievance, they could not question the validity of the election of the respondents in constitutional petition---Constitutional petition being no maintainable was dismissed.

Dr. Babar Awan for Petitioner.

Waseem Sajjad and Qazi M. Anwar for Respondents.

Date of hearing: 13th March, 2008.

P L D 2009 Peshawar 59

Before Muhammad Alam Khan and Said Maroof Khan, JJ

DIN MUHAMMAD---Petitioner

Versus

ABDUR RASHID and others---Respondents

Writ Petition No.131 of 2008, decided on 24th October, 2008.

Civil Procedure Code (V of 1908)---

----O. I, R.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Arraying a person as pro forma defendant in a pending suit---Petitioner had challenged interim order of Appellate Court vide which revision petition of respondent against order of the 'Trial Court was accepted and respondent was ordered to be arrayed as pro forma defendant in a pending suit---Contention of the petitioner was that respondent had no concern with the suit filed by the petitioner and Appellate Court was not justified in allowing respondent to be arrayed as pro forma defendant on the panel of defendants---Validity---Provisions of O.I, R.10, C.P.C. were discretionary in nature and the court could at any time, add a party, if his presence was necessary to decide the matter effectively and conclusively between the parties; and to avoid multiplicity of litigation---Counsel for the petitioner had conceded such legal aspect of the case and submitted that if High Court would amend the order by impleading respondent as necessary and contesting defendant, he would be satisfied---Order of Appellate Court was modified by the High Court to the extent that respondent be arrayed as a necessary party on the panel of defendants to suit pending in civil court.

Khawaja Nawaz Khan for Petitioner.

Muhammad Daud Khan for Respondent No.1.

P L D 2009 Peshawar 61

Before Syed Yahya Zahid Gillani, J

NAWAB KHAN---Petitioner

Versus

UMAR ALI KHAN and 3 others---Respondents

Civil Revision No.44 of 2006, decided on 25th September, 2008.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13, 24 & 28---Suit for pre-emption---Depositing 1/3rd of pre-emption money---Determination of market price of suit land---Defendants/vendees in impugned registered sale-deed mentioned Rs.80,000 as sale consideration, which was disputed by the plaintiff in his plaint pleading that sale was actually struck at Rs.15,000---Plaintiff who was directed to deposit 1/3rd of pre-emption money, deposited Rs.5,000 considering sale consideration as Rs.15,000 and not Rs.26,666/67, 1/3rd of Rs.80,000 as claimed by the defendants---On application of defendants that plaintiff had deposited deficient money, both the Trial Court and Appellate Court dismissed suit on the ground that plaintiff had not complied with the provisions of S.24(1) North-West Frontier Province Pre-emption Act, 1987---Validity---Amount of Rs.80,000 as alleged by the vendees/defendants, was disputed by the plaintiff, claiming that bargain was struck for Rs.15,000, provisions of S.28 of the North-West Frontier Province Pre-emption Act, 1987, was to come in play; which had made incumbent upon the Trial Court to determine the market value of the suit property at the time of final adjudication, when sale consideration was disputed---When the sale price stood disputed in the plaint, the court could not be deemed absolved from its important duty to clearly mention the specific amount required to be deposited by the pre-emptor within the given time in compliance of S.24(1) of the North-West Frontier Province Pre-emption Act, 1987---In the present case, mistake in deposit of 1/3rd of sale consideration was to be attributed to the act of the court as well as the office of the court---Even otherwise plaintiff/pre-emptor could not be non-suited for short deposit of pre-emption money due to mistake op the part of the office of the court---Plaintiff/pre-emptor could not be non-suited for short deposit of pre-emption money due to confusing order of the Trial Court---Concurrent judgments of the courts below, were illegal exercise of jurisdiction and were set aside---Parties were directed to appear in the Trial Court, which would inform the plaintiff about exact figure of deficit amount of 1/3rd of pre-emption money for deposit by him within specified period.

Mst. Amiran Bibi v. Muhammad Ashraf 1994 MLD 2319; Muhammad Salim v. Muhammad Amin 2002 CLC 545; Ghulam Shabbir v. Muhammad Khan PLD 1996 Pesh. 28; Kamran Ali Khan v. Mst. Rashda Bibi 2000 CLC 576; Gul Usman v. Mst. Ahmero and others 2000 SCMR 866 and Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 ref.

Gauhar Zaman Kundi for Petitioner.

Sanaullah Khan Gandapur for Respondents.

P L D 2009 Peshawar 65

Before Syed Musadiq Hussain Gilani, J

MUHAMMAD HANIF and others---Petitioners

Versus

MUHAMMAD YOUNUS and another---Respondents

Civil Revision No.1502 of 2005, decided on 15th December, 2008.

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

----Ss. 8 & 42---Transfer of Property Act (IV of 1882), S.122---Suit for declaration and possession---Gift deed---Validity---Plaintiff filed suit for declaration to the effect that he was owner in possession of respective portion of property of predecessor-in-interest of the parties and that gift-deed allegedly executed by the predecessor-in-interest of the parties in favour of the defendants in his Maraz-ul-Maut', was wrong, illegal and fictitious---Defendants contested suit claiming that common ancestor of the parties died leaving behind eight sons, two daughters and a widow and that predecessor-in-interest had gifted the suit property to his two sons and a daughter through gift-deed, duly registered and witnessed by two other sons of the donor and that said gift-deed was not made by the donor in hisMaraz-ul-Maut'---Medical Officer had stated that donor/common ancestor of the parties, though was suffering from Cancer, but cause of his death was malignant brain tumour and secondary cause was heart attack---Said Doctor was not cross-examined to the effect that deceased donor before his death was not in a position to understand the nature of transaction or that he was completely incapacitated---Question whether donor suffered from a disease which was his immediate cause of death at the time of gift, was a mixed question of fact and law and the best evidence in that regard was the evidence of the doctor who treated the donor and the Sub-Registrar who attested the gift-deed---Sub-Registrar was not produced as a witness by the plaintiffs in the court---Non-examination of Sub-Registrar was a serious set back in the case of the plaintiff---In the present case donor was suffering from Cancer, which disease was not the immediate cause of his death and it was not brought on record that said donor was completely incapacitated or unable to pursue his ordinary work---Gift by the donor in favour of defendants in circumstances, was not the gift during `Maraz-ul-Maut' as alleged by the plaintiff and it was a gift simpliciter, the essential requirements of which were duly fulfilled---Both courts below in decreeing suit filed by the plaintiff, had misinterpreted the evidence and law on the subject and ignored the settled principles in appraising evidence, which resulted in material illegality and irregularity---Findings of the court below were set aside and suit filed by the plaintiff was dismissed, in circumstances.

PLD 1977 SC 28(g); PLD 1994 SC 650 and 1993 SCMR 2018 ref.

(b) Islamic Law---

----Gift---Allegation of gift having been made in Maraz-ul-Maut by donor---Effect.

PLD 1977 SC 28(g); PLD 1994 SC 650 and 1993 SCMR 2018 ref.

Imtiaz Ali for Petitioners.

Muzammil Khan for Respondent No.1.

Mazullah Bar Kandi, Aminual Haq and Javed-A-Khan for Respondent No.2.

Date of hearing: 15th December, 2008.

P L D 2009 Peshawar 70

Before Syed Yahya Zahid Gillani, J

Mian BAHADUR JAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.104 of 2008, decided on 14th November, 2008.

(a) Illegal Dispossession Act (XI of 2005)---

----S. 9---Right of appeal/revision under S.9, Illegal Dispossession Act, 2005---Scope---To hold existence of right of appeal and revision within the framework provided by S.9 of the Illegal Dispossession Act, 2005, was not something to be squeezed in or stretched out with difficulty---Said rights were palpably existing in the given scheme of the Act to control and regulate the rights of litigating parties, and that was why same was not denied---Right of appeal and revision was deemed to be creation of statute since time immemorial, but when ordinary courts were competent to decide the disputed legal rights, then the ordinary rules of procedure were applicable to such courts and appeal would lie, if it was allowed under preliminary rules of procedure; notwithstanding that legal rights claimed would arise under special statute, which did not confer right of appeal---Since the Sessions Court exercising under Illegal Dispossession Act, 2005 was normal court created under a general law and no manifestation was in the Act that the court under the Act as a Special Court, the normal rules of general law in the shape of Code of Criminal Procedure would be applicable, including the right of appeals and revisions in consonance with the relevant principle of law---Word "proceeding" used in Illegal Dispossession Act, 2005, could not be given different and restricted meaning to exclude right of appeal and revision, especially when there was no express barring clause in the Act---Rights of aggrieved persons to file appeals and revisions arising out of Illegal Dispossession Act, 2005, were not denied---Court, empowered to exercise power under the Act, was the existing Sessions Court created under S.6 of the Code of Criminal Procedure, 1898 and all the provisions of the Code were applicable to its proceedings---Right of appeal against conviction, right of appeal against acquittal and right of revision were available to the aggrieved persons litigating under Illegal Dispossession Act, 2005---Criminal revisions,' criminal appeals and revisions were thus maintainable.

Karam Dad and another v. Emperor AIR 1941 Lah. 414; Hari Meah v. The State PLD 1958 Dacca 333; Hari Meah v. The State PLD 1959 SC (Pak.) 307; The State v. Hatntho 1971 SCMR 686; Habib Bank Ltd. v. The State and others 1993 SCMR 1853; Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166; Faizur Rehman v. The State and others PLD 2002 Pesh. 6; R.M.A.R.A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar PLD 1947 PC 279; Abdul Khalique v. The State PLD 1990 Kar. 448; Habib Bank Ltd. v. State 1993 SCMR 853; Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR 948; Yafas v. The State and others PLD 2007 Pesh. 123; Aziz Ahmad v. Mumrez and 5 others PLD 2008 Pesh. 104; The State through Advocate General N.-W.F.P. v. Naeemullah Khan 2001 SCMR 1461; PLD 2008 Pesh. 49 and Rahim Tahir v. Ahmad Jan PLD 2007 SC 423 ref.

(b) Appeal (criminal)---

----Right of---Right of appeal and revision was deemed to be creation of statute since time immemorial, but when ordinary courts were competent to decide the disputed legal rights, then the ordinary rules of procedure were applicable to such courts and appeal would lie, if it was allowed under the prevailing rules of procedure, notwithstanding that legal rights claimed arose under special statute which did not confer right of appeal.

R.M.A.R.A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar PLD 1947 PC 279; 43 IA 192 and 63 IA 180 rel.

(c) Illegal Dispossession Act (XI of 2005)---

----S. 3---Trial of accused under S.3, Illegal Dispossession Act, 2005---Powers of the court---Power to try an accused under S.3 of Illegal Dispossession Act, 2005 and all other powers so created under the Act, were to be exercised by the "Court" and the definition of the word "Court" under S.2 of the Act being already existing `Sessions Court' established under S.6 of the Code of Criminal Procedure, 1898, non-creation of a "Special Court" was manifest with Illegal Dispossession Act, 2005 along with scheme of that law, which had simply bestowed new powers on existing Sessions Courts.

(d) Words and phrases---

----"Proceedings"---Meaning connotation and scope explained.

The State through Advocate-General N.-W.F.P. v. Naeemullah Khan 2001 SCMR 1461 rel.

Muhammad Ismail Khalil for Appellant.

Zaiaur Rehman Khan, A.-G. & Abdul Latif Afridi and Muzammil Khan for Respondent No.2.

Date of hearing: 14th November, 2008.

P L D 2009 Peshawar 81

Before Syed Yahya Zahid Gilani, J

Mir DARAZ KHAN and 2 others---Petitioners

Versus

DARYA KHAN---Respondent

Criminal Revision Petition No.42 of 2008, decided on 2nd March, 2009.

Illegal Dispossession Act (XI of 2005)---

----Ss.2(c), 3, 4 & 7---Appreciation of evidence---Complaint was filed for restoration of a house against petitioners, contending that disputed house was delivered to petitioners/accused for their use as residence, about 5/6 years prior to the filing of complaint on the condition that petitioners would in lieu thereof, render him domestic service---Stance of the respondent/complainant was that since the petitioners had declined to serve him, they had converted their status to "unlawful occupiers" of the house and that they having grabbed the house in question, they were liable to be punished and that the possession of the house was to be restored to him---Plea of complainant was not tenable as section 3(1) of Illegal Dispossession Act, 2005 was applicable to cases wherein some body entered into or upon any property with intention to dispossess the lawful owner or occupier of that property; and thereby wanted to grab, control or occupy that property---Such phenomenon was not at all existing in the present case---Petitioners/accused were inducted in the house in question by the owner/complainant under an admitted oral agreement that in return the petitioners would render domestic services---Entry of petitioners in the house in question was a lawful entry as tenants---Since the petitioners were lawful occupiers of house in question in terms of S.2(c) of the Illegal Dispossession Act, 2005, complaint filed by the respondent was not at all entertainable against them---Application of the petitioners under S.265-K, Cr.P.C. for their acquittal carried sufficient merit for acceptance---Impugned order of the Trial Court was set aside and petitioners were acquitted.

Sardar Naeem Khan for Petitioner.

Saleemullah Khan Ranazai for Respondent.

Date of hearing: 2nd March, 2009.

P L D 2009 Peshawar 83

Before Shah Jehan Khan Yousafzai, J

GHAZI MARJAN and others---Petitioners

Versus

ALAM GUL and others---Respondents

Civil Revision No.865 of 2008, decided on 20th February, 2009.

(a) Transfer of Property Act (IV of 1882)---

----S. 60---Limitation Act (IX of 1908), Art.148---Suit for redemption---Limitation for---Suit for redemption was governed by Art.148 of Limitation Act, 1908, whereas suit for recovery of possession of immovable property by the mortgagor against the mortgagee for redemption would be sixty years commencing from the date of right to redeem or to recover possession---Mortgagor in the present case failed to redeem the mortgaged land even after lapse of sixty years from the date of accrual of right of redemption---Suit by mortgagor beyond sixty years, when no acknowledgement was in the said period, would be barred to seek decree for possession through redemption.

Nawaz Ali Khan and others v. Nawabzada and others PLD 2003 SC 425; Durrani and others v. Hamidullah Khan and others 2007 SCMR 480; Baidullah Jan and others v. Hawaz Khan and others PLD 2002 Pesh. 92 and Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 rel.

(b) Suit---

----Burden always lay upon the plaintiff to establish among other things that suit was well within time, if the plaintiffs would fail to establish that the suit was within time, he could not be granted decree same being barred by time.

(c) Transfer of Property Act (IV of 1882)---

----S.60---Limitation Act (IX of 1908), Art.148---Suit for redemption---Limitation for--Mortgagor would be barred to approach the court for possession through redemption after lapse of sixty years, but despite the said disability the mortgagor would still be owner; and if he succeeded in getting possession of the property of time-barred mortgage, his possession could not be disturbed on the ground that the opposite side had matured his title through adverse possession or prescription---When a mortgage was created upon an immovable property and no time was fixed for its redemption, the mortgagor would get the right to redeem from the very first day; and if some other date or period was fixed for redemption, then the limitation of sixty years would run from that date or period---Plaintiffs who, in the case claimed to have purchased the title of the original mortgagee from their successors, stepped into the shoes of mortgagor; and since right of original mortgagor to redeem through court was extinguished, they would have also no right to approach the court for a decree of redemption or possession.

Baidullah Jan and others v. Hawas Khan and others PLD 2002 Pesh. 92; Durrani and others v. Hamidullah Khan and others 2007 SCMR 480 and Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 rel.

Haji Muhammad Zahir Shah for Petitioners.

P L D 2009 Peshawar 88

Before Muhammad Alam Khan, J

GUL AMIR KHAN and others-Petitioners

Versus

ZAHID ULLAH KHAN---Respondent

Civil Revision No.253 of 2004, decided on 13th March, 2009.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Trial Court decreed the suit of the plaintiff, except one khata in which both the parties were held equally entitled and same was ordered to be distributed between the parties equally---However, decree with respect to the remaining suit land, was `passed in favour of the plaintiff---Appellate Court maintained judgment and decree passed by the Trial Court and defendants had challenged concurrent findings of the two courts below---Evidence produced by the plaintiff with respect to the performance of Talb-e-Muwathibat and Talb-e-Ishhad was consistent, confidence inspiring and all the witnesses produced by the plaintiff were unanimous in their version with regard to date, time and place of conveying information to the plaintiff---Witnesses had been subjected to lengthy cross-examination and nothing had been squeezed from their mouths to shatter their testimony---Contention of counsel for the defendant that transactions being three in number and incorporated in three deeds of sale, filing of one pre-emption suit was not warranted under the law, was repelled; because when there were transactions between the same parties and on the same date, then oneness of the transactions was discernible and a joint pre-emption suit could be filled regarding all the transactions---Moment the knowledge of the suit sale was conveyed to the plaintiff, he there and then declared his intention to pre-empt the suit transaction and performed Talbe-e-Muwathibat---Even if a sale prevailed over a period of one year in its completion, but the starting point for filing of the pre-emption suit and performance of the demands/Talbs as envisaged under S.13 of North-West Frontier Province Pre-emption Act, 1987 would be from the date of attestation of mutation or registration of the sale-deed, because prior to that no cause of action accrued to the plaintiff---Two courts below had scanned the evidence strictly in accordance with the established principles of appreciation of evidence---No misreading or non-reading of evidence had been pointed out by the counsel for the defendant which could warrant interference by High Court in exercise of its revisional jurisdiction under S.115, C.P.C.---Concurrent findings of fact of two courts below could not be set aside unless and until material irregularity was pointed out.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Zafar Ali v. Zain-ul-Abidin 1992 SCMR 1886; Hayatullah Jan and others v. Jan Alam and others 2003 MLD 625; Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company, 1992 SCMR 2375; Taza Gul and others v. Haji Fazal Subhan 2008 SCMR 431; Abdur Rahim and another v. Mst. Janat Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Muhammad Aslam Khan for Petitioners.

H. Zafar Iqbal for Respondents.

Date of hearing: 2nd March, 2009.

P L D 2009 Peshawar 92

Before Dost Muhammad Khan, Said Maroof Khan and Syed Mussadiq Hussain Gillani, JJ

Dr. FAKHR-UD-DIN---Petitioner

Versus

Mst. KAUSAR TAKREEM and another---Respondents

W.P. No.1797 of 2007, decided on 21st May, 2009.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched., S.10(4), Proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Dissolution of marriage---Return of dower---Effect of Proviso to S.10(4), West Pakistan Family Courts Act, 1964---Proviso added in S.10(4) of West Pakistan Family Courts Act, 1964 had conferred authority on the Family Court to dissolve marriage, if reconciliation would fail and to direct wife to return the dower she had received.

(b) Interpretation of statutes---

----Intent of legislature of discovery of---Duty of Court---Ordinarily the courts were to interpret the statute to discover the intent of the legislature giving full effect to it in its letter and spirit---Court had no powers to legislate by adding to a statute, what was expressly omitted therefrom or to delete what was expressly mentioned therein---Said principle, was not open to any debate and was subject to exception that Awhile interpreting a statute, court had to supply the obvious omission in that, whether accidental or inadvertent, so that the principal object for which that had been enacted was achieved; and the true intent of legislature was given effect---Court in some cases could also recommend to the legislature to supply such omission through legislation so that the ' error, ambiguity or absurdity therein could be removed and the object sought to be achieved was not defeated---To discover the object and true intent of the legislature behind enacting the Proviso to S.10(4) of the Act, the court had to go through the, entire scheme of law on the subject including the amendments incorporated into it.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

----Preamble, S.10(4), Proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)] & S.17---Matrimonial disputes, expeditious disposal of---Court had to go through the entire scheme including the amendments incorporated into it through Legislation---For carrying out such exercise, the Preamble of the Act had to be attended---For achieving the object of expeditious disposal of matrimonial disputes, through the provision of-S.17 of the West Pakistan Family Courts Act, 1964, the provisions of Code of Civil Procedure and the Qanun-e-Shahadat, 1984 had been made inapplicable, except Ss.10, 11 of C.P.C.---Mode of trial under the scheme of Act was summary in nature.

(d) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 10(4), Proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)] & S.12-A---Speedy disposal of matrimonial dispute---When scheme of law providing speedy dispute of matrimonial dispute failed to achieve the desired object, the legislature was constrained to introduce more efficacious and speedy remedial measures curtailing the life of litigation in such disputes; for that purpose Family Courts (Amendment) Ordinance, 2002 was promulgated---Amended law had brought about radical changes in the original text of various provisions of the Act, including Ss.7, 8, 9 & 10---Intent of the legislature was further reflected in the newly-added S.12-A in West Pakistan Family Courts Act, 1964; which had made it mandatory for the Family Court to decide matrimonial disputes including cases for dissolution of marriage, within a period of six months from date of institution---In case of its failure, the matter had to be reported to the High Court through a written complaint---To firmly ensure reduction of delay in disposal of matrimonial disputes, the spouses had been given right to put a counter-claim.

(e) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 10(4), Proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Quick disposal of cases---Primary object behind Family Courts (Amendment) Ordinance, 2002---Primary object behind amendment, was to ensure quick disposal of cases---Besides the said amendment, Schedule appended to West Pakistan Family Courts Act, 1964 had also been amended and other matters relating to matrimonial disputes had been included therein vesting jurisdiction in Family Courts to decide the same, expeditiously and within the given timeframe---Under the unamended scheme of Act, the Family Courts could not adhere to the requirements of law to adopt summary procedure---Courts used to indulge in holding full dress trial---In majority of cases, proceedings were to consume many years---Decrees so granted in such cases had become worthless for the wives as by then they were no more within the marriageable age---To suppress that mischief, the legislature with obvious intention had added the Proviso to S.10 of West Pakistan Family Courts Act, 1964 so that relief of dissolution of marriage on the basis of `Khula' could be granted to the wife at a pre-trial stage.

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

----S.10---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.---Dower---Terms/words "Haq Mahr received by the wife in consideration of marriage at the time of marriage", were of considerable importance---Words "received" would mean that the payment of dower had either been established or its payment had been admitted by the wife at the time of granting decree---Only in that case, the Family Court had to simultaneously direct the restoration of dower to the husband---Said condition, no doubt, was mandatory, but was subject to proof---Dower was a consideration for marriage contract, on its dissolution, the contract would stand rescinded and then the consideration paid would remain un­discharged debt liability, but would be subject to proof, the burden of which was undeniably on the husband to discharge by adducing evidence to that effect, unless it was shown to have been paid either in the dower deed or in the `Nikah Nama'---If the Family Court would defer the grant of decree, because the payment of dower was a point of contest, it had to . revert back to the old fashion of trial where both the parties would lead evidence; such process in all probabilities, would consume sufficient time and the purpose intended to be achieved through Proviso to S.10(4) of West Pakistan Family Courts Act, 1964 would be defeated---Keeping in view the entire scheme of the law, the sole object and intent of the legislature was to ensure the expeditious disposal of such disputes---Time frame fixed by legislature for disposal of cases would lend iron clad support to that view---Ambiguity or absurdity in the Proviso to S.10(4) of the West Pakistan Family Courts Act, 1964 as to how to deal with the present eventuality needed to be clarified and efforts had to be made to make the same effective and meaningful so that the object of the legislature was achieved fairly and squarely.

(g) Interpretation of statutes---

----Proviso to a section-Object-'Proviso' always serves as an exception to the main provision of law limiting, extending its scope or making the main provision subject to it---In case of absurdity, it was permissible for the courts to make attempts to seek the second meaning making the' Statute to operate and supply the obvious omission by modifying the meaning of the word and even the structure of the sentence, or rejecting some words or by interpolating other words---Obligation of courts in some exceptional cases would become imperative to adopt such a course.

Pramatha Nath Chowdhury and 17 others v. Kamir Mondal PLD 1965 SC 434; Haji Kadir Bux v. Province of Sindh and another 1982 SCMR 582 and Mehar Khan v. Yaqub Khan and another 1981 SCMR 267 ref.

(h) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.8---Dissolution of marriage on ground of Khula'---Marriage on the basis ofKhula' could be dissolved and the wife had to return such benefits/considerations agreed upon---Failure on the part of the wife to pay the considerations for the divorce, would not invalidate the divorce, though the husband could sue the wife for its recovery and that it could not be postponed until the execution of the "Khulanama" (deed of Khula')---Family Court could grant decree for dissolution of marriage on the basis ofKhula' when pre-trial reconciliation efforts would fail---Court, however, while granting decree for dissolution of marriage on the basis of Khula' would record sound and cogent reasons in support thereof and would also state that after holding trial, if the wife was found liable to pay back the considerations determined by the court which she had received, same were to be returned to the husband---Family Court, however, could not defer the grant of decree on the basis ofKhula' for disruption of marriage because the parties were not in agreement on the payment or non-payment of dower and the decree of `Khula' would remain effective from the date on which it was pronounced.

Monshee Buzul-ur-Rehman v. Luteesutoon-Nisa (1861)8 MIA 379, 395; Saddan v. Faiz Bakhsh (1920) I Lah. 402, 55 I.C. 184; Umar Bibi v. Mohammad Din (1944) Lah. 542; 220 IC 9; (45) AL 51; (1861) 8 M.I.A. 379, 397-398; (1861) 8 M.I.A. 379, 396 and Karimullah v. Shabana and 2 others PLD 2003 Pesh. 146 ref.

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

----Ss. 8 & 10---West Pakistan Family Courts Act (XXXV of 1964), S.5 & Sched.---Dissolution of marriage on ground of Khula'---Payment of dower---If the Commandment of Allah Almighty was to the effect that the wife had to return all that which she had received from the husband, then no room was left to deviate therefrom, but the Holy Qur'an had reduced the burden on the wife by commanding to return some consideration to the husband---Wife was under no obligation to return each and every thing whether in cash or kind she had received from her husband at the time of her release from the wedlock on the basis ofKhula'---Words used "some consideration" was of paramount importance---Wife had to return some consideration to the husband on seeking dissolution of marriage on the basis of Khula'---Judge had the authority to determine whether Haq Mehr/considerations as a whole was not to be repaid by the wife, but a part of it---Judge could also determine as to what extent the husband could be relieved from the payment of dower to the wife, if not already paid---While exercising such discretion in that regard, the Judge while dissolving marriage on the ground ofKhula' among others, could take into consideration conditions detailed by High Court---Judge could also consider other similar circumstances so that the wife was not forced to live impious life for arranging money to repay in full or part of the consideration to the husband.

Wife has to return some consideration to the husband on seeking dissolution of marriage on the basis of `Khula'. It does not command in express words and clear terms that the entire consideration benefits/Haq Mehr received by the wife has to be repaid, therefore, in peculiar and exceptional circumstances, the Judge has the authority to determine that the Haq Mehr/consideration as a whole is not to be repaid by the wife but a part of it. Similarly, it can also determine as to what extent the husband can be relieved from the payment of dower, to the wife, if not already paid.

While exercising such discretion in that regard, the Judge while dissolving marriage on the ground of `Khula' amongst other, may take into consideration the following conditions and circumstances.

(i) If it is proved before it that the wife was neither disobedient nor was a major contributory or a cause for the hateful and strained relations, rather the fault on this account is attributeable to the husband;

(ii) In a case where `Khula' is sought by an orphan lady who has no resources or insufficient financial means to pay back the compensation/consideration or part of it, in such a situation, she had not to be forced to return the whole or part of the same as any strict view in that regard would force the lady to live a sinful life to arrange money for payment. Such a course would be in disregard for the injunctions of Islam being a detestable act;

(iii) In case where the husband has taken some steps for contracting a second marriage without the required permission although it has not been solemnized by then and the fault of crossing the limits of Allah Almighty is well attributed to him;

(iv) In case where the wife has spent the full blooming, the blossom full and peak of her life with the husband and at the fag-end of her life when her youth and beauty both have faded and is unable to remarry after divorce/'Khula'. The same shall be taken into consideration;

(v) if the wife is a destitute and after divorce/"Khula", she is - left with no shelter to live a graceful life and after considering all the surrounding circumstances, it is evident that she is unable to repay the dower or part of it; and

(vi) The Judges of the Family Courts shall give deep thought to the facts and circumstances of each case so that the above concession based on the interpretation/construction of Islamic Injunctions are not extensively misused.

The Judge may also consider other similar circumstances so that the wife is not forced to live impious life for arranging money to repay in full or part of the consideration to the husband. Similarly, the husband is not to be let off from the payment or part payment of the dower if still outstanding enabling the divorced wife to live a pious life with grace and dignity.

Islam unlike other religions has given considerable rights to females. They have to get share in the property of parents, children and husband.

The only obligation of Muslim woman is to be faithful and obedient towards her husband and to do domestic work. She is not required to do labour/work for earning bread because that responsibility is exclusively of the husband. The entire scheme of the injunctions of Islam is aimed at establishing a Welfare State, the last sermon delivered by the Holy Prophet (peace be upon him) is a complete charter of human rights based on equity and equal treatment. Therefore, Family Courts Qazis while determining the quantum of dower or part of it, the wife has to return to the husband while seeking decree for dissolution of marriage on the basis of 'Khula' shall always keep in mind the above principle in mind and be given deep thought and consideration.

Forcing a financially weak or destitute wife to return the entire dower may push her to prostitution or other anti-social activities for earning money to satisfy the decree. This would be highly prejudicial to the society and the State as well. Thus if the Family Court after due satisfaction is of the view that the divorced wife has no means to repay the dower as a whole or part of it and it genuinely apprehends that the wife would opt to live immoral life to arrange money for payment of the dower, then it has to refuse to grant the same so that the Judges/Courts who are supposed to do substantial justice may not be blamed to be contributories in such a detestable acts.

Mst. Balqis Fatima v. Naiam-ul-Ikram Qureshi PLD 1959 (W.P.) Lah. 566 and Khurshid Bibi's case PLD 1967 SC 97 ref.

(j) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.10(4), Proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Dissolution of marriage on ground of `Khula'---Obligation of the Family Courts/Qazis---Obligations of Family Courts/Qazis, while exercising powers under Proviso to S.10(4) of the West Pakistan Family Courts Act, 1964, had been increased manifold, they would have to make all-out efforts to conduct the proceedings in a professional investigative manner while probing the subject-matter and would strive to discover the truth as to who amongst the spouses was at fault; and that meaningful attempts must be made to preserve the marriage, because in an Islamic Welfare State, a family was a primary unit; any sort of disturbance therein or its frequent break up, would destabilize the society as a whole---Peaceful and happy union between spouses would serve as a linchpin for the peaceful and healthy society as a whole.

Amin-ur-Rehman for Petitioner.

Riaz Ahmad Khan for Respondents.

Date of hearing: 23rd February, 2009.

P L D 2009 Quetta 1

Before Akhtar Zaman Malghani and Ahmad Khan Lashari, JJ

JAGDESH KUMAR alias JAGOO and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. (S)38, (S)42, (S)43 of 2007, decided on 11th September, 2008.

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

----Ss.295 & 295-B/34---Qanun-e-Shahadat (10 of 1984), Arts.37 & 40---Appreciation of evidence---Trial Court relied upon disclosure made by accused persons by bringing it within the purview of Art.40 of Qanun-e-Shahadat, 1984 and according to the court new facts were discovered through such disclosure, which conclusion, in view of the language of Art.40 of Qanun-e-Shahadat, 1984 was wrong because under said Article so much of such information, whether it amounted to a confession or not, as related distinctly to the facts thereby discovered, could be proved against accused---In the present case facts disclosed by accused persons were already in the knowledge of Police and nothing new was discovered or recovered relating to crime on their pointation---According to prosecution witness, he saw accused persons inside the shrine one day prior to the occurrence, which was not unusual for them being Muslims---Only on that basis accused could not be said to have committed the offence, nor such piece of evidence could be used against them as a corroboratory piece of evidence---Retracted confessional statements of accused persons were recorded after a delay of fifteen days---Mere delay in recording of confessional statement alone though was not sufficient to discard such confessional statement,, ii it was otherwise found truthful and voluntary by court, but where no other evidence was on record except the confessional statement, it required close scrutiny and un-explained delay could past doubts in voluntariness of such statement---Police's own showing was that accused persons confessed their guilt by making disclosure and pointing out place of occurrence, but despite such admission they were not produced before the Judicial Magistrate soon thereafter; after their such disclosure no further investigation was carried out in the case during the intervening period---Possibility could not be ruled out that accused were kept in Police custody in order to extract confession---Answer given by one of accused persons had shown that confessional statements of accused persons were not voluntary---Said confessional statements were not only contradictory to each other, but also to prosecution version as set up by it in the said disclosure---All accused persons having retracted their confessions, under the rule of prudence strong independent corroboration was required, which was lacking in the case; it would be highly dangerous to sustain conviction of imprisonment for life on the basis of such tainted piece of evidence---Impugned judgments passed by the Trial Court were set aside and accused were acquitted and set at liberty.

PLD 1995 FSC 20 ref.

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

----Arts.37, 38 & 39---Confession---Recording of confession---Main object of putting certain questions before recording confessional statements was to judge as to whether accused was confessing his guilt voluntarily or otherwise.

Sakhi Sultan and Nazir Ahmed Khajak for Appellants.

Abdul Rahim Mengal, A. A.-G. for the State.

Date of hearing; 28th August, 2008.

P L D 2009 Quetta 7

Before Akhtar Zaman Malghani and Amanullah Khan Yasinzai, J'J

Haji MUHAMMAD RAFIQ---Appellant

Versus

TAWEEZ KHAN and 5 others-Respondents

Criminal Acquittal Appeal No.253 of 2007, decided on 25th November, 2008.

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

----Ss.365/147/148/149---Criminal Procedure Code (V of 1898), Ss.417(2-A) & 161---Appeal against acquittal--Statement under S.161, Cr.P.C.---Nature---Trial Court acquitted respondents/accused persons of the charge on the ground of delay in F.I.R. and that alleged abductee in her statement under S.161, Cr.P.C. had stated that she had gone along with accused with her own accord and married him---Delay in F.I.R. was very much explained in written report--Reliance on the statement of alleged abductee recorded under S.161, Cr.P.C., without her examination in the court, was based on ignorance of law as statement recorded under S.161, Cr.P.C. was not substantive piece of evidence, but could only be used for limited purpose of contradicting a witness at the trial---Before taking into consideration consent of abductee, the Trial Court was under legal obligation to have first determined her age because appellant/complainant in his court deposition had shown her age about 10/11 years---Alleged consent of abductee in the case had gained vital importance---Trial Court, before taking into consideration, such consent, should have first determined her age, which could have been either ascertained from NADRA record or from Medical certificate---Conduct of Investigating Officer was also not above board because despite recovery of victim/abductee, he neither produced her before any Medical Officer to ascertain her age and allowed her to go along with absconding accused without arresting that accused or taking permission from court with regard to her custody---Appeal against acquittal was allowed and after setting aside judgment/order rendered by the Trial Court, case was remanded with direction to call for record from NADRA as well as statement of the victim girl recorded under S.164, Cr.P.C. by Judicial Magistrate and examined Medical Officer who issued medico-legal certificate of victim and thereafter proceed in the matter in accordance with law.

2006 PCr.LJ 1292; 2007 PCr.LJ 1288; 2007 MLD 372 and 1986 SCMR 35 ref.

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

----S. 540---Power to summon material witness or examine persons present---Under S.540, Cr.P.C. the court or Magistrate was under legal obligation to examine any witness whose evidence appeared to be essential for just decision of case.

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

----S. 265-K---Power to acquit accused---Recording of evidence before order of acquittal under S.265-K, Cr.P.C., though was not requirement of law, but said section could not be pressed into service to stifle or thwart prosecution; as powers under said section were not intended to be exercised arbitrarily and capriciously without providing an opportunity to prosecution or complainant to produce prosecution witnesses.

2005 SCMR 1544; Bashir Ahmed v. Zafar ul Islam PLD 2004 SC 298; Muhammad Sharif v. The State PLD 1999 SC 1063; 2007 PCr.LJ 1288 and 2006 Pcr.LJ 1292 rel.

Khushnood Ahmed for Appellant

Kamran Murtaza and Habib Jalib and Malik Sutlan Mehmood, A.A.-G. for Respondents.

Date of hearing: 6th November, 2008.

P L D 2009 Quetta 13

Before Akhtar Zaman Malghani, J

Haji ABDUL KHALIQ---Petitioner

Versus

MULLA MUHAMMAD and 2 others---Respondents

Civil Revision No.219 of 2003, decided on 5th December, 2008.

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

----Ss. 2(2) & 33---Dismissal of suit would not amount to passing of an executable decree---Application for execution of such decree by either party would not legally be maintainable.

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

----Ss. 2(2) & 33---Executable decree---Characteristics stated.

Executable decree is one where there is a definite order to a definite person to do or refrain from doing a certain thing either forthwith or at a given future day or on the happening of a certain event, and where there is no such direction, then decree could not be legally executable.

Naeem Akhtar Afghan for Petitioner.

Muhammad Riaz Ahmed for Respondents.

Date of hearing: 28th November, 2008.

P L D 2009 Quetta 16

Before Akhtar Zaman Malghani and Amanullah Khan Yasinzai, JJ

EHSANULLAH REKI---Petitioner

Versus

Lt.-Gen. (Retd.) ABDUL QADIR BALOCH and 2 others---Respondents

C.P. No.383 of 2008, decided on 10th September, 2008.

Representation of the People Act (LXXXV of 1976)---

----S. 62---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election petition, pendency of---Application for summoning of witnesses through process of Court from list of witnesses filed after framing of issues---Acceptance of such application by Election Tribunal---Validity---Provisions of S.62 of Representation of the People Act, 1976 read with Notification dated 19-3-1985 were directory in nature as no penal consequences for its non-compliance had been provided in Representation of the People Act, 1976-Tribunal had power by virtue of para.6 of the notification to examine any witness, whose name was mentioned in election petition---Impugned order was legal---High Court dismissed constitutional petition in circumstances.

2005 CLC 1493; 1999 SCMR 1597; PLD 1999 SC 1 and 1999 YLR 1995 ref.

1992 CLC 1766; 1999 YLR 1995; 2007 CLC 1192 ; PLD 2005 SC 600; 1998 SCMR 1597; 1987 SCMR 1107; PLD 1987 SC 447; PLD 2003 Quetta 94; 2007 CLC 141 distinguished.

M. Riaz Ahmad for Petitioner.

H. Shakil Ahmed for Respondent No.1.

Salahuddin Mengal, A.-G. and Ch. Mumtaz Yousaf Standing Counsel on Court Notice for Respondents.

Date of hearing: 28th August, 2008.

P L D 2009 Quetta 21

Before Akhtar Zaman Malghani, J

BROWN GYMKHANA through President---Appellant

Versus

AL-REHMAN HOSPITAL through Managing Partner and others---Respondents

F.A.O. No.53 of 2007, decided on 5th December, 2008.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(2)(i)(ii) & 15---Ejectment application---Maintainability---Ejectment application filed by appellant/landlord Society against tenants on grounds of default in payment of rent and subletting, was dismissed by the Rent Controller, observing that appellant Society which was an un-registered firm/Society, could not have filed ejectment application---Prior to the ejectment application, appellant had already filed an ejectment application against respondent, in which similar objection was taken up by respondent and finally High Court and then Supreme Court had held that ejectment application on behalf of un-registered Association was maintainable by any of its members without joining other owners---Rent Controller, while deciding present ejectment application had not kept into mind said judgment of High Court and Supreme Court, despite the fact that judicial record of Rent Controller indicated that copy of said judgment was on file---Said judgment which had binding effect, was not taken into consideration by the Rent Controller---Impugned order passed by Rent Controller, was set aside and case was remanded with direction to proceed in the matter in accordance with law.

2005 CLC 731; 1982 CLC 859 and 1980 SCMR 29 ref.

(b) Constitution of Pakistan (1973)---

----Arts. 189 & 201---Decision of High Court, binding effect of---Under Art.201 of the Constitution, subject to Art.189 of Constitution, any decision of High Court, would to the extent that it decided a question of law or was based upon or enunciated a principle of law, would be binding on all courts subordinate to it; and where there was conflict of views between two High Courts, the subordinate courts had to follow the view taken by High Court of that Province.

2004 CLD 279 ref.

Hadi Shakeel Ahmed for Appellant.

Muhammad Qadir Shah and Zahid Moqueem Ansari for Respondents.

Date of hearing: 21st November, 2008.

P L D 2009 Quetta 27

Before Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ

NABI DAD---Petitioner

Versus

REGISTRAR COURT OF APPEALS, JUDGE ADVOCATE GENERAL'S DEPARTMENT, G.H.Q. RAWALPINDI and 3 others---Respondents

C.P. No.325 of 2008, decided on 15th December, 2008.

(a) Pakistan Army Act (XXXIX of 1952)---

----Ss. 59(a) & 133-B---Anti-Terrorism Act (XXVII of 1997), S.7(a)-Penal Code (XLV of 1860), S.109---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Charge of abetting act of terrorism against a Naik---Sentence awarded by Field General Court Martial---Constitutional petition challenging validity of such sentence---Maintainability---Where impugned judgment or order was mala fide or without jurisdiction or coram non judice, then high Court, despite bar by Art.199(3) of the Constitution, could examine such cases---Principles.

PLD 2001 SC 549 and PLD 1996 SC 632 rel.

(b) Pakistan Army Act (XXXIX of 1952)---

----Ss. 8(1), 59(a) & 133-B---Pakistan Army Act Rules, R.54---Anti-Terrorism Act (XXVII of 1997), S.7(b)---Penal Code (XLV of 1860), S.109---West Pakistan Arms Ordinance (XX of 1965), Ss.9, 13 & 13-E---Criminal Procedure Code (V of 1898), S.382-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Charges of aiding and abetting planting of bomb at Telephone Exchange, possessing without license a pistol and 60 rounds against a Naik---Sentence awarded by Field General Court Martial being dismissal form service and suffering of R.I. for 17 years---Remission of 2-1/2 years out of 17 years' R.I. in appeal by competent authority---Validity---Offences falling within exclusive jurisdiction of Anti-Terrorism Court for being a Court of criminal jurisdiction in relation to Pakistan Army Act, 1952 could be tried by Court Martial under S.59, Pakistan Army Act, 1952, if person having committed such offence was subject to said Act---Petitioner was subject to Pakistan Army Act, 1952 and had been found guilty under S.59 thereof for committing civil offence punishable under S.7(b) of Anti-Terrorism Act, 1997 read with S.109 of Penal Code, 1860 and for possessing arms and ammunition without licence under S.13 read with S.9 of West Pakistan Arms Ordinance, 1965---Court constituted under Pakistan Army Act, 1952 could award one sentence in respect of all offences of which petitioner was found guilty---High Court dismissed constitutional petition in circumstances.

2008 SCMR 1384; 2007 SCMR 399; PLD 2001 Quetta 64; PLD 1990 Kar. 470; PLD 1996 SC 801; PLD 1989 SC 26; PLD 1977 SC 52; PLD 1977 Kar. 833; 1999 SCMR 2078; 1987 SCMR 1382; PLD 1981 SC 522; 1981 SCMR 1237; 1983 SCMR 732 and 1986 PLC (CS) 560 distinguished.

(c) Criminal trial---

----Sentence---Enhancement of sentence by statute after commission of an offence---Effect---Accused could not be awarded such enhanced sentence except that provided for an offence at the time of its commission---Principles.

An accused person is liable to conviction provided for an offence at the time of Commission of that offence, and if any amendment is brought in statute enhancing the sentence afterwards, the accused could not be legally convicted for such enhanced sentence and any such order would be totally without jurisdiction.

(d) Pakistan Army Act (XXXIX of 1952)---

----Ss. 8(a), 59(a), 133-B & 135---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Penal Code (XLV of 1860), S.109---Criminal Procedure Code (V of 1898), S.382-B---Charge against Naik of aiding and abetting act of terrorism---Order of Field General Court Martial awarding sentence to accused without giving .him benefit of S.382-B, Cr.P.C.---Validity---Such sentence would commence on date of signing of such order by the President of Court Martial---Section 382-B, Cr.P.C., would not apply to sentences awarded under Pakistan Army Act, 1952.

1984 PCr.LJ 1379 rel.

Amanullah Kanrani for Petitioner.

Ch. Mumtaz Yousaf, Standing Counsel and Muhammad Afzal Jami, D.A.-G. for Respondents.

Date of hearing: 26th November, 2008.

P L D 2009 Quetta 33

Before Ahmed Khan Lashari and Mehta Kailash Nath Kohli, JJ

ABDUL KHALIQ---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.3 of 2004, decided on 27th October, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Case of prosecution was that accused after beating his wife (deceased), set her on fire, due to which she expired---No direct evidence was indicating that accused, after sprinkling Kerosene Oil or in any other manner, set deceased on fire---Complainant/father of deceased, had only deposed that accused was drug-addict person and used to beat his wife/deceased---On the day of incident, complaintant was not present on the spot and, subsequently, he, on receiving information about the incident, came to the house of accused and saw his daughter dead---Overall circumstances indicated that accused had not committed the Qatl-i-Amd of his wife with the intention of causing bodily injury to her, while in the ordinary course of nature was likely to cause the death or with the knowledge that his act was so imminently dangerous that it must in all probability cause death of the deceased as defined under S.300, P.P.C..-No such evidence was available that the injuries sustained by the deceased were actually the cause of her death---Charge against accused under S.302(b), P.P.C. had not been proved---Evidence which had come on record was that accused had beaten the deceased lady, due to which she lost her temper and after sprinkling kerosene oil she set herself on fire---Prosecution had failed to prove the charge against accused under S.302(b), P.P.C. and evidence. available on record led to the conclusion that a case under S.337-A(i), P.P.C. was made out against accused for causing injuries to the deceased as mentioned in the medical report---Charge under S.302(b), P.P.C. was altered to that of S.337-A(i), P.P.C. and accused was convicted and sentenced under section 337-A(i), P.P.C. and he was sentenced to two years' R.I. etc.

(b) Criminal trial---

----Duty of prosecution---Prosecution no doubt was duty bound to prove the case against accused, however in case, specific defence was put forward, accused had to prove that his plea was reasonable, true and possibility could not be ruled out that he was compelled to act due to such circumstances---If no such direct evidence had come on record for which the prosecution was bound, but still the court, for just conclusion and fair decision of the case, was entitled to presume the existence of any fact, which it thought likely to have happened.

Haji Liaquat for Appellant.

Raja Rab Nawaz for the Complainant.

Muhammad Umer Dogar for the State.

Date of hearing: 8th October, 2008.

P L D 2009 Quetta 40

Before Akhtar Zaman Malghani, Ahmad Khan Lashari and Muhammad Nadir Khan, JJ

SHAH FAISAL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.297 & 318 of 2005, decided on 18th May, 2009.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 34 & 35---Criminal Procedure Code (V of 1898), S.510---Setting up Federal Narcotics Testing Laboratory and report of Chemical Examiner and Serologist etc.---Government was required to set up Federal Narcotics Testing Laboratory or notify any other Laboratory or Institute as Federal Narcotics Testing Laboratory---Under S.34 of Narcotic Substances Act, 1997, in addition to setting up a Federal Narcotics Testing Laboratory, the Government had also been authorized to notify an already set up Laboratory or Institution to be a Federal Narcotics Testing Laboratory---In pursuance of such powers the Government had issued Notification---Forensic Science Laboratory was a Narcotics Testing Laboratory set up by the Provincial Government and the Chemical Examiners posted therein had been notified to be Chemical Examiner under S.510, Cr.P.C.---After having been declared to be a Federal Narcotics Testing Laboratory for the purpose of Control of Narcotic Substances Act, 1997, the report of the Chemical Examiner would be a report as contemplated under S.34 of the Act---Chemical Examiner and Assistant Chemical Examiner appointed in the said Laboratory would be considered to be Government Analyst as envisaged under S.35 of Control of Narcotic Substances Act, 1997---Any report submitted by a Chemical Examiner or Assistant Chemical Examiner notified under S.510, Cr.P.C. was a report of Government Analyst within the meaning of Ss.34 & 35 of the Act and admissible in evidence---In absence of any express exclusion of S.510, Cr.P.C., the reports of Chemical Examiner and Assistant Examiner notified under S.510, Cr.P.C. were also admissible in the case registered under the provisions of Control of Narcotic Substances Act, 1997---Provisions of S.35 of Control of Narcotic Substances Act, 1997, having been couched in affirmative words, same would not affect the provisions of S.510, Cr.P.C. making the report of duly notified Chemical Examiner admissible.

2001 PCr.LJ 879 ref.

(b) Interpretation of statutes---

----Repeal by implication---Scope---Repeal by implication ought not to be held valid without strong reason because it was always reasonable presumption that the legislature did not intend to keep really contradictory enactments on the statute hook---When the later enactment 'was worded in affirmative terms only, without any negative expressed or implied, it would not repeal the earlier law.

Kamran Murtaza for Appellant (in Criminal Appeal No.297 of 2005).

Gohar Yaqoob Yousafzai, Special Prosecutor ANF for the State (in Criminal Appeal No.297 of 2005).

Syed Ayaz Zahoor for Appellant (in Criminal Appeal No.318 of 2005).

Gohar Yaqoob Yousafzai Special Prosecutor ANF for the State (in Criminal Appeal No.318 of 2005).

Date of hearing: 29th April, 2009.

P L D 2009 Supreme Court 1

Present: Abdul Hameed Dogar, C.J., Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar, Saiyed Saeed Ashhad, Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir, Zia Perwez, Mian Hamid Farooq, Syed Sakhi Hussain Bukhari, Syed Zawwar Hussain Jaffery, Sheikh Hakim Ali and Muhammad Farrukh Mahmud, JJ

Dr. ZAHOOR MEHDI---Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN/RETURNING OFFICER FOR PRESIDENTIAL ELECTION, ISLAMABAD and 8 others---Respondents

Civil Review Petition No.4 of 2008, decided on 15th February, 2008.

(On review against the judgment of this Court dated 22-11-2007 passed in Constitution Petition No.83 of 2007).

(a) Constitution of Pakistan (1973)---

----Art. 41(2) & 62(2)---Presidential Election Rules, 1988, R.5(3)(b)---Election of the President---Qualifications to contest Presidential election---Person not enrolled as a voter in the electoral roll was not qualified to be a Presidential candidate---For valid nomination papers in respect of a candidate for Presidential election, it was essential that the same should be proposed and seconded by a member of the electoral college---Principles.

In terms of clause (2) of Article 41 of the Constitution, it is clearly provided that a person shall not be qualified for election as President unless he is a Muslim of not less than 45 years of age and is qualified to be elected as member of the National Assembly. By virtue of clause(b) of Article 62, a person is not qualified to be elected or chosen as a member of Parliament unless he is enrolled as a voter in any electoral roll in any part of Pakistan for election of a general seat. The person being not enrolled as a voter in the electoral roll of 2007 was not qualified to be a Presidential candidate.

Under Article 41 of the Constitution, the electoral college to elect the President of Pakistan consists of members of the Majlis-e-Shoora (Parliament) as well as four Provincial Assemblies, therefore, the name of a candidate is required to be proposed and seconded by a voter, who could only be either a member of the Majlis-e-Shoora (Parliament) or a member of any of the four Provincial Assemblies. However, an elaborate procedure has been prescribed to hold election to the office of the President. For valid nomination papers in respect of a candidate for the office of the President, it is essential that the same should be proposed and seconded by a member of the electoral college as aforesaid.

M.P. Khan v. Muhammad Rafiq Tarar 1999 SCMR 90 ref.

(b) Constitution of Pakistan (1973)---

----Arts. 184 & 188----Proclamation of Emergency dated 3rd November, 2007---Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order dated 3-11-2007, Preamble---Powers of judicial review of Supreme Court---Scope---Contentions of petitioner for review of the Supreme Court judgment were that in view of Proclamation of Emergency dated 3rd November, 2007 and the Provisional Constitution Order, 2007. the Supreme Court and the High Courts were precluded from passing any order against the President or the Prime Minister or any authority designated by the President and Supreme Court was not competent to hear the petitioner's constitution petition under Art.184(3) of the Constitution which involved question of enforcement of Fundamental Rights and that petitioner's Constitution petition was wrongly decided/dismissed by Supreme Court through the order sought to be reviewed---Validity---Held, power of judicial review of Supreme Court was, in no way, affected by the Proclamation of Emergency dated 3rd November, 2007 or the Provisional Constitution Order, 2007 holding the Constitution in abeyance or the Oath of Office of Judges Order, 2007 whereunder the judges of the Superior Courts were necessarily required to take a fresh Oath---Supreme Court continued its existence and was not bereft of its power of judicial review by recitals contained in such extra-constitutional instruments---Supreme Court is and has always been, fully competent to decide the validity of all such extra constitutional measures/actions---Fact that Supreme Court, in the facts and circumstances of any particular case, may pass any appropriate order including upholding of any action challenged before it, or the giving of any appropriate directions in the matter suggests nothing else but the exercise of judicial review and jurisdiction of Supreme Court in the matter brought before it.

M.P. Khan v. Muhammad Rafiq Tarar 1999 SCMR 90; Zafar Ali Shah v. Pevez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 and Tika Muhammad Iqbal Khan v. General Pervez Musharraf, Chief of Army Staff PLD 2008 SC 178 ref.

Petitioner in person.

Malik Muhammad Qayyum, Attorney-General for Pakistan, Ms. Nahida Mehboob Ellahi, D.A.-G., Sardar M. Ghazi, D.A.G. and Raja Niaz Ahmed Rathore, D.A.-G. for Federation of Pakistan.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Waqar Rana, Advocate for Respondent No.3.

Nemo for Respondents Nos. 4-9.

Date of hearing: 15th February, 2008.

P L D 2009 Supreme Court 11

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

BASHIR AHMED---Petitioner

Versus

MUHAMMAD SIDDIQUE and others---Respondents

Civil Petition No.386 of 2008, decided on 11th August, 2008.

(On appeal from the judgment dated 26-2-2008 of the Lahore High Court, Lahore passed in Writ Petition No.2420 of 2007).

Anti-Terrorism Act (XXVII of 1997)---

----Ss. 6, 7 & 8---Determination as to whether an offence falls within the ambit of S.6, Anti-Terrorism Act, 1997---Essentials.

In order to determine as to whether an offence would fall within the ambit of section 6 of the Anti-Terrorism Act, 1997, it would be essential to have a glance over the allegations made in the F.I.R., record of the case and surrounding circumstances. It is also necessary to examine whether the ingredients of alleged offence have any nexus with the object of the case as contemplated under sections 6, 7 and 8 thereof. Whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind said act is to be seen. It is also to be seen as to whether the said act has created a sense of fear and insecurity in the public or any section of the public or community or in any sect.

Striking of terror is sine qua non for the application of the provisions as contained in section 6 of the Anti-Terrorism Act which cannot be determined without examining the nature, gravity and heinousness of the alleged offence, contents of F.I.R. its cumulative effect on the society or on a group of persons and the evidence which has come on record. There could be no second opinion that where the action of an accused results in striking terror or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular area it amounts to terror and such an action squarely falls within the ambit of section 6 of the Act and shall be triable by a Special Court constituted for such purpose.

Fear or insecurity must not be a by-product, fall out or unintended consequence of a private crime. As such, creation of fear and insecurity in the society is not itself terrorism unless the same is coupled with the motive. Act of terrorism is desired to be determined with the yardstick and, scale of motive and object, instead of its result or after effect. The definition of terrorism is not attracted if the offence has neither created any threat to coerce or intimidate or overawe the government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society.

If the motive for the occurrence is enmity inter se the parties on account of some previous murders the application of section 7 of the Act, which primarily requires the spread of sense of insecurity and fear in the common mind is lacking in the case. The occurrence neither reflected any act of terrorism nor it was a sectarian matter, instead the murders in question were committed owing to previous enmity between the two groups.

If the intention of the accused was not at all to create sense of insecurity or destabilize the public-at-large or to advance any sectarian cause the design or purpose of the offence as contemplated by the provisions of section 6 of the Act were not attracted.

Mst. Najma-un-Nisa v. Judge Special Court and others 2003 SCMR 1323; Ch. Bashir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 2004 Lah. 199 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Syed Zahid Hussain, Advocate Supreme Court for Respondent No.2.

Mian Asif Mumtaz, Deputy Prosecutor General for the State.

Date of hearing: 11th August, 2008.

P L D 2009 Supreme Court 16

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Civil Appeal No.1330 and 1465 of 2006

PROVINCE OF PUNJAB through Collector, Bahawalpur and others---Appellants

Versus

Sh. HASSAN ALI and others---Respondents

(On appeal from the judgment dated 7-6-2006 in R.F.A. No.3 of 1992 passed by the Lahore High Court, Bahawalpur Bench).

Civil Appeal No.1465 of 2006

Sh. HASSAN ALI and others---Appellants

Versus

PROVINCE OF PUNJAB through Collector, Bahawalpur and others---Respondents

Civil Appeal No.1331 of 2006

PROVINCE OF PUNJAB through Collector, Bahawalpur and others---Appellants

Versus

MURID AHMAD---Respondents

(On appeal from the judgment dated 6-6-2006 in R.F.A. No.52 of 1993 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur).

Civil Appeals Nos.1332 to 1335 of 2006

PROVINCE OF PUNJAB through Collector, Bahawalpur and others---Appellants

Versus

Mst. NAJMA BIBI and others---Respondents

(On appeal from the judgment dated 6-6-2006 in R.F.As. Nos.53 to 56 of 1993, passed by the Lahore High Court, Bahawalpur Bench).

Civil Appeals Nos.1466 to 1468 of 2006

Mst. NAJMA BIBI and others---Appellants

Versus

PROVINCE OF PUNJAB through Collector, Bahawalpur and others---Respondents

(On appeal from the judgment dated 6-6-2006 in R.F.As. Nos.53, 54 and 56 of 1993, passed by the Lahore High Court, Bahawalpur Bench).

Civil Appeals Nos. 1330 to 1335 and 1465 to 1468 of 2006, decided on 6th June, 2008.

(a) Land Acquisition Act (I of 1894)---

----Ss. 23, 4(1) & 6---Acquisition of land---Compensation, determination of---Criteria.

Criteria for determination of compensation of land has been laid down in section 23 of the Land Acquisition Act and it includes, inter alia, the market value of the land on the date- of publication of notification under section 4(1) of the Act, the damage sustained by the persons interested by reasons of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession, or by reasons of severing such land from his other land, or by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings, or if a person interested is compelled to change his residence or place of business, and it, also includes the damages from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land, etc., meaning thereby that it is cumulative effect of all the factors involved and compensation cannot be assessed solely on the basis of the entries in the mutation effected at the relevant time.?

?(b) Land Acquisition Act (I of 1894)---

---S. 23---Acquisition of land---Compensation---Matters/factors required to be taken into consideration in determining amount of compensation summarized.?

Murad Khan v. Land Acquisition Collector 1999 SCMR 1647 quoted.

Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870; Province of Sindh v. Ramzan & others PLD 2004 SC 512; Muhammad Saeed v. Collector, Land Acquisition 2002 SCMR 407; Nisar Ahmad Khan v. Collector, Land Acquisition PLD 2002 SC 25; Collector, Land Acquisition v. M. Ayub Khan 2000 SCMR 1322; Province of Punjab v. Abdul Majeed 1997 SCMR 1692 and Pakistan Burmah Shell Ltd, v. Province of N.-W.F.P. 1993 SCMR 1700 ref.

(c) Land Acquisition Act (I of 1894)---

---Ss. 18 & 23---Civil Procedure Code (V of 1908), O.XXIV, R.9---Local Commissioner, appointment of---Held, there was no impediment in appointing a Local Commissioner when the evidence brought on record alone, was not capable to resolve the controversy---Recourse to O.XXVI, R.9, C.P.C. could be made even without an application by any party.?

Sarhad Development Authority v. Land Acquisition Collector (2002 SCMR 730) Muhammad Saeed & others v Collector, Land Acquisition (2002 SCMR 407); Muhammad Sarfraz Gul v. Collector, Land Acquisition 2005 CLC 710; Syed Aolad Ali Shah Gillani v. Govt. of Azad J&K 1998 CLC 1779; Muhammad Saeed & others v. Collector, Land Acquisition PLD 1996 Pesh. 22 and Collector, Land Acquisition, Peshawar v. Rokhan and others PLD 1995 Peshawar 78 ref.

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

---O. XXVI, R.9---Land Acquisition Act (I of 1894), Ss.18 & 23---Compensation, determination of---Local Commission, appointment of---Principles---Held, in any suit,. in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits, or damages or annual profits, the court may under O.XXVI, R.9, C.P.C., issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court.?

Sarhad Development Authority v. Land Acquisition Collector (2002 SCMR 730; Muhammad Saeed and others v. Collector, Land Acquisition (2002 SCMR 407); Muhammad Sarfraz Gul v. Collector, Land Acquisition 2005 CLC 710; Syed Aolad Ali Shah Gillani v. Government of Azad J&K 1998 CLC 1779; Muhammad Saeed & others v. Collector, Land Acquisition PLD 1996 Pesh. 22 and Collector, Land Acquisition, Peshawar v. Rokhan and others PLD 1995 Peshawar 78 ref.

(e) Land Acquisition Act (I of 1894)---

---Ss. 18 & 23---Constitution of Pakistan (1973), Art.185---Acquisition of land---Compensation, determination of---Appeal to Supreme Court---High Court; after fully appreciating the entire evidence available on record had assessed the sale price of the lands in question and such findings had also the support of the material placed on record and while determining the amount of compensation the courts below had also considered potentiality of the land in question and likelihood of its development and improvement---Impugned judgments did not suffer from any legal infirmity, so as to call for interference by the Supreme Court---Appeals were dismissed.?

Ms. Afshan Ghazanfar, A.A.G. Punjab and Sh. Zamir Hussain Senior Advocate Supreme Court for Appellants No.3 (in Civil Appeals Nos. 1330 and 1465 of 2006).

Muhammad Ozair Chughtai, Advocate on Record for Respondents (in Civil Appeals Nos. 1330 and 1465 of 2006).

Ms. Afshan Ghazanfar, A.A.G. Punjab and Sh. Zamir Hussain, Senior Advocate Supreme Court for Appellants No.3 (in Civil Appeal No.1331 of 2006).

Muhammad; Ozair Chughtai, Advocate on Record for Respondents (in Civil Appeal No. 1331 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeals Nos. 1332 to 1335 of 2006).

Muhammad Ozair Chughtai, Advocate on Record for Respondents (in Civil Appeals Nos. 1332 to 1335 of 2006).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court, Muhammad Ozair Chughtai, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (Civil Appeals Nos.1466 to 1468 of 2006).

Ms. Afshan Ghazanfar, A.A.G. Punjab for Respondents (in Civil Appeals Nos. 1466 to 1468 of 2006).

Date of hearing: 6th June, 2008.

P L D 2009 Supreme Court 28

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

MUHAMMAD MAQSOOD SABIR ANSARI---Appellant

Versus

DISTRICT RETURNING OFFICER, KASUR and others---Respondents

Civil Appeal No.1149 of 2007, decided on 21st August, 2008.

(On appeal from the judgment dated 27-3-2007 in W.P.No.16703 of 2005 passed by the Lahore High Court, Lahore).

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

----Art. 9---Punjab Local Government Ordinance (XIII of 2001), Ss.152 & 2(xxvi)---Professional communications---Counsel and client---Prohibition imposed on counsel---Election against the seat reserved for a "peasant"---Respondent, who was counsel of the appellant (an elected member of the council) having acquired knowledge regarding business carried out by the appellant previously, while taking advantage of said knowledge not only himself filed objections before the Returning Officer against the appellant but also prompted and asked another person to challenge the candidature of the appellant on the ground that appellant was not a "peasant" but was an industrialist---Validity---Provision of Art.9, Qanun-e-Shahadat, 1984 not only secures the secrecy of professional communication but prohibits in express terms an advocate from disclosing any information, communication, instruction and advice made to him, or received, obtained, and tendered by him during the course of his professional engagement and said prohibition is not limited to the knowledge of events or things acquired by him but also extends to facts observed by him in the course and for the purpose of his professional employment---Where the counsel had gone to the extent of filing a complaint on the basis of the knowledge acquired by him, in the course of his engagement as an advocate, same was not only unethical but was in patent violation of Art.9 of Qanun-e-Shahadat, 1984---Information contained in such a complaint being not valid, same could not have been entertained by the Presiding Officer of the forum and proceedings carried out in pursuances thereof were void and of no legal consequence.

Hakam v. Emperor AIR 1934 Lah. 269; Gopilal and others v. Lakhpat Rai and others AIR 1918 All. 38; State Bank of India v. Mrs. I.K. Sohan Singh AIR 1963 Pun. 27 and Muhammad Yaqoob Khan v. Adalat Khan 1983 CLC 976 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction is discretionary in character, and therefore, cannot be invoked by a person who had come to the court with unclean hands and likewise no one can be allowed to take advantage of his wrong act.

West Pakistan Tanks Termination (Pvt.) Ltd. v. Collector (Appraisement) 2007 SCMR 1318; Inayat Khan and others. v. Allah Ditta and others 2007 SCMR 655; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Raja Ali Shah v. Messrs Essem Hotel Limited and others 2007 SCMR 741; Ch. Muhammad Shafi v Shamim Khanum 2007 SCMR 838; Muhammad Sharif. v. Additional District Judge and others 2007 SCMR 49; Mauzam Hanif v. Settlement Officer/Collector and another 2006 SCMR 642 and Mohtrama Benazir Bhutto & another v. President of Pakistan PLD 1998 SC 388 ref.

Dr. Babar Awan, Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Appellant.

Tariq Mehmood, Advocate Supreme Court and G. N. Gohar, Advocate-on-Record for Respondents Nos. 3-4.

Ex parte: Respondents Nos.1-2.

Date of hearing: 15th April, 2008.

P L D 2009 Supreme Court 39

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

TARIQ MEHMOOD---Appellant

Versus

THE STATE through Deputy Attorney-General, Peshawar-Respondent

Criminal Appeal No.576 of 2006, decided on 24th June, 2008.

(On appeal from the judgment dated 1-9-2005, of the Peshawar High Court, Peshawar passed in Criminal Appeal No.217 of 2004).

(a) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----Rr.4 & 5---Interpretation, scope, and application of Rr.4 & 5, Control of Narcotic Substances (Government Analysts) Rules, 2001---Contention of the accused that samples separated from seized narcotic were sent to the Forensic Science Laboratory at a belated stage and in process sufficient time had been consumed was repelled in the absence of any allegation of tampering with the property---Principles.

Rules 4 & 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 have placed no bar on the Investigating Officer to send the samples beyond seventy two hours of the seizure, receive the F.S.L. report after fifteen days and the report so received, to place same before the trial Court. The very language employed in the rules and the effects of its breach provided therein have made the rules directory and not mandatory. These rules cannot control the substantive provisions of the Control of Narcotic Substances Act, 1997 to be applied in such a manner that its operation shall not frustrate the purpose of the Act under which these are framed. Further, failure to follow the rules would not render the search, seizure and arrest under the Control of Narcotic Substances Act, 1997 an absolute nullity and non-est and make the entire prosecution case doubtful, except for the consequence provided in the rules. In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such non-compliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. In the present case, there was no allegation of the accused that the property was tampered with during the process of transit or the remaining property was not charas. It was for the accused to have taken such plea before the Trial Court but he did not do so. However, Chemical Analyzer's report showed that the sealed packets were received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the contention of counsel for accused that samples separated from seized charas were sent to the Laboratory at belated stage and in process sufficient time was consumed was not sound.?

Uamjad v. The State 2006 PCr.LJ 988; Ibrahim v. The State, 2007 YLR 1767 and Abdul Hassan and another versus The State, 2007 YLR 1799 approved.

Mst. Iqbal Bibi v. The State, 2000 PCr.LJ 1812; Johar Ali and another v. The State, 2003 PCr.LJ 680; Mst. Zubaida Sadruddin v. The State PLD 2006 Pesh. 128; Naseer Ahmad v. the State 2004 SCMR 1361 and Riaz Ahmad v. The State 2004 SCMR 988 ref.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S. 25---Criminal Procedure Code (V of 1898), S.103---Recovery---Section 25, Control of Narcotic Substances Act, 1997 excludes the application of S.103, Cr.P.C.?

(c) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Certain minor lapses in investigation do not affect the validity of the trial.?

(d) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Constitution of Pakistan (1973), Art.185---Reappraisal of evidence---Charas in huge quantity had been recovered from the bag carried by the accused; recovery was proved by the members of raiding party, who had no personal reasons to involve the accused in a false case---Explanation offered by the accused for false implication was not plausible---Accused had not been able to point out any material discrepancy and contradiction in the evidence, suggesting even a slight doubt in the prosecution case arising in favour of accused---Record failed to show any legal or factual defect in the concurrent findings of two courts regarding the guilt of accused---Supreme Court declined to interfere with the judgment of High Court in circumstances.?

Haji M. Zahir Shah, Advocate Supreme Court for Appellant.

Nemo for Respondent.

Date of hearing: 24th June, 2008.

P L D 2009 Supreme Court 45

Present: Muhammad Moosa K. Leghari, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

Mst. SEEMA BEGUM---Appellant

Versus

MUHAMMAD ISHAQ and others---Respondents

Civil Appeals Nos. 842 and 843 of 2006, decided on 31st July, 2008.

(On appeal from the order dated 28-2-2006 of the High Court of Sindh at Karachi passed in C.Ps. Nos. S-2 and 3 of 2006).

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

----S. 15---Qanun-e-Shahadat (10 of 1984), Art.115---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Ejectment application on the grounds that respondent was in possession of disputed property as tenant and had failed to pay regular monthly rent and also defaulted in payment of maintenance charges and other taxes--Respondent contested the ejectment application, denying the averments in the application, taking plea that he had purchased disputed property from the appellant through an agreement to sell for which suit for specific performance was pending therefore, relationship of landlord and tenant did not exist between the parties and ejectment application was not maintainable---Validity---Held, mere pendency of civil suit in court can not defeat, prima facie, established title for purpose of cases under Sindh Rented Premises Ordinance, 1979---Genuineness or otherwise of alleged agreement and its consequential effect would be independently determined by the Civil Court---Sale agreement did not confer any title on the tenant unless the same was determined by the court of competent jurisdiction---Till the time tenant was able to establish his claim for "specific performance" on the basis of alleged sale agreement, the landlord would continue to enjoy the status of being owner or landlord of the premises and the relationship between the parties till such time would be regulated by the terms of tenancy and the tenant could not legitimately resist the maintainability of ejectment proceedings pending against him on the ground of sale agreement---Such agreement to sell would not authorize non-payment of rent by tenant from the date of entering into agreement---Once a person acknowledges himself to be a tenant of a landlord, the principle of estoppel as enunciated in Art.115 of Qanun-e-Shahadat, 1984 would come into play, debarring such tenant to deny the title of his landlord---Direction of Rent Controller to the tenant to deposit arrears of rent and to pay future rent being just and proper was sustainable, in circumstances.

Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Iqbal and 6 others v. Mst. Rabia Bibi & another PLD 1991 SC 242; Waheed Ullah v. Rehana Nasim 2004 SCMR 1568; Muhammad Nazir v. Saeed Subhani 2002 SCMR 1540; Habib Khan v. Haji Haroon-ur-Rashid 1989' CLC 783; Nazir Ahmad v. Mst. Sardar Bibi and others 1989 SCMR 913; Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCMR 877; Haji Jan Muhammad v. Ghulam Ghous and 2 others 1976 SCMR 14 and Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Kar. 74 ref.

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

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Constitutional petition against interim order passed by Rent Controller was not maintainable.

Muhammad Younus, Advocate Supreme Court for Appellant.

Respondent No.1 in person.

Date of hearing: 31st July 2008.

P L D 2009 Supreme Court 49

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ZAMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.72 of 1999, decided on 17th June, 2008.

(On appeal from the judgment dated 8-5-1997 of the High Court of Balochistan, Quetta, passed in Crl. Appeal No.71 of 1997 and MR 3 of 1997).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Sentence--- Leave to appeal was granted by Supreme Court to consider the limited question of sentence awarded to the accused/petitioner.

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

----S. 302(b)---Qatl-e-Amd---Sentence, award of---Principles---Penalty for Qatle-e-Amd, is the sentence of death and when the case is fully proved by the prosecution it must be inflicted---Where, however, the accused is able to prove that he was deprived of the capability of self control or was swayed away by circumstances immediately preceding the act of murder or there was an immediate cause leading to grave provocation or in case of doubt as to who in case of several accused persons, was responsible to cause the fatal injury, the sentence of life imprisonment or lesser sentence may be imposed---Where it is a double murder case and is cold blooded, accused deserved no sympathy.

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

----S. 302(b)---Reappraisal of evidence---Qatl-e-Amd---Sentence, award of---Mitigating circumstances---Accused and his brother co-accused, had taken the lives of two innocent persons in gruesome manner on mere suspicion---No evidence was available suggestive of the fact that deceased had been indulging in "Siahkari" which compelled the accused and his brother to shot them to death---Accused in his statement under S.342, Cr.P.C. had not taken such plea and merely denied having participated in the occurrence, maintaining that he had no hand in the affair and he was falsely charged due to enmity and suspicion---Courts below had carefully and rightly analyzed the evidence and their concurrent findings on the question of sentence could not be disturbed---Case of accused, in circumstances, did not represent the mitigating circumstances providing grounds for substituting death sentence into life imprisonment---Appeal of accused was dismissed.

Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 and Muhammad Ismail v. The State 2006 PCr.LJ 304 rel.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellant.

Qari Abdul Rasheed, Advocate Supreme Court for the State.

Date of hearing: 17th June, 2008.

P L D 2009 Supreme Court 53

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD TASAWEER---Petitioner

Versus

Hafiz ZULKARNAIN and 2 others---Respondents

Criminal Petition No.124 of 2008, decided on 1st July, 2008.

(On appeal from the judgment dated 2-4-2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.485 of 2003 and Crl. Revision No.201 of 2003).

(a) Constitution of Pakistan (1973)---

----Art. 185(3)---Criminal Procedure Code (V of 1898), S.417---Penal Code (XLV of 1860), S.302/34---Appeal against acquittal---Reappraisal of evidence---Principles---When an accused person is acquitted from the charge by a court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the Superior. Courts do not interfere unless the impugned order is arbitrary, capricious and fanciful and against the record---Law relating to reappraisal of evidence in appeal against acquittal is stringent in that the presumption" of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law---Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading, non-reading of evidence---Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible.

Muhammad Mansha Kausar v. Muhammad Asghar and others, 2003 SCMR 477 rel.

Sikandar Hayat v. Muhammad Nawaz and others LJJ 1995 SC 351; Ghulam Murtaza and another v. Muhammad Akram and others 2007 SCMR 1549; Rahimullah Jan v. Kashif and another PLD 2008 SC 298 and Altai Hussain v. Fakhar Hussain and another 2008 SCMR 1103 ref.

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

----S. 302/34---Appreciation of evidence---Medical evidence---Significance---Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.

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

----S. 302/34---Reappraisal of evidence---Abscondance of accused--Impact---Mere absconsion of accused is not conclusive proof of guilt of an accused person; it is only a suspicious circumstance against an accused that he was found guilty of the offence which cannot take place of proof---Value of absconsion, therefore, depends on the facts of each case---Abscondance is a supporting evidence of the guilt of accused--Absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case.

Malik Waheed Anjum, Advocate Supreme Court for Petitioner.

Siddique Khan Baloch, Deputy Prosecutor-General Punjab for the State.

Date of hearing: 1st July, 2008.

P L D 2009 Supreme Court 58

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD SHAHZAD SIDDIQUE---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.227 of 2008, decided on 8th September, 2008.

(On appeal from the order dated 19-5-2008 of the Lahore High Court, Bahawalpur Bench Bahawalpur passsed in Crl. Misc. No.427-B of 2008).

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/337-A(i)(ii)/337-H(ii)/337-F(v)(vi)/148/149---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Accused was behind the bars for the last about one and a half years and his trial was not likely to be completed in near future---According to F.I.R. accused had no attribution towards the deceased and only a shot fired by him with a `repeater' had allegedly hit the right foot and the small finger of the right hand of the prosecution witnesses---Question as to which party was aggressor and which party was aggressed upon was a legal ground for further inquiry---Trial Court had already granted bail to other side---In a case of counter-version if one party was granted bail, other party would also become entitled to the same relief---Bail was allowed to accused in circumstances.

Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845; Fazal Muhammad v. Ali Ahmad 1976 SCMR 391 and Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682 ref.

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

----S. 497---Bail---Counter-version---Principle---If one party is granted bail, other party is also entitled to the same relief in case of counter version.

Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845; Fazal Muhammad v. Ali Ahmad 1976 SCMR 391 and Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682 ref.

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

----S. 497(2)---Bail---Counter-versions---Further inquiry---Cases of counter-versions arising from the same incident, one given by the complainant in F.I.R. and the other given by the opposite party, are covered for grant of bail on the ground of further inquiry as contemplated under S.497(2), Cr.P.C.---Bail in such cases is normally granted on the ground of further inquiry, because the question as to which version is correct is to be determined by the trial Court after appraising the evidence recoded by it, for reaching the final conclusion in this regard---Plea of private defence is normally taken in cases of counter-versions giving rise to question as to which party has acted in aggression and which party is an aggressed one.

Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845; Fazal Muhammad v. Ali Ahmad 1976 SCMR 391 and Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682 ref.

Raja Ibrahim Satti, Senior Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Petitioner.

Ch. Munir Sadiq, D.P.G. for Respondent No.1.

Saleemuddin Aftab, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondent No.2.

Date of hearing: 8th September, 2008.

P L D 2009 Supreme Court 61

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

HARIS STEEL INDUSTRIES (PVT.) LTD. and 4 others-Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

Constitutional Petitions Nos. 4 to 7 and 9 of 2008 and Cr.O.P. Nos. 44 and 48 of 2008, decided on 15th September, 2008.

Constitution of Pakistan (1973)---

----Art. 186-A---Transfer of writ petitions pending in Lahore High Court---Survey of events had indicated that the NAB Authorities, despite the restraint orders passed by the High Court, were bent upon to harass and pressurize the petitioners by applying coercive methods---Even after passing of an order by Supreme Court for maintaining the position which was subsisting prior to the restraint order, an employee of the petitioners while sitting in the Bar Room along with Advocate-on-Record, was apprehended by the NAB Officials, dragged, severely beaten and taken away---Investigating Officer had admitted the arrest of the said employee from Supreme Court premises, whereafter the concerned officials were sent behind the Bars for initiation of proceedings for contempt of Court---Such state of affairs had suggested that conduct of the NAB Authorities especially at Lahore (National Accountability Bureau, Punjab) was not above board and due to coercive tactics applied by NAB Authorities and other officials, the petitioners were unable to pursue remedy freely before the Lahore High Court---Constitution petitions were consequently allowed in the interest of justice and the writ petitions were withdrawn from the file of Lahore High Court, Lahore and transferred to Islamabad High Court, Islamabad, for disposal on merits in accordance with law.

Syed Sharif-ud-Din Pirzada, Senior Advocate Supreme Court, Wasim Sajjad, Senior Advocate Supreme Court, Ahmer Bilal Soofi, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioners.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court, Dr. Danishwar Malik, P.G., NAB and Dr. M. Asghar Rana, ADPG, NAB for Respondents Nos. 1-4.

Kh. Haris Ahmed, A.G. Punjab and Qazi M. Amin, Addl. A.G. Punjab for Respondents Nos. 5 & 6.

Arif Tasleem, Asstt. Manager for Respondent No.7.

Sardar M. Latif Khan Khosa, Attorney General for Pakistan for Respondent No.8.

M. Akram Sh., Senior Advocate Supreme Court, and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.9.

Dr. Babar Awan, Senior Advocate Supreme Court for respondents Nos. 11 & 12.

Date of hearing: 24th July, 2008.

P L D 2009 Supreme Court 71

Present: Mian Shakirullah Jan, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

Mst. SANOBAR SULTAN and others---Petitioners

Versus

OBAIDULLAH KHAN and others---Respondents

Civil Petition No.470-P of 2006, decided on 30th September, 2008.

(On appeal from the judgment dated 30-5-2006 of Peshawar High Court, Peshawar passed in W.P.No.1069 of 1998).

West Pakistan Urban Rent Restriction Ordinance (IV of 1959)---

----Ss. 13 & 2(c)&(i)---Ejectment of tenant---Tenant becoming co-owner of the rented premises by purchasing shares of the property from one of the owners---Effect---Record, in the present case, showed that one of the tenants purchased the share in the rented property from the co-owners of the landlords and became co-owner in the property---Such tenant ceased to be a tenant, under the landlords---Contention of landlords that tenant could not deny the relationship despite the purchase of property from one of the owners, was not sustainable---Purchaser of a share out of a joint property having become a co-owner, his status as a `tenant' ceased and his possession became that of a co-owner who fell within the definition of 'landlord'---Co-sharer was entitled to retain the possession of the joint property till partition and could not be ejected in execution of the ejectment order which could not be passed by Rent Controller under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9; Muhammad Nawaz v. Sh. Abdul Latif 1971 SCMR 198 and Mirza Adam Khan v. Muhammad Sultan PLD 1975 SC 9 fol.

Nazir Ahmad v. Mst. Sardar Bibi 1989 SCMR 913; Syed Izhrul Hassan Rizvi v. Mian Abdul Rehman and others 1992 SCMR 1352; Muhammad Hanif v. Mst. Ahmadi Begum and others 1996 CLC 137; Muhammad Mazaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9; Muhammad Nawaz v. Sh. Abdul Latif 1971 SCMR 198; Allah Yar v. Additional District Judge 1984 SCMR 741; Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17; Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC; Mir Slalahuddin v. Qazi Zaheerud Din PLD 1988 SC 221 and Iqbal v. Mst. Rabia Bibi PLD 1991 SC 242 ref.

M. Essa Khan, Advocate Supreme Court for Petitioners.

Abdul Sattar Khan, Advocate Supreme Court for Respondents.

Date of hearing: 30th September, 2008.

P L D 2009 Supreme Court 75

Present: Faqir Muhammad Khokhar, M. Javed Buttar and Ch. Ejaz Yousaf, JJ

Commodore (R.) SHAMSHAD---Petitioner

Versus

FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others---Respondents

Civil Petition No.1512 of 2008, decided on 19th December, 2008).

(a) Constitution of Pakistan (1973)---

----Arts.66, 68 & 185(3)---Rules of Procedure and Conduct of Business in the National Assembly, R.201(5)---Privileges of Members of Parliament and restriction on discussion in Parliament---Contention of the petitioner was that in view of the provisions of Arts. 66 & 68 of the Constitution and R.201(5) of the Rules of Procedure and Conduct of Business in the National Assembly, the Standing Committee of the National Assembly was not empowered to hold an inquiry into the matter, which was sub judice before the High Court nor it could issue any process to discuss the conduct of a Judge of Supreme Court in any manner on the principles of trichotomy of power and that the Chairman of the Standing Committee was biased and was conducting the proceedings mala fide---Validity---No applications were formally presented to the Bench of the High Court which was seized of the case; even no such applications were annexed with the petition for leave to appeal to Supreme Court---Had the applications been duly filed in the High Court the same would have been dealt with in accordance with law---Petitioner had acted with unholy haste in rushing to the Supreme Court without any formal order of the High Court---Held, in the absence of any material on record, it was neither possible nor desirable for the Supreme Court to go into the questions of bias or mala fides of the Chairman of the Standing Committee---Petition for leave to appeal was dismissed.

(b) Constitution of Pakistan (1973)---

----Arts. 66, 68 & 185(3)---Rules of Procedure and Conduct of Business in the National Assembly, R.201(5)---Privileges of Members of Parliament and restriction on discussion in Parliament---Scope---Contention of the petitioner was that in view of the provisions of Arts. 66 & 68 of the Constitution and R.201(5) of the Rules of Procedure and Conduct of Business in the National Assembly, Standing Committee of the National Assembly was not empowered to hold an inquiry into the matter which was sub judice before the High Court nor it could issue any process to discuss the conduct of a Judge of Supreme Court in any manner on the principles of trichotomy of power and that the Chairman of the Standing Committee was biased and was conducting the proceedings mala fide---Validity---Held, while exercising powers pursuant to Art.66 of the Constitution or the Rules of Procedure and Conduct of Business in the National Assembly, there could be no violation or transgression of other provisions of the Constitution---Supreme Court observed that Supreme Court did not claim supremacy but at the same time it was its constitutional duty to uphold the independence of judiciary and rule of law---Legislature, executive and judiciary were enjoined by the Constitution to perform their functions and discharge their duties within the limits set by the Constitution and the law---Existence and extent of a privilege of a House or its Committee that it had certain privilege was not conclusive and the same had to be established before the court of law---Once the same was established, the courts were required to stay their hands off ungrudgingly---Proceedings, by a court or the Parliament or its Committee, were not to be taken in a manner which may lead to unnecessary confrontation and chaos--Provisions of R.201(5) of the Rules of Procedure and Conduct of Business in the National Assembly had been wisely introduced with a view to avoid any conflict with or encroachment upon the exercise of judicial power which could not be taken away or abridged in any manner---In the absence of any material on record, it was neither possible nor desirable for Supreme Court, at the present stage to go into the questions of bias or mala fides of the Chairman of the Standing Committee---Principles.

Raja Abdul Rehman, Advocate Supreme Court and Arshad Ali Chaudhary, Advocate-on-Record for Petitioner.

Agha Tariq Mahmood, Advocate Supreme Court/Legal Advisor, FBISE Islamabad for Respondents Nos. 1 and 2.

Muhammad Azam Sultanpuri, Advocate (in person) for Respondents Nos. 4 and 5.

Sardar Muhammad Latif Khan Khosa, Attorney-General for Pakistan for Respondent No.3 and (On Court Notice).

Nemo for Respondent No.6.

Date of hearing: 19th December, 2008.

P L D 2009 Supreme Court 95

Present: M. Javed Buttar and Nasir-ul-Mulk, JJ

WAZIR KHAN and others---Appellants

Versus

QUTAB DIN and others---Respondents

Civil Appeal No.1876 of 2001, decided on 15th October, 2008.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 19-7-2001 passed in RSA No.66 of 1985).

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

----Arts.120 & 142---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether in view of judgment of Supreme Court in case titled Abdul Majeed and 6 others v. Subhan and 2 others, reported as 1999 SCMR 1245, High Court had wrongly applied Art.120 instead of Art.142 of Limitation Act, 1908; whether High Court had not disturbed concurrent findings recorded by Trial Court and Lower Appellate Court without any material available on record to reverse the findings; and whether High Court had accepted evidence produced by respondents illegally and without assigning any reason.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 rel.

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

----S. 8---Limitation Act (IX of 1908), Arts. 140 & 142---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Recovery of possession---Limitation---Onus to prove---For filing suit for possession, Arts. 140 and 142 of Limitation Act, 1908, are the two relevant provisions---Suit for possession of immovable property, when plaintiff has been dispossessed is covered under Art.142 of Limitation Act, 1908 and time is to be reckoned from the date of plaintiff's dispossession---Provision of Art.144 of Limitation Act, 1908, is residuary Article for the class of suits for possession, as it is applicable when special provision for such a suit is otherwise not provided---Period of 12 years, for a suit under Art.144 of Limitation Act, 1908, is to be reckoned from the date when defendant's possession becomes adverse to plaintiff---Burden of proving dispossession within twelve years of filing of suit under Art.142 of Limitation Act, 1908, lies on plaintiff, whereas the onus under Art.144 of Limitation Act, 1908, is on defendant to establish that he remained in adverse possession for more than 12 years.

Noor Muhammad v. Abdul Qadeem 1995 SCMR 522 rel.

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

----Ss. 8 & 42---Limitation Act (IX of 1908), Arts. 140 & 142---Qanun­-e-Shahadat (10 of 1984), Arts.117 & 120---Recovery of possession---Limitation---Onus to prove---Plaintiff was owner of suit land and sold the same to defendants for which mutations of sale were attested in years, 1959 and 1960---In year, 1978, plaintiff assailed the sale and filed suit for recovery of possession and declaration, which suit was decreed in his favour by Trial Court---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court but High Court in exercise of appellate jurisdiction set aside concurrent findings of two courts below and dismissed the suit---Validity---Burden was on plaintiff to prove date of his dispossession and defendants produced sufficient evidence in shape of Khasra Girdawri as well as Jamabandi relating to period prior to year, 1971, showing that defendants and not plaintiff remained in possession much before that year---In view of inconsistency in plaintiff's case regarding his dispossession and documentary evidence produced by defendant, plaintiff failed to discharge the burden that he had been dispossessed within the period of 12 years from the date of filing the suit in year, 1978---High Court did not comprehensively examine findings of two courts on merits as to whether plaintiff had sold the land to defendant but it would not be necessary for Supreme Court to go into such question as suit filed by plaintiff was barred by time under Art.142 of Limitation Act, 1908---Appeal was dismissed.

Ali Muhammad v. Qaiser Mehmood Shah 1991 SCMR 1114; Noor Muhammad v. Abdul Qadeem 1995 SCMR 522 and Muhammad Ali v. Hassan Muhammad PLD 1994 SC 245 ref.

Mian Allah Nawaz, Advocate Supreme Court for Appellants.

Muhammad Anwar Bhaur, Advocate Supreme Court and Shaukat Ali Mehr, Advocate Supreme Court for Respondents.

Respondent Nos. 7, 19, 24 and 25: Ex parte.

Date of hearing: 15th October, 2008.

P L D 2009 Supreme Court 102

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan khan, J

AJMEEL KHAN---Petitioner

Versus

ABDUR RAHIM and others---Respondents

Civil Petition No.29 of 2008, decided on 20th November, 2008.

(On appeal from the judgment dated 22-1-2008 of the Peshawar High Court, Peshawar passed in W.P. No.1560 of 2007).

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

----Ss. 154 & 156---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Quashing of F.I.R.---Principles---Registration and investigation of criminal case---Scope---Functions of judiciary and police are complementary not overlapping and combination of individual liberty with due observance of law and order is only to be obtained by leaving each to exercise its own functions---If criminal liability is spelt out from facts and circumstances of a particular case, accused can be tried upon a criminal charge---Quashing of F.I.R. during investigation tantamount to throttling investigation which is not permissible in law---F.I.R. can be quashed by High Court in its constitutional jurisdiction when its registration appears to be misuse of process of law or without any legal justification---Police has statutory duty under S.154, Cr.P.C. and statutory right under S.156, Cr.P.C. to investigate a cognizable offence whenever a report is made to it disclosing commission of cognizable offence---To quash police investigation on the ground that case is false would be acting on treacherous grounds and tantamount to an uncalled for interference by court with the duties of police---Conduct and manner of investigation normally is not to be scrutinized under constitutional jurisdiction which may amount to interference in police investigation as the same cannot be substituted by court.

M.S. Khawaja v. The State PLD 1965 SC 287; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Colonel Shah Sadiq v. Muhammad Ashiq and other 2006 SCMR 276 ref.

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

----Ss. 154 & 169---Investigation of criminal case---Deficient evidence---Effect---If Investigating Officer, after investigation of case, comes to conclusion that evidence against accused is deficient, then the Magistrate, who is competent to take cognizance, can order for release of accused upon such report submitted by investigating officer.

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

---S. 249-A---Acquittal of accused---Scope---Magistrate is given power under S.249-A, Cr.P.C. to acquit accused person at any stage of the case, if after hearing prosecutor and accused and for reasons to be recorded, he considers that charge is groundless or that there is no probability of the accused being convicted of any offence.

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

----S. 489-F---Constitution of Pakistan (1973), Arts. 185(3) & 199---Quashing of F.I.R.---Cognizable case---Plea raised by accused was that he was neither signatory nor account-holder of cheques which were given to complainant and were dishonoured---Validity---Once F.I.R. was registered, superior Courts having constitutional, supervisory and inherent jurisdiction had consistently refrained from directly interfering with police investigation of criminal case---Courts could not exercise their control over investigation which could be prejudicial to accused as well as detrimental to fairness of proceedings apart from being without jurisdiction---Nothing was wrong with the judgment of High Court whereby court had declined to exercise constitutional jurisdiction at the instance of accused for quashing of F.I.R.---Supreme Court did not find any infirmity, legal or otherwise or jurisdictional error which could justify Supreme Court to interfere in the matter---Leave to appeal was refused.

Haji M. Zahir Shah, Advocate-on-Record for Petitioner.

Muhammad Asif, Advocate Supreme Court for Respondents Nos. 1 and 2.

Nemo for the Remaining Respondents.

Date of hearing: 20th November, 2008.

P L D 2009 Supreme Court 107

Present: Abdul Hameed Dogar, C. J., Faqir Muhammad Khokhar, Ijaz-ul-Hassan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Syed Sakhi Hussain Bokhari and Syed Zawwar Hussain Jaffery, JJ

MUHAMMAD NASIR MAHMOOD and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad---Respondent

Constitutional Petition No.1 of 2008, decided on 21st April, 2008.

(Re: Condition of graduation for contesting election of the Majlis-e-Shoora (Parliament) and the Provincial Assemblies)

(a) Constitution of Pakistan (1973)---

----Part VII, Chap. 2 [Arts.176 to 191]---Power and jurisdiction of Supreme Court to revisit and overrule its earlier judgment---Scope---Supreme Court in. an appropriate case may revisit its earlier decision, clarify, modify or even overrule the same if circumstances of the case so warrant.

Ataur Rahman v. State PLD 1967 SC 23; Allah Ditta v. Muhammad Ali PLD 1972 SC 59; Terni S.P.A. v. PECO 1992 SCMR 2238; Muhammad Hanif v. Sultan 1994 SCMR 279 and In re: To Revisit `The State v. Zubair' 2002 SCMR 171 ref.

(b) Constitution of Pakistan (1973)---

----Part II, Chap. 1 [Arts.8 to 40] & Part VII, Chap. 2 [Arts.176 to 191]---Constitutional petition under Art.184(3) of the Constitution---Prescription of qualification of being a graduate to contest election---Validity on the touchstone of fundamental rights---Questions of law of public importance with reference to enforcement of fundamental rights, had to be properly dealt with---Supreme Court observed that Constitution was held in abeyance and no authentic data was placed before the Court to show the lack of educational facilities in the far flung areas like PATA, FATA and Balochistan at the time the case in Pakistan Muslim League (Q) v. Chief Executive of the Islamic Republic of Pakistan reported as PLD 2002 SC 994, therefore a case for revisiting the said judgment was made out.

Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57; F.B. Ali v. State PLD 1975 SC 506; Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473 and Government of Balochistan v. Azizullah Memon PLED 1993 SC 341 ref.

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

----Art. 17(2)---Freedom of association---Right to form or be a member of political party conferred by Art. 17(2) of the Constitution included the right to contest election and form government by a political party commanding confidence of majority of the members of National Assembly, or a Provincial Assembly, as the case may be.

Muhammad Yousuf v. State 2002 CLC 1130; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473 and Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66 ref.

(d) Constitution of Pakistan (1973)---

----Arts. 17, 25, 62 & 63---Qualification and disqualification for membership of Majlis-e-Shoora (Parliament)---Freedom of association and equality of citizens---Held, qualifications or disqualifications added by law made by the Parliament within the contemplations of Arts.62 & 63 of the Constitution were liable to be tested on the touchstone of Arts.17 and 25 of the Constitution to examine whether the same were reasonable or otherwise.

(e) Constitution of Pakistan (1973)---

----Art. 62---Qualification for membership of Majlis-e-Shoora (Parliament)---Supreme Court observed that there is need to ensure that public representative offices are manned by persons who have adequate knowledge of Islamic teachings and practices and obligatory duties prescribed by Islam, who abstain from major sins and are sagacious, righteous, non-profligate, honest and ameen---Presence of such persons in public offices will rid the society of the evils it is afflicted with---Men of these qualities will fulfil the demands of their mandate and deliver the goods.

Indeed, formal education is something, which can be acquired and is not an inborn quality. The qualifications mentioned in Article 62 with one or two exceptions are such as are not subject to acquisition with much human effort, e.g. citizenship, age, etc. Virtues such as wisdom, knowledge or understanding belong to the same category and are not much dependent on formal education, which only serves to ignite or polish these qualities.

Of course wisdom and knowledge are God-gifted, inborn and inherent virtues and may not always be dependent on acquiring certificates or degrees. Such persons abound in the society. It would not be fair to deprive the society of their service. Performance of any individual, or any class, literate or illiterate whether he or they did well or bad, cannot be made a yardstick particularly with regard to a public representative office. The framers of the Constitution have already taken care of education related qualification, inasmuch as Clauses (e) and (1) of Article 62 provide that a candidate for election shall be a person who has adequate knowledge of Islamic teachings and practices and obligatory duties prescribed by Islam, who abstains from major sins and is sagacious, righteous, non-profligate honest and ameen. Does a person with adequate knowledge of Islamic teachings and who practices obligatory duties prescribed by Islam as well as abstains from major sins and is also sagacious, righteous, non-profligate, honest and ameen need any formal education to be able to contest election? The answer is a big no. Men of these qualities will fulfil the demands of their mandate and deliver the goods. The need is to ensure that the public representative offices are manned by persons possessing such attributes. Presence of such persons in public offices will rid the society of the evils it is afflicted with.

Khutba Hijjat-ul-Wida; Surah Al-Zumar (39:9) and Muhammad Yusuf v. Azad Government PLD 2001 Azad J&K 60 ref.

(f) Constitution of Pakistan (1973)---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution before Supreme Court---Validity of a legislative action--Held, performance of any individual or any group of individuals or any class was not the touchstone for determining the validity of any legislative action---Court has to decide the controversy on legal and constitutional grounds.

(g) Constitution of Pakistan (1973)---

----Art. 17(2)---Reasonable or unreasonable restriction or classification with reference to the enforcement of fundamental rights guaranteed under the Constitution---Concept---"Reasonable"---Meanings.

Jibendra Kishore Achharyya Chowdhury v. Province of East Pakistan PLD 1957 SC (Pak.) 9; Abut A'ala Maudoodi v. State PLD 1964 SC 673; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Sri Lakshmindra Theertha Swamiar v. Commission HRE Madras AIR 1952 Mad. 613 at p.636; Santhanakrishna Odayar v. Vaithilingam AIR 1954 Mad. 51 at p.54; M.H. Qureshi v. State of Bihar AIR 1958 SC 731 at p.744; Islamic Republic of Pakistan v. Abdu Wali Khan PLD 1976 SC 57; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Jammu and Kashmir, Tahreek-e-Amal Party v. The Azad State of Jammu and Kashmir PLD 1985 Azad J&K 95; Abdul Majid v. Chief Election Commissioner Azad Jammu and Kashmir PLD 1985 Azad J&K 83; Union of India v. Association for Democratic Reforms AIR 2002 SC 2112 and Peoples Union for Civil Liberties (PUCL) v. Union of India (AIR 2003 SC 2363) ref.

(h) Constitution of Pakistan (1973)---

----Arts. 62, 63 & 17(2)---Qualification and disqualification for membership of Majlis-e-Shoora (Parliament)---Prescribing educational qualification for contesting election---Relevant Articles of 29 countries including United States of America giving qualification/eligibility criteria of the members of their parliaments/legislative bodies recorded.

The International Covenant on Civil and Political Rights (Cases, Materials and Commentary) by Sarah Joseph Jenny Schultz and Melissa Castan, 2nd Edn and United Nations Universal Declaration of Human Rights, Art. 21 ref.

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

----Arts. 17(2), 62 & 63---Qualification and disqualification for membership of Majlis-e-Shoora (Parliament)---Freedom of association---Judicial review---Scope and extent-Subject to reasonable restrictions imposed by law, the fundamental right enshrined in Art. 17(2) of the Constitution to form or be a member of a political party, extends to formation of the government and contesting of election, provided that a person fulfils the qualifications laid down by or under Art.62 of the Constitution and does not suffer from the disqualifications provided by or under Art.63 of the Constitution---Qualifications and disqualification are of two types, some of which are mentioned in the Constitution (Arts.62 & 63) and the others are provided by law in pursuance of clauses (i) and (s) of Arts.62 & 63 respectively---While qualifications and disqualifications mentioned in Arts. 62 & 63 of the Constitution are immune from scrutiny by the superior Courts in the exercise of their power of judicial review, the statutory qualifications and disqualifications are liable to be tested on the toughstone of the provisions of the Constitution.

(j) Conduct of General Elections Order [Chief Executive's Order No.7 of 2002]---

----Art. 8-A---Representation of the People Act (LXXXV of 1976), S.99(1)(cc)---Constitution of Pakistan (1973), Arts.17, 25 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Vires of Art.8-A, Conduct of General Elections Order, 2002 and S.99(1)(cc) of the Representation of the People Act, 1976---Held, Art. 8-A of the Conduct of General Elections Order, 2002 (Chief Executive's Order No.7 of 2002) and Cl. (cc) of subsection (1) of S.99 of the Representation of the People Act, 1976, which lay down that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 or any other law for the time being in force, were void prospectively on account of their being inconsistent with Arts.17 & 25 of the Constitution---Principles.

Article 270AA of the Constitution shows that all the legislative measures including the Chief Executive's Order No. 7 of 2002 made by the Chief Executive of Pakistan were adopted, affirmed and declared by the Parliament as having been validly and competently made. There is no cavil with the proposition that under Article 268 of the Constitution all existing laws shall continue in force until altered, repealed or amended by the appropriate legislature or that the Parliament is not debarred from adding other condition/qualifications for being a candidate for membership of Parliament or, as the case may be, the Provincial Assemblies. Of course, at the time of its promulgation the Chief Executive's Order No. 7 of 2002 was an extra-constitutional document, as the same was to have effect notwithstanding anything contained in the Constitution (e.g. recitals in Articles 3, 4, 8, 8-A, etc.). However, this position was displaced on revival of the Constitution when it lost its supra-constitutional character on account of its non-incorporation in any of the provisions of the Constitution and its having been included in the Sixth Schedule to the Constitution. Conduct of General Elections Order, 2002 was not one of those laws, which were included in the First Schedule of the Constitution and thus saved from the operation of fundamental rights.

Accordingly, in the post Seventeenth Constitutional Amendment period, the Conduct of General Elections Order, [Chief Executive's Order No. 7 of 2002] continued on the statute book as ordinary legislation with the difference that after its inclusion in the Sixth Schedule, further legislation on it could be made only after obtaining sanction of the President.

The Conduct of General Elections Order [Chief Executive's Order No.7 of 2002] was never made a part of the Constitution.

No doubt under the law a qualification could be introduced at any time, but the timing of a particular statute would assume importance and relevance where the proposed law affected the fundamental rights of the citizens who, but for the operation of the said law, would be eligible to contest the election.

Having been incorporated in the Representation of the People Act, 1976, the said qualification became a part of the law as contemplated in Article 62(i) or Article 63(s) of the Constitution. Therefore, even if it be assumed that the Chief Executive's Order No.7 of 2002 including the provisions of Article 8-A was meant for the General Election of 2002, the educational qualification continued in operation by virtue of clause (cc) in subsection (1) of section 99 of Representation of the People Act, 1976 with the result that the provisions of Article 8-A of the Chief Executive's Order No. 7 of 2002, were rendered bereft of their extra-constitutional character after election 2002, which were to be treated at par with other sub-constitutional legislation and open to judicial review on the touchstone of the provisions of the Constitution.

The right to form or be a member of political party conferred by Article 17(2) of the Constitution included the right to contest election and form government by a political party commanding confidence of majority of the members of National Assembly, or a Provincial Assembly, as the case may be.

The qualifications or disqualifications added by law made by the Parliament within the contemplation of the aforesaid Articles were liable to be tested on the touchstone of Articles 17 and 25 of the Constitution to examine whether the same were reasonable or otherwise.

Indeed, formal education is something, which can be acquired and is not an inborn quality. The qualifications mentioned in Article 62 with one or two exceptions are such as are not subject to acquisition with much human effort, e.g. citizenship, age, etc. Virtues such as wisdom, knowledge or understanding belong to the same category and are not much dependent on formal education, which only serves to ignite or polish those qualities.

Of course wisdom and knowledge are God-gifted, inborn and inherent virtues and may not always be dependent on acquiring certificates or degrees. Such persons abound in the society. It would not be fair to deprive the society of their service. Performance of any individual, or any class, literate or illiterate whether he, or they did well or bad, cannot be made a yardstick particularly with regard to a public representative office. The framers of the Constitution have already taken care of education related qualification, inasmuch as Clauses (e) and (f) of Article 62 provide that a candidate for election shall be a person who has adequate knowledge of Islamic teachings, practices and obligatory duties prescribed by Islam, who abstains from major sins and is sagacious, righteous, non-profligate honest and ameen. Does a person with adequate knowledge of Islamic teachings and who practices obligatory duties prescribed by Islam as well as abstains from major sins and is also sagaoipus, righteous, nonprofligate, honest and ameen need any formal education to be able to contest election? The answer is a big no. Men of these qualities will fulfil the demands of their mandate and deliver the goods. The need is to ensure that the public representative offices are manned by persons possessing such attributes. Presence of such persons in public offices will rid the society of the evils it is afflicted with.

Subject to seasonable restrictions imposed by law, the fundamental right enshrined in Article 17(2) of the Constitution to form or be a member of a political party extends to formation of the government and contesting of election provided that a person fulfils the qualifications laid down by or under Article 62 of the Constitution and does not suffer from the disqualifications provided by or under Article 63 of the Constitution. There are two types of qualifications and disqualifications, some of which are mentioned in the Constitution itself (Articles 62 and 63) and the others provided by law in pursuance of Clauses (i) and (s) of Articles 62 and 63 respectively. While the qualifications and disqualifications mentioned in Articles 62 and 63 of the Constitution are immune from scrutiny by the superior Courts in the exercise of their power of judicial review, the statutory qualifications and disqualifications are liable to be tested on the touchstone of the provisions of the Constitution.

The impugned graduation qualification offended Articles 17 and 25 of the Constitution for various reasons: firstly, it was not called for in the interest of sovereignty or integrity of Pakistan or public order in terms of Article 17(2); secondly, it did not take into consideration social and economic conditions of Pakistan and their impact on the people; thirdly, a vast majority of the population was deprived of their cherished right of franchise. With the exception of requirement of elementary education, or the ability to read and write, the educational qualification as a condition for contesting election is not in vogue in other countries of the world. Moreover, it is against the principles recognized by the United Nations in its different charters. The Constitution was held in abeyance at the time the Pakistan Muslim League (Q) v. Chief executive of the Islamic Republic of Pakistan PLD 2002 SC 994 was decided. No authentic data was placed before the Court to show the lack of educational facilities in the far flung areas like PATA, FATA and Balochistan.

The classification based on educational qualification for contesting election is unreasonable inasmuch as at the most 2.6% of the population and 6.9% of the registered voters were allowed to contest the election while more than 93% of the registered voters were disenfranchised, which is against the spirit of democracy. These figures are based on the record of the Higher Education Commission, while according to the NADRA data, the percentage is even lesser, according to which the number of graduate citizens is only 1.6% of the total population and 4.1% of the registered voters. The literacy rate in the country is just 35 %, which also includes the persons who can read, write or just sign. The acquiring of education is dependent upon the physical conditions and the milieu in which a person may find himself. There is a sharp difference between rural and urban literacy rate. The urban population has always an upper hand in the sphere of education. In this behalf, reference was made to Article 37 of the Constitution under which the State was required to promote with special care the educational and economic interests of backward classes or areas, remove illiteracy and provide free and compulsory secondary education within minimum possible period. According to the learned counsel, the State has not fulfilled its obligation of imparting education to all its citizens. The minimum age of a voter has been fixed at 18 years. There is no criterion in terms of education for a voter. Thus, the person who has a right to vote has no right to contest election. A vast majority of the population has been rendered ineligible to contest election through an unjust and unconstitutional requirement of educational qualification. In the circumstances, the impugned educational qualification is neither a reasonable restriction nor a reasonable classification within the contemplation of Articles 17 and 25 of the Constitution and the same is declared to be void.

The provisions of Article 8-A of the Conduct of General Elections Order, 2002 (Chief Executive's Order No. 7 of 2002) and clause (cc) of subsection (1) of section 99 of the Representation of the People Act, 1976, which lay down that a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he was at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 or any other law for the time being in force were declared to be void prospectively on account of their being inconsistent with Articles 17 and 25 of the Constitution.

Pakistan Muslim League (Q) v. Chief Executive of the Islamic Republic of Pakistan PLD 2002 SC 994; Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955; Perdeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111; Sabhajit Tewary v. Union of India AIR 1975 SC 1329 = (1975) 1 SCC 485; Ataur Rahman v. State PLD 1967 SC 23; Allah Ditta v. Muhammad Ali PLD 1972 SC 59; Terni S.P.A. v. PECO 1992 SCMR 2238; Muhammad Hanif v. Sultan 1994 SCMR 279; In re: To Revisit The State v. Zubair' 2002 SCMR 171; Farooq Ahmed Khan Leghqri v. Federation of Pakistan PLD 1999 SC 57; F.B. Ali v. State PLD 1975 SC 506; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 Muhammad Yousuf v. State 2002 CLC 1130; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416: Mian Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66; Khutba Hijjat-ul-Wida; Surah Al-Zumar (39:9); Muhammad Yusuf v. Azad Government PLD 2001 Azad J&K 60; Jibendra Kishore Achharyya Chowdhury v. Province of East Pakistan PLD 1957 SC (Pak.) 9; Abul A'ala Maudoodi . StatePLD 1964 SC 673; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Sri Lakshmindra Theertha Swamiar v. Commission HRE Madras AIR 1952 Mad. 613 at p.636; Santhanakrishna Odayar v. Vaithilingam AIR 1954 Mad. 51 at p.54; M.H. Qureshi v. State of Bihar AIR 1958 SC 731 at p.744; Islamic Republic of Pakistan v. Abdu Wali Khan PLD 1976 SC 57; Pakistan Muslim League (N) v.. Federation of Pakistan PLD 2007 SC 642; Jammu and Kashmir, Tahreek-e-.Amal Party v. The Azad State of Jammu and Kashmir PLD 1985 Azad J&K 95; Abdul Majid v. Chief Election Commissioner Azad Jammu and Kashmir PLD 1985 Azad J&K 83; Union of India v. Association for Democratic Reforms AIR 2002 SC 2112; Peoples Union for Civil Liberties (PUCL) v. Union of India (AIR 2003 SC 2363; The International Covenant on Civil and Political Rights (cases, Materials and Commentary) by Sarah Joseph, Jenny Schultz and Melissa Castan, 2nd Edn and United Nations Universal Declaration of Human Rights, Art. 21; B.A. Or Be Out by Muhammad Akram Sheikh, Advocate Supreme Court and A facility for fraud by I. A. Rehman published in Daily Dawn of October 4, 2007 ref.

Kamran Murtaza, Advocate Supreme Court, Qari Abdul Rashid, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Raja Niaz Ahmed Rathore, D.A.-G., Ms. Nahida Mahboob Elahi, D.A.G., Raja Abdul Rehman, D.A.G., Haji M. Rafi Siddiqui, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Dr. M. Aslam Khaki, Advocate Supreme Court for Applicant (in C.M.A. No.996 of 2008).

Malik Muhammad Qayyum, Attorney General for Pakistan assisted by Ch. Naseer Ahmed, Advocate Supreme Court and Rai M. Nawaz Kharal, Advocate Supreme Court (On Court Notice).

Dates of hearing: 18th and 21st April, 2008.

P L D 2009 Supreme Court 146

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

Criminal Petition No 320 of 2008

MUHAMMAD ILYAS, CHIEF MANAGER/ATTORNEY, ALLIED BANK LTD.,---Petitioner

Versus

SHAHID ULLAH and others---Respondents

(On appeal front the judgment/order dated 12-8-2008 passed by Peshawar High Court, Peshawar in Criminal Miscellaneous No.717 of 2008).

Criminal Petition No 421 of 2008

MUHAMMAD ILYAS, CHIEF MANAGER/ATTORNEY, ALLIED BANK LTD.--Petitioner

Versus

ARIF ALI and another- --Respondents

(On appeal from the judgment/order dated 31-10-2008 passed by Peshawar High Court, Peshawar in Criminal Miscellaneous No.1209 of 2008)

Criminal Petitions Nos.320 and 421 of 2008, decided on 31st March, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV or 1860), S.409, 468 & 471---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Sched. & Ss.5(6) & 12---Constitution of Pakistan (1973), Art.185(3)---Petition for cancellation of bail---Considerations for recalling the order granting bail---Accused along with his co-accused, prima facie were involved under Ss.409, 468 & 71, P.P.C. being scheduled offences of Offences in Respect of Banks (Special Courts) Ordinance, 1984---Sentences prescribed under Ss.409, 468 & 471 for the purposes of Offences in Respect of Banks (Special Courts) Ordinance, 1984 had been modified, which the High Court nor the lower court had taken note of---Material placed on record was sufficient to prima facie, hold that involvement of accused persons at the present stage under Ss.409, 468 & 471, P.P.C. could not be overruled---Section 6(7), Offences in Respect of Banks (Special Courts) Ordinance, 1984 provided that the accused, if at all released on hail, the amount of bail shall he Fired having regard to the gravity of the charge, against .sack person, and where the charge specified any amount in respect of which the offence was alleged to have been committed, shall not he less than the said amount---If order of granting bail was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice or if the court had come to the conclusion that same was perverse on the face of it, or had been passed in violation of law then the same could he recalled---In the present case, the prosecution had produced convincing evidence to hold that the accused were involved, prima facie, in the commission of the offence, where an amount of Rs.60 lac had been misappropriated by committing the criminal breach of trust by a Banker with the connivance of the co-accused and they also committed forgery for the purpose of cheating etc.---Accused, therefore, in terms of S.5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 were not entitled for grant of' bail on furnishing surety bonds Supreme Court observed that it could have exercised its discretion to uphold the order of bail granted by the High Court to the accused but on having gone through the different aspects of the case, it was concluded that it was not the case wherein such discretion was to be exercised, in favour of such person, who being a Banker and being custodian of public property, dared to cause loss to it with the connivance/assistance of another outsider--Supreme Court converted the petition for leave to appeal into appeal and allowed---Concession of hail granted to the accused persons were set aside and both the accused, who were present in the Court, were ordered to be taken in custody forthwith.

Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Muzaffar Iqbal v. Muhammad Imran Aziz 2004 SCMR 231; Ehsan Akbar v. State 2007 SCMR 482; Raja Muhammad Irshad v. Muhammad Bashir Goraya 2006 SCMR 1292; The State v. Khalid Sharif 2006 SCMR 1265 and Nazir Ahmed v. Muhammad Ismail 2004 SCMR 1160 ref.

Muhammad Rashid Qamar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner (in both cases).

Shahid Kamal Khan, Advocate Supreme Court for Respondent No.1 (Crl.P.No.320 of 2008).

M. Arif Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (in Crl. P.421 of 2008).

Ghulam Muhammad SSP (Investigation) Peshawar along with Mir Hassan, CIO, Peshawar (On Court Notice).

Nemo for the State (in both cases).

Date of hearing: 31st March, 2009.

P L D 2009 Supreme Court 178

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Mian Hamid Farooq, JJ

MUHAMMAD FAROOQ and another---Petitioners

Versus

Mst. NOOR BIBI and another---Respondents

Civil Petition No.1255-L of 2002, decided on 21st November, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore dated 6-2-2002 passed in Regular Second Appeal No.85 of 1998).

Transfer of Property Act (IV of 1882)---

----Ss. 118 & 54---Constitution of Pakistan (1973), Art.185(3)---Exchange'---`Sale'---Distinction---Petitioners in the present case, were not a party in the suit disputing the exchange transaction, as at the time of filing thereof, they were not transferees of property in question and had only the agreement to sell in their favour which conferred no right or title on them---Petitioners had stepped into the shoes of the original owner of the property, and the judgment in the suit which had attained finality so far as exchange of the property in question was concerned, was binding upon them---"Exchange" transaction having been adjudicated upon by a Court of competent jurisdiction and validly been declared as such, could not be disputed in the proceedings initiated by the petitioners--Courts below, i.e. the Trial Court, the first Appellate Court and the High Court had passed concurrent findings of fact determining the question in issue against the petitioners which could not be interfered with by Supreme Court even if it could take a different view---Petition for leave to appeal was dismissed.

The exchange' is a legally recognized method of transfer of property between two persons. The distinguishable character of a transaction ofexchange' is mutual transfer of ownership of one thing by one person, for the ownership of some other thing of another person and neither the thing or both the things being money, and where there is a transfer by one of the parties only, and not by the other, the transaction is not an exchange' as there is no mutual transfer of ownership by the two. The distinction between an alienation by way ofsale' and a transfer by way of exchange' is, that where there is a consideration in money for the property transferred, it is a sale, and if transfer of ownership of property with the transfer of ownership of another, it is anexchange', though it is manifested from the definition that, an exchange, as defined in section 118 of the Act, is similar to a sale in so far as it is mutual transfer of ownership of one thing for the ownership of another but it differs from a sale in that neither of the things transferred is the price of the other, so the distinction between the two is the nature of the consideration for such transfer viz. if it is price of the property in cash, it is a sale, if not, it is an exchange.

Each party to an exchange has the rights and is subject to the liabilities of a seller as to that which he gives, and has the rights and is subject to the liabilities of the buyer as to which he takes. If the delivery of possession of the property by one person or two is not made, the transaction would not be invalid and the affected party can acquire possession through process of law.

Though in the present case, the petitioners were not a party in the suit filed by owner of the property as at the time of filing thereof, they were not the transferees of the property and had only the agreement to sell in their favour, which conferred no right or title on them. They had stepped into the shoes of the original owner of the property later on, and the judgments and decrees passed by the Courts below against the original owner were binding upon them. The `exchange' transaction having been adjudicated upon by a Court of competent jurisdiction and validly been declared as such, could not be disputed in the proceedings initiated by the petitioners. The Courts below i.e. the trial Court, the first appellate Court and the High Court had passed concurrent findings of fact determining the question in issue against the petitioners which could not be interfered with by Supreme Court even if it could take a different view.

Tahir Hussain v. Ghulam Faruque PLD 1978 Kar. 182; Muhammad Zaman v. Aslam PLD 1984 Pesh. 166; Muhammad Irshad v. Sardar Khan 1981 CLC 124; Shah Wall v. Allah Rakha PLD 1982 SC 17; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217 and Faiz Muhammad and others v. Mukhtar Ali 2005 SCMR 1077 ref.

Sahibzada Anwar Hameed, Advocate Supreme Court for Petitioner.

M. Aslam Riaz, Advocate Supreme Court for Respondents.

Date of hearing: 21st November, 2008.

P L D 2009 Supreme Court 183

Present: Tassaduq Hussain Jillani and Sheikh Hakim Ali, JJ

Malik BASHIR AHMED KHAN and others---Petitioners

Versus

QASIM ALI and others---Respondents

C.P.L.A. No.1309-L of 2003, decided on 1st January, 2009.

(On appeal from judgment of Lahore High Court, Lahore dated 9-4-2003 passed in Writ Petition No.18374 of 2002).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 133---Civil Procedure Code (V of 1908), O.I, R.10---Pre-emption suit---Performance of Talb-i-Ishhad---Vendee had expired before the alleged visit of plaintiff and at the time of issuance of notice of Talb-i-Ishhad---No notice, admittedly, was issued to the legal representatives of deceased vendee and the story of oral performance of Talb-i-Ishhad was a cooked up and a complete lie, having no legs to stand on the face of it---Held, there was no performance of Talb-i-Ishhad as against the legal representatives of the deceased vendee, who had inherited the property well before the issuance of notice of Talb-i-Ishhad and the filing of the pre-emption suit---Plaintiff, in such a situation, who was coming to the Court with begrimed hands and had also failed to apply and to make prayer for deletion and substitution of dead defendants by his legal representatives, could not be granted an unsought relief by the Court particularly in the pre-emption Suit---Order I, R.10, C.P.C., though permitted the Court to order the deletion of a party and substitution but such exercise of discretion in the present case was uncalled for due to peculiar facts and circumstances of the case.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), S.27 read with O.I, Rr.3, 9 & 10---Pre-emption suit can be filed against a living, natural or legal person only---Suit against a dead person is nullity in the eye of law upon the strength of S.27 read with O.I, Rr.3, 9, & 10, C.P.C.---Vendee (deceased), being a necessary party to the sale transaction, therefore, his legal representatives were necessary party to the suit against whom the suit was not filed and no notice of Talb-i-Ishhad was issued to them and served upon them within the prescribed period of limitation i.e. from the date of knowledge of the sale transaction---Impleadment of legal representative, in circumstances, could not be allowed by the Court---Principles.

A suit for pre-emption has got its own salient different features which require some preceding steps and actions to be fulfilled and taken by a pre-emptor to claim the pre-emption. The performance of Talb-i-Mawathibat and Talb-i-Ishhad are the most important essential requirements to be completed before a suit for pre-emption is instituted in a Court of law. In the present suit, vendee had expired before the filing of the suit as well as before the alleged performance of Talb-i-Ishhad. A suit against a dead person is a nullity in the eye of law upon the strength of provisions of section 27 read with Order I Rules 3, 9 and 10 of the C.P.C. because it can be filed against a living, natural or legal person only.

It must be kept in view that a suit cannot be filed against a dead person who had expired before the institution of the suit. Present case is not the one of a defendant dying during pendency of the suit wherein striking out of the name of such defendant and substitution of legal representatives of such deceased defendant could be allowed. Vendee (deceased) was a necessary party to the sale transaction, therefore, his legal representatives, after his death, were necessary party to the suit against whom the suit was not filed and no notice of Talb-i-Ishhad was issued to them and served upon them within the prescribed period of limitation i.e. from the date of knowledge of the sale transaction. In such a case, the impleadment of L.Rs. could not be allowed by the Courts below.

In the present case after having held that the suit was nullity in the eye of law against the dead vendee-defendant, Courts had allowed the legal representatives to be brought on the record, treating it a curable defect but oblivious of the fact that it was a suit for pre-emption, having its own distinguishable features qua the other suits.

Secretary, B & R, Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625; Capt. Shahid Saleem Lone and others v. Ata-ur-Rehman and others 1985 CLC 2555; Mehr Muhammad v. Deputy Settlement Commissioner and others 1979 SCMR 182; Mst. Dani and 5 others v. Deputy Settlement Commissioner (Lands) Vehari and others 1990 SCMR 553 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

(c) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 13---Civil Procedure Code (V of 1908), O.XXII & O.I, R.9---"Pre-emption suit filed against a dead person" and "a defendant dying during pendency of the suit"---Distinction---Suit against a dead person was not competent while a defendant dying during pendency of suit can be substituted through legal representatives under O.XXII, C.P.C.---Where the vendee died before the filing of the suit, suit was nullity and his legal representatives could not be brought on record, however the suit could proceed as against the remaining vendees/defendants under O.I, R.9, C.P.C., if no opposition was put up by these defendants---If any plea or objection was raised, same shall be decided by the Court in accordance with law.

Distinction between a suit for pre-emption filed against a dead person and a defendant dying during pendency of the suit must be made while exercising jurisdiction to implead the legal representatives of such a defendant. In such a suit, wherein a necessary party/defendant was dead before filing of the suit, same cannot be held competent as against that dead person, while a defendant dying during pendency of the suit can be substituted through legal representatives under Order XXII of the C.P.C. Resultantly, the suit against the deceased defendant/vendee would be a nullity and his legal representatives could not be brought on record. The suit, however, can proceed as against the remaining two vendee/defendants under Order I, Rule 9 of the C.P.C. if no opposition is put up by these defendants. In case any plea or objection is raised, it shall be decided by the Court in accordance with the provision of law.

Muhammad Ghani, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Malik Noor Muhammad Awan, Advocate Supreme Court for Respondent No.1.

Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Respondents Nos. 2-11.

Date of hearing: 1st January, 2009.

P L D 2009 Supreme Court 191

Present: Faqir Muhammad Khokhar, M. Javed Buttar and Muhammad Qaim Jan Khan, JJ

SARDAR MASIH through Legal Heirs and others---Petitioners

Versus

JHON ANDERIAS SARDAR and others---Respondents

Civil Petition No.1461 of 2008, decided on 2nd December, 2008.

(On appeal against the judgment dated 16-9-2008 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision No.272 of 2006).

Transfer of Property Act (IV of 1882)---

----Ss. 122 & 123---Constitution of Pakistan (1973), Art.185 (3)---Gift by non-Muslim---Proof---Concurrent findings of fact by the courts below---Parties were Christian by faith and plaintiff who was father of defendant, assailed gift deed regarding suit property executed in favour of defendant on the ground of its being a result of fraud and forgery---Validity---High Court and both the courts below recorded concurrent findings of fact that gift was duly executed by plaintiff in favour of defendant for suit property, which deed was attested by two witnesses and was registered---Trial Court, as well as Lower Appellate Court, also found that defendant was already in possession of suit property---Both the parties being Christian by faith, therefore, Muslim personal law was not applicable to them and provisions of Ss.122 and 123 of Transfer of Property Act, 1882, governing gift of immovable property were applicable---Judgment and decree passed by High Court was plainly correct to which no exception could be taken---Leave to appeal was refused.

Kalyanasunbaram v. Karuppa AIR 1927 PC 42; Venkat Subba v. Subba Rama Hedqe AIR 1928 PC 86; Kali Das Mullick v. Kanhya Lal Pundit 11 Ind. App. 218; Lallu Singh v. Gur Narain AIR 1922 All. 467; Jaidayal v. Umrao Harchand AIR 1958 Raj. 199 and Revappa v. Madhava Rao AIR 1960 Mays. 97 rel.

Muhammad Amin K. Jan, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd December, 2008.

P L D 2009 Supreme Court 194

Present: Mian Hamid Farooq and Sabihuddin Ahmed, JJ

STATE LIFE INSURANCE CORPORATION and others---Petitioners

Versus

JAFFAR HUSSAIN and others---Respondents

Civil Petition No.528-L of 2004, decided on 2nd January, 2009.

(On appeal against the order dated 19-11-2003 passed by Lahore High Court, Lahore in W.P.No.9770 of 2003).

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court, under Art.199 of the Constitution is not entitled to substitute its own direction for that of the authority whose decision is questioned or interfered with findings of facts arrived at upon a proper appreciation of the entire evidence or material available before such authority, nevertheless court could always oversee whether discretion has been exercised upon sound judicial principles or whether the findings of facts are not premised on misreading or non-reading of evidence.

(b) Insurance Ordinance (XXXIX of 2000)---

----S. 118---Constitution of Pakistan (1973), Art.185(3)---Life insurance policy---Non-payment of death claim by the Insurance Company on the ground that insurant had failed to pay the renewal fee of Rs.660 of the policy on account of delay of nine months (excluding the grace period of three months) in payment of premium---Validity---Held, repudiation of the claim merely on account of non-payment of late fee of a paltry amount of Rs.660 was entirely unjustified---Excessive use of lawful power was also unlawful and could attract the judicial review jurisdiction of superior courts---Insurance company, in circumstances, was required to disburse the entire claim arising to the policy including any bonuses that might have incurred thereupon.

Independent Newspaper Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan Islamabad and 2 others 1993 SCMR 1533 fol.

(c) Judicial review---

----Scope---Excessive use of lawful power was unlawful and could attract judicial review jurisdiction of superior Courts.

Independent Newspaper Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan Islamabad and 2 others 1993 SCMR 1533 fol.

(d) Insurance Ordinance (XXXIX of 2000)---

----S. 118---Life insurance policy---Non-payment or death claim by the Insurance company on the ground that insurant had failed to pay renewal fee of Rs.660 of the policy on account of delay of nine months (excluding the grace period of three months) in payment of premium--Claim for liquidated damages by insurant---Validity---Held, under S.118, Insurance Ordinance, 2000 a claim for liquidated damages arose only when the person entitled to claim had applied with all requirements including the filing of complete papers---In the present case, it could not be denied that some fault, even of a technical nature, was certainly attributable to the claimant in failing to disburse late fee and the required medical certificate for renewal of the policy which made it possible for the Insurance Company to contest the claim---Claimant, in circumstances, could not assert that all requirements including filing of complete papers were complied with by the claimant---Claim of liquidated damages, therefore, could not be sustained.

Sher Zaman Khan, Advocate Supreme Court Mehmood A. Qureshi, Advocate-on-Record for Petitioners.

Liaquat Ali Butt, Advocate Supreme Court for Respondent No.1.

P L D 2009 Supreme Court 198

Present: Faqir Muhammad Khokhar, Tassaduq Hussain Jillani and Muhammad Akhtar Shabbir, JJ

NOOR MUHAMMAD and others---Petitioners

Versus

ALLAH DITTA and others---Respondents

Civil Petition No.28-L of 2009, decided or, 15th January, 2009.

(On appeal from the judgment dated 23-12-2008 of the Lahore High Court, Lahore passed in W.P. No.12977 of 2008).

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 142---Constitution of Pakistan (1973), Art.185(3)---Partition of rural agricultural land of co-sharers---Making changes in the shares by way of partition of the co-sharers in the joint khata by Executive District Officer (Revenue)---Validity---Proceedings of partition of rural agricultural land before the Revenue Officers were not governed by the Civil Procedure Code, 1908, particularly when the question of title was not involved---Such proceedings being summary in nature do not partake the character of a Civil Suit necessitating the framing of the issues or recording of evidence of the parties---Provisions of S.142, West Pakistan Land Revenue Act, 1967 provided that Revenue Officer was to decide the question by holding an inquiry as he deemed necessary---Order of Executive District Office clearly indicated that the petitioners were taking unfair advantage qua the respondents regarding location of the areas in their possession from the joint khata---Both the parties similarly placed were justifiably treated by the Executive District Officer (Revenue) equitably, justly and fairly in the matter of partition of the land---Order passed by the Executive District Officer (Revenue) was not shown to be arbitrary or having caused any prejudice or injustice to any of the parties or violative of any provision of law---Petition for leave to appeal against such order was dismissed by Supreme Court.

(b) Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Petitioners never took the plea before any of the authorities, the High Court or before the Supreme Court in their petition for leave to appeal---Supreme Court declined to determine such plea.

(c) Partition---

----Distribution of property amongst the co-sharers---Such partition was recognized by the legal maxim i.e. Nemo in communione potest invitus detineri: no one can be kept in cop-proprietorship against his will---Practice of distribution of family property was known from the times immemorial in the sub-continent---Partition is merely an arrangement whereby co-sharers having undivided interest in one or more properties take by arrangements specific property in lieu of their shares---Partition was not to be confused with family arrangements arrived at by members of joint family with a view to neuteralize the hostility and ill-feelings among themselves by avoiding the formal partition proceedings before the Revenue Authority or before the court---Private partition does not determine the legal rights but simply indicates the mode of division of property among themselves---Co-owner in a joint property was not entitled, without assent or acquiescence of the other co-sharers, to exclude portion of joint property or to select a particular portion for the purpose of partition---Co-sharer was required to seek the partition of the landed property as a whole.

Qadir Bakhsh v. Member, Board of Revenue (Consolidation) Punjab and 28 others PLD 1973 Note 13 page 22 ref.

(d) Maxim---

----"Nemo in communione potest invitus detineri": No one can be kept in co-proprietorship against his will---Applicability.

Qadir Bakhsh v. Member, Board of Revenue (Consolidation) Punjab and 28 others PLD 1973 Note 13 page 22 ref.

Mian Zafar Iqbal Kalanuri, Advocate Supreme Court for Petitioners.

Nemo for Respondents Nos. 1 to 21.

Date of hearing: 15th January, 2009.

P L D 2009 Supreme Court 202

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

AHMAD RIAZ SHEIKH and others---Petitioners

Versus

THE STATE and others---Respondents

Cr. M.A. No.62 of 2008 in Criminal Petition No.349 of 2005 and C.P. Nos. 2379 and 2380 of 2005, decided on 14th March, 2008.

(On appeal from be judgment dated 26-8-2005 of the Lahore High Court, Lahore passed in Cr. A.No.1965 of 2001, Writ Petitions Nos.15582 and 7109 of 2004).

(a) National Reconciliation Ordinance (LX of 2007)---

----S. 7---National Accountability Ordinance (XVIII of 1999), Ss.10/9(a)(v) & 33-F---Constitution of Pakistan (1973), Art.185(3)---Accused was working as Deputy Director, FIA, when inquiry against him was initiated in 1997 and the matter was transferred to National Accountability Bureau, whereupon a Reference was filed before the Accountability Court, which showed that proceedings had been initiated before 12th October, 1999, the cut off date---Provisions of S.7 of the National Reconciliation Ordinance, 2007, stipulated that under S.33-F of the National Accountability Ordinance, 1999, the proceedings initiated against holders of public office shall stand withdrawn and terminated with immediate effect and they would not be liable to any action under the Ordinance---Case of accused squarely fell within the ambit of S.7 of the National Reconciliation Ordinance, 2007---Petition for leave to appeal was converted into appeal and allowed in terms of S.7 of National Reconciliation Ordinance, 2007---Accused was acquitted of the charges accordingly.

(b) National Reconciliation Ordinance (LX of 2007)---

----S. 7---National Accountability Ordinance (XVIII of 1999), Ss.10/9(a)(v) & 33-F---Constitution of Pakistan (1973), Art.185(3)---No direct allegation of corruption or corrupt practices was made against the accused petitioners, who were only alleged to be "Benamidars" of the principal accused---"Benamidar" meant any person who ostensibly held or was in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused---Prosecution had failed to prove any of the factors determining "Benami", as neither source of consideration, nor possession or motive had been proved---Principal accused had already been acquitted of the charges under S.7 of the National Reconciliation Ordinance, 2007, who was the holder of public office, and, therefore, the same benefit was also extended to his "Benamidars"---Order of confiscation of properties was consequently set aside and the same were released to the petitioners.

(c) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(v)---Word "Benamidar" means any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court, Farooq H. Naik, M.A. Malik, Advocates Supreme Court and Syed Zafar Abbas Naqvi, Advocate-on-Record for Petitioners (in all cases).

Dr. Danishwar Malik, PG, NAB and Dr. M. Asghar Rana, ADGP, NAB for Respondents (in all cases).

Malik Muhammad Qayyum, Attorney-General for Pakistan (on Court Notice).

Date of hearing: 14th March, 2008.

P L D 2009 Supreme Court 207

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUMTAZ UD DIN FEROZE---Petitioner

Versus

Sheikh IFTIKHAR ADIL and others---Respondents

Civil Petition for Leave to Appeal No.782 of 2008, decided on 15th December, 2008.

(On appeal from the judgment dated 4-6-2008 in RFA No.142 of 2004 passed by the Islamabad High Court, Islamabad).

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S.18(2)---Civil Procedure Code (V of 1908), O.XXI, R.66---Money decree---Execution---Highest bidder---Changing mode of recovery---In execution of decree passed by Banking Court, mortgaged property was put to auction for three times but it could not fetch the reserved price---Bid offered by petitioner was accepted by Banking Court---Plea raised by judgment-debtors was that Banking Court in execution of decree having once adhered to procedure prescribed by Civil Procedure Code, 1908, could not have switched over to any other mode---Validity---Banking Court, on application of decree holder, was at liberty under S.18 (2) of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, to recover amount covered by decree, in accordance with provisions of Civil Procedure Code, 1908 or any other law or in such other manner as it might have deemed fit---Consideration and approval of offer made by petitioner by Banking Court was neither illegal nor unjustified particularly when in spite of all efforts having been made previously, including those made by decree-holder, even judgment debtors failed to procure a better offer---Approval of offer made by petitioner, which was more than the maximum price offered in public auction was just and proper---Supreme Court converted petition for leave to appeal into appeal, set aside judgment and decree passed by High Court and restored that of Banking Court---Appeal was allowed.

Mst. Asma Zafarul Hassan v. Messrs United Bank Ltd. and another 1981 SCMR 108; Muhammad Ikhlaq Memon v. Zakria Ghani and others PLD 2005 SC 819; Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Ghulam Abbas v. Zohra Bibi and another PLD 1972 SC 337 and Janak Rai v. Gurdial Singh AIR 1967 SC 608 ref.

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

----O. XXI, R. 90---Auction proceedings, setting aside of---Irregularities--Effect---Non-compliance of provisions of Civil Procedure Code, 1908, with regard to proclamation of sale, its publication and conduct of sale in execution are not material irregularities and cannot be termed as illegalities thereby rendering sale as nullity---Objection after completion of sale should not ordinarily be allowed except on very limited grounds like fraud etc. otherwise no auction sale can ever be completed.

Mian Muhammad Abdul Khaliq v. M. Abdul Jabbar Khan and others PLD 1953 Lah. 147 and Nanhelal and another v. Umrao Singh AIR 1931 PC 33 rel.

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

----O.XXI, R.72---Auction purchaser---Decree-holder and bona fide purchaser---Rights---Distinction has to be drawn between decree-holder who comes to purchase under his own decree and bona fide purchaser who comes and gets sale in execution of decree to which he was not party---Where third party is bona fide auction-purchaser, his interest in sale of auction has to be protected.

Agha Tariq Mehmood, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Syed Ali Zafar, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents Nos. 1 to 6.

Raja Muhammad Akram, Senior Advocate Supreme Court and Salman Akram Raja, Advocate Supreme Court for Respondent No.7.

Date of hearing: 8th October, 2008.

P L D 2009 Supreme Court 217

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SUO MOTU CASE NO.13 of 2007: In the matter of

Suo Motu Case No.13 of 2007, H.R.C. Nos. 2722, 3181, 3774 of 2007 and 1718 of 2006, decided on 10th November, 2008.

(Plight of the families of village Salkhaiter who are the victim regarding forceful acquisition of their land by the Revenue Authorities by misuse of Land Acquisition Act, with object to develop Bahria Town Scheme).

(a) Constitution of Pakistan (1973)---

----Art.184(3)---Constitutional jurisdiction of Supreme Court---Scope---When grievance relates to violation of fundamental rights as mentioned in Chapter I of Part II of the Constitution, only in that case, Supreme Court has power to make an order of the nature mentioned in Art.184 (3) of the Constitution---Supreme Court can interfere in the case where violation of fundamental right is of nature of public importance such as violation of individual freedom, including effectiveness and safeguard for their implementation.

(b) Constitution of Pakistan (1973)---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction can be invoked on application from any aggrieved person and High Court can make order giving such directions to any person or authority including any government exercising any power or performing any function in or in relation to any territory within the jurisdiction of that court---Constitutional jurisdiction of superior courts cannot be invoked and exercised in aid of injustice or to restrain a person from doing lawful business of his choice in accordance with law and Constitution.

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

----Art. 184(3)---Constitutional jurisdiction of Supreme Court, invoking of---Pre-conditions---Jurisdiction of Supreme Court under Art.184 (3) of the Constitution can be invoked even by an individual if matter involves a question of public importance with reference to enforcement of any of his fundamental rights---Such jurisdiction can be exercised subject to establishing by petitioner, through convincing evidence as to non-availability of any other adequate remedy and that question of public importance with reference to enforcement of fundamental rights has been made out without establishing such essential conditions.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; National Steel Rolling Mills v. Province of West Pakistan 1968 SCMR 317; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan and others PLD 2004 SC 583 and All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600 rel.

(d) Constitution of Pakistan (1973)---

----Art.184(3)---Constitutional jurisdiction of Supreme Court---Scope---Term "public importance"---Connotation---Question as to whether a particular case involves element of "public importance" is to be determined by Supreme Court with reference to facts and circumstances of each case---No hard and fast rule exists that an individual grievance can never be treated as a matter involving question of `public importance'---Similarly, it cannot be said that a case brought by a large number of people should always be considered as a case of "public importance" because a large body of persons is interested in the case.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; General Secretary, West Pakistan Salt Miners Labour Union (CBA), Khewra, Jhelum v. Director Industries and Mineral Development, Punjab 1994 SCMR 2061 and Mrs. Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632 rel.

(e) Land Acquisition Act (I of 1894)---

----Ss. 4, 6 & 40---Punjab Private Site Development Schemes (Regulation) Rules, 2005, R.3---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution---Maintainability---Suo motu exercise of power---Factual controversies---Expression "useful to the public"---Applicability---Petitioners assailed acquisition of land for respondent company to establish a private housing scheme---Plea raised by petitioners was that mutations sanctioned in favour of respondent company were fake and fabricated---Validity---Provisions of Art.184 (3) of the Constitution were not attracted as only individual grievance was raised therein and breach of fundamental rights shown therein was not of such nature that it had raised `question of public importance'---Respondent company after development of land into residential plots would offer the same to public at large for purchase on payment and every person purchasing the plot would automatically become member of the Society---Membership of the society could not be acquired without acquisition of a plot, therefore, membership of the Society was co-extensive with holding of plot in the housing scheme---As there was no restriction or limitation on sale of plots to any class of persons rather it was open to all, therefore, purpose of acquisition could be construed to be useful to public at large---Petitioners failed to show that violation of any legal or Constitutional right had taken place---Some of the petitioners had sold land to respondent company and had received sufficient amount towards sale price and had also handed over possession---In many cases mutation had been effected in the name of respondent company in lieu of sale made by petitioners---Plea raised by petitioners with regard to mutations related to factual controversy and could not be resolved without recording of evidence---Supreme Court directed the parties to seek remedy before appropriate forum as the entire controversy raised was factual in nature which could not be resolved under Art.184 (3) of the Constitution---Petition was dismissed.

Somawanti v. State of Punjab AIR 1963 SC 151; Musamiyan Imam Haidarbux Razvi and others v. The State of Gujarat and others AIR 1971 Gujarat 158; Arora v. Uttarpardesh AIR 1962 SC 764; R.K. Agarwalla and others v. State of West Bangal and others AIR 1965 SC 995; Babu Barkya Thakur v. State of Bombay AIR 1960 SC 1203; Mst. Sardar Begum v. Lahore Improvement Trust PLD 1972 Lah. 458; Mumtaz Begum v. Wazir Begum PLD 1997 Lah. 99; The Collector of Karachi v. Fida Hussain Muhammad Ali Lotia and others PLD 1965 Kar. 573; Collector, Quetta-Pishin, Quetta v. Habibullah and others PLD 1970 Quetta 35; State of Bihar v. Kameshwar Singh AIR 1952 SC 252; Musamiyan Imam Haiderbux Razvi and others v. The State of Gujarat , and others AIR 1971 Gujarat 158; Ratilal Shankarabhai and others v. State of Gujarat and others AIR 1970 SC 984; Constitution of India (Article 300-A), Jilubhani Nanbhai Khacher and others v. State of Gujarat and another AIR 1995 SC 142; Federation of Pakistan v. Province of Punjab 1993 SCMR 1673 and Muhammad Nasim Javed v. Lahore Cantonments Housing Society PLD 1983 Lah. 552 ref.

(f) Land Acquisition Act (I of 1894)---

----S. 4---Term "public purpose"---Scope---Laying of Housing Scheme for utility/use of public-at-large, as compared to some individuals, is a `public purpose' within the meaning of S.4 of Land Acquisition Act, 1894---Individual interest must give way to interest of community or a part thereof and a part of community must give way to the interest of entire community or public at large---Establishment of housing colony for benefit of specified segment of citizens does not offend against fundamental rights enshrined in the Constitution and is also public purpose and in public interest in terms of Land Acquisition Act, 1894 and Punjab Private Site Development Schemes (Regulation) Rules, 2005.

Pakistan through Ministry of Works & another v. Muhammad Ali and others PLD 1960 SC 60; Muhammad Nasim Javed v. Lahore Cantonment Housing Society and others PLD 1983 Lah. 552; Zafeer Gul and others v. N.-W.F.P. and others 2001 CLC 1853 and Bostan v. Land Acquisition Collector, Rawalpindi and others PLD 2004 Lah. 47 rel.

(g) Land Acquisition Act (I of 1894)---

----S.6---Expression "public purpose"---Determination---Acquisition of land for private housing scheme---Government is fully authorized to decide question as to whether land is required for public purpose or not---Declaration made by concerned government is conclusive evidence of the fact that land is needed for public purpose---Only exception to such rule is a case where land is being acquired under colourable exercise of power.

Sub. (Retd.) Muhammad Ashraf v. District Collector Jhelum and others PLD 2002 SC 706 ref.

(h) Land Acquisition Act (I of 1894)---

----Ss. 38, 38-A, 39 & 40(b)(c)---Acquisition of land for company---Procedure---Whenever a company makes request for acquisition of land for a particular purpose, the Provincial Government has to satisfy that the same falls within the ambit of purposes mentioned in S.40 of Land Acquisition Act, 1894---Acquisition of land for company can be made for purpose other than a public purpose and S.40(b) and (c) of Land Acquisition Act, 1894, is relevant in such regard---Only requirement for acquisition of land by company is to prove that purpose is useful to public and that the area proposed to be acquired is reasonable for such purpose---Expression "useful to the public" does not have the same meaning as can be assigned to expression "public purpose"---Expression "useful to the public" means beneficial for public.

Kh. Muhammad Farooq, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Applicants (in H.R.C. 3774 of 2007).

Raja Muhammad Shafqat Abbasi, Advocate Supreme Court and Muhammad Masood Chisthti, Advocate Supreme Court with Arshad Ali Ch. Advocate-on-Record (in Suo Motu No.13 of 2007).

In H.R.C. 3181 of 2007 (in Person.)

S.M. Zafar, Senior Advocate Supreme Court, Ashtar Ausaf Ali, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Bahria Town.

Kh. Haris Ahmed, A.-G. Punjab, Qazi M. Amin, Addl. A.-G. Punjab and Ms. Afshan Ghazanfar, A.A.-G. Punjab (On Court Notice).

Date of hearing: 10th November, 2008.

P L D 2009 Supreme Court 237

Present: Muhammad Moosa K. Leghari, Syed Sakhi Hussain Bukhari and Sheikh Hakim Ali, JJ

FEDERATION OF PAKISTAN through secretary, Cabinet Division, Islamabad and others---Petitioners

Versus

Mian MUHAMMAD SHAHBAZ SHARIF and others---Respondents

(On appeal from the judgment/order dated 23-6-2008 of the Lahore High Court Lahore, passed in W.P. No.6470 of 2008).

Civil Petitions Nos.878, 657-L, 803, 905 of 2008, C.M.As. Nos.95 of 2009, 471-L of 2008 in C.P.No. Nil of 2008, decided on 25th February, 2009.

(a) Representation of the People Act (LXXXV of 1976)---

----Ss. 11, 11-A, 12, & 15---Conduct of elections---Interpretation of Ss.11, 11-A, 12 & 15 of the Representation of the People Act, 1976.

(b) Representation of the People Act (LXXXV of 1976)---

----S. 14(5) & (5-A)---Scope of S.14(5) & (5-A) of the Representation of the People Act, 1976---Word "source" has a very wide meaning and includes a person, a book or any other document that can be used to provide information/evidence---Definition of "person" would include artificial person or legal entity and natural person viz. human beings-men or women.

New Webster's Dictionary; Oxford English Dictionary; Words and Phrases by West Publishing Co.; Dictionary/thesaurus; Chambers 21st Century Dictionary and Black's Law Dictionary ref.

(c) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(5-A), (6) & 99---Constitution of Pakistan (1973), Art.63---Qualification and disqualification of a candidate to contest election---Election Tribunal is vested with the powers to call upon a candidate on the basis of any information or material brought to its knowledge, to show cause as to why his nomination papers should not be rejected on account of disqualifications enumerated in S.14(5-A) of the Representation of the People Act, 1976 and the ones as contained in Art.63 of the Constitution and S.99 of the Representation of the People Act, 1976---Decision of Election Tribunal in such matter shall not be governed by S.14(b) of the Act meaning thereby that Election Tribunal has to arrive at a definite conclusion after it has taken notice of the matter, and that such information or material can be brought to its knowledge by any source viz. a body corporate, juristic or natural person--Election Tribunal shall take effective steps. to adjudicate the election dispute in an expeditious manner within a reasonable time---Chief Election Commissioner, erroneously treating the information laid down before the Election Tribunal by a person who was not a candidate, as an appeal was legally untenable--Observation of Chief Election Commissioner that the same was to be deemed to have been rejected was against the law.

(d) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(5)(5A) & 99--Constitution of Pakistan (1973), Arts.199, 63 & 225---Constitutional petition challenging the pre-election disqualification of a candidate before the completion of election process---Maintainability---Principles.

Intesar Hussain Matti v. Vice-Chancellor, University 'of Punjab, Lahore and others PLD 2008 SC 313 and Let.-Gen.(R) Salahuddin Tarmizi v. Election Commission of Pakistan PLD 2008 SC 735 ref.

(e) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(5), (5A) & 99---Constitution of Pakistan (1973), Arts.199, 63 & 225---Constitutional petition challenging the pre-election disqualification of a candidate before the completion of election process by a person who was not candidate in the election---Maintainability---Such person being not a candidate could not challenge the pre-election disqualification of the candidate by way of election petition under Art.225 of the Constitution---When the "aggrieved party" had no alternate remedy under Art.225 of the Constitution and facts were undisputed, High Court certainly will have the jurisdiction to adjudicate the matter in its constitutional jurisdiction available under Art.199 of the Constitution---Principles of maxim: semper proesumitur pro negante (presumption is always in favour of the one denying or in favour of the negative) could not be pressed into service in circumstances.

Let.-Gen.(R.) Salahuddin Tarmizi v. Election Commission of Pakistan PLD 2008 SC 735 ref.

(f) Constitution of Pakistan (1973)---

----Art. 63(1)(g)---Representation of the People Act (LXXXV of 1976), S.99(g)---Disqualification of a candidate for election---Said candidate had been continuously making outrageous remarks against the judiciary in newspapers---Material on record would itself speak of derogatory and offensive language demonstrating humiliation, persecution and redicule tainted with malice for the achievement of ulterior purposes---Such inquisitive, wicked and insulting statements in the press were sufficient enough to bring the mischief within Art.63(1)(g) of the Constitution and S.99(g) of the Representation of the People Act, 1976 as the candidate not only propogated to bring into ridicule the judiciary in the past but was still continuing to do so unabatedly.

Let.-Gen.(R) Salahuddin Tarmizi v. Election Commission of Pakistan PLD 2008 SC 735 and Mian Muhammad Shahbaz Sharif through Attorney v. Election Commission of Pakistan Islamabad and 15 others PLD 2003 Lah. 646 ref.

(g) Constitution of Pakistan (1973)---

----Art. 63(1)(g)---Representation of the People Act (LXXXV of 1976), S.99(1-A)---Disqualification of a candidate to contest election---Candidate was defaming and propagating to bring into ridicule the judiciary and that the loans obtained by him exceeding the amount of two million rupees were remaining unpaid since the year 1998---Candidate had also not declared a pending case against him in his nomination papers--Candidate, in circumstances, was disqualified from being elected or chosen as and from being a member of the Provincial Assembly.

(h) Constitution of Pakistan (1973)---

----Arts. 63(1)(g) & 185(3)---Representation of the People Act (LXXXV of 1976), S.99(1-A)---Civil Procedure Code (V of 1908), O.I, R.10---Disqualification of member of Provincial Assembly---Locus standi of the Province and Speaker of the Provincial Assembly to get impleaded in the proceedings---Scope---Disqualified member of the Provincial Assembly, was the Chief Minister of the Province, who had intentionally opted to remain out of the court and had decided not to defend his case---Neither the Province nor the Speaker of the Provincial Assembly had a right to intervene and seek impleadment in an election dispute revolving around the question of personal qualification and or disqualification of an individual member---High Court, in circumstances, was justified in rejecting their applications moved under O.I, R.10, C.P.C., since both the parties had no locus standi to invoke the jurisdiction of the Supreme Court---Principles.

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

---Arts. 63(1)(g) & 185(3)---Representation of People Act (LXXXV of 1976), S.99(1-A)---Disqualification of a member of Provincial Assembly---Locus standi of the Federation of Pakistan to impugn the Judgment of High Court affirming such disqualification---Scope---Federation of Pakistan was pro forma party/respondent in the constitutional petition before the High Court---Judgment impugned revealed that neither any relief was granted against the Federation nor any direction was issued to it, so as to give rise to the cause of action to the Federation to file the petition for leave to appeal to Supreme Court---Held, neither the Federation was "aggrieved party" nor had any cause of action to provide it a locus standi to challenge the judgment of High Court---Federation of Pakistan, not being an "aggrieved party", was not competent to maintain the petition for leave to appeal to Supreme Court, which was dismissed.

(j) Constitution of Pakistan (1973)---

----Arts. 63(1)(g) & 185(3)---Representation of the People Act (LXXXV of 1976), S.99(1-A)---Disqualification of a member of Provincial Assembly---Such member was disqualified from being elected or chosen as a member of Provincial Assembly as he suffered from an inherent disqualification---Order of Returning Officer of acceptance of nomination papers of the member was legally unsustainable---Disqualified member had taken determinative decision not to appear before any forum and did not appear before the Election Tribunal and the High Court, despite service, and instead made futile attempts through proxies to drag the proceedings of the High Court and cause harassment and humiliation to the Judges of the High Court---Despite serious and relentless efforts made by the Supreme Court, more particularly, having got him served through Advocate-General, he opted not to appear before the Supreme Court---Supreme Court converted the petition for leave to appeal into appeal and allowed the same---Notification issued by the Election Commission of Pakistan thereby publishing the name of the candidate and notifying him as returned candidate was declared to be null and void, consequently he ceased to be member of the Provincial Assembly--Election Commission of Pakistan was directed to issue a notification thereby denotifying the candidate.

Sardar Muhammad Latif Khan Khosa, Attorney-General for Pakistan (On Court call) (in Civil Petition No.878 of 2008 and C.M.A. No.95 of 2009).

Agha Tariq Mahmood, D.A.G. and Arshad Ali Chaudhry, Advocate on Record for Petitioner (in Civil Petition No.878 of 2008 and C.M.A. No.95 of 2009).

Nemo for Respondents Nos. 1-4 (in Civil Petition No.878 of 2008 and C.M.A. No.95 of 2009).

Sahibzada Ahmed Razal Khan Qasuri, Senior Advocate Supreme Court for Respondent No.5 (in Civil Petition No.878 of 2008 and C.M.A. No.95 of 2009).

Shahid Orakzai, Applicant (in person) (in Civil Petition No.878 of 2008 and C.M.A. No.95 of 2009).

Khawaja Haris Ahmad, A.G. Punjab for Petitioner (in Civil Petition No.657-L of 2008).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme

Court and Dr. Mohyuddin Qazi, Advocate Supreme Court for Respondent No.1 (in Civil Petition No.657-L of 2008).

Nemo for Respondents Nos. 2-5 (in Civil Petition No.657-L of 2008).

Agha Tariq Mahmood, D.A.G. for Respondent No.8 (in Civil Petition No.657-L of 2008).

Ashtar Ausaf Ali, Muhammad Raza Farooq, Advocates Supreme

Court and Arshad Ali Chaudhry, Advocate on Record for Petitioners (in Civil Petition No.803 of 2008).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Respondent No.1 (in Civil Petition No.803 of 2008).

Nemo for Respondents Nos. 2-5 (in Civil Petition No.803 of 2008).

Agha Tariq Mahmood D.A.G. for Respondent No.6 (in Civil Petition No.803 of 2008).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Petitioner (in Civil Petition No.905 of 2008).

Nemo for Respondents Nos. 1-4 (in Civil Petition No.905 of 2008).

Agha Tariq Mahmood D.A.G. for Respondent No.5 (in Civil Petition No.905 of 2008).

Khawaja Haris Ahmad, A.G. Punjab for Petitioner (in C.M.A. No.471-L and Civil Petition No. Nil of 2008).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme

Court for Respondent No.1 (in C.M.A. No.471-L and Civil Petition No. Nil of 2008).

Nemo for Respondents Nos.2 to 5 (in C.M.A. No.471-L and Civil Petition No. Nil of 2008)

Agha Tariq Mahmood, D.A-G. for Respondent No.6 (in C.M.A. No.471-L and Civil Petition No. Nil of 2008).

Dates of hearing: 6th, 14th, 15th, 19th to 22nd, 27th to 30th January, 2nd to 4th, 9th to 12th, 16th to 20th and 23rd to 25th February, 2009.

P L D 2009 Supreme Court 284

Present: Muhammad Moosa K. Leghari, Syed Sakhi Hussain Bukhari and Sheikh Hakim Ali, JJ

FEDERATION OF PAKISTAN and others---Petitioners

Versus

Mian MUHAMMAD NAWAZ SHARIF and others---Respondents

Civil Petitions Nos. 778-779 and C.M.As. Nos. 63, 64, 1674, 1675 of 2008 in C.P. No. Nil of 2008; decided on 25th February, 2009.

(On appeal from the judgment/order dated 23-6-2008 of the Lahore High Court, Lahore passed in W.P. Nos.6468 and 6469 of 2008).

(a) Representation of the People Act (LXXXV of 1976)---

----S. 99(f)(g) & 14(5-A)---Constitution of Pakistan (1973), Arts.-62, 63, 185(3) & 199---Disqualification of a candidate for election--Recusal by such candidate---Inference---Said candidate, in whole of the proceedings during the hearing of election petitions, petition filed under S.14(5-A), Representation of the People Act, 1976, writ petitions in the High Court and civil petition for leave to appeal thereafter in the Supreme Court had not appeared to defend his qualifications and disqualifications, allegations and incriminating attributions, levelled against him by his contesting candidates in the election---Effect---Inference was easily deducible that disqualified candidate had either got nothing to say in his defence or was shy of and nervous to face the case and its consequences or did not want to become a candidate, after the submission of nomination papers in the election, otherwise he would have contested the stigma of disqualification ascribed and attributed to him.

(b) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court---Arguments of the petitioners' counsel was found by Supreme Court to be malicious and vicious, having no legs to stand in the eye of law---Petitioners and their counsel had in fact tried to create division amongst the Judges of Supreme Court into two factions PCO and non-PCO Judges, although at present all the sitting Judges were those Judges who had taken oath under the present Constitution, and no discrimination or distinction on this account could be made or created amongst them by the petitioners---Such rule of politics, to divide and rule were played and was brought into this realm of judicial institutions, so as to cause disturbance into peaceful, harmonious working and smooth running of the Supreme Court, by raising prejudices and differences amongst the Judges, by procreating two factions in the judiciary, which was most harmful and sinful act, plea, stand and stance of the petitioners---All the Judges sitting in the Supreme Court were equally respectful, revered and brother Judges, amongst whom no distinction and discrimination and belonging to one or the other group could be allowed and permitted by any of the Judges of the Supreme Court to be made or raised at this stage and thereafter---All the Judges having taken oath under the present Constitution, a few of them could not be given preference by the petitioner or their counsel over and against the others and on this basis unity amongst the . Judges had been attempted to be tarnished through such baseless, frivolous and unfounded premises---Such act was the contempt of serious nature which could not be forgiven/pardoned---Petitioners, who had sworn affidavits by instructing their counsel through these arguments addressed by their counsel, did not deserve any leniency shown in the matter of such contumacious and destructive arguments and the stand taken of bifurcating the Supreme Court into two water tight compartments---Resultantly, the petitioners were mulcted with cost of Rs.1,00,000 each to be paid within 15 days or to suffer simple imprisonment of three months---Counsel who had addressed such arguments without considering the repercussions on the judicial system and institution, on the basis of instructions although imparted to them by their clients, yet they could not be excused on this plea because it was their primary and prime duty to uphold the dignity, unity and highest respectful image of Supreme Court, such act of advocacy also could not be approved and appreciated---Supreme Court observed that it had noticed with dismay the manner and method of arguments addressed, to the Court and as the Court had highest regard for the exalted legal profession and for the legal fraternity in general; so it had restricted itself to the extent of warning, considering it to be sufficient for them with remarks to be careful in future and not to deviate from the path of augmenting the respect of the Judges and the institution, and not to be entrapped, upon the direction of client, to address the court in an abusive language or with the pleas and position harmful to the judicial institutions although they may satisfy the ego of their clientele---Remarks which were creative of an atmosphere of distrust upon the Judges or on the judicial institutions, whether those may be false or true, were bound to tumble down the sanctified image of the institution, of requiring highest regard and respect---Mutilation of the face of the institution would loosen the faith, trust and confidence in the mind of the litigants which would be harmful not for the institution but for the legal fraternity as well as a whole and the destructive consequences would be borne by all the important segments of the society in future.?

(e) Islamic jurisprudence---

----Administration of justice---Recusal---Qur'an ordains that it is the will, wish and choice of the Judge to accept the case for imparting justice between the parties or to recuse himself from adjudicating the dispute while a litigant has not been granted a right to ask the Judge to recuse himself-Judge, in a given case, has the option to entertain it or to decline its admission with himself to administer justice between the parties of that case-If a litigant does 'not feel justice to be done from a Judge, he must not place his case before the Judge---When the case is placed before a Judge by a litigant, thereafter the litigant cannot ask the Judge to recuse himself-Presentation of a case for decision before a Judge presupposes that he believes the Judge able, in all respects, to deliver justice and it would be contemptuous act of a litigant to present his case for adjudication and then ask the Judge to decline to decide the same---When a case is preferred before a Judge, in that event, the right to ask the Judge to recuse himself is lost by the litigant because he had already accepted his authority, valid appointment, competency to administer justice, and with the belief of his independence; he is presupposed to have believed the Judge to be a Judge, a person of integrity.?

Surah Al-Ma'idah (6th Para), V.42B ref.

(d) Administration of justice---

----Recusal---Concept and scope of application.

Recusal has not been defined with the concept of ineligibility or incompetency of a Judge to dispense justice. In other words, the Judge is considered competent and no question of validity or constitutionality of his appointment is in dispute. It is only the conflict of interest or prejudices, which may arise and hamper the free and fair delivery of justice for which' recusal is being sought.

From the definition of recusal, (Black's Law Dictionary), it is apparent that it is the decision of the Judge to recuse himself, when he feels that there is possibility of conflict of interest or prejudice which would be caused to a party of the case in his participation or in the decision of that case. It is the decision of the Judge to gauge as to whether there is conflict of interest or not, and that by making decision in a 1is, his inclination or bent of mind would not take him to such an extent, as to be on one side and that it would be creative of such a mind, so as to cause imbalance in the scale of justice, thereby prejudicing the case of a party without giving fair decision on it. ?

Supreme Court being the apex Court of the judicial hierarchy of the country, there being no other court except the Court of Almighty Allah, how in such a situation, a litigant can ask the Supreme Court to avoid the delivery of judgment after having offered his lis, for doing the justice to it??

It is for the Judges concerned (and not the rest of the Judges in the Bench) to decide in their judicious sagacity and wisdom whether they may participate in the proceedings in question.?

When the Judges believed that some unconscious feelings might operate in the ultimate judgment, the Judges might recuse themselves.?

It is the feeling of the Judge to judge as to whether his feelings would be so strongly engaged as to victimize the party in making unfairly in the decision of the controversy due to some prejudice. In such a situation, the Judge may recuse himself and not to participate in the judicial judgments.?

Black's Law Dictionary (7th Edn.) Col. IInd, p.1281; Federation of Pakistan v. Muhammad Akram Sheikh PLD 1989 SC 689; Public Utilities Commission v. Pollak 343 US 452+95L Ed.1068 and R.V. Gough (1993) 2 All ER ref.

(e) Proclamation of Emergency, dated 3-11-2007---

----Provisional Constitution Order (1 of 2007), Preamble---Oath of Office (Judges) Order, 2007, Preamble-Constitution of Pakistan (1973), Art.178---Considerations which necessitated the taking of oath by Judges under the Provisional Constitution Order, 2007 revealed.?

(f) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court--To malign Judges, to impute dishonesty and to utter allegation of their being faithless, and law breakers by counsel, were the words of gravest contempt--- Supreme Court observed that advocates and the legal fraternity in general, was in fact, the custodian and preserver of the dignity, independence and sanctity of the judicial institution, it must be remembered that their own respect and reverence was attached with the sanctity and reverence of Supreme Court---If a fraction of the legal fraternity was out to disfigure the face of the sacred institution or to annihilate its image of impartiality, sacredness, sanctity and independence, none would be there to save them and the institution---Supreme Court, with these observations desired and expected that the Advocates appearing in the cases, observe the directions in future, because they were officers of the court and were saddled with the duty of upholding its dignity and independence.?

(g) Bias---

----Definition---Determining factors of bias---Principles.

?

De Smith's Judicial Review, 6th Edn; Halsbury's Laws of England/Administrative Law (Vol. 1(1) (2001 Reissue)/4; Metropolitan Properties v. Lannon (1968) 3 All. E.R. 304; Pinochet, in re - [1999] UKHL 1; (iii) Locabail (U.K.) Ltd. v. Bay Field Properties Ltd.- [2000] EWCA Civ 3004; (iv) Magill v. Porter - [2001] UKHL 67, George Meerabux v. The Attorney General of Belize (Belize) - [2005] UKPC 12; AWG Group v. Morrison [2006] 1 All ER 967; [2006] EWCA Civ 6; and Gillies (AP) Secretary of State for Work and Pensions [2006] UKHL 2; American Law on the subject from U.S. Code Collections 455; Gullapalli Negeswararao and others v. The State of Andhra Pradesh and others AIR 1959 SC 1376; Ranjit Thakur v. Union of India and others AIR 1987 SC 2386; Bhajan Lal v. Jindal Strips Ltd. 1994 SCC (6) 19 IT 1994 (5) 254; 1994 SCALE (3) 703; Ghulam Rasul and others v. Crown PLD 1951 FC 62; Federation of Pakistan v. Muhammad Akram Sheikh PLD 1989 SC 689; Webb and Hay v. The Queen (1994) 181 CLR 41; (1994) 68 ALJR 582 FC 94/030; Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Black's Law Dictionary, 7th Edn.; Government of N.-W.F.P. through Chief Secretary and another v. Dr., Hussain Ahmad Haroon and others 2003 SCMR 104; Administrative Law by HWR Wade-Third Edn. Published by Clarenda Press Oxford, p.176; The Queeen v. Mc Kanzie 1892 QBD 519; The Queen v. Buton ex parte Young (1897) QBD 468; Locabail (UK) Ltd. v. Bayfield Properties 2000 1 All ER 65; The Queen v. Australian Stevedoring 88 CLR 100; Public Utilities Commission of the District of Columbia v. Franklin S. Pollak and Guy Martin (33 US 451+95 L Ed.1968); R. v. Gough (1993) 2 All ER 724 and Richard B. Cheney, Vice-President of the United States, ET.AL v. United States District Court for the District of Columbia ET.(sic) ref.

(h) Bias---

----Test to determine existence of bias.

The test of bias is, the thought of a prudent/reasonable man in the given circumstances of a case. If a prudent man considers the facts and circumstances of a case demonstrating and to be creative of bias in the mind of a Judge and the real danger of having no fair trial at the hands of the aforesaid Judge is apparent and existing, then the question would be relevant, otherwise it would not be allowed to work, when a person having mere apprehension on the basis of flimsy grounds, suppositional thoughts, surmises not in reality, with ulterior motives and making pretences so as not to get justice from a particular Judge, with a view that he might be able to get the case transferred on that basis to the Judge of his own choice or to the selective judges, there being no likelihood of bias, or there being no real danger of unfair trial and so many other reasons which cannot be exhaustively encompassed.

(i) Representation of the People Act (LXXXV of 1976)---

----S. 99(f)(g)---Qualification and disqualifications---Connotation.

Qualifications and disqualifications are the inherent, personal, capabilities, abilities, qualities and disabilities of a person which are best known to that person. The keys of gate of this secret room lie with that person. Other person cannot gauge it or disclose those secrets other than the person himself or unless instructed properly and completely by him to his representatives and agents. All these are the personal rights, inherent and possessed by that person himself. Dispute regarding the right of the person concerned from being a member of Assembly is in the nature of private rights of two persons to the same office.?

Black's Law Dictionary, 7th Edn.; Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98 and Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 at p.62 ref.

(j) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(t)(g) & 14(5)---Qualification and disqualification of candidate---Definition---Locus standi of proposer and seconder to claim as agents or representatives of disqualified candidate and to file appeal/application under O. I, R. 10, C.P.C.---Scope---Principles.?

Jammu and Kashmir Council for Human Rights through Secretary, Rawalpindi and another v. Secretary, Azad Jammu and Kashmir Legislative Assembly Muzaffarabad and 4 others 1994 CLC (AJ&K) 1108; Yaselli v. Goof Et. Al. 12 F.2D 396; American Jurisprudence, 2nd Edn.; Words and Phrases, Permanent Edn. Vol.42-A, p.331; W.E. Norrell, Jr. v. Fred KEY. 4 Div. 185 (276 Ala.524, 165 So.2d 76; Chairman RTA v. Mutual Insurance PLD 1991 SC 14; Maqbool Ahmed Qureshi v. Pakistan PLD 1991 SC 484; Ardeshir Cowasjee v. KBCA 1991 SCMR 2883; Halsbury's Laws of England/Administrative Law Vol. 1(1) (2001 Reissue)/4; Judicial Control/(1); Inland Revenue Comm. v. National Federation [1981] 2 All ER 92; R. v. Inspectorate of Pollution and another ex parte Greenpeace [1994] 4 All ER 329; Halsbury's Laws, Vol. 48 at page 1082 (2007 Reissue); Touche v. Metropolitan Railway Warehousing Company, (1871) L.R. 6 Ch. App.671; Parker & Mellows: The Modern Law of Trusts, AJ Oakley p. 716; Fletcher v. Fletcher (1844) 4 Hare 67; American Jurisprudence Vol. 76, p. 670, 671; Rana Shaukat Mahmood's case PLD 2007 SC 277; Muhammad Abbas v. Returning Officer 1993 MLD 2509; Qaiser Iqbal v. Ch. Asad Raza 2002 YLR 2401; Asif Khan v. Returning Officer 2003 MLD 230; Mudassar Qayyum Nahra v. Election Tribunal 2003 MLD 1089; H. M. Saya's case PLD 1969 SC 65, American Constitutional Rights by William Carroll & Norman Smith, 1991 University Press of America at pp. 705 -706; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Ghulam Ahmed Chaudhary v. Akbar Hussain PLD 2002 SC 615 and A.H. International (Private) Ltd. v. Federation of Pakistan Civil Petition 1269 of 2008 ref.

(k) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(f)(g) & 14(5)---Trusts Act (II of 1882), Ss.3 & 6---Disqualification of candidate---Locus standi of proposer and seconder to defend disqualification of the candidate---Scope---By proposing and seconding, a candidate does not become trustee and it is only a step towards election and during that election, the candidate is the person who has to defend the personal, inherent qualities, qualifications and disqualifications---Unless a trust is completed in all respect, no beneficiary can claim any benefit from an incomplete and inchoate alleged trust---If the candidate is not prepared to defend himself before any Tribunal and a court of law, then no one including the proposer and the seconder can compel the candidate to contest election by defending his qualifications and disqualifications.

?

Yaselli v. Goff Et. Al. 12 F.2D 396 and Judicial Review of Public Actions Vol. 2, by Fazal Karim former Judge Supreme Court ref.

(l) Constitution of Pakistan (1973)---

----Art. 199---Interpretation of Art.199 of the Constitution---Essentials for filing a petition under Art.199 of the Constitution elaborated.?

Black's Law Dictionary; Yousuf Ali v. Fazal M. Malik and 3 others 1970 SCMR 681; Jammu and Kashmir Council for Human Rights through Secretary, Rawalpindi and another v. Secretary, Azad Jammu and Kashmir Legislative Assembly Muzaffarabad and 4 others 1994 CLC (AJ&K) 1108; Mian Muhammad Nawaz Sharif v., Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 8 others 1994 CLC 2318; Percy Robinson and others v. Reverend Bashir Jiwan and others PLD 1998 Karachi 189 and Jamat-e-Islami through Amir and others v. Federation of Pakistan and others PLD 2008 SC 30 ref.

(m) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(f)(g) & 14(5-A)---Constitution of Pakistan (1973), Art.185(3) & 199---Jurisdiction of Supreme Court under Art.185(3) and that of High Court under Art.199 of the Constitution---Scope---Disqualification of a candidate for election--Proposer and seconder of the disqualified candidate, could not be called "aggrieved party" giving them a right to file a constitutional petition or to be impleaded in the constitutional petitions, filed before the High Court and civil petitions for leave to appeal to Supreme Court by said persons could not be entertained in the Supreme Court also.?

Yousuf Ali v. Fazal M. Malik and 3 others 1970 SCMR 681; Jammu and Kashmir Council for Human Rights through Secretary, Rawalpindi and another v. Secretary, Azad Jammu and Kashmir Legislative Assembly Muzaffarabad and 4 others 1994 CLC (AJ&K) 1108; Mian Muhammad Nawaz Sharif v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 8 others 1994 CLC 2318; Percy Robinson and others v. Reverend Bashir Jiwan and others PLD 1998 Karachi 189 and Jamat-e-Islami through Amir and others v. Federation of Pakistan and others PLD 2008 SC 30 ref.

(n) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(f)(g) & 14(5), (5-A)---Civil Procedure Code (V of 1908), O.I. R.10---Constitution of Pakistan (1973), Art.199---Disqualification of a candidate---Essentials for a person to be impleaded as a proper party---Candidate, in the present case, had opted not to defend himself before the Election Tribunal or in election appeal---Inference---Due to such lapse, it could easily be inferred that the candidate had opted not to contest election, otherwise he would have come forward to defend the election petition---Proposer and seconder of the said candidate had not filed any application under O.I, R.10, C.P.C. before Election Tribunal in the election appeal filed by the opposing candidate against the acceptance of nomination papers of said candidate by the Returning Officer for the making defence of the candidate and there was no explanation as to why they had not come forward to claim their right of Proposing and seconding at that stage and it was for the first time that they had filed application under O.I. R.10, C.P.C. in writ petitions--Candidate, who being an "aggrieved party", did not want to contest the election by defending his personal right of qualification and disqualification, proposer and seconder of such candidate could not be allowed to defend that candidate--After the proposing and seconding was made and the consent was given by the candidate to his nomination Papers by declaring his eligibility to the Returning Officer, the order Passed accepting or rejecting the nomination papers could be challenged only by the candidate according to S.14(5) of the Representation of the People Act, 1976---Law having restrained the proposer and seconder after passing of the order of Returning Officer from taking any action in the shape of filing of appeal before Election Tribunal, the intervenors could not come forward to defend their candidate because their right having extinguished by the rule of merger in the right of the candidate, which would become non-existent giving no legal right to defend their candidate in any further proceedings---Principles.?

(o) Supreme Court Rules, 1980---

----O. XI & O.XXXIII, R.6---Constitution of Pakistan (1973), Art.185(3)---Petition for leave to appeal---Petitioners praying for constitution of larger Bench and hearing from selective Judges---Validity---Chief Justice has the sole prerogative to constitute a Bench of any number of Judges to hear a particular case---Neither an objection can be raised nor any party is entitled to ask for constitution of a Bench of its own choice.

Supreme Court Bar Association v. Federation of Pakistan PLD 2002 SC 939; PLD 1997 SC 80 (In re: M.A. No.657 of 1996); Malik Hamid Sarfaraz v. Federation of Pakistan and another PLD 1979 SC 991; Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161 and Ch. Muhammad Siddique and 2 others v. Government of Pakistan, through Secretary, Ministry of Law and Justice Division, Islamabad and others PLD 2005 SC 186 ref.

(p) Supreme Court Rules, 1980---

----Bench of three Judges could not take different view from the Bench of five Judges. ?

All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600 ref.

(q) Constitution of Pakistan (1973)---

----Art. 45---President's power to grant pardon---Scope---Conviction of accused under S.402-B, P.P.C. read with S.7, Anti-Terrorism Act, 1997 and order of disqualification of the accused for 21 years for seeking or being elected, chosen, appointed as Member of any public office or any authority of the Local Government of Pakistan---President had got the power to grant pardon etc. only with regard to the sentence but had got no power to set aside the declaration of guilt (conviction) as recorded by a competent court, authority or Tribunal---Constitution had not granted power to the President, to condone the disqualification order, by grant of pardon---Principles.

The words in Article 45 of the Constitution after the words power to grant pardon? and "any sentence" are indicative of remarkable worth and consequence. The framer of the Constitution had used the word "sentence" only and not the conviction. Difference between "conviction" and "sentence" in legal phraseology is evident. The conviction is declaration of a person found guilty, while the sentence follows after a person is declared convict, which sentence may be in different forms as prescribed by the relevant laws. The President has got power to grant pardon etc. only with regard to the sentence but has got no power to set aside the declaration of guilt (conviction) as recorded by a competent Court, authority or Tribunal. The conviction can only be set aside by the Court, Tribunal or authority, concerned or the competent or superior court to that court or forum, as provided by law against that conviction. The concept of conviction and sentence has two different connotations.?

There was no power granted by the Constitution to the President, to condone the disqualification order, by grant of pardon. Therefore, even if it be presumed for the sake of consideration, that conviction and sentence recorded in both these cases, were set aside by the President under Article 45 of the Constitution, even then pardoning of this disqualifying power was never granted or conferred upon the President by the Constitution, hence the disqualification had remained in the field.?

Muhammad Nawaz Sharif v. State PLD 2002 Kar. 152; Vikram Anand v. Rakesh Singha AIR 1995 HP 130; Abdul Kabir v. The State PLD 1990 SC 823 and Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2002 SC 369 ref.

(r) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(f)(g) & 14---National Accountability Ordinance (XVIII of 1999), S.15---Constitution of Pakistan (1973), Sixth Schedule---Disqualification of a candidate for election---Candidate having been found guilty of corrupt practices and corruption, was disqualified to contest the election or being elected, chosen, appointed or nominated to any public office or local authority of Government of Pakistan for 21 years under S.15, National Accountability Ordinance, 1999 which disqualifying order was never pardoned or got erased from the legal character of the candidate---Disqualification on the basis of conviction and sentence recorded by Accountability Court had become part of Sixth Schedule of the Constitution---Candidate was supposed to dislodge and refute these objections with regard to the qualifications and disqualifications.?

(s) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(f)(g) & 14---Criminal Procedure Code (V of 1898), S.401(5-A)---Disqualification of a candidate for election---Candidate had left the country with an agreement with authorities to stay out of Pakistan for 10 years which agreement was signed by him---Pardon to the candidate was conditional and condition of the agreement was to be fulfilled by the candidate as condition of the agreement was to be considered to have been imposed by a competent Court and was enforceable accordingly---Candidate, therefore, was not qualified to contest the election unless a period of 10 years as undertaken had expired in accordance with the provision of S.401(5A), Cr.P.C.?

(t) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(f)(g) & 14---Disqualification of a candidate for election---Non?payment of loans obtained by the candidate to the Bank---Candidate had entered into a settlement with the Bank to surrender industrial units as assets to the claims of the bank and after sale of these units amount would be adjusted towards the loan---High Court had constituted a Committee and a bid was offered for these units but the candidate, in order to defeat the compromise/settlement with mala fide intention and through deceitful means, instead of payment of the loans, got filed objection petitions and till today not a single penny was paid or realized---Candidate, therefore, was disqualified to contest election on this count.?

(u) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(5-A), 12(2)(c) & 99(1)(s)---Constitution of Pakistan (1973), Art.63(q)---Disqualification of a candidate to contest election---Unpaid loans by the candidate---Number of suits filed by the Banks against candidate were pending since 1994 without any material progress---Loan facilities were in fact obtained by the candidate from the Banks earlier to the year 1994, yet the amount was not paid even after the passage of more than 15 years from the filing of the suits by the Banks---Candidate had executed personal guarantees to gain the loans---Candidate, in circumstances, was disqualified to contest election due to the provisions of Art.63(q) of the Constitution, Ss.14(5-A), 12(2)(c) read with S.99(1)(s) of the Representation of the People Act, 1976.?

Zafar Ali Shah v. Pervez Musharraf, Chief Executive PLD 2000 SC 869 ref.

(v) Constitution of Pakistan (1973)---

----Art. 63(1)(g)---Disqualification of a candidate to contest election---Propogating opinion against judiciary through newspapers---Candidate to whom propogating opinion against judiciary were attributed having not appeared to rebut the news clippings on record, ex facie his case would fall under Art.63(g) of the Constitution.?

(w) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(f)(g) & 14---Disqualification of candidate to contest election---By-election---Criminal appeal was pending against the candidate which was supposed to be mentioned in the nomination papers but the same was omitted, not only that, candidate had suppressed the fact of earlier order of rejection of nomination papers in General Election which order of rejection had attained finality, such being a false declaration, candidate was disqualified for filing of incorrect declaration.?

Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969 ref.

(x) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(f)(g) & 14---Disqualification of candidate for election---Rejection of nomination papers of the candidate in General Election and no appeal under S.14, Representation of the People Act, 1976, which was competent, was filed and said order had attained finality---Proposer and seconder could not propose and second the candidate who could not also give consent for filing the nomination papers before the Returning Officer for the seat in the by-election and nothing was brought to prove that said previous order of rejection of nomination papers was set aside by any competent court or forum or disqualification had disappeared in the by-election---Candidate, in circumstances, was disqualified to contest the by-election.?

(y) Representation of the People Act (LXXXV of 1976)---

----Ss. 99(f)(g) & 14---Disqualification of candidate for election on account of major convictions etc.---Candidate, having opted not to appear and having chosen not to tile any proceeding, petition/appeal/revision or review before the competent court of law, under the prescribed provision of law, no other person could obtain declaration in respect of qualifications or disqualifications of the candidate by arguing that specific provisions of law were not applicable to the case of such candidate---Person legally competent to get such declaration was the candidate/convict himself, therefore, in his absence, the proposer and seconder of the disqualified candidate in the election had no legal right to obtain declaration for purging his disqualification with regard to his status.?

(z) Representation of the People Act (LXXXV of 1976)---

----S. 14---Interpretation and impact of S.14(5), (5A) of the Representation of the People Act, 1976---Words "any service" connotation---Word "source" includes in it the legal, juridical as well as natural person also; moreover words "any source" cannot be limited for loans, taxes, dues or utility charges---Principles.?

Black's Laws Dictionary (7th Edn.); Words and Phrases (Permanent Edition) by West Publishing Company and New English Dictionary and Thesaurus" by Geddes & Grosset (New Edn. of 2000), p.557 ref.

(aa) Representation of the People Act (LXXXV of 1976)---

----S. 14(6)---Provision of S.14(6) of the Representation of the People Act, 1976 has not provided any period for the disposal of the petition filed under S.14(5-A) of the Act---Word "an appeal" used in S.14(6) of the Act cannot be sustained to include the word "petition", therefore, S.14(6) of the Act cannot be applied to the petition filed under S.14(5A) of the Act---Indefinite period has not been provided for decision of such petitions; principles and rule of "reasonableness" has to be applied.?

(bb) Representation of the People Act (LXXXV of 1976)---

----S. 52(1)---Constitution of Pakistan (1973), Arts. 199 & 225---Constitutional jurisdiction of High Court---Scope---Election dispute/petition---Interpretation of S.52(1) of the Representation of the People Act, 1976---When the election laws are not providing any remedial steps, the High Court has got inherent and constitutional powers to remedy the wrong being done or having been done by the Election Tribunal---High Court, therefore, has got power and jurisdiction in such circumstances to invoke its said power to do justice---Principles.?

(cc) Administration of justice---

----Law is not static object, it has to cope with the modern ideas and concepts and the disputes coming before the court for resolution, as the society with its environmental set up is continuously progressing---Laws as well as its remedies are also changing with passage of time.

(dd) Representation of the People Act (LXXXV of 1976)---

----S. 14(5-A)---Constitution of Pakistan (1973), Arts.199 & 225---Qualifications and disqualifications of a candidate to contest election---Appeal before the Election Tribunal---Scope---Constitutional jurisdiction of High Court under Art.199 of the Constitution can be invoked in case of inaction of the Election Tribunal---Principles.

Before insertion of subsection (5-A) of section 14 of Representation of the People Act, 1976 on 31.7.2002, appeal before the Election Tribunal was competent by the candidate only but with the introduction of subsection (5-A) of section 14 into the Act, scope has been widened so as to prohibit and restrain a disqualified person to contest and participate in the election. This new concept was introduced by subsection (5-A) of section 14 of the Act. Not only a person (source) was allowed to lay information but the Election Tribunal was itself conferred more powers and jurisdiction to entertain such information and material, in respect of disqualification of a candidate. When such power has been granted to the Election Tribunal, then it was the duty of the Election Tribunal to examine and decide the petition in either way. But the petition could not be thrown away without any order being passed on it. In case of inaction of the Tribunal, the High Court has got power under Article 199 of the Constitution to decide that petition.

The latest trend developed by the Judge made law is that qualifications and disqualifications of a candidate, being matter of personal rights of the candidate, its decision, if it needs no factual enquiry and the dispute can be decided on the basis of admitted facts and authentic documentary proof, in that event, the jurisdiction of the High Court would be there, to correct legal errors or apparent defects having been crept into the order of the Election Tribunal. When validity of election is not challenged and the matter primarily relates to the competency and qualification or otherwise of a person of a candidate in the election, the bar contained in Article 255 of the Constitution would not be attracted and it would also not apply when the Tribunal having jurisdiction has failed to exercise the same. It is important that the person aggrieved cannot be left without any remedy at a later stage of the close of Election, because a Tribunal having jurisdiction cannot do it wrongly, but is bound to do it rightly.

The High Court also in its constitutional jurisdiction can entertain the question of rejection or acceptance of nomination papers, in the cases in which the disqualification of a person to contest the election, is apparent and can be decided without any factual inquiry. The power of Election Tribunal constituted under Article 225 of the Constitution is confined to the extent of election disputes which may also include qualification and disqualification of a candidate whereas Article 199 of the Constitution is not, as such, controlled by Article 225 of the Constitution in all matters at all stages of election rather the High Court in exercise of its constitutional jurisdiction may in suitable cases exercise all powers to correct a legal error, defect or disability and has much wider power than that of the power of the Tribunal constituted under Article 225 of the Constitution.?

Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others PLD 2008 SC 313; Ltd.-Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 and Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 99; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 and Rao Sikandar Iqbal's case C.P.No.1 of 2008 ref.

(ee) Representation of the People Act (LXXXV of 1976)---

----S. 99(f)(g) & 14(5), (5-A)--Constitution of Pakistan (1973), Art.185(3) & 199---Civil Procedure Code (V of 1908), O.I, R.10---Disqualification of a candidate to contest election---Scope---Locus standi to defend such disqualification---Proposer, seconder, Federation of Pakistan and the intervenors had got no right to defend the qualifications and disqualifications of the candidate who had failed to defend those disqualifications and disabilities of election himself---Proposer, seconder, Federation of Pakistan and the intervenors cannot be considered "aggrieved party" and to have a right to be impleaded in the writs or to file civil petitions for leave to appeal in the Supreme Court.

Agha Tariq Mehmood, D.A.-G. along with Ch. Arshad Ali, Advocate-on-Record for Petitioners (in C.P. Nos. 778-779 of 2008).

Sardar Latif Khan Khosa, Attorney General for Pakistan (on Court Call) (in C.P. Nos. 778-779 of 2008).

Nemo for Respondents Nos. 1-5 (in C.P. Nos. 778-779 of 2008).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court and Mohyuddin Qazi, Advocate Supreme Court for Respondent No.6. (in C.P. Nos. 778-779 of 2008).

A.K. Dogar, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners (In C.M.As. 63 and 1674 of 2008 in C.P. No.Nil of 2008).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court and Dr. Mohyuddin Qazi, Advocate Supreme Court for Respondent No.1 (In CM.As. 63 and 1674 of 2008 in C.P. No.Nil of 2008).

Nemo for Respondents Nos. 2 to 5 (in C.M.As. 63 and 1674 of 2008 in C.P. No.Nil of 2008).

Agha Tariq Mahmood, D.A.-G. for Respondent No.6 (in C.M.As. 63 and 1674 of 2008 in C.P. No.Nil of 2008).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner (in C.M.As. 64 and 1675 of 2008 in C.P. No.Nil of 2008).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Respondent No.1 (in C.M.As. 64 and 1675 of 2008 in C.P. No.Nil of 2008).

Nemo for Respondents Nos. 2 to 5 (in C.M.As. 64 and 1675 of 2008 in C.P. No.Nil of 2008).

Agha Tariq Mahmood, D.A.-G. for Respondent No.6 (in C.M.As. 64 and 1675 of 2008 in C.P. No.Nil of 2008).

Dates of hearing: 6th, 14th, 15th, 19th to 22nd, 27th to 30th January, 2nd to 4th 9th to 12th, 16th to 20th, 23rd to 25th February, 2009.

P L D 2009 Supreme Court 363

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Raja Fayyaz Ahmad, JJ

Engineer ZAFAR IQBAL JHAGRA and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 33, 34 of 2005, decided on 30th March, 2009.

Petroleum Products (Development Surcharge) Ordinance (XXV of 1961)---

----S. 8 [as inserted by Petroleum Products (Petroleum Development Levy) (Amendment) Ordinance (XXVI of 2001)]---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition before Supreme Court---Controversy regarding procedure adopted for fixation of prices of oil and gas---Supreme Court, after hearing the petitioners and consultation with counsel of respective respondents suggested that in order to resolve the controversy in a befitting manner an exercise had to be undertaken starting from the date Oil Companies Advisory Committee was authorized to fix prices of oil and gas i.e. from 29-6-2001 to 1-4-2006 when its authority was given to Oil and Gas Regulatory Authority, it would be appropriate to appoint a Judicial Commission headed by a Retired Judge of the Supreme Court, who after consulting all stake-holders including the consumers shall submit a comprehensive report in respect of the points referred to it and any other point which comes in its notice---Counsel for respondents agreed for the appointment of Commission to do the needful---Supreme Court formulated questions required to be considered and answered by the Commission and issued directions with regard to other details of functioning and maintenance of the establishment of the Commission.

Muhammad Ikram Chaudhry, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.

Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan along with Khan Dil Muhammad Alizai, D.A.-G. (On Court Notice).

Khalid Anwar, Senior Advocate Supreme Court for Oil Companies.

Kh. Saeed-ul-Zafar, Advocate Supreme Court (On behalf of OGRA).

Ali Sibtain Fazli, Advocate Supreme Court (On behalf of OCAC)

Abdul Majeeb Pirzada, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for PSO.

Saleem Akhtar, Dy. Director (F&P) for M/o Petroleum.

Date of hearing: 30th March, 2009.

P L D 2009 Supreme Court 367

Present: Mian Shakirullah Jan, Zia Perwez and Sarmad Jalal Osmany, JJ

Civil Appeal No.1045 of 1999

KAMALUDDIN QURESHI---Appellant

Versus

ALI INTERNATIONAL CO.---Respondent

(On appeal from the judgment dated 5-10-1998 of the High Court of Sindh, Karachi passed in HCA Nos. 117, 182/1997 and 73 of 1998).

Civil Appeal No.1221 of 1999

Messrs ATARA TARPAULIN AND TEXTILE INDUSTRIES---Appellant

Versus

HABIB BANK LTD. and others---Respondents

(On appeal from the order dated 2-2-1999 of the High Court of Sindh, Karachi passed in HCA No.22 of 1998).

Civil Appeal No.378 of 2003

FIRST ELITE CAPITAL MODARABA---Appellant

Versus

RAVI ENTERPRISES (PVT.) LTD. and others---Respondents

(On appeal from the judgment dated 15-1-2003 of the Lahore High Court, Lahore passed in ICA No.26-L of 2002).

Civil Appeal No.320 of 2004

ZAKAUDDIN---Appellant

versus

DASTAGIR INVESTMENT AND MANAGEMENT LIMITED and others---Respondents

(On appeal from the judgment dated 23-9-1994 of the High Court of Sindh, Karachi gassed in HCA No.73 of 1994).

Civil Petition No.2450 of 2001

Messrs INVESTMENT CORPORATION OF PAKISTAN---Petitioner

versus

Messrs TANVIR WOOLLEN MILLS LTD. and others---Respondents

(On appeal from the order dated 1-6-2001 of the High Court of Sindh, Karachi passed in JMA No.192 of 1996).

Civil Apepals Nos. 1045, 1221 of 1999, 378 of 2003, 320 of 2004 and Civil Petition No.2450 of 2001, decided on 10th February, 2009.

(a) Companies Ordinance (XLVII of 1984)---

----S. 10(2)(1)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to examine the scope of maintainability of an appeal against the order of the Company Judge exercising jurisdiction under S.10(2)(1) of the Companies Ordinance, 1984.

(b) Companies Ordinance (XLVII of 1984)---

----S. 10(2)---Appeal against Court's order---Scope and maintainability---Provisions of S.10(2) are attracted to appeals preferred in cases except the appeals against an order of winding up, which is distinct and has multidimensional effects with far reaching consequences---Principles elaborated.

An order of winding up of a company encompasses activities in different spheres of economic activity and affects interests of divergent nature. The investment of share-holders and investors are at stake. The various contracts with those supplying or providing services to the company and their economic activities are affected. In case, the company is engaged in providing goods or services of essential or of daily requirements of the community, such order may cause abrupt withdrawal of all such products or services being provided by the company under liquidation. The various works undertaken by the Company or under different contracts are brought to a stand still. The recovery of taxes, duties and levies resulting from the activities is discontinued, last but not the least. The entire range of creditors, suppliers, bankers, financers and employees entitled to their respective dues are also exposed to difficulties and uncertainties. No order passed under the Company Law has consequences of such diversity and magnitude. Thus, the order of winding-up being entirely distinguishable stands out on a different pedestal than any other order relating to any specific subject-matter or dispute. No order passed either before the order of winding-up or afterwards can, therefore, be equated with an order of winding up with respect to its consequence. It has been repeatedly held that the right to appeal is a substantial right. The remedy of an appeal is available only where expressly provided and in the manner it is provided. Subsection (1) of section 10 of the said Ordinance starts with the non?obstante clause and this has an overriding effect over any other law. It confers a right to appeal against an order of winding up. The intent of the Legislature to provide the remedy of an appeal against an order of winding-up of a company, directly to the Supreme Court is reflected in unambiguous terms irrespective of the fact and nature of the proceedings that may lead to an order of winding-up of a company. The scope of an appeal has therefore, been widened to provide remedy irrespective of the source or basis of such order by use of the words "any order, decision or judgment of the Court', which if not challenged in appeal would otherwise attain finality as an order of winding-up as is apparent by the use of the words "where the company ordered to be wound-up".

The remedy provided is subject to further conditions; that in case the company ordered to be wound-up has a paid up of not less than one million rupees an appeal would lie to Supreme Court but where the company ordered to be wound-up has a paid up capital of less than one million rupees the remedy is subject to an additional condition of grant of leave to appeal. The subsection thus creates a distinction between cases involving the order of winding-up of the company and the remedy of a direct "appeal" or "after grant of leave to appeal" before the Supreme Court on the basis of the paid up share capital of the company. It may not be out of place here to examine the consequences of interpretation of section 10(1) of the Ordinance differently so as to apply to appeals against any order, decision or judgment of the Court other than that the order of winding-up a company. The right of appeal conferred under the said Ordinance which is a special enactment; adopting any other interpretation, would lead to an anomalous situation.

An example of such case may be where an appeal involving a claim of a creditor for over a million rupees brought before the Court against order of a Company Judge in a case where the paid up capital of the limited company is less than one million; a petition for leave to appeal would lie in spite of the fact that the amount over one million against a company under liquidation merely because of the paid up capital being less than one million rupees. A different remedy of a direct appeal to Supreme Court is provided to a creditor having a claim for a few thousand rupees against a company with a paid up capital of over one million would have a right to file a direct appeal against findings of a Company Judge pertaining to his claim involving a company under liquidation although their claims may otherwise be similar except for the difference in amount of respective claims. This, prima facie, is obvious discrimination amongst the creditors. Secondly, for the aforesaid reasons, such interpretation would also be in direct conflict with the provisions of Article 185(d)(e) of the Constitution of Islamic Republic of Pakistan pertaining to appeals before the Supreme Court. There is no distinction regarding appeals prior to passing of an order of winding-up of a company. Such restriction can only be inferred by addition of words to this effect but in view of the plain meanings of the word no addition is required because the language of the statute is clear and unambiguous and words are to be given their ordinary meaning. It appears that the Bench of Supreme Court; was not properly assisted in this case, while considering the case of Ibrahim Shamsi (2005 SCMR 1450) as a result of which this aspect escaped notice and the anomaly resulting in practical terms in case a different interpretation is adopted escaped consideration. Both subsections (1) and (2) of section 10 of the said Ordinance deal with the remedy of appeal provided by the law. Subsection (2) provides that an appeal from any order made or decision shall lie in the same manner and subject to the same conditions under which appeals lie from any order or decision of the Court. This subsection appearing after subsection (1) makes no distinction between orders prior to or subsequent to an order of winding-up. It appears after subsection (1) and pertaining to the same subject-matter, subsection (2) is attracted to and further regulates all the cases of appeals including appeals against orders passed after an order of winding up of a company. The scope of the subsection has been widened by use of the words "an appeal or decision" given to include and to apply to all appeals except those covered by subsection (1) of section 10. The clear wording and sequence of the two subsections of section 10 of the Ordinance cannot be stretched as the same would amount to doing violence to the provisions of that section.?

Subsection (1) of section 10 deals only with appeals against order of winding up of a company.

The above view finds further support from the provisions of the subsequent subsection (2) of section 10 of the Ordinance, which is specifically worded as "save as provided in subsection (1)". The second subsection is unconditionally attracted to an appeal against any order made or decision given by a Court and is not restricted to an appeal preferred before or after passing of an order of winding-up of a company nor to the value of the subject-matter. The Legislature has not intended to place any restriction or impediment to the appeals filed under this subsection. Yet another important and significant aspect is that winding up orders passed are to be examined as to the various aspects for revival of the company to be determined on consideration of its further viability. Effort is made to continue the business particularly in cases of a running company and any delay may lead to irreparable losses and drastic consequences.?

Provisions of subsection (2) of section 10 are attracted to appeals preferred in cases except the appeals against an order of winding up, which is distinct and has multidimensional effects with far reaching consequences.?

Pakistan through Secretary Finance and others. v. Messrs Lucky Cement and another 2007 SCMR 1367; Brother Steel Mills Ltd. v. Mian Ilyas Miraj PLD 1995 SC 543; Messrs Sindh Tech, Industries 'Ltd. v. Messrs Investment Corporation of Pakistan 1998 SCMR 1533; Muhammad Bux v. Pakistan Industrial Credit Investment Corporation Ltd. 1999 SCMR 25; Hala Spinning Mills Ltd. v. International Finance Corporation 2002 SCMR 450; Industrial Development Bank of Pakistan v. Messrs Valibhai Kamaruddin 2002 SCMR 415 and United Bank Limited v. Pakistan Industrial Credit and Investment Corporation Ltd. PLD 2002 SC 1100 ref.

(c) Interpretation of statutes---

----Where ordinary meanings can be given to the clear and plain unambiguous language of an enactment, the same are to be followed without any addition.?

Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312; Federation of Pakistan v. Ammar Textile Mills (Pvt.) Ltd. 2002 SCMR 510; Muhammad Ijazul Haq v. Executive District Officer 2006 SCMR 989; Commissioner of Income Tax v. Media Network PLD 2006 SC 787 and Pakistan v. Lucky Cement 2007 SCMR 1367 ref.

(d) Interpretation of statutes---

----Interpretation leading to conflicting judgments is to be avoided.?

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219 ref.

(e) Interpretation of statutes---

----Intention of the law-maker is always gathered by reading the statute as a whole and meanings are given to each and every word of the whole statute by adopting a harmonious construction.?

Messrs Mehboob Industries Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. 1988 CLC 866; Shahid Nabi Malik and another v. Chief Election Commissioner and 7 others PLD 1997 SC 32; M. Aslam Khaki v. Muhammad Hashim PLD 2000 SC 225; Mysore Minerals Limited v. Commissioner of Income Tax 2000 PTD 1486; Hafeezullah v. Abdul Latif PLD 2002 Kar. 457; Hafiz Abdul Waheed v. Mrs. Asma Jehangir PLD 2004 SC 219; Zafar Ali Khan and another v. Government of N.W.F.-P through Chief Secretary and others PLD 2004 Pesh. 263; D. G. Khan Cement Company Limited and others v. Federation of Pakistan and others 2004 SCMR 456; Muhammad Abbas Gujjar v. District Returning Officer/District Judge Sheikhupura and 2 others 2004 CLC 1559 and Shoukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.

(f) Interpretation of statutes---

----Effect of subsequent sections in an enactment with reference to the earlier provisions with respect to same subject-matter is that the meanings of the earlier provisions of an enactment are regulated by the subsequent sections of the same enactment.?

State of Bihar v. S.K. Roy AIR 1966 SC 1995; Nalinikant Ambala Modi v. IT Commissioner Bombay AIR 1967 SC 193; IT Officer Kanpur v. Maniram AIR 1969 SC 543; G. Srinivasa Reddy v. Commissioner Excise Board of Revenue AIR 1973 A.P. 178); Messrs Mehboob Industries Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. 1988 CLC 866; Bashir Ahmed v. Member (Colonies) Board of Revenue PLD 1997 SC 294 and Allah Rakha v. Federation of Pakistan PLD 2000 FSC 1 ref.

Anwar Hussain, Advocate Supreme Court for Appellants (in C.As.Nos.1045 and 1221 of 1999).

Haq Nawaz Chatta, Advocate Supreme Court for Appellants (in C.A.No.378 of 2003).

Appellant in person (in C.A.No.320 of 2004).

Rai Muhammad Nawaz Kharral, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in C.P.No.2450 of 2001).

Salman Hamid, Advocate Supreme Court for Respondents (in C.A.No.1045 of 1999).

Nemo for Respondents (in C.As.Nos.1221 of 1999 and 378 of 2003).

Rizwan Ahmed Siddiqui, D.A.-G. (for only MCB in C.A.No.320 of 2004).

Altaf Elahi Sheikh, Advocate Supreme Court for Respondents (in C.P.No.2450 of 2001).

Date of hearing: 24th October, 2008.

P L D 2009 Supreme Court 380

Present: Abdul Hameed Dogar, C.J., Muhammad Qaim Jan Khan and Ch. Ejaz Yousaf, JJ

Syed NAGHMAN HAIDER ZAIDI and another---Appellants

Versus

ZAHID MEHMOOD and others---Respondents

Criminal Appeal No.111 of 2008, decided on 1st September, 2008.

(On appeal from the judgment dated 30-1-2008 of the Lahore High Court, Lahore passed in Crl.O.P.No.76/C/07).

Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Civil Procedure Code (V of 1908), O.XXXIX of R.2(3)---Contempt of Court---High Court had issued contempt notices to the accused vide impugned order---Sale-deed was executed in favour of respondents on a date when no stay order was in the field---Accused being not a party in the transaction, contempt petition could not have been filed against them and High Court had erred in issuing notices to them and the lawyers who remained associated with the transaction of sale---Respondent who had no order in his favour had no locus standi to file the contempt petition---Under sub-rule (3) of Rule 2 of O. XXXIX, C.P.L. no one could be held guilty of the disobedience of an order, except the person to whom the order was directed and the Court had no jurisdiction to initiate contempt of Court proceedings against whom no order was made---Contempt petition against accused, therefore, was not maintainable and the impugned order was set aside---Appeal was allowed accordingly.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and Arshad Ali Ch. Advocate -on-Record for Appellants.

Respondent No.1 (in person).

Mian Muhammad Hanif, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Respondent No.2.

M. Siddiq Baloch, D.P.G. Punjab for the State.

Date of hearing: 1st September, 2008.

P L D 2009 Supreme Court 383

Present: Khalil-ur-Rehman Ramday and Sarmad Jalal Osmany, JJ

SAIF-UR-REHMAN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.212 of 2007, decided on 25th March, 2009.

(Against the judgment dated 31-7-2007 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.508 of 2005).

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Reduction in sentence, refusal of---Accused was sentenced to imprisonment for life with a fine of Rs.5,00,000 on account of recovery of huge quantity of narcotics from different cavities of the Jeep driven by him---Sufficient evidence existed on record to sustain to conviction of accused and defence counsel had consequently prayed only for reduction in his sentence on the ground that he was only a carrier, who had accepted to transport the said huge quantity of narcotics for some monetory compensation---Held, acceding to such a request would amount to laying down a law that a person who commits a crime not for any personal motive or reasons, but agrees to the same only on hire and for some monetary reward, would always be entitled to compassion, sympathy, mercy and could consequently demand leniency in the matter of quantum of punishment---Court cannot be a party to creating such a law which would amount to encouraging and in fact licensing the practice of hired assassins, hired dacoits, hired robbers and hired criminals of other sorts---Supreme Court, on the contrary, would declare that a hired offender was not entitled to any leniency or sympathy in the matter of quantum of punishment and such people deserved to be dealt with an iron hand and deserved the same kind of treatment which would be warranted in the case of any other criminal, if not stricter and harsher treatment---Leave to appeal was refused to accused accordingly.

Muhammad Aslam Uns, Advocate Supreme Court for petitioner.

Nemo for Respondent.

Date of hearing: 25th March, 2009.

P L D 2009 Supreme Court 385

Present: Khalil-ur-Rehman Ramday and Sarmad Jalal Osmany, JJ

MAMARAS---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.388 of 2008, decided on 25th March, 2009.

(On appeal from the order/judgment dated 9-10-2008 of the Peshawar High Court, Abbottabaad Bench passed in Cr1. Misc. No.186 of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34/109---Qanun-e-Shahadat (10 of 1984), Art.143- Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Contention was that the accused was not amongst those assailants who had made the fatal indiscriminate firing, but had been burdened with liability only on account of S.109, P.P.C.---Validity---Person abetting the commission of an offence was liable to the same punishment which was prescribed for person committing the same i.e. a sentence of death in the present case---Even if it be presumed that the judicial confessions made by some of the co-accused against the accused were the only evidence against him, he would still not qualify for his release on bail, as according to Art.143 of the Qanun-e-Shahadat, 1984, a judicial confession made by a co-accused was a perfectly valid piece of evidence which could be considered and used as circumstantial evidence against a co-accused of such a confessing accused---Circumstantial evidence, even by itself, had never been considered not to be a valid basis for founding a conviction thereon---Accused, of course, could show that the said judicial confessions did not deserve any reliance, but he had not made even an attempt to indicate any reason why the said co-accused had falsely and maliciously implicated him in such a heinous crime by specifically nominating him as one of the abettors of the same---Was not possible to declare that every person accused of the commission of an offence punishable under S.109, P.P.C. was entitled to the grant of bail, irrespective of the merits of the case without demanding satisfaction of the conditions prescribed by S.497(2), Cr.P.C., and only because the allegation against him was one of abetting the commission of an offence---Nothing existed on record to show that the case of accused was one of further inquiry---Bail was declined to accused and leave to appeal was refused accordingly.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Zulfiqar Khalid Malooka, Advocate Supreme Court for Respondent No.2.

Date of hearing: 25th March, 2009.

P L D 2009 Supreme Court 388

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

ANWAR-UL-HAQ---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU---Respondent

Civil Petition No.1091 of 2008, decided on 15th September, 2008.

(On appeal from the judgment dated 3-6-2008 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No.892 of 2007).

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

----S. 426---National Accountability Ordinance (XVIII of 1999), S.10(a)---Constitution of Pakistan (1973), Art.185(3)---Suspension of sentence---Accused had been awarded a sentence of ten years' R.I. with benefit of S.382-B, Cr.P.C.---After counting the remissions towards the sentence of accused, he was found to have already undergone major portion of his sentence---When appeal against the conviction of accused keeps on pending for a long period without his fault, his sentence has to be suspended--Petition for leave to appeal was converted into appeal and allowed and sentence of accuse was suspended in circumstances.

Adnan A. Khawaja v. State 2008 SCMR 1439; Makhdoom Javed Hashmi v. State 2008 SCMR 165 and Muhammad Khan v. State 2008 SCMR 1331 ref.

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

----S. 426---Suspension of sentence---Principle---When appeal against conviction is pending for a long period without any fault of the accused, his sentence has to be suspended.

Adnan A. Khawaja v. State 2008 SCMR 1439; Makhdoom Javed Hashmi v. State 2008 SCMR 165 and Muhammad Khan v. State 2008 SCMR 1331 ref.

Dr. Babar Awan, Senior Advocate Supreme Court for Petitioner.

Zulfiqar Ahmad Bhutta, D.P.G. NAB for Respondent.

Date of hearing: 15th September, 2008.

P L D 2009 Supreme Court 391

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk, Muhammad Moosa K. Leghari, Sheikh Hakim, Ali and Sabihuddin Ahmed, JJ

FEDERATION OF PAKISTAN through Secretary Cabinet Division and others---Applicants

Versus

Mian MUHAMMAD SHAHBAZ SHARIF and others---Respondents

C.M.As. Nos. 969 to 977 of 2009 in C.R.P. Nos. 45 to 48, 50 and 59 to 60 of 2009 in Civil Petition Nos. 778, 779, 878, 905 and 803 of 2008.

Supreme Court Rules, 1980---

----O. XXVI, R. 8---Review of Supreme Court judgment---Practice and convention---Order XXVI, R.8, Supreme Court Rules, 1980 lays down an inflexible rule that the review petition should be laid down before a Bench comprising of the same Judges, rather the provision acknowledges the practical aspect of the matter by providing that "as far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed"---Expression "by the same Bench" appearing in O.XXVI, R.8, Supreme Court Rules, 1980 is qualified by "as far as practicable"---Well settled practice and convention of the Supreme Court was that an application for review was ordinarily placed before the Bench of which the author Judge or in case of non-availability, any other member of the earlier Bench was a member, so as to ensure that working of that Bench was not interrupted---In the present case, two out of the three Judges of the Bench which passed the judgment under review were part of the present Bench (third was not functioning at the principal seat) and as both of the said Judges were authors of the same, the mandate of O.XXVI, R.8 of the Supreme Court Rules, 1980 stood substantially complied with---Principles.

Ahmed Raza Kasuri, Senior Advocate Supreme Court for Applicants (in all cases).

Nemo for Respondents (in all cases).

Date of hearing: 31st March, 2009.

P L D 2009 Supreme Court 393

Present: Iftikhar Muhammad Chaudlhry, C.J. Mian Shakirullah Jan and Raja Fayyaz Ahmad, JJ

SINDH HIGH COURT BAR ASSOCIATION---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law, Justice and Human Rights, Islamabad and 4 others--Respondents

Constitution Petition No.9 of 2009, decided on 3rd April, 2009.

Constitution of Pakistan (1973)

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution before Supreme Court---Contentions of the petitioners were that Judges of the High Court were illegally directed to cease to hold office in pursuance of the Proclamation of Emergency of 3rd November, 2007, which was it correctly validated by a 7 Member Bench of Supreme Court in the case of Tikka Iqbal Muhammad Khan v. General Pervez Musharraf PLD 2008 SC 178 holding. inter alia, that the Judges who had not taken oath under the Provisional Constitution Order, 2007 had ceased to hold office; that said judgment was per incuriam in view of the 12 Member Bench judgment in the case of Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 wherein it was held in unambiguous terms that after the pronouncement of this judgment, no Judge of a Superior Court could be removed except by following the procedure laid down in Article 209 of the Constitution; that in the case of Tikka Iqbal Muhammad Khan, the judgment in tyre case of Zafar Ali Shah was not examined in the correct perspective, therefore, the judgment of the 12 Judges would prevail; that the said Judges were reappointed for a period of one year vide Notification dated 26-8-2008, which, in effect, was the revival of their original appointment as they were given the seniority position prevailing on 2nd November, 2007 and later on vide Notification, dated 15-9-2008 the period of their appointment as Additional Judges of the High Court was extended for six months with effect from the date when their present term expired, thus, this period of six months would be added to the earlier period of appointment as Additional Judges, which was to expire on 25-8-2009 and for all intents and purposes they would be entitled to continue their service as Additional Judges up to 25-2-2010; that although the Chief Justice, High Court of Sindh earlier misunderstood and misinterpreted the Notifications dated 26-8-2008 and 15-9-2008, but on a representation made by the Judges corrected the error and assigned them Court work; that subsequently, the Ministry of Law as well as the then incumbent of the office of Chief Justice of Pakistan, through their separate letters, interpreted the Notifications dated 26-8-2008 and 15-9-2008 in a manner that their period of appointment as Additional Judges had already expired, which was not the correct interpretation of both the Notifications; that without prejudice to his plea with regard to the interpretation of the Notifications dated 26-8-2008 and 15-9-2008, the Chief Justice and the Governor of Sindh both recommended the two Additional Judges for their appointment as permanent Judges under Article 193 of the Constitution; that after recommendation of the Chief Justice and the Governor of Sindh regarding permanent appointment of the Judges, in view of the law laid down in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, they ought to have been appointed accordingly---Supreme Court ordered to issue notice to the respondents for filing of parawise comments/written statement, if desired by them, in the meanwhile, notice be also issued to the Attorney-General for Pakistan under O.XXVII-A of the Code of Civil Procedure, 1908 read with Order XXIX of the Supreme Court Rules, 1980 as important questions regarding interpretation of the constitutional provisions were involved in the case and that the parawise comments/written statement be filed within a period of three weeks and on receipt of the same, the case shall be listed for hearing.?

Rashid A. Razvi, Advocate Supreme Court and Anwar Marrsoor Khan, Advocate Supreme Court for Petitioner.?????????

Nemo for Respondents.

Date of hearing: 3rd April, 2009.

P L D 2009 Supreme Court 397

Present: Muhammad Moosa K. Leghari and Syed Zawwar Hussian Jaffery, JJ

S.M. SOHAIL---Petitioner

Versus

Mst. SITARA KABIR-UD-DIN and others---Respondents

Civil Petition No.469-K of 2008, decided on 28th November, 2008.

(On appeal from the order dated 19-9-2008 passed by High Court of Sindh at Karachi in Constitutional Petition No.617 of 2003).

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

----S. 12(2)---Constitution of Pakistan (1973), Art.185(3)---Proceedings under S.12(2), C.P.C.---Maintainability---After proceedings in the relevant matter having culminated into dismissal of petition for leave to appeal before the Supreme Court, no proceedings were maintainable before the High Court under S.12(2), C.P.C.

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

----S. 12(2)---Frivolous application under S.12(2), C.P.C. bearing no merits, hampering the rights of other party and process of justice with the intention of dragging the other party in the frivolous litigation---Supreme Court observed that in such situation it was high time for the Courts to take effective measures to curb the uncalled for and frivolous litigation and imposition of suitable cost could be one of the deterrent modes to eliminate the concocted litigation---In the present case, petition before the Supreme Court, having been filed to achieve ulterior object, was dismissed and petitioner was saddled with a cost of Rs.25,000 to be deposited in the court within four weeks of the date of communication of present order.

A.S.K. Ghori, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 28th November, 2008.

P L D 2009 Supreme Court 399

Present: Faqir Muhammad Khokhar, Ijaz-ul-Hassan Khan and Zia Perwez, JJ

CHAUDHRY KHAN---Appellant

Versus

Major KHAN ALAM---Respondent

Civil Appeal No.1763 of 2003, decided on 16th February, 2009.

(On appeal from the judgment dated 6-10-2003 of the Lahore High Court, Rawalpindi Bench passed in R.S.A. No.566 of 1980).

(a) Punjab Pre-emption Act (I of 1913)---

----Ss. 4 & 30---Limitation Act (IX of 1908), S.10---Transfer of Property Act (IV of 1882), S.54---Pre-emption suit---Limitation---Sale-deed was executed and registered as required by S.54, Transfer of Property Act, 1882---Period of limitation would be computed from the date of registration of sale-deed as the physical possession of the suit property under the sale could not take place .earlier thereto---Delivery of possession even if earlier made pursuant to an agreement to sell would not serve the purpose for non-suiting a pre-emptor on that ground---Not correct to calculate the period of limitation from the date of agreement to sell by disregarding the date of registration of sale-deed.

Niaz Ahmed and others v. Mian Abdul Rehman and others PLD 1961 (W.P.) Baghdad-ul-Jadid 1; Muhammad Amin v. Maqbool PLD 1990 Lah. 397; Tajul Mulk v. Mst. Zaitoon Bibi and others PLD 1994 SC 356; Khurshid Begum v. Muhammad Fazal PLD 1981 SC(AJ&K) 103; Gullan v. Muhammad Ramzan PLD 1962 (W.P.) Baghdad-ul-Jadid 33; Muhammad Siddique v. Ghulam Muhammad 1996 SCMR 1955; Sukhnandan Singh and others v. Jamiat Singh and others AIR 1971 SC 1158; Gharib Shah v. Zarmar Gul PLD 1984 SC 188; H. Niamatullah Khan v. Shabnama and others 1974 SCMR 425; Syed Ghulam Baqir Shah v. Muhammad Nawaz and others 1988 MLD 2932; Ram Peara v. Rup Lal and others 80 Punjab Record (1918) Vol. 53, p.269 and Words and Phrases (Permanent Edition) Vol. 43, p.213 ref.

(b) Words and phrases---

----"Under the sale"---Meaning.

Words and Phrases (Permanent Edition) Vol. 43, p.213 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Qamar Afzal, Advocate Supreme Court for Respondent.

Date of hearing: 16th February, 2009.

P L D 2009 Supreme Court 404

Present: Faqir Muhammad Khokhar, M. Javed Buttar and Sabihuddin Ahmed, JJ

Dr MUHAMMAD SAFDAR---Petitioner

Versus

EDWARD HENRY LOUIS---Respondent

Criminal Petition No.96-K of 2008 decided on 27th January, 2009.

(On appeal against the order dated 10-11-2008 passed by the High Court of Sindh Karachi, in Criminal Revision Application No.99 of 2008).

Illegal Dispossession Act (XI of 2005)---

----Preamble, Ss. 3 & 4---Constitution of Pakistan (1973), Arts. 12 & 185(3)---Illegal Dispossession Act, 2005 was not intended to have any retrospective operation---Parties to the disputer had already instituted civil suits with regard to the same property and the matter had become subjudice well before the Illegal Dispossession Act, 2005 came into force---Held, provisions of Illegal Dispossession Act, 2005 could not be invoked ex post facto---Reference to Rahim Tahir v. Ahmad Jan and 2 others PLD 2007 SC 423 was inapt as it did not lay down the correct law to the extent of retrospective application of the Illegal Dispossession Act, 2005---Making of a law providing for retrospective punishment of a person was specifically prohibited by Art. 12 of the Constitution.

Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 not correct law to the extent of retrospective operation of the Illegal Dispossession Act, 2005.

Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Naraindas C. Motiani, Advocate-on-Record for Respondent.

Date of hearing: 27th January, 2009.

P L D 2009 Supreme Court 406

Present: Mian Shakurullah Jan Khan, Nasir-ul-Mulk and Muhammad Qaim Jan Khan, JJ

ECHO WEST INTERNATIONAL (Pvt.) LTD. LAHORE---Appellant

Versus

GOVENRMENT OF PUNJAB through Secretary and 4 others---Respondents

Civil Appeal No.1297 of 2006, decided on 20th March, 2009.

(On appeal from the Judgment of the Lahore High Court, Lahore, dated 15-3-2006 passed in ICA No.9 of 2006).

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

----Preamble---Public Procurement Regulatory Authority Rules, 2004---Law Reforms Ordinance (XII of 1972), S.3(2), proviso---Constitution of Pakistan (1973), Art.185(3)---Award of contracts---Leave to appeal was granted by Supreme Court to consider, inter alia, as to whether the bidding process and procedure adopted for the award of contracts, for the construction of three mega projects, involving government properties, by a company jointly owned by Federal Government and Government of the Punjab, was valid, transparent, non-arbitrary, non-discriminatory and in accordance with the guidelines and requirements laid down by the superior courts of Pakistan in such-like matters; that whether bidding mechanism and process adopted by the government owned company were contrary to and violative of Public Procurement Regulatory Authority Ordinance, 2002 and Public Procurement Regulatory Authority Rules, 2004 and whether intra-court appeal instituted by the petitioner which resulted in the impugned judgment, was not competent due to the bar as contained in proviso to S.3(2), Law Reforms Ordinance, 1972, if so, its effect.

(b) Constitution of Pakistan (1973)---

----Art. 199---Issuance of writs in the nature of certiorari or mandamus to a limited company by the High Court---Criteria.

Writs in the nature of certiorari or mandamus can be issued to, inter alia, persons performing functions in connection with the affairs of the Federation or the Province. Limited company possessing legal entity, is a person and the primary test for determining as to whether a limited company can be treated for the purpose of exercising writ jurisdiction over it by a High Court, as "performing functions of Federal or Provincial Government", must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed by regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not. In the present case, going through the Memorandum and Articles of Association and other documents, the company does fulfil the above test to qualify as a person performing functions of the Federation as well as the Provincial Government. The share capital of the company, according to the Memorandum of Association, was to be provided by the Government of Pakistan through Ministry of Commerce and Government of the Punjab through Industries, Commerce and Investment Department. The Provincial Government was to provide land for the project, and according to the Articles of the Association, the primary funding was to be provided in the shape of grants by the Federal and the Provincial Governments. Out of 11 Members of the Board of Directors of the Company, 4 each are nominated by the Federal Government and the Provincial Government and the remaining 3 from the business community nominated jointly by the two governments. The objectives of the company enumerated in the Memorandum of Association broadly is for promoting exports, commerce generally, generating revenue and other similar activities, by providing facilities for exhibitions, holding meetings and conferences relating to trade and commerce, nationally and internationally. The company was, thus, set up for performing functions which indeed were primarily those of the State and it was funded and controlled by the Federal Government and the Government of the Punjab. Objection to the maintainability of constitutional petition on this score is without force.

Salahuddin v. Frontier Sugar Mills, and Distillery Ltd. PLD 1975 SC 244 fol.

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

----Art. 199---Public Procurement Regulatory Authority Ordinance (XXII of 2002), Preamble---Constitutional jurisdiction of High Court--"Aggrieved person"---Scope---`Public interest litigation'- -'Personal interest litigation'---Distinction---Petitioner, a bidder of mega projects, realizing that it was unlikely to succeed in view of its participation in the bidding process to obtain relief for itself regarding the said projects. insisted that the matter be examined as one of public importance to undo the result of failure of public functionaries to perform their duties; it was thus, urged by the petitioner that the entire process be repeated and transparency ensured---Petitioner further attempted to make the case as that of "public interest litigation"---Petitioner had also contended that Public Procurement Regulatory Authority Ordinance, 2002 was applicable to the facts of the present case---Held, litigation of such nature did not fall specifically under any provision of Art.199 of the Constitution---Such concept, however, had received judicial recognition enabling the courts to enlarge the scope the meaning of "aggrieved person" under Art.199 of the Constitution to include a public spirited person who brings to the notice of the court a matter of public importance---Petitioner, in the present case, had a personal interest in the as he was motivated purely by his own economic interest and wanted the entire bidding process reversed so that he could avail another opportunity of bidding for the projects---Present litigation was, therefore, not in public interest but was rather in personal interest and petitioner had locus standi, having personal interest in the litigation but at the same time had no cause of complaint---Present case being not of public interest litigation and petitioner having not been treated unfairly or discriminately, Supreme Court declined to comment upon the arguments by both the sides, on the application or otherwise, of the provisions of the Public Procurement Regulatory Authority, Ordinance, 2002 to the present case.

Syed Ali Zafar, Advocate Supreme Court along with Arshad Ali Ch. Advocate-on-Record for Appellant.

Sardar Muhammad Latif Khan Khosa, Attorney-General for Pakistan along with Mudassar Khalid Abbasi, A.A.-G. Punjab and Taffazul H. Rizvi, Advocate Supreme Court for Respondents Nos.1 to 3.

Alamgir, Advocate Supreme Court for Respondent No.4.

Barrister Ijaz-ul-Hassan, Advocate Supreme Court for Respondent No.5.

Dates of hearing: 16th and 17th February, 2009.

P L D 2009 Supreme Court 419

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Raja Fayyaz Ahmad, JJ

KHADIM HUSSAIN---Appellant

Versus

ABID RUSSIAN and others Respondents

Civil Appeal No.933 of 2004, decided on 16th April, 2009.

(On appeal from the judgment/order dated 3-6 2004 passed by Lahore High Court, Lahore passed in C.R No 1288 of 1997).

(a) Fraud---

----Order obtained against dead person--Held, on the basis of an order, which was obtained by playing fraud with the court, against a dead person, no benefit of the same can be extended to the party, instead he deserved serious condemnation because of his such act as the litigation remained pending for a considerable period---Fraud is an intrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice.

Mehr Muhammad v. Dy Settlement Commissioner and another 1979 SCMR 182; Hafiz Brothers (Pvt.) Ltd. v. Pakistan Industrial Credit & Investment Corporation Ltd. 2001 SCMR 1; Rehmat Din v Nasir Abbas 2007 SCMR 1560; Debendra Nath Dutt v. Administrator General of Bengal 35 Indian Appeals 109; Chief Settlement Commissioner v. Muhammad Fazil PLD 1975 SC 331; Ali Iqtidar Shah v. Custodian, Evacuee Property PLD 1964 Lah 274; Rehmatullah v Saleh Khan 2007 SCMR 729; Mst. Fehmida Begum v Muhammad Khalid 1992 SCMR 1908; Muhammad Younis Khan v. Government of N W P. P 1993 SCMR 618; Lal Din v. Muhammad Ibrahim 1993 SCMR 710; Muhammad Siddique v Abdul Majid 1999 SCMR 2671; Muhammad Sharif v. Sultan Humayun 2003 SCMR 1221; Hamza Haji v. State of Kerala AIR 2006 SC 302.8; S.P. Chengalvaraya Naidu v Jagannath AIR 1994 SC 853; Government of Sindh v. Khalil Ahmed 1994 SCMR 782; Bashir-ud-Din v. Govt. of N.-W.P.P. 1995 CLC 1394 and KERR on the Law of Fraud and Mistake ref.

(b) Transfer of Property Act (IV of 1882)---

----S. 52---Transfer of property pending suit---Scope---Pending suit, property cannot be disposed of and if some one opts to do so, he shall be responsible for such deeds---If a transaction of sale had taken place after the institution of the suit the rights of the decree holder shall be protected.

(c) Punjab Pre-emption Act (I of 1913)---

----S. 4---Pre-emption, right of---Non-deposit of sale price---Effect--Pre-emption right being feeble, pre-emptor is bound to follow the suit vigilantly and any slackness is always sufficient to non-suit him---In the present case, the amount of sale price had not been deposited in pursuance of a valid order, as such it would be deemed that no amount in fact had been deposited---If once a decree had been passed subject to deposit of sale consideration, the suit shall automatically be dismissed for non-deposit of sale proceed.

Shujat Ali v. Muhammad Riasat PLD 2006 SC 140 and Ghulam Qadir v. Ghulam Fareed 2006 SCMR 984 ref.

Syed Iftikhar Hussian Gillani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Malik Muhammad Qayyum, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Dates of hearing: 7th, 8th and 16th April, 2009.

P L D 2009 Supreme Court 427

Present: Khalil-ur-Rehman Ramday and Sarmad Jalal Osmany, JJ

Rana MUHAMMAD ARSHAD -Petitioner

Versus

MUHAMMAD RAFIQUE and another---Respondents

Criminal Petition No.25 of 2009, decided on 26th March, 2009.

(On appeal from the order dated 19-12-2008 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No. 10599-B/08).

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

----S. 498----Bail before arrest, grant of---Framework within which and the guidelines according to which, the jurisdiction vesting in the High Courts and Courts of Session is to be exercised summarized.

In a proper case, the High Court has power under section 498, Criminal Procedure Code, to make an order that a person who is suspected of an offence for which he may be arrested by a Police Officer or a court, shall be admitted to bail. The exercise of this power should, however, be confined to cases in which not only a good prima facie ground is made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm.

Following is the frame-work within which and the guidelines according to which, the jurisdiction vesting in the High Courts and the Courts of Session, is to be exercised:--

(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through amuse of law for ulterior motives;

(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;

(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;

(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him;

(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive from law; and finally that, (f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to hail before arrest, must, in the first instance, approach the court of first instance i.e. the Court of Session, before petitioning the High Court for the purpose.

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

----S. 498---Constitution of Pakistan (1973), Art.185(3)--Bail before arrest, grant of---No court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest especially the condition regarding mala fides were proved---Where no such finding existed in the hail granting order, on the contrary while talking about the disappearance of the accused for more than two years after his nomination as an accused, the High Court found that the said accused was in no condition to escape arrest or to abscond and it was the police which had not caused his arrest for such a long period of time which observation obviously established absence of ulterior motives on the part of police---Supreme Court observed that it was on account of the admitted physical disability of co-accused that the Supreme Court exercised restraint in issuing a notice to him for recall of the bail allowed to him.

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

----S. 498---Constitution of Pakistan (1973), Art.185(3)---Double murder---Bail before arrest, cancellation of---Prosecution case could not be said to have become doubtful only because the accused had not been named in the F.I.R. and had been nominated subsequently through a supplementary statement; case was not the one where it could be said that the same had been fabricated on account of ulterior motives either on the part of police or even on the part of complainant; concessions extended to the other accused on account of his physical disability could not be made available to the accused who was a perfectly healthy person; no explanation existed on record for granting the extraordinary relief of bail before arrest and that also in a double murder case, to a person/accused who was a proclaimed offender and who had been a fugitive from law for more than two years and there was no reason available in the impugned order or even oil record which could justify a direct approach to the High Court for grant of pre-arrest bail without moving the Court of Session for the purpose---Effect---Held, discretion exercised by the High Court in admitting the accused to bail before arrest through the impugned order was not sustainable---Supreme Court converted the petition for leave to appeal into appeal and allowed the same and recalled the order of High Court granting bail to the accused with direction that he may be taken into custody in accordance with law if it was so desired---Supreme Court observed that the court had felt compelled to go into the merits of the case as it was done on account of the lengthy arguments of the counsel for the parties and on account of some of the observations made by the High Court and it was further clarified that the conclusion reached by the court was only for the disposal of present bail matter and should not be taken as ultimate findings on the merits of the case.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Petitioner.

Zulfiqar Khalid Malooka, Advocate Supreme Court for Respondent No. 1.

M. Siddique Baloch, D.P.G. Punjab for the State.

Date of hearing: 26th March, 2009.

P L D 2009 Supreme Court 437

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

Mst. SHAUKAT ARA---Petitioner

Versus

Mst. BANU BEGUM through legal heirs and others---Respondents

Civil Petition No.163-P of 2008, decided on 16th April, 2009.

(On appeal from the judgment dated 25-6-2008, of the Peshawar High Court Peshawar passed in C.R.No. 176 of 2008).

Civil Procedure Code (V of 1908)---

----O. IX, R.13---Setting aside of ex parte decree against defendant---Scope---Terms of the compromise, in the present case spoke for setting aside the ex parte decree partially to the extent of one defendant (petitioner in the case)---Question was whether in the law, as in the present case, the ex parte decree shall be set aside as a whole or partially to the extent of one defendant---Held, in such circumstances, the relief could only be extended to a party who had approached the court for setting aside the ex parte decree on available grounds under the law, including the one that applicant seeking setting aside ex parse decree was not heard or allowed to represent himself/herself before the Court.

Hiralal Morarka v. Sitaram Manekchand AIR 1952 Bombay 446 ref.

Muhammad Asif, Advocate Supreme Court for Petitioner.

Mian Muhammad Younas Shah, Advocate Supreme Court for Respondents.

Date of hearing: 16th April, 2009.

P L D 2009 Supreme Court 440

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Raja Fayyaz Ahmad, JJ

KHALIDA BIBI---Petitioner

Versus

NADEEM BAIG---Respondent

Criminal Petition No.450-L of 2008, decided on 3rd April, 2009.

(On Appeal against the order dated 19-9-2008, passed by Lahore High Court, Lahore, in Criminal Miscellaneous No.2640-B of 2008).

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

----S. 497(2)---Constitution of Pakistan (1973), Art.185(3)---Bail, grant

of---Principles---Court under S.497(2), Cr.P.C. was not to make probe into defence version in order to advance a plea of bail, rather it had to tentatively assess the material produced before it and to see if reasonable grounds existed to believe, if prima facie, involvement of accused in the commission of offence---If the plea on the basis of which the accused had been released on bail was accepted, would impugn the version of the eye-witnesses which had been discarded at the initial stage of the case by observing contra to the version of ocular witnesses; which course was at all not permissible and later on no such evidence was furnished, then it would not be free from doubt and in accord with S.497(2), Cr.P.C.---Evidence of eye-witnesses, in the present case, had been discarded even in view of the medical opinion by the Trial Court, as well as by the High Court---Police, during the investigation was not required to examine hundreds of people in order to inquire as to whether the accused was involved in the offence or not---Police was required to consider the material available on the record and not to disregard the eye-witnesses in support to say that he was not involved in the commission of the offence, and thus, would not only be entitled to grant of bail but at the same time to earn acquittal---Practice adopted by Trial Court as well as by the High Court, in peculiar circumstances of the case, was not appreciated by the Supreme Court---Reasons on which hail had been extended to the accused were not sustainable in the eye of law---Supreme Court converted petition for leave to appeal into appeal and cancelled the hail granted to accused by High Court---Accused present in the Court was ordered to be taken into custody and be dealt with in accordance with law.

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

----S. 497(5)---Constitution of Pakistan (1973), Art.185(3)---Petition for cancellation of bail granted by High Court---Grounds that found favour with the Nigh Court related to non-recovery of the weapon of offence and non-framing of charge after submission of challan---Validity---Ground of non-recovery of weapon was not available to the accused for the reason that he remained absconder for a considerable time and even did not surrender despite cancellation of his bail by High Court as well as Sessions Judge---On submission of challan, the proceedings in the case after framing the charge commenced and in the meanwhile on the ground of non-submission of challan in the case which attracted prohibition clause of S.497, Cr.P.C. and thus would not entitle an accused to the grant of bail in view of well-recognized principles of criminal jurisprudence---Reasons on which bail had been extended to the accused were not entertainable in the eye of law---Supreme Court converted petition for leave to appeal for cancellation of bail into appeal and allowed the same---Accused present in the court was ordered to be taken into custody and be dealt with in accordance with law.

Ch. Farooq Haider, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq, D.P.G. Punjab, and Allah Rakha, S.I.., P.S. Karianwala for the State.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Respondent (with respondent).

P L D 2009 Supreme Court 453

Present: Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

AHMAD ALI alias ALI AHMAD---Appellant

Versus

NASAR-UD-DIN and another---Respondents

Civil Appeal No.917 of 2005 out of C.P. No. 117-Q of 2004, decided on 16th April, 2009.

(On appeal from the judgment of the High Court of Balochsitan Quetta dated 11-8-2004 passed in F.A.O. No. 134 of 2002).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

---S. 13---Ejectment of tenant---Grounds of default in payment of rent, bona tide personal need of landlord and subletting of premises by the tenant---Landlord and tenant, relationship of---Determination by Rent Controller---Scope---Rent Controller, though was not competent to determine the question of title of the property assuming the role of civil court, but if the tenant failed to produce the documentary evidence to support his title over the premises in dispute the Rent Controller could determine the relationship of landlord and tenant between the parties---If the tenant could not establish his possession over the property in dispute under the sale, he was not entitled to protect the same and the relationship of landlord and tenant would continue to exist---Record and all the facts and statements of witnesses, in the present case, proved that relationship of landlord and tenant existed between the parties---Application of landlord for ejectment of tenant having been based on default and the required relationship of landlord and tenant having been denied by the tenant, he was liable to be ejected straightaway when the required relationship had been proved in affirmative---Supreme Court clarified that observation of Supreme Court determination of the title/ownership of the landlord, was tentative in nature and it would not prejudice the merits of the case, if the tenant approached the civil court of competent jurisdiction for determination of his title over the property.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064; Mst. Azeemun Nisa Begum v. Ali Muhammad PLD 1990 SC 382; Haji Juma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242; Rah Nawaz v. Haji Muhammad Iqbal 2003 SCMR 1476 and Abdul limpid and 3 others v. Syed Abdul Qadir and others PLD 2001 SC 49 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Plea that tenancy had not been created by written instrument-Validity-Held, tenancy would not be necessarily created by written instrument in express terms, rather might also be oral and implied---In absence of any evidence to the contrary, in normal circumstances, owner of property by virtue of his title would be presumed to he landlord and person in possession of premises would be considered as tenant under the law.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 ref.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 distinguished.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Ground of default in payment of rent---Non--payment of rent of the property in dispute by the tenant having been admitted, as such, he would be inferred as defaulter, and thus liable to be ejected.

Kamran Murtaza, Advocate Supreme Court for Appellant.

H. Shakil Ahmad, Advocate Supreme Court and Muhammad Ayaz Khan Swats, Advocate Supreme Court for Respondent No. 1.

Respondent No.2: Ex parte.

Date of hearing. 16th April, 2009.

P L D 2009 Supreme Court 460

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Raja Fayyaz Ahmad, Ch. Ijaz Ahmed, Sayed Zahid Hussain, and Muhammad Sair Ali, JJ

SHAH HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 56 of 2005, decided on 1st June, 2009.

(On appeal against the judgment dated 11.9.2003 passed by the Peshawar High Court, Abbottabad Bench in Crl. Appeal No. 61/2001)

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

----S. 382-B---Applicability of S.382-B, Cr.P.C.---Scope---Some of the propositions expounded in the judgments of Supreme Court were noted so as to adequately highlight the implications of, and bring home the manner, in which the provisions of S.382-B, Cr.P.C. were to be applied.

Some of the propositions expounded in the Supreme Court judgments are noted here so as to adequately highlight the implications of, and bring home the manner, in which the provisions of section 382-B, Cr.P.C., were to be applied. They are:

(1) While passing sentence, the court, in the absence of special circumstances disentitling the accused to have his sentence of imprisonment reduced by the period spent in jail during the trial, exercise its discretion in favour of the accused by ordering that such period shall be counted towards his sentence of imprisonment or that the sentence of imprisonment shall be treated as reduced by that period;

(2) the discretion has to be exercised with the intention to promote the policy and objects of the law;

(3) indeed, the court will use its good sense in determining the circumstances in which the discretion will not be exercised in favour of the accused. But as the discretion is a judicial discretion, the order of the court must show that the pre-sentence period has been taken into consideration and if the court thinks that the sentence should not be reduced by the period spent in prison during the trial, the court must give reasons for so thinking;

(4) the word `shall' is intended to make the provision mandatory-in the sense that it imposes a duty to do what is prescribed and same admits of no doubt whatever;

(5) The provision occurs in a criminal statute which requires strict construction as far as it imposes restrictions and punishments. Beneficial provisions need to he construed liberally. In any event, the fact that when the section 382-B, Cr.P.C. was first enacted the word used was may' and later it was substituted by the wordshall' provides the clearest possible evidence that the intention was that the court must take the pre-sentence period of detention in jail "into consideration". Section 382-B, Cr.P.C. is, therefore, a statutory limitation upon the Court's discretion to determine the length of imprisonment. It must `take into consideration' the pre-sentence period spent in jail;

(6) The benefit of section 382-B, Cr.P.C. is also available to a person whose sentence of death under section 302, P.P.C. has been subsequently altered to imprisonment for life;

(7) As the accused is put in jail for the very offence for which he is convicted and sentenced to imprisonment, the pre-sentence period spent by him in jail is not in vain and must, therefore, be taken into account;

(8) It explodes the notion that such period can be ignored because it is not spent in jail by way of punishment'. Not to treat that period as punishment, will be a play on the meaning of the wordpunishment'. Whether the detention in jail was punitive or non-punitive, the consequence, as regards the person detained was the same, namely, deprivation of liberty and that is certainly a punishment.?

Qadir v. State PLD 1991 SC 1065; Ramzan v. State PLD 1992 SC 11; Liaqat Hussain v. State PLD 1995 SC 485; Muhammad Rafiq's case 1995 SCMR 1525; Mukhtar-ud-Din v. State 1997 SCMR 55; Ghulam Murtaza v. State PLD 1998 SC 152; Javed Iqbal v. State 1998 SCMR 1539 and Ehsan Ellahi v. Muhammad Arif 2001 SCMR 416 ref.

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

----S. 382-B---Interpretation of S.382-B, Cr.P.C.---Case-law preceding the enactment of S.382-B, Cr.P.C. had no relevance and bearing on the interpretation of said provision, which had been termed as a beneficial provision---Judgment in Haji Abdul Ali's case reported as PLD 2005 SC 163 did not address the issue in the changed perspective, nor the court addressed itself to certain celebrated judgments of the superior Courts on the subject---Supreme Court intended to revisit the judgment in Haji Abdul Ali's case so as to reach an appropriate conclusion.

The enactment of section 382-B, Cr.P.C., made a specific provision requiring the court to take into consideration the pre-sentence period while passing the sentence. This was a new era in an area of the criminal law, which dealt with the liberty of a person. Prior to it, the time spent by the convicts in custody for the same offence would not be accounted for in any way. Having waited for the conclusion of their trials for months, and in many cases for years together, they would re-enter the jail to serve out the sentence imposed upon them. The enactment of section 382-B, Cr.P.C., brought a complete shift in the approach of the court towards the issue of pre-sentence period of a convict. Hence, the case law preceding the enactment of the said provision had no relevance and hearing on the interpretation of that provision, which has been termed as a beneficial provision by all and sundry all along without exception. The judgment in Haji Abdul Ali's case did not address the issue in the changed perspective, nor the court addressed itself to certain celebrated judgments of the superior courts on the subject matter handed down in the cases of Muhammad Bashir reported as PLD 1982 SC 139, Muhammad Rafiq reported as 1995 SCMR 1525, Mukhtiar-ud-Din reported as 1997 SCMR 55, Ghulam Murtaza reported as PLD 1998 SC 152, Javed Iqbal reported as 1998 SCMR 1539 and others, which had dwelt upon the subject exhaustively.

?

The judgment in the Human Rights' case reported as PLD 2008 SC 71, just followed the dicta laid down in Haji Abdul Ali's case. Even otherwise, it being a human rights petition, only an Additional Advocate-General from NWFP had appeared on court's notice. No other lawyer had appeared in the matter and the attention of the court could not be drawn to any of the aforesaid judgments. In the above backdrop, Supreme Court intended to re-visit the judgments in Haji Abdul Ali and the Human Rights cases so as to reach an appropriate conclusion.?

In Haji Abdul??? Ali's????? case, the court, while making the observation that "the conviction and sentence of an accused cannot be made to run from the date prior to the date of conviction by a competent court", altogether overlooked the practical effect of the provisions of section 382-B, Cr.P.C. Sentence preceding conviction, means that the accused is sentenced first, but convicted later, which was not the situation in Haji Abdul Ali's case. There, the court was called upon to just make the sentence (pronounced certainly after conviction) effective from the date the convict was taken into custody in connection with such offence, and not from any date prior to the commission of the offence. Even otherwise, conviction follows proof of guilt of the convict, which is relatable to the time of the commission of the offence. Only its finding is reached on a subsequent date. On proof of guilt, the presumption of innocence is displaced and the convict is considered guilty of the offence from the very inception, i.e. from the date of commission of the offence. The court also did not take into account the consequences of "consideration" in terms of section 382-B, Cr.P.C., which was a crucial aspect having material bearing on the determination of the moot point involved in the case regarding admissibility or otherwise of the remissions of the pre-sentence period.

Abdul Ali's case PLD 2005 SC 163; Muhammad Bashir's case PLD 1982 SC 139; Muhammad Rafiq's case 1995 SCMR 1525; Mukhtiar-ud-Din's case 1997 SCMR 55; Ghulam Murtaza's case PLD 1998 SC 152; Javed Iqbal's case 1998 SCMR 1539; Inayat Bibi v. Amjad Ali 2001 PCr.L.J. 1453 and Aamir Ali v. State 2002 YLR 1902 ref.

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

----S. 382-B---Constitution of Pakistan (1973), Art.9---Refusal to allow remission of pre-sentence custody period to a convict whom the court has granted the benefit of S.382-B, Cr.P.C. is tantamount to deprivation of his liberty within the contemplation of Art.9 of the Constitution---Cases of convict prisoners who were expressly debarred under any law from the benefit of S.382-B, Cr.P.C. stand on a different footing---Where S.382-B, Cr.P.C. itself is not applicable, no remission of the pre-sentence custody period can be allowed to the prisoner in question---Principles.

?

Human Rights' case No.4115 of 2007 PLD 2008 SC 71; Access to Justice in Pakistan by Justice Fazal Karim; Muhammad Rafiq's case 1995 SCMR 1525; Thake v. Attorney General (CACLB-033-07) [20081 BWCA 23 (25 April, 2008); Kolojane v. State (1999 BLR 70 (CA); I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; D.B.M. Patnaik v. State of A.P. AIR 1974 SC 2092 and Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

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

----S. 382-13---Supreme Court desired that provision of S.382-B, Cr.P.C. was couched in language as clear and unambiguous as the sections in the Indian and English enactments were.?

Muhammad Rafiq's case 1995 SCMR 1525 ref.

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

----Ss. 382-B & 35---Accused, in the present case, was sentenced to 10 years' R.I. and imprisonment to life on two counts, his sentences were ordered to run consecutively---Aggregate sentences of the accused would thus come to sixty years, which was contrary to the provisions of S.35, Cr.P.C.---proviso (a) to S.35, Cr.P.C. prohibited the giving of consecutive sentence in one trial beyond the period of 14 years---Supreme Court converted jail petition into appeal and partly allowed the same and directed that the sentences of the convict shall run concurrently; he shall be entitled to the benefit of S.382-B, Cr.P.C.; remission granted by any authority in his post-conviction period or during his pre-sentence detention period in connection with such offence shall be available to him and his sentences shall be reduced accordingly---Impugned judgment of the High Court was modified by Supreme Court accordingly. ?

Javed Shaikh v. State PLD 1985 SC 153 ref.

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

----S. 382-B [as amended by Code of Criminal Procedure (Second Amendment) Ordinance (LXXI of 1979), S.21---Constitution of Pakistan (1973), Art.45---Interpretation and application of S.382-B, Cr.P.C. ---After the use of word "shall" for the word "may" in section 382-8, Cr.P.C., at the time of passing the sentence, it is mandatory for the trial Court to take into consideration the pre--sentence custody period---Refusal to take into consideration the pre-sentence custody period at the time of passing the sentence is illegal inasmuch as if a court sentences a convict to imprisonment for life, which is the alternate but maximum sentence for the offence of murder, but does not make allowance for the pre-sentence custody period, it would be punishing the convict prisoner with imprisonment for life plus the pre-sentence custody period, that is to say, more than the maximum legal punishment---Convict-prisoners who are granted the benefit of section 382-B, Cr.P.C., shall be entitled to remissions granted by any authority in their post-sentence detention or during their pre-sentence detention in connection with such offence, however, the same shall not be available to the convicts of offences under the National Accountability Ordinance, 1999, Anti-Terrorism Act, 1997, the offence of Karo Kari, etc., where the law itself prohibits the same---Law laid down in Haji Abdul Malik's case reported as PLD 2005 SC 163 that under Article 45 of the Constitution, the President enjoys unfettered powers to grant remissions in respect of offences and no clog stipulated in a piece of subordinate legislation can abridge this power of the President, is reaffirmed---Supreme Court ordered that copies of the judgment shall be sent to the Federal Secretary Interior, Chief Secretaries, Home Secretaries, Inspectors General of Police, Inspectors General of Prisons and Registrars of the High Courts of the Provinces for information and onward transmission to the concerned quarters, including the prisoners, etc., for the purpose of its implementation in letter and in spirit---Concerned authorities shall submit report within a period of two weeks to the Registrar of Supreme Court for court's perusal in respect of the implementation of the judgment, also giving the number of prisoners benefited from it. ?

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Syed Tahaar Hussain, Advocate Supreme Court for the State (on behalf of A.G., N.-W.F.P.)

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court Amicus Curiae:

Muhammad Akram Sheikh, Senior Advocate Supreme Court (Assisted by Barrister M. R. Kamran Sheikh, Advocate).

Sh. Zameer Hussain, Senior Advocate Supreme Court.

Ms. Naheeda Mehboob Elahi, D.A.G. Qazi Muhammad Amin, Addl. A.-G.

Muhammad Naeem Sheikh, Advocate Supreme Court (with permission of the Court)

Dates of hearing: 7th & 11th May, 2009.

P L D 2009 Supreme Court 493

Present. Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar, Ch. Ijaz Ahmad and Sheikh Hakim Ali, JJ

ANWAR AHMED---Petitioner

Versus

Mst. NAFEESA BANO through Legal Representatives---Respondents

Civil Review Petition No.194 of 2004, decided on 24th April, 2009.

(On appeal from the judgment dated 13 to 15-4-2004, passed by this Court in Civil Appeal No.1599 of 1995).

(a) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review of Supreme Court judgment-Preconditions.

The review jurisdiction has to he Invoked in consonance with the requirements of Order XXVI, Rule 1 of the Supreme Court Rules, 1980, which envisages the applicability of the grounds similar to that of Order XLVII, rule 1 of the Code of Civil Procedure, 1908. According to that rule 1 of Order XLVII of the C.P.C., the following preconditions are essential, for beseeching the exercise of review jurisdiction:

(i) When new and important matter or evidence has been discovered after the passing of impugned judgment, decree or order, which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him at the time of making of judgment, decree or order.

(ii) There was some mistake or error apparent on the face of record, which was found in the impugned judgment or order.

(iii) Or for any other sufficient reason, it was necessary to obtain review of the impugned judgment.

(b) Supreme Court Rules, 1980---

----O. X, R.1 & O.XIX, R.6---Civil Procedure Code (V of 1908), O.XX, R.1 Constitution of Pakistan (1973), Art. 185-- Delivery of a lodgment by Supreme Court---No period of limitation prescribed for announcement of a judgment/reserved judgment.

There is no provision in the Supreme Court Rules, 1980, prescribing a period of limitation for the delivery of a judgment. Order X, rule I of the Supreme Court Rules, 1980 enjoins that the Court, after hearing the case, shall pronounce judgment in open Court either at once or on some future day, while Order XIX, rule 6 of the Supreme Court Rules empowers the Court to reserve the judgment but it has hound down the Registrar to notify to the parties concerned of the day appointed by the Court, for the announcement of the judgment reserved by it. So, both these Rules are silent with regard to the period within which the reserved judgment has to be pronounced. It has been left in a given case, upon the discretion of the Judges of the Bench, who are to dictate and deliver the judgment. Keeping in view their priorities and preoccupations, as compared to time period provided in Order XX, rule 1 of the C.P.C., which has bound down the trial Court to pronounce judgment after hearing the case, on some future day, but not exceeding 30 days. Therefore, there was no rule, order or law prescribing time limit for pronouncement of judgment or order.

Supreme Court has to pronounce the reserved judgment within a specified period yet it depends upon the nature of the case, work load of the Court and the availability of the time to the Judge, who is to pronounce the impugned order or judgment. It has to be kept in mind that in a case where a judgment has to be authored by one learned Judge and the file along with the judgment has to rotate before the other learned Judges of the Bench. for concurrence or for appending the dissenting judgment, it has to consume some time for its finalization Seen in this context, the period spent in a case cannot he considered too much requiring the reversal of the judgments on this ground. It has also to be seen in a case as to whether the judgment under review has caused any prejudice to the party due to its delayed pronouncement or not? If no adverse effects have been found due to the long period having been consumed for the delivery of judgment. It cannot be objected to. In the present case, the counsel had failed to point out any flaw or defect having crept into the judgments of the learned Judges of this Court, due to consumption of five months.

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

----O. IX, R.9---Dismissal of suit In default had no debarring effects upon the plaintiff so as to make his defence on the sane grounds as were raised in the previous suit but were not adjudicated upon merits, iii another suit instituted by other party---Consequences of dismissal of suit, in default----Scope and extent---Rule of estoppel---Applicability.

Dismissal of the suit in default, tiled by respondent had got no debarring effects upon the plaintiff so as to stake his defence on the same grounds as were raised in the previous suit but were not adjudicated upon merits, in another suit instituted by the other patty. The consequences of dismissal in default of a suit have itself been noted in Order IX, rule 9 of the C.P.C., by which a plaintiff has been precluded from bringing a fresh suit in respect of the same cause of action, or can file petition for restoration of the said suit dismissed in default of appearance. The consequences above mentioned provided in Order IX, rule 9 of the C.P.C., cannot be extended or stretched so as to include in it the Rule of Estoppel. It must be kept in mind that Rule of Estoppel provides that there must be representation from a party, against whom this rule is to be applied, and on the basis of that representation, the other party must have changed its position to its detriment, which is not the case here. It has not been explained by the counsel that due to the dismissal of the suit of respondent, any representation was made to the petitioner and he had changed his position acting upon that representation to his disadvantage. Therefore, the applicability of Rule of Estoppel has become doubtful in the circumstances of the case.

(d) Constitution of Pakistan (1973)---

---Art. 188- Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Scope---Findings of facts, concurrently, having been decided by all the Courts below in unison, could not be opened in review jurisdiction as same were already dealt with exhaustively by these judgments and no error apparent on the face of record had been found warranting interference by Supreme Court.

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

----S. 12---Constitution of Pakistan (1973), Art. 185---Appeal to Supreme Court---Suit for specific performance of agreement All the courts having held that the receipts were forged, fabricated and were of fake nature, in such a case, how the plaintiff could be granted discretionary relief in his favour when he had come to the court with unclean hands, rather he must consider himself a fortunate person, who was not imposed with burden of costs etc. due to filing of the suit based on fake documents litigating and dragging into litigation, a landlady who had to face protracted litigation, mental agony and torture and spend a huge money to defend the case, since 1972 up to 2009 in all the courts.

(d) Constitution of Pakistan (1973)---

---Art. 185---Appeal to Supreme Court---Where two Judges of Supreme Court had supported the judgments with sound and cogent reasons white dissenting from the judgment of their third brother Judge of the Bench there was no need to remand the case.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court for Petitioner.

Gulzarin Kiyani, Advocate Supreme Court for Respondents.

Date of hearing: 24th April, 2009.

P L D 2009 Supreme Court 501

Present: Tassaduq Hussain Jillani and Mian Hamid Farooq, JJ

JAN MUHAMMAD SHAH and others---Petitioners

Versus

CUSTODIAN OF EVACUEE PROPERTY, LAHORE and others---Respondents

Civil Petition No.2106-L of 2001, decided on 4th May, 2009.

(Against Judgment dated 15-3-2001 of the Lahore High Court, Multan passed in Writ Petition No.230-R of 1980).

(a) Constitution of Pakistan (1973)---

----Art. 185(3)---Adverse possession---Plea of adverse possession having not been taken at any stage of the proceedings by the petitioner, he was precluded from raising the said plea at stage of petition for leave to appeal.

(b) Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

----S. 3---Adverse possession---Nothing was available on record to show that petitioner came into possession of property on behalf of an evacuee or with his consent---Petitioner, in circumstances, could only be considered as trespasser.

(c) Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

----S. 3---Limitation Act (IX of 1908), S.28 & Art. 144---Constitution of Pakistan (1973), Art.185(3)---Adverse possession---Plea of adverse possession by the petitioner neither finally concluded at any stage nor any decree was passed favouring the petitioner to the effect that he was in adverse possession of land of an evacuee---Petitioner's constitutional petition was pending on the day when judgment of Supreme Court in Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063 was rendered declaring section 28 and Art.144 of the Limitation Act, 1908, repugnant to the Injunctions of Islam insofar as the same provided for extinguishment of right in the property, and it was held that decision of Supreme Court would take effect on specified date---In view of said decision of Supreme Court, plea of petitioner's adverse possession had lost its efficacy, if there was any, as said judgment was not to affect any past and closed transaction, while in the case of petitioner, matter of adverse possession was never treated as past and closed transaction---Impugned judgment of the High Court, did not suffer from any legal infirmity; rather High Court after adverting to all aspects of the case, had decided the matter, which did not require any interference by the Supreme Court---Petition for leave to appeal was dismissed.

Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063 fol.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioners.

M. Hanif Khatana, Addl. A.-G. (On Court's Notice).

Date of hearing: 4th May, 2009.

P L D 2009 Supreme Court 507

Present Zia Perwez, Sahihuddin Ahmed and Sarmad Jalal Osmany, JJ

HUMAN RIGHTS COMMISSION OF PAKISTAN and 2 others----Appellants

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Civil Appeals Nos. 1139 to 1141 arising out of Civil Petitions Nos.343-K, 344-K and 376-K of 2002, decided on 29th December, 2008.

(On appeal against the judgment dated 9-1-2002 passed by High Court of Sindh, Circuit Bench, Hyderabad in C.P.D. No.35 of 2000).

(a) Bonded Labour System (Abolition) Act (III of 1992)---

----Preamble---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court, inter alia, to consider the "exact scope of the Bonded Labour System (Abolition) Act, 1992 and its effect on the provisions of the Sindh Tenancy Act, 1950 and other laws".

(b) Bonded Labour System (Abolition) Act (III of 1992)---

----Preamble---Bonded Labour System (Abolition) Act, 1992 is a piece of welfare legislation enacted only for the welfare of a disadvantaged section of the people aimed at curbing certain abominable practices.

(c) Bonded Labour System (Abolition) Act (III of 1992)---

----Ss. 5, 2(b)(c), 6 & 8---Constitution of Pakistan (1973), Arts. 11, 15 & 23--All contracts whereby a person agrees to render services without wages or for nominal wages, forfeits the freedom of employment or movement or forfeits the right to appropriate or sell, at market value, any of his property or product of his labour, was void---Bonded Labour System (Abolition) Act, 1992 basically gives effect to the mandate of Art. 11 of the Constitution prohibiting forced labour, of Art.15 guaranteeing freedom of movement and Art.23 guaranteeing the right to hold and dispose of property which indicates that the Legislature in its wisdom envisaged an obligation to work against one's wishes for settlement of a private debt not to be one created for a public purpose nor a fetter upon the right of movement in the said context as a reasonable restriction in the public interest---While forced labour and clog on the freedom of movement by way of consideration for the repayment of debt would be impermissible, the outstanding amount could be recovered through normal legal channels---Principles.

It is evident from a bare reading of section 5 of the Bonded Labour System (Abolition) Act, 1992 that even a voluntary contract whereby any person is required to render services as a bonded labourer will be void and inoperative. Section 2(d) defines a bonded labourer as a labourer who incurs or is presumed to have incurred a bonded debt. Under section 2(b) a bonded debt means an advance obtained by a bonded labourer under the Bonded Labour System which has been exhaustively defined in section 2(c). It is, therefore, evident that all contracts whereby a person agrees to render services without wages or for nominal wages, forfeits the freedom of employment or movement or forfeits the right to appropriate or sell, at market value, any of his property or product of his labour, must be held to be void. To this extent the statute basically gives effect to the mandate of Article 11 of the Constitution prohibiting forced labour of Article 15 guaranteeing freedom of movement and Article 23 guaranteeing the right to hold and dispose of property. It indicates that the Legislature in its wisdom envisaged an obligation to work against one's wishes for settlement of a private debt not to be one created for a public purpose nor a fetter upon the right of movement in the said context as a reasonable restriction in the public interest'.

The above, however, could only lead to the conclusion that while forced labour and clog on the freedom of movement by way of consideration for a repayment of debt would be impermissible, the outstanding amount could be recovered through normal legal channels. Nevertheless, taking into consideration the magnitude of exploitation of disadvantaged people arising from unequal bargaining position as can be, inter alia, inferred from the pronouncement of the Supreme Court and the report forming the basis of the final order in Darshan Masih's case PLD 1990 SC 513 the Legislature has moved a step further towards eliminating the abominable practice of bonded labour. It is in this context that sections 6 and 8 have to be seen. Section 6(1) stipulates that every obligation to repay a bonded debt or such part of the debt that has remained unsatisfied on the date of the commencement of the Act, shall stand extinguished. Section 6(2) bars any suit or proceedings before Civil Court or other Tribunal for recovery of any bonded debt and section 6(9) provides for abatement of such suits pending on the date of commencement of the Act. Section 8 not merely forbids a creditor to accept any payment against a bonded debt but also provides that doing so would render him liable to be punishable with imprisonment, which may extend to three years.

Darshan Masih alias Rehmatay and others v. The State PLD 1990 SC 513 ref.

(d) Bonded Labour System (Abolition) Act (III of 1992)---

----S. 3---Constitution of Pakistan (1973), Art.143---Act to override other laws---Held, on account of S.3, Bonded Labour System (Abolition) Act, 1992 explicitly conferring overriding effect to its provisions, any provision in an earlier law repugnant thereto would be void and inoperative---On account of mandate of Art.143, Constitution, provisions of Bonded Labour System (Abolition) Act, 1992, would prevail upon any existing law being made by a Provincial Legislation.

(e) Bonded Labour System (Abolition) Act (III of 1992)---

----Preamble---Sindh Tenancy Act (XX of 1950), Preamble---Held, in the absence of a finding as to the existence of a tenancy under the Sindh Tenancy Act, 1950 the Bonded Labour System (Abolition) Act, 1992 would be fully applicable.

(f) Sindh Tenancy Act (XX of 1950)---

----Preamble & S.13---Interpretation and scope of Sindh Tenancy Act, 1950--Tenancy rights--Nature---Act does not create a pure employer-employee relationship between landlords and tenants, on the contrary it creates a quasi-partnership whereby the tenant acquires certain interests in the land and does not receive wages but only a share in the produce, insofar as his obligations as a tenant are concerned---Tenant could not he forced to perform his obligations under the Act---Obligation to cultivate land is a condition precedent for protection of a tenant's valuable rights in property and in the event of his failure to do so the consequences are spelt out in the Act itself inasmuch as his tenancy could be terminated in accordance with S.13 of the Sindh Tenancy Act, 1950---Indeed, a person may forfeit his legal rights acquired under a statute or a contract upon failure to perform his obligations but there could be no justification for forcing him to work against his will in flagrant violation of his fundamental rights guaranteed by the Constitution.

(g) Sindh Tenancy Act (XX of 1950)---

----S. 25(4)---Bonded Labour System (Abolition)Act (III of 1992), Preamble--Constitution of Pakistan (1973), Arts.11 & 24(2)---Law requiring compulsory service for liquidation of individual debts would inevitably be ultra vires of Art. 11 of the Constitution---Bonded Labour System (Abolition) Act, 1992 might not apply to tenants under the Sindh Tenancy Act, 1950 in view of special relationship between parties conferring interest in property created by latter statute but the moment that special relationship ceases to exist upon the termination of a tenancy, a compulsion to work towards settling liabilities under a private debt would obviously reduce the status of a former tenant to that of a bonded labourer as such the Bonded Labour System (Abolition) Act, 1992 would be clearly applicable and not merely the obligation to work would be void but even the liabilities under the debt would stand extinguished---Principles.

Huma Bai Framjee v. Secretary of State for India 42 I.A. 44 PC; State of Bihar v. Kameshwar Singh AIR 1952 SC 252 and Allah Ditta v. Province of Punjab PLD 997 Lah. 499 ref.

(h) Constitution of Pakistan (1973)---

----Art. 199---Writ of habeas corpus---Nature---Writ of habeas corpus, which is of ancient origin, as distinguished from other prerogative writs, is one of right and not mere discretion.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kasmiri PLD 1969 SC 14; Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66 and The Law of Habeas Corpus (2nd Edn. 1989) ref.

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

----S. 100---Scope and application of S.100, Cr.P.C.---Section 100, Cr.P C. only relates to issuance of search warrants and does not confer any judicial power in the proper sense; it is merely an enabling provision for the enforcement of due process of law.

(j) Constitution of Pakistan (1973)---

----Art. 199---Writ of habeas corpus---Alternate remedy---Refusal to exercise jurisdiction may be permissible only if the alternate remedy is adequate and equally efficacious.

Muhammad Azim Malik v. A.C. and S.D.M. Precdy (South), Karachi and others PLD 1989 SC 266 ref.

(k) Habeas corpus---

----No law authorises a private individual to keep a person who is sui juris in his private custody.

Abrar Hasan v. Federation of Pakistan and another PLD 1976 SC 315 ref.

Imdad Hussain v. Noor 1tassan and 5 others PLD 1974 Kar. 485 per incuriam.

(l) Constitution of Pakistan (1973)---

---Art. 199---Constitutional jurisdiction of High Court---Scope---High Court was not justified in dismissing the constitutional petition under Art.199 of the Constitution where fundamental rights guaranteed, inter alia, under Arts.11, 14 & 15 of the Constitution were sought---Apart from the jurisdiction vesting in the High Court by virtue of cls. (a) & (b) of Art.199(1) of the Constitution a special jurisdiction is conferred by cl-(c) of Art.199 which a High Court shares with the original jurisdiction of Supreme Court under Art. 184(3).

(m) Constitution of Pakistan (1973)---

----Art. 199----Constitutional jurisdiction of High Court---Scope---Jurisdiction of High Court is wider than that available under cls. (a) & (b) of Art.199(1) of the Constitution --"Enforcement of fundamental rights"---Meaning---Power to enforce fundamental rights has been conferred upon the superior courts through Art.199(1)(c) of the Constitution---Even in the absence of cl. (c) of Art.199(1) any action by a person performing functions in connection with the affairs of the Federation, a Province or Local Authority, inconsistent with fundamental rights, is to he declared without lawful authority under Art.199(1)(a) of the Constitution---Reach of Art.199(1)(c), however, is wider, it not merely enables a court to declare an action of State functionary inconsistent with fundamental rights to be unlawful but also enables a court to declare an action of a State functionary inconsistent with fundamental rights to be unlawful but also enables the courts to practically enforce such rights by issuing appropriate directives as is evident from its language.

Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66 and Peoples Union for Democratic Rights v. Union of India AIR 1982 SC 1473 ref.

(n) Constitution of Pakistan (1973)---

----Arts. 199, 11 & 22---Constitutional jurisdiction of High Court--Directions to private parties---Scope---High Court has plenary powers to positively enforce fundamental rights not merely against public authorities but even private parties---Directions for positive enforcement of fundamental rights against private parties could only be given by the High Court in respect of rights guaranteed, inter alia, by Arts. 11 & 22 etc. of the Constitution which might, in most cases, require enforcement against such parties.

(o) Constitution of Pakistan (1973)---

----Art. 11---Bonded Labour System (Abolition) Act (III of 1992), Preamble---Slavery, forced labour etc.---Words "detention" or "unlawful custody" do not merely relate to physical confinement in a small place.

(p) Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.491---Habeas corpus---Any form of restraint on liberty is actionable both under Art. 199 of the Constitution and S.491, Cr.P.C.

Rao Mahroz Akhtar v. The District Magistrate Dera Ghazi Khan and the Province of West Pakistan PLD 1957 Lah. 676; Ch. Muhammad Anwar v. Government of west Pakistan PLD 1963 Lah. 109; Begum Nazir Abdul Hameed v. Pakistan (Federal Government) through the Secretary, Interior, Division Islamabad and another PLD 1974 Lah. 7 and Major General (R.) Ghulam Jilani v. Federal Government PLD 1975 Lah. 65 ref.

(q) Bonded Labour System (Abolition) Act (III of 1992)---

----Preamble---Sindh Tenancy Act (XX of 1950), Ss.23, 22 & 25---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan (1973), Arts.199(1)(b)(i) & (c), 11, 15 & 23---Bonded Labour System (Abolition) Act, 1992 not merely ensures that no fetters on the workers rights guaranteed under Arts. 11, 15 & 23 of the Constitution are placed, even through voluntary agreements but also wipes out any financial liability that the worker might have incurred on the basis whereof such fetters have been imposed---Provisions of said Act are also applicable to all persons employed in agriculture other than those enjoying rights as tenants under the Sindh Tenancy Act, 1950---Refusal of tenant to work on the land of landlord---Consequence---Mechanism for appropriation of a debt from a tenant to his landlord --Scope--wrongful detention or forced labour---Onus to prove---Constitutional petition under Art.199(1)(b)(i) of the Constitution or petition under S.491, Cr.P.C.---Duty of court---Jurisdiction of superior courts to enforce fundamental rights---Scope---Summary of the conclusions of Supreme Court on the subject provided.

Conclusion of the Supreme Court on the subject may be summarized as follows:--

(i) that the Bonded Labour System (Abolition) Act, 1992 not merely ensures that no fetters on the workers rights guaranteed under Articles 11, 15 and 23 are placed, even through voluntary agreements but also wipes out any financial liability that the worker might have incurred on the basis whereof such fetters have been imposed;

(ii) that the provisions of the aforesaid Act are also applicable to all persons employed in agriculture other than those enjoying rights as tenants under the Sindh Tenancy Act;

(iii) that the above, however, does not mean that no credit could be advanced by an employer to his employee but only that a condition making the employee subject to the Bonded Labour System cannot be imposed. In cases of debts not accompanied by any condition which makes an employee a bonded worker under the Act, may be enforceable through ordinary legal channels;

(iv) that even the Sindh Tenancy Act does not empower a landlord to require a tenant to work on his lands against the latter's will. The only consequence provided for a refusal on the part of the tenant is forfeiture of his tenancy rights on grounds of abandonment etc. and through mechanism provided for in section 23 of the Act;

(v) that even an undertaking by a tenant to work without remuneration or for remuneration less than the amount stipulated in section 22(2) would be unenforceable;

(vi) section 25 of the Sindh Tenancy Act stipulates a mechanism for appropriation of a debt from a tenant to his landlord. Subsection (4) only stipulates that upon termination of a tenancy the entire outstanding amount of the debt would be recoverable notwithstanding the provisions relating to appropriation through the normal legal channels;

(vii) that in cases where wrongful detention or forced labour is complained, the onus to prove that the person detained was a tenant would lie on the landlord. The person detained would nevertheless invariably be entitled to restoration of his liberty and the freedom of his movement and the only difference would be that in the event of proof of his tenancy, the landlord would be entitled to recover the debt through normal legal channels;

(viii) that in a petition under Article 199(1)(b)(i) of the Constitution or section 491, Cr.P.C. it is the duty of the court to satisfy itself that a person allegedly deprived of his liberty is detained under some authority of law;

(ix) that there is no requirement of taw that stricter scrutiny of a petition regarding detention in private custody is to be made before issuing appropriate directions. Nevertheless in cases where the right to keep a person in private custody- is claimed on the basis of some authority in law, the court may require that such right be adjudicated upon in properly held proceedings before the appropriate forum before issuing directions under section 491, Cr.P.C., and

(x) the jurisdiction of superior courts to enforce fundamental rights under Article 199(1)(c) of the Constitution is not merely exercisable against persons performing functions in connection with the affairs of the Federation or Province or a local authority but against any person or authority including a Government. Some of the fundamental rights by their very nature may be impaired by private persons and there is no embargo on the powers of the High Court to issue such direction as may be appropriate for enforcement of such rights.

Syed Iqbal Haider, Advocate Supreme Court for Appellant (In all appeals).

Aamir Raza Naqvi, DAG and A.S. K Ghori, Advocate-on-Record for Respondent No. 1 (in C.A. No.1139 of 2002).

Abdul Fateh Malik, Addl. A.-G. Sindh along with Qazi Muhammad Abbas, PDSP Mirpurkhas, Altaf Hussain, D P.O Sanghar, Abdul Ghaffar Butt, ASI Tando Mitha Khan and Sayed Fazil Shah, EDO District Government Sanghar for Respondents Nos. 2-13 (in C.A. No.1139 of 2002).

Nemo for Respondent No.14 (in C.A. No.1139 of 2002).

Abdul Fateh Malik, Addl. A.-G. Sindh for Respondents Nos.1-10 (in C.A. No.1140 of 2002).

Nemo for Respondents Nos. 1 to 3 (in C.A. Nos.1141 of 2002).

Abdul Fateh Malik, Addl. A. G. Sindh for Respondents Nos. 4 to 6 (in C.A. No.1141 of 2002).

Date of hearing: 18th November, 2008.

P L D 2009 Supreme Court 531

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk, Muhammad Moosa K. Leghari, Sheikh Hakim Ali and Ghulam Rabbani, JJ

FEDERATION OF PAKISTAN and others---Petitioners

Versus

Mian MUHAMMAD NAWAZ SHARIF and others---Respondents

Civil Review Petitions Nos. 45, 46, 47, 48, 50, 51, 52, 59, 60, 61, 62 of 2009 in C.Ps. Nos. 778, 779, 878, CA Nos. 166/09 & C.Ps. 803, C.M.A. Nos. 63 and 64/08, in C.M.A. Nos. 1674-75/08 in C.P. Nos.Nil of 2008, Crl.R.P.No.22/09 in Crl. O P.41 of 2008.

(On review from the judgments of this Court dated 25-2-2009 passed in the above captioned petitions).

Representation of the People Act (LXXXV of 1976)---

----Ss. 14(5)(5A), (6), 11 & 99---Constitution of Pakistan (1973), Arts.184(3), 199, 225, 63(h)(1) & 188---Supreme Court Rules, 1980, O XXVI, R.8---Review of Supreme Court judgment---Qualification and disqualification of candidates for election---Judgments under review i.e. of the High Court and of Supreme Court were ex parte on account of which. certain factual aspects and legal provisions having bearing on the issues raised, were not brought to the notice of the court and therefore, were not considered leading to miscarriage of justice --Such omission was an error apparent on the face of record warranting review --Realizing the exceptional and extraordinary events relating to unconstitutional removal of Judges of the Superior Courts which, in the judgment under review, had been described as, "enforced by a brutal force, by deviating from constitutional provisions," triggering an unprecedented nationwide movement, culminating in the restoration of those Judges and during the interregnum, non-appearance of petitioners before the courts then constituted, could neither be termed as contumacious nor reflecting acquiescence, the findings of fact rendered on such assumptions merited to he interfered with in the review ,jurisdiction- Both the appeals filed under section 14(5) of the Representation of the People Act. 1976 and the information laid or directed against the acceptance of nomination papers (under section 14(5A) of the said Act) were mandated to be decided by or before the period fixed for deciding the appeals in the schedule issued by the Chief Election Commissioner under section 11 read with section 14(5) of the said Act; since the appeals were not decided by then, the order of the Chief Election Commissioner holding that the appeal stood dismissed was in accord with section 14(6) of the Act which stipulated that, "an appeal not disposed of within the period specified in subsection (5) shall be deemed to have been dismissed"; finding that information laid under section 14(5A) of the said Act could remain pending and decided beyond the said date fixed for disposal of appeals was not in consonance with the legislative intent---Last date for disposal of appeal against the acceptance of nomination papers was 31-5-2008 and thereafter the Appellate Tribunal had become functus officio---Order of the Chief Election Commissioner to the effect that since the appeals had not been decided within the cut-off date, the same were deemed to have been rejected (in terms of subsection (6) of S.14 of the said Act) was passed with jurisdiction---High Court not only allowed respondents' writ petitions against said order but while doing so, passed two inconsistent judgments of even date i.e. while in the case of one petitioner it held that the source information/petition (under subsection (5A) of S.14 of the Act) shall be deemed to be pending before the Appellate Tribunal comprising of three Judges of the High Court to be constituted by the Chief Election Commissioner, whereas in the case of the other it declared him disqualified to contest the elections---Mandate of Art.225 of the Constitution had not been appreciated in the context of the present case---Article 225 of the Constitution places a bar to challenge an election dispute except through an election petition under the law i.e. the Representation of the People Act, 1976; in exceptional circumstances, however, the qualification or disqualification of a candidate could be challenged under Art.199 of the Constitution provided the order passed during the election process was patently illegal, the law had not provided any remedy either before or after the election; and the alleged disqualification was floating on the surface of record requiring no probe and enquiry---In the present cases, the issues of unpaid loans, of court contempt and of filing false affidavit were disputed questions of fact which could not have been adjudicated upon in the proceedings under Art.199 of the Constitution and even the material placed before the court was not sufficient to render the impugned findings---"Presidential pardon", stood admitted by the Federation of Pakistan through the statement made by the Deputy Attorney-General before the High Court, before Supreme Court during the hearing of the main petition and in the present review petition and even by the Attorney-General for Pakistan, who appeared in present review proceedings; to allege that it was conditional or qualified pardon required deeper probe which exercise entailed factual enquiry---Questions whether petitioners were hit by Art.63(h) and (1) of the Constitution or by S.99 of the Representation of the People Act, 1976 could also not have been decided by the High Court or by Supreme Court in writ jurisdiction---Judgments under review therefore, were not in accord with the law laid down by Supreme Court in the cases reported as Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396, Ghulam Mustafa Jatoi v. Additional?????? District and Sessions Judge/Returning Officer N.A. 158, Naushero Feroze and others 1994 SCMR 1299 and Lt.-Gen. (R.) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 at 763---One of the onerous functions of the Supreme Court was to protect the Constitution and to sustain democracy---Democracy was not merely holding of periodical elections or of governance by legislative majority; it was a multidimensional politico moral concept epitomizing the abiding values of equality, human dignity, tolerance, enjoyment of fundamental rights and due process of law---Whether it was the issue of denial of a substantive right or of construing a statutory provision, these principles should weigh with the court---Article 4 of the Constitution was a restraint on the legislative, executive and judicial organs of the State to abide by the rule of law; abdication of this awesome responsibility by any organ leads to arbitrariness and injustice, which was canons of substantive democracy embodied in the Constitution which, inter alia, Supreme Court had kept in view while exercising the power of judicial review.?

Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer N.A. 158, Naushero Feroze and others 1994 SCMR 1299 and Lt.-Gen. (R.) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 ref.

Agha Tariq Mehmood Khan, D.A.-G. for Petitioner (in C.R.Ps. Nos. 45 and 46 of 2009 in C.Ps.Nos. 778 & 779 of 2008).

Abid Hassan Minto, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent No.1 (in C.R.Ps. Nos.45 and 46 of 2009 in C.Ps. Nos. 778 & 779 of 2008).

Nemo for Respondent Nos. 2-5 (in C.R.Ps. Nos. 45 and 46 of 2009 in C.Ps. Nos. 778 & 779 of 2008).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.6 (in C.R.Ps. Nos. 45 and 46 of 2009 in C.Ps. Nos. 778 & 779 of 2008).

Agha Tariq Mehmood Khan, D.A.-G. with Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.R.Ps.Nos. 47 and 48 of 2009 in C.Ps. Nos. 905 and 878 of 2008).

Ahmed Raza Qasuri, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in C.R.Ps. Nos.47 and 48 of 2009 in C.Ps. Nos. 905 and 878 of 2008).

Khawaja Haris Ahmed, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent No.2 (in C.R.Ps.Nos.47 and 48 of 2009 In C.Ps. Nos.905 and 878 of 2008).

Nemo for Respondents Nos.3-5 (in C.R.P. Nos. 47 and 48 of 2009 in C.Ps. Nos. 905 and 878 of 2008).

Muhammad Raza Farooq, Advocate Supreme Court and Ashtar Ausaf Ali, Advocate Supreme Court with Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.R.P. No.50 of 2009 in C.P. No.803 of 2008).

Ahmed Raza Qasuri, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in C.R.P. No.50 of 2009 in C.P. Nos. 803 of 2008).

Khawaja Haris Ahmed, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent No.2 (in C.R.P.No.50 2009 in C.P. Nos. 803 of 2008).

Nemo for Respondents Nos. 3-5 (in C.R.P.No.50 2009 in C.P. Nos. 803 of 2008).

Agha Tariq Mehmood, D.A.-G. for Respondent No.6 (in C.R.P.No.50 2009 in C.P. Nos. 803 of 2008).

A.K. Dogar, Advocate Supreme Court with Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.R.P.No.51 2009 in C.M.A. no.64 of 2008 in C.M.A. No.1674 in C.M.A.. Nos. Nil of 2008).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in C.R.P.No.51 of 2009 in C.M.A. No.64/08 in C.M.A. No.1674 of 2008 in C. P. No. Nil of 2008).

Abid Hassan Minto, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent No.2 (in C.R.P.No.51 2009 in CMA. No.64/08 in C.M.A. No.1674 of 2008 in C.P.No.Nil of 2008).

Nemo for Respondents Nos. 3-5 (in C.R.P.No.51 2009 in C.M.A. No.64/08 in in C.M.A. No.1674 of 2008 in C.P.No.Nil of 2008).

Agha Tariq Mehmood, D.A.-G. for Respondent No.6 (in C.R.P.No.51 2009 in CMA. No.64/08 in in C.M.A. No.1674 of 2008 in C.P.No.Nil of 2008).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.R.P.No.52/09 in CMA. No.63/09 in C.M.A.No.1675/08).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in C.R.P.No.52/09 in C.M.A. No.63/09 in C.M.A:No.1675/08).

Abid Hassan Minto, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in C.R.P. No.52/09 in C.M.A. No.63/09 in C.M.A. No.1675/08)

Nemo for Respondents Nos. 3-5 (in C.R.P.No.52/09 in CMA. No.63/09 in C.M.A.No.1675/08).

Agha Tariq Mehmood, D.A.-G. for Respondent No.6 (in C.R.P.No.52/09 in CMA. No.63/09 in C.M.A.No.1675/08).

Abid Hassan Minto, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.R.Ps.Nos.59 & 60 of 2009 in C.Ps. Nos.778 & 779 of 2008 along with C.M.A. Nos.1130 & 1551 of 2009).

Agha Tariq Mehmood, D.A.-G. for Respondent No.1 (in C.R.Ps.Nos.59 & 60 of 2009 in C.Ps. Nos.778 & 779 of 2008 along with CMA. No.1130 & 1551 of 2009).

Nemo for Respondents Nos. 2-5 (in C.R.Ps. Nos.59 & 60 of 2009 in C.Ps. Nos.778 & 779 of 2008 along with C.M.As. No.1130 & 1551 of 2009).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.6 (in C.R.Ps.Nos.59 & 60 of 2009 in C.Ps. Nos.778 & 779 of 2008 along with C.M.As. No.1130 & 1551 of 2009).

Shahid Orakzai for Applicant (in person in C.M.As. No.1130 & 1551 of 2009).

Khawaja Haris Ahmed, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.R.Ps. Nos.61 & 62 of 2009 in C.P. No. 878 & C.P. No.905/08 (C.A. No.166/09) along with C.M.A. No.1525 of 2009).

Agha Tariq Mehmood, D.A.-G. for Respondent No.1 (in C.R. Ps. Nos.61 and 62/09).

Nemo for Respondent Nos. 2-4 (in C.R.Ps. Nos.61 & 62 of 2009 in C.P. Nos. 878 & C.P. No.905/08 (C.A. No.166/09) along with C.M.A. No.1525 of 2009).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.5 (in C.R.Ps. Nos.61 and 62/09).

Shahid Orakzai for Applicant (in person in C.M.A. No.1525 of 2009).

Muhammad Raza Farooq, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner (in Crl. R.P.No.22 of 2009 In Crl.O. P. No.41 of 2009 In C.P.No.657-L of 2008).

Ahmed Raza Qasuri, Senior Advocate Supreme Court for Respondent No.1 (in Crl. R.P.No.22 of 2009 In Crl. O. P. No.41 of 2009 In C.P.No.657-L of 2008).

Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan (on Court's Call).

Dates of hearing: 11th to 26th May, 2009.

SHORT ORDER

TASSADUQ HUSSAIN JILLANI, J.---For reason to be recorded in the detailed judgment later, Civil Review Petitions Nos.59 & 60 of 2009, filed by Mian Muhammad Nawaz Sharif, Civil Review petitions Nos.61 and 62 of 2009 filed by Mian Muhammad Shahbaz Sharif, Civil Review Petitions Nos.45, 46, 47 and 48 of, 2009 filed by the Federation of Pakistan and Criminal Review Petition No.22 of 2009 filed by Javed Mehmood, Civil Review Petitions No.50 of 2009, Civil Review Petitions Nos.51 and 52 of 2009 filed by Shakeel Baig and Mehar Zafar Iqbal and Civil Misc. Application Nos.1130, 1551 and 1525 of 2009 filed by Shahid Orakzai are being disposed of by this short order.

1. Petitioner Mian Muhammad Nawaz Sharif (in Civil Review Petitions Nos.59 & 60 of 2009) filed his nomination paper for N.A. 123. Lahore. The only objection petition filed by Mian Akhlaq Ahmad alias Guddu was dismissed vide order dated 5-5-2008, inter alia, on the ground that the objection petition had not been supported by any documentary evidence despite the opportunities given to the objector. This order was challenged in appeal before the appellate Tribunal comprising of two learned Judges of the High Court. However, on 27-5-2008 the said objector withdrew his appeal but on the same day the other candidate Noor Elahi filed an application under Order I, Rule 10 C.P.C. with the prayer that he might be allowed to be transposed as appellant. This application was dismissed with the observation that he might file a separate appeal, if so advised. Later on, he filed a time barred appeal on 28-5-2008 (last' date for filing appeal was 24-5-2008). In the meanwhile, one Syed Khurram Shah had also laid information under section 14 (5-A) of the Representation of Peoples Act, 1976 [hereinafter referred to as `the Act'] through an application dated 26-5-2008 alleging that Mian Muhammad Nawaz Sharif was disqualified in the light of the said information.

2. Petitioner Mian Muhammad Shahbaz Sharif (in Civil Review Petitions Nos.61 & 62 of 2009) filed his nomination papers to contest the election for the seat of Provincial Assembly Punjab for the Constituency of PP-48 Bhakkar-II. Only one person namely Malik Nazar Abbas filed an objection petition on the grounds that the candidate had defamed the judiciary by criticizing the then District & Sessions Judge; that his nomination papers were rejected in the General Elections on 1-12-2007; that he along with his nomination papers had filed a false declaration; that he was not qualified to contest the elections in view of Article 63(1)(g) of the Constitution read with section 99 of the Act. This objection was dismissed and nomination papers were accepted on 16-5-2008. The said objector did not challenge this order but on 27-5-2008 Syed Khurram Shah filed a petition under section 14(5-A) of the Act purporting to lay information against Mian Muhammad Shahbaz Sharif to the effect that he was disqualified to be elected as member of the Assembly on the ground that he was guilty of defaming the judiciary; that he was propagating against the sitting Chief Justice and the Judges who had taken oath under the Provisional Constitutional Order, 2007; was attempting to divide the judiciary and was wilful defaulter of, "several loans running into billions".

3. The learned Appellate Tribunal (comprising of two learned Judges of the High Court) consolidated both the cases and gave split opinions. While one learned Judge dismissed the appeals and declared both the petitioners to be qualified to contest the elections, the other learned Judge declared both of them to be disqualified and rejected the nomination papers. On account of this split opinion, the appeals remained undecided (though as per the Election Schedule, the same had to be decided by 31-5-2008). The Chief Election Commissioner of Pakistan declared that since the appeals/petitions filed by respondents against acceptance of nomination papers had not been decided by the afore-mentioned cut-off date, the same shall be deemed to have been rejected. Respondents Syed Khurram Shah challenged this order by way of two separate writ petitions (Writ Petitions No.6469 and 6470 of 2008), while Noor Elahi, the rival candidate, also filed Writ Petition No.6468 of 2008 against acceptance of nomination appears of Mian Muhammad Nawaz Sharif. These writ petitions were allowed by separate judgments of even date by the learned High Court. In the case of Mian Muhammad Nawaz Sharif, the Court held that he was disqualified' to contest the elections he was:--

(i) a convict in terms. of the judgment of Accountability Court in Reference No.2 of 2000 dated 22-7-2000 under section 9-A(v) of the National Accountability Bureau Ordinance;

(ii) had scandalized, abused and ridiculed the judiciary; and

(iii) had sworn a false affidavit attached with his nomination papers to the effect that he was qualified to contest the elections."

1. However, the same learned Bench though accepted the petition against Mian Muhammad Shahbaz Sharif but held that the information laid under section (5-A) of the Act could not be treated as appeal and the Chief Election Commissioner was directed to constitute another appellate Tribunal (comprising of three Judges of the High Court ) to decide the said application. The afore-mentioned judgments of the learned High Court were challenged in Civil Petitions Nos.778 and 779 of 2008 and Civil Petition No.878 of 2008, field by the Federation of Pakistan, Civil Petition No.905 of 2008 (converted into C.A. No.166 of 2009) filed by Syed Khurram Shah, Civil Petition No.803 of 2008 filed by Speaker Provincial Assembly Punjab, Civil Petition No.657-L of 2008 and C.M.A. N6.471-L of 2008 in Civil Petition No. NIL of 2008 filed by the Chief Secretary Punjab and C.M.A. No.95 of 2009 filed by Shahid Orakzai against the petitioners. Although the writ petition filed by Syed Khurram Shah had been accepted yet the latter filed the civil petition praying that since the order of the Chief Election Commissioner dated 1-6-2008 was set aside, the Court should have de-notified the membership of Mian Muhammad Shahbaz Sharif which had emanated on account of the order of Chief Election Commissioner dated 1-6-2008. This Court vide the judgment under review while accepting the Civil Petition No.905 of 2008 filed by Syed Khurram Shah dismissed' all the connected petitions. Reversing the judgment of the High Court in the case of Mian Muhammad Shahbaz Sharif, he was disqualified to contest the elections.

2. We have heard learned .counsel for the petitioners and for the respondents, the learned Attorney-General and Deputy Attorney-General for Pakistan and have given anxious consideration to the submission made.

3. Having heard the learned counsel for the parties, we hold as under:--

(i) That the Judgments under review i.e. of the Lahore High Court dated 23-6-2008 and of this Court dated 25-2-2009 are ex parte on account of which certain factual aspect and legal provisions having bearing on the issues raised, were not brought to the notice of the Court and therefore, were not considered leading to miscarriage of justice which has been found by us to be errors apparent on the face of record warranting review.

(ii) Realizing the exceptional and extraordinary events relating to unconstitutional removal of Judges of the Superior Courts which in the judgment under review has been described as, "enforced by a brutal force, by deviating from constitutional provisions", triggering an unprecedented nationwide movement, culminating in the restoration of those Judges, and during the interregnum, non-appearance of petitioners before the Courts then constituted could neither be termed as contumacious nor reflecting acquiescence, the findings of fact, rendered on such assumptions merit to be interfered with in the review jurisdiction.

(iii) That both the appeals filed under section 14(5) of the Act and the information laid or directed against the acceptance of nomination papers (under section 14(5A) of the said Act) were mandated to be decided by or before 31st of May 2008 the period fixed for deciding the appeals in the schedule issued by the Chief Election Commissioner under section 11 read with section 14(5) of the said Act. Since the appeals were not decided by then, the order of the Chief Election Commissioner holding that the appeal stood dismissed was in accord with section 14(6) of the Act which stipulated that, "an appeal not disposed of within the period specified in subsection (5) shall be deemed to have been dismissed." The finding that information laid under section 14(5A) of the said Act could remain pending and decided beyond the said date fixed for disposal of appeals was not in consonance with the legislative intent.

(iv) The last date of disposal of appeal against the acceptance of nomination papers was 31-5-2008 and thereafter the Appellate Tribunal had become functus officio. The order of the Chief Election Commissioner dated 1-6-2008 to the effect that since the appeals had not been decided within afore-referred the cut-off date, the same were deemed to have been rejected (in terms of subsection (6) of S.14 of the said Act) was passed with jurisdiction. The learned High Court not only allowed respondents' writ petitions against this order but while doing so, passed two inconsistent judgments of even date i.e. while in the case of Mian Muhammad Shahbaz Sharif, it held that the source information/petition (under subsection (5A) of 5.14 of the Act) shall be deemed to be pending before the Appellate Tribunal comprising of three Judges of the High Court to be constituted by the Chief Election Commissioner, whereas in the case of Mian Muhammad Sharif declared him disqualified to contest the elections.

(v) The mandate of Art.225 of the Constitution has not been appreciated in the context of the instant case. This Article places a bar to challenge an election dispute except through an election petition under the law i.e. the Representation of People Act, 1976. In exceptional circumstances, however, the qualification or disqualification of a candidate can be challenged under Art.199 of the Constitution provided the order passed during the election process is patently illegal, the law has not provided any remedy either before or after the election; and the alleged disqualification is floating on record requiring no probe and enquiry. In the cases in hand, the issues of unpaid loans, of Court contempt and of filing false affidavit were disputed questions of fact which could not have been adjudicated upon in the proceedings under Art.199 of the Constitution and even the material placed before the Court was not sufficient to render the impugned findings.

(vi) That the `Presidential pardon', in the case of Mian Muhammad Nawaz Sharif stood admitted by the Federation of Pakistan through the statement made by the Deputy Attorney-General before the High Court, before this Court during the hearing of the main petition and in the instant review petition and even by the learned Attorney-General for Pakistan who appeared in these review proceedings. To allege that it was conditional or qualified pardon required deeper probe which exercise entailed factual enquiry. Similarly, the questions whether petitions were hit by Art.63(h) and (1) of the Constitution or by S.99 of the Act could also not have been decided by the High Court or by this Court in writ jurisdiction. The judgments under review therefore, are not in accord with the law laid down by this Court in the cases reported as Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396, Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer N.A. 158, Naushero Feroze and others? 1994 SCMR 1299 and Lt.-Gen. (R.) Salahuddin Tirmizi v. Election Commission of Pakistan (PLD 2008 SC 735 at 763).

P L D 2009 Supreme Court 542

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Mahmood Akhtar Shahid Siddiqui, JJ

AMAN ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.250-L of 2009, decided on 29th May, 2009.

(On appeal from judgment dated 31-3-2009 of the Lahore High Court, Lahore, passed in Crl.Misc.No.12550-B of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Bail was sought on the ground that accused/petitioner had been found innocent by the Investigating Officer who had even recommended his discharge from the case---Medico-legal examination showed that victim girl was about 18 years of age at the time of occurrence; her hymen was found torn at multiple places which bled on touch and the vagina admitted two fingers but tightly and painfully which showed sexual intercourse had been firstly committed with her and further that she was not a female of easy virtue and was not used to committing sexual intercourse---No reason could be offered to explain the alleged substitution of accused with the person who had actually committed the sexual intercourse with the said lady---Police file showed that accused had been declared innocent and his discharge had been recommended only because C.A.M.B. Forensic Science Laboratory had found, after the D.N.A. test, that the traces of semen found in the vaginal swabs of the prosecutrix were not those of the accused---Held, such-like reports of the so-called experts were only corroborative in nature and were required only when the ocular testimony was of a doubtful character--In the present case, no reasons could be offered as to why the prosecutrix who had admittedly been subjected to sexual intercourse, should have spared the actual offender and should have, instead substituted the accused for him---Prima facie and for the purpose of bail petition, it could not be said that the testimony offered by the prosecutrix could admit of any doubt---Even the Illaqa Magistrate had not agreed with the findings of the Investigating Officer about the innocence of the accused and had refused to discharge him---Petition for leave to appeal was refused and bail declined by the Supreme Court---Supreme Court placed warning on record that unless one was absolutely sure and confident of the capacity, the competence and the veracity of the Laboratory and the integrity of the one conducting such a test, taking recourse to the same would be fraught with immense dangers and could in fact lead to disastrous consequences not only in criminal cases but even in cases; for example, of paternity and inheritance etc.---Inspector-General/Provincial Police Officer, Punjab, as also the Government of the Punjab need to give a serious thought as to whether D.N.A. tests should be encouraged and carried out in such-like situations---Said Officers shall also take steps to determine the competence and fitness of the said laboratory in the matter of carrying out such-like tests and submit their separate reports to the Registrar of Supreme Court for information of the court. [p. 543] A

Ibne Hasan, Advocate Supreme Court for Petitioner.

Shabbir Ahmed Lali, Addl. P.G. Punjab and Muhammad Ahmed, A.S.I., P.S. Manawala for the State.

Akbar Manawar Durrani, Advocate Supreme Court for the Complainant.

P L D 2009 Supreme Court 544

Present: Javed Iqbal, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

MIR KOHI KHAN---Petitioner

Versus

NOOR MUHAMMAD and others---Respondents

Civil Appeal No.50-Q of 2009 and Civil Petition No.82-Q of 2005, decided on 22nd May, 2009.

(On appeal from the judgment dated 24-6-2005 passed by the High Court of Balochistan, Quetta in Civil R. No. 285 of 2002).

Constitution of Pakistan (1973)---

----Arts. 185(3) & 185(2)(d)---Leave to appeal was granted by Supreme Court to determine as to whether the petition preferred under Art.185(3) of the Constitution could be converted into appeal under Art.185(2)(d) of the Constitution and delay could be condoned merely on account of conversion of petition into an appeal or otherwise---Views on the said point were divergent as expressed in different cases. [p. 545]A

Zafar Iqbal Hameed Khan v. Ashiq Hussian 2005 SCMR 1371; Haji Muhammad Nawaz v. Hussain Shah 1990 SCMR 1621; Chairman N.-W.F.P. v. Khurshid Anwar Khan 1992 SCMR 1202; Inayat Ullah Khan v. Obaidullah Khan 1999 SCMR 2702; Sardar Abdul Rauf Khan v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad 1991 SCMR 2164; Province of Punjab v. Muhammad Akram 1998 SCMR 2306; Pakistan v. Waliullah Sufyani PLD 1965 SC 310; Paresh Chandra Biswash v. Tapen Kanti Choudhury PLD 1963 SC 598; T.N. Angami v. Revoluei AIR 1972 SC 42; Ramanbhai Ashabhai Patel v. Debhi Ajitkumar AIR 1965 SC 669; Province of West Pakistan v. Associated Hotels of India Limited 1973 SCMR 367; Abdul Rauf Khan v. Land Acquisition Collector 1992 SCMR 1181; Taza Gui v. Fazal Subhan 2006 SCMR 504. and Muhammad Nawaz v. Sardara 2008 SCMR 1993 mentioned.

Amir-ul-Mulk Mengal, Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

P L D 2009 Supreme Court 546

Present: Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

Syed IMRAN AHMED---Appellant

Versus

BILAL and another---Respondents

Civil Appeal No.2230 of 2008, decided on 9th June, 2009.

(Against the judgment dated 10-11-2008 of the High Court of Sindh at Karachi, passed in Constitutional Petition No.S-271 of 2008).

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

----S. 13---Ejectment of tenant---Tenant defended the ejectment application, inter alia, by denying the relationship of landlord and tenant between the parties---Rent Controller ordered the tenant to deposit the arrears of unpaid rent and also to pay the future monthly rent on 10th of every succeeding month---Said order of Rent Controller was questioned by the tenant before the High Court in its constitutional jurisdiction which petition was allowed by High Court---Case of the tenant was that an agreement for sale of the premises in question had been executed in his favour; that he had already filed a suit for specific performance of the said contract and that in the absence of a final verdict on the said suit, Rent Controller had no jurisdiction to direct him to deposit the rent etc.---Validity---Held, a sale agreement did not itself create any interest or even a charge on the property in dispute; that unlike the law in England, the law in Pakistan did not recognize any distinction between the legal and equitable estates; that a sale agreement did not confer any title on the person in whose favour such an agreement was executed and in fact it only granted him the right to sue for such a title and further that such an agreement did not affect the rights of any third party involved in the matter---Till such time that a person suing for ownership of property obtained a decree for specific performance in his favour, such a person could not be heard to deny the title of landlord or to deprive the landlord of any benefits accruing to him or arising' out of the property which was the subject-matter of the litigation---Postponing the ejectment proceedings to wait the final outcome of a suit for specific performance would be causing serious prejudice to a landlord and such a practice if approved by Supreme Court, would only give a licence to unscrupulous tenants to defeat the interest of landlords who may be filing suits for specific performance only to delay the inevitable consequences and to throw spanners in the wheels of law and justice.

Muhammad Younus, Advocate Supreme Court for Petitioner.

N.C. Motiani, Advocate-on-Record for Respondents.

Date of hearing: 9th June, 2009.

P L D 2009 Supreme Court 549\

Present: Rana Bhagwandas, Javed Iqbal, Abdul Hameed Dogar, Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, Falak Sher, Mian Shakirullah Jan, and M. Javed Buttar, JJ

JAMAT-E-ISLAMI through AMIR and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 59, 58, 61, 62, 63 and 68 of 2007, decided on 28th September, 2007.

\ Important.--Due to imposition of emergency and the deposition of various Hon'ble Judges of the superior judiciary the minority view recorded by Hon'ble Mr. Justice Rana Bhagwandas, Hon'ble Mr. Justice Sardar Muhammad Raza Khan and Hon'ble Mr. Justice Falak Sher, could not be delivered to the PLD at the time of publication of PLD 2008 SC 30 which has now been sent after the reinstatement of Hon'ble Judges. The full judgment with the minority view is now being published in the present issue. Subscribers may please note.

(a) Constitution of Pakistan (1973)---

----Art. 184(3)---Invocation of original jurisdiction of Supreme Court under Art.184(3) of the Constitution---Object, scope and essential conditions.

There are two essential conditions for invoking the jurisdiction of Supreme Court of Pakistan under Article 184(3) of the Constitution. The first condition is that subject matter of the petition under this Article must be of public importance and second condition is that it must relate to the enforcement of any of the fundamental rights conferred by Part-II Chapter-1 of the Constitution.

Original jurisdiction of Supreme Court under Article 184 (3) of the Constitution cannot be exercised in a matter brought before it unless it is of public importance involving the enforcement of fundamental rights conferred by Part-II Chapter 1 of the Constitution (Articles 8 to 28) and in absence of any of the above conditions, Supreme Court is not supposed to entertain a petition under Article 184 (3) of the Constitution. The object of Article 184(3) of the Constitution is the enforcement of the fundamental rights referred therein and no question, other than relating to the enforcement of a fundamental right, can be brought before Supreme Court for determination in its original jurisdiction and' an aggrieved person may avail other remedies open to, him under the law. Supreme Court will not entertain a petition under Article 184(3) if infringement of any of the fundamental rights conferred by Part II Chapter 1 of the Constitution is not involved as the remedy under this Article is only for the enforcement of fundamental rights. The validity of any law or a provision of Statue if is challenged on the ground other than being in contravention of fundamental rights, the Supreme Court would not entertain such challenge in the proceedings under Article 184(3) of the Constitution, even if the law is found in contravention of some provisions of the Constitution. The rule is that Supreme Court will not interfere under this Article unless it is satisfied that infringement of the right being complained is the fundamental right and there is a breach of such right. The constitutional jurisdiction of the Supreme Court under Article 184(3) of the Constitution also cannot be invoked for the correctness of a judgment of Supreme Court in which a question of law was decided unless it is established that in consequence to the judgment of Supreme Court, a fundamental right falling in Part II Chapter 1 of the Constitution has been violated. The Supreme Court indeed has power to rectify its own mistake but the provision of Article 184(3) of the Constitution is invocable only in the matter of public importance relating to the enforcement of fundamental rights. The question relating to the determination of the legislative competence or vires of a particular enactment can only be gone into in the jurisdiction under Article 184(3) of the Constitution if a case is made out for interference of Supreme Court by establishing that the law 'enacted was beyond the competence of the legislature which was not covered by the legislative list and also has invaded the fundamental rights guaranteed in Part-II, Chapter-1 of the Constitution. There is always presumption in favour of constitutionality of an enactment and Courts are not supposed to strike down a law merely on technical grounds, therefore, a question relating to the correctness or validity of an order and judgment of the Supreme Court which has otherwise attained finality, cannot be entertained in the proceedings under Article 184(3) of the Constitution but the Court may, in an appropriate case, in which a fundamental right is being infringed, can entertain an original petition as right to move the Supreme Court in a case of violation of fundamental right is itself a fundamental right. It is thus essential that existence of a fundamental right and its breach actual or threatened; must be established to entertain a petition under Article 184(3) of the Constitution. The power of the Supreme Court under Article 184(3) of the Constitution for enforcement of fundamental right is not confined to the extent of issue of prerogative writs and also is not necessarily circumscribed by the conditions to limit the exercise of power, rather this Article is wide enough to consider the question of public importance relating to the violation of fundamental rights.

The scope of judicial review of the Supreme Court perhaps is most extensive known to the world of law as the Supreme Court, in exercise of this power, can examine the validity even of an amendment in the Constitution which is violative of the basic structure of the Constitution. However, the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution is not supposed to give a declaration which has no useful purpose so far as the public interest is concerned and this power is also not invocable in absence of a direct and casual violation of fundamental right guaranteed under the Constitution. The right to vote or right to contest the election is a statutory right and is subject to the limitation imposed by the Statutes, therefore, the provision of law relating to such rights may not be challengeable with reference to the fundamental rights as the right to file a petition under Article 184(3) of the Constitution arises only in a case of infringement of the fundamental right or a serious threat to infringe such a right but mere apprehension of breach of fundamental right is not enough to invoke these extraordinary provisions. Under this provision the Court will not answer a hypothetical question even if such a question, in its substantial context, may be of public importance relating to the fundamental rights and similarly the Supreme Court may refuse to grant relief in exercise of its original jurisdiction in a case, filed with delay although delay does not take away the jurisdiction of the Court.

There can be no departure from the constitutional mandate that unless a matter of public importance concerning with the enforcement of fundamental rights conferred by Part II, Chapter-1 of the Constitution is involved in a petition under Article 184(3) of the Constitution, it is not entertainable.

Unless the matter is of public importance relating to the enforcement of any of the fundamental rights conferred by Part II Chapter 1 of the Constitution (Articles 8 to 28), the jurisdiction of the Supreme Court under Article 184 (3) of the Constitution, cannot be invoked. The mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, will not attract the jurisdiction of Supreme Court under Article 184(3) of the Constitution.

In the light of constitutional mandate as contemplated in Article 184(3) of the Constitution, Supreme Court may not entertain a direct petition under Article 184(3) in a matter not involving the enforcement of any of fundamental rights mentioned therein.

In matters which do not involve enforcement of the fundamental rights of the public at large as envisaged in Article 184 (3) of the Constitution, a direct petition in original jurisdiction is not entertainable.

The exercise of jurisdiction under Article 184 (3) of the Constitution is certainly subject to the condition that matter is of public importance and is also related to the enforcement of fundamental rights conferred by Part II Chapter 1 of the Constitution.

Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC 632; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Syed Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863; Muhammad Rafiq Tarrar v. Mukhtar Ahmed Junejo PLD 1998 Lah. 461; Malik .Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Qazi Hussain Ahmad v. Pervez Musharraf, Chief Executive PLD 2002 SC 853; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Wattan Party v. Federation of Pakistan PLD 2006 SC 697; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233; Amanullah Khan v. Chairman Medical Research Council 1995 SCMR .202; State Life Insurance Employees Federation v. Federation of Pakistan 1994 'SCMR 1341; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Muhammad Siddique v. Government of Pakistan PLD 2005 SC 1 and Javed Jabbar and 14 others v. Federation of Pakistan and others PLD 2003 SC 955 ref.

(b) Constitution of Pakistan (1973)---

----Art. 184(3) & Part. II, Chap. 1 [Arts. 8 to 28]---Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Maintainability---Matter of public importance and enforcement of fundamental rights---Principles---Petitioners, in the present case, had sought a declaration against a prospective candidate in the forthcoming Presidential election that under the Constitution he, while holding the office of Chief of Army Staff, was not eligible for participation in the election and had challenged his candidature before the start of election process---Validity---Matter to the extent of the Presidential election certainly had public importance but question raised therein did not relate to the enforcement of the fundamental rights conferred by Part II, Chap.1 of the Constitution [Arts. 8 to 28]---Expression "enforcement" has predominant significance with reference to fundamental rights---Petitioners had failed to satisfy that in what manner the candidature of the prospective candidate caused infringement of any fundamental rights guaranteed under the Constitution and how that related to the enforcement of such rights under Art.184(3) of the Constitution---Held, unless the matter was of public importance relating to the enforcement of any of the fundamental rights conferred by Part II, Chap. 1 of the Constitution, the jurisdiction of Supreme Court under Art.184(3) of the Constitution could not be invoked---Mere importance of a matter, without enforcement of any fundamental right or reference to a fundamental right without any public importance, would not attract the jurisdiction of Supreme Court under Art.184(3) of the Constitution---Questions raised in the present petitions did not, as such, relate to the fundamental rights conferred by Part II, Chap. 1 of the Constitution and most of them even otherwise were speculative and presumptive in nature and at the present stage, fell in the domain of Election Commission, a constitutional forum---Matters which do not involve enforcement of fundamental rights of the public at large, as envisaged in Art.184(3) of the Constitution, a direct petition in original jurisdiction was not maintainable---Petitions under Art.184(3) of the Constitution seeking declaration against the prospective candidate therefore were not maintainable and were dismissed by the Supreme Court.

Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863; Muhammad Rafiq Tarar v. Mukhtar Ahmed Junejo PLD 1998 Lah. 461; Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Qazi Hussain Ahmad v. Pervez Musharraf, ,Chief Executive PLD 2002 SC 853; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Wattan Party v. Federation of Pakistan PLD 2006 SC 697; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233; Amanullah Khan v. Chairman Medical Research Council 1995 SCMR 202; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 7,93; State Life Insurance Employees Federation v. Federation Government of Pakistan 1994 SCMR 1341; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Muhammad Siddique v. Government of Pakistan PLD 2005 SC 1 and Javed Jabbar and 14 others v. Federation of Pakistan and others PLD 2003 SC 955 ref.

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

----Arts. 184(3) & 25---Constitutional petition before Supreme Court under Art.184(3) of the Constitution questioning the eligibility of the respondent to contest the election for the office of President on the plea that Arts. 17 & 25 of the Constitution were being violated---Validity---Matter having no nexus with the rights guaranteed under Arts. 17 & 25 of the Constitution, direct petition was not maintainable---Principles.

Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 ref.

(d) Constitution of Pakistan (1973)---

----Art. 184(3) & Chap. 1, Part II, [Arts. 8 to 28]---Constitutional petition before Supreme Court under Art.184(3) of the Constitution questioning the eligibility of respondent to contest the election for the office of the President of Pakistan---Maintainability---Held, notwithstanding the public importance of the matter, the questions raised in the petitions did not, as such, relate to the enforcement of fundamental rights guaranteed in Part II, Chap. 1 of the Constitution, therefore such petitions under Art.184(3) of the Constitution were not maintainable.

(e) Constitution of Pakistan (1973)---

----Arts. 184(3) & 41(2)---Constitutional petitions before Supreme Court under Art.184(3) of the Constitution---Maintainability--.Question raised in the petitions was that a person was not qualified to contest the election for the office of the President of Pakistan in terms of Art.41(2) read with other provisions of the Constitution---Held, such question did not relate to the enforcement of any of the fundamental rights of the petitioners or any other person, to maintain petitions under its original jurisdiction before Supreme Court under Art.184(3) of the Constitution.

(f) President to Hold Another Office Act (VII of 2004)---

---Preamble---Constitution of Pakistan (1973), Arts.184(3) & 63(1)(d)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution questioning vires of President to Hold Another Office Act, 2004---Held, Parliament, pursuant to its legislative competence under the Constitution had enacted the President to Hold Another Office Act, 2004 and the said Act was not in conflict with any provision of the Constitution---President to Hold Another Office Act, 2004 was validated by Supreme Court in case Pakistan Lawyers Forums v. Federation of Pakistan PLD 2005 SC 719 and pending a review petition against said judgment, a fresh petition after lapse of a period more than two years on the same subject was not maintainable.

Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 ref.

(g) Constitution of Pakistan (1973)---

----Arts. 184(3), 63 & 62---Constitutional petition before Supreme Court under Art.184(3) of the Constitution seeking determination of the eligibility of a person to contest the election for the President of Pakistan with reference to application of Art.63 read with Art.62 of the Constitution---Held, such question could not be raised before the Supreme Court at the present stage as the matter squarely fell within the jurisdiction and domain of Election Commission, a constitutional forum of exclusive jurisdiction.

Per Rana Bhagwandas, J, Contra.--[Minority view]--

--- As to maintainability of constitutional petition under Art.184(3) of the Constitution.

--- As to whether the respondent was disqualified under Article 63(1) (d) and (s) of the Constitution read with the provisions of Pakistan Army Act, 1952 and ESTACODE, 2000 from contesting election to the office of the President of Pakistan and whether. President to Hold Another office Act (VII of 2004) was validly enacted by the Parliament and whether it excludes the case of the respondent from the disqualification clause contemplated by Article 63(1) (d) and (s) of the Constitution.

--- As to whether respondent would only be governed by qualifications contained in Article 62 of the Constitution for election as Member of the National Assembly and whether disqualifications enumerated in Article 63 of the Constitution would not be attracted in the case of election to the office of the President.

--- As to whether the respondent being incumbent President of Pakistan was eligible to seek re-election to the office of the President for the third time in view of the bar contained in Article 44(2) of the Constitution.

--- As to whether the existing Assemblies, whose term would expire on 15th November, 2007 were legally competent to elect the same person as President for the second time.

--- As to what would be the legal effect and impact of revival/resurrection of Article 63(1) (d) of the Constitution with effect from 31st December, 2004.

--- As to whether opinion rendered by amicus curiae, suggesting the continuity of system for transitional phase and allowing the respondent to take part in the Presidential election could be legally and constitutionally entertained.

Per Sardar Muhammad Raza Khan, J., Contra. [Minority view]--

--- As to the nature of doctrine of necessity and its being violative of Qura'nic Injunctions.

Per Falak Sher, J., Contra. [Minority view]--

--- As to President to Hold Another Office Act, 2004 being ultra vires the Constitution.

--- As to maintainability of constitutional petition under Article 184(3) of the Constitution.

--- As to eligibility of respondent for the Presidential Election.

--- As to examination of President to Hold Another Office Act, 2004, S.2.

M. Akram Sheikh, Senior Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Petitioners (in C.P. No.59 of 2007).

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney-General for Pakistan and. Sardar Muhammad Ghazi, Dy. Attorney General for Pakistan for Respondent No.1 (in C.P. No.59 of 2007).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Ahmad Raza Khan Qasuri, Senior Advocate Supreme Court, Muhammad Ibrahim Satti, Advocate Supreme Court, Chaudhry Naseer Ahmad, Advocate Supreme Court and Chaudhry Arshad Ali, Advocate-on-Record for Respondent No.2 (in C.P. No.59 of 2007):

Hamid Khan, Senior Advocate Supreme Court, Shaukat Aziz Siddiqui, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.58 of 2007).

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar

Muhammad Ghazi, Deputy Attorney General for Pakistan, Abdul Sattar Chughtai, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate on-Record for Respondents.

Hamid Khan, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.61 of 2007).

Malik Muhammad Qayyum, Attorney-General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No. 1.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.2.

Petitioner in person (in C.P.No.62 of 2007).

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Dy. Attorney General for Pakistan, Sardar Muhammad Ghazi, Dy. Attorney General for Pakistan and Arshad Ali Chaudhry, Advocate-on-Record for Respondents Nos. 1 and 2.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.3.

Mr. Abdul Rehman Siddiqui, Advocate Supreme Court and Chaudhry Muhammad Akram, Advocate-on-Record for Petitioners (in C.P. No. 63 of 2007).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1.

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.2.

A. K. Dogar, Advocate Supreme Court (in person) for the Petitioner (in C.P. No.68 of 2007).

Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, Deputy Attorney General for Pakistan, Sardar Muhammad Ghazi, Deputy Attorney General for Pakistan, Muhammad Aslam Nagi, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents.

S.M. Zafar, Senior Advocate Supreme Court, Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Chaudhry Aitzaz Ahsan, Senior Advocate Supreme Court, Amicus Curiae: (On Court Notice)

Dates of Hearing: 17th to 21st and 24th to 28th September, 2007.

P L D 2009 Supreme Court 644

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk, Muhammad Moosa K. Leghari, Sheikh Hakim, Ali and Ghulam Rabbani, JJ

FEDERATION OF PAKISTAN and others---Petitioners

Versus

Mian MUHAMMAD NAWAZ SHARIF and others---Respondents

Civil Review Petitions Nos. 45 to 48, 50 to 52, 59 to 62 of 2009 in C.Ps. Nos. 778, 779, 878, CA No.166 of 2009 & C.P. 803, C.M.A. Nos.63, .64 of 2008 in CMA No.1674-75 of 2008 in C.P. No. NIL of 2008, Crl. R. P. No.22 of 2009 in Crl.O.P. 41 of 2008 and C.M.A. No.1597 of 2009 in C.R.P. 59 & 60 of 2009, heard on 26th May, 2009.

(On review from the judgments. of this Court dated 25-2-2009 passed in the above captioned petitions)

Per Tassaduq Hussain Jillani, J.--

(a) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(5)(5A), (6), 11 & 99---Constitution of Pakistan (1973), Arts.184(3), 199, 225, 63(h)(1) & 188---Supreme Court Rules, 1980, O.XXVI, R.8---Review of Supreme Court judgment---Qualifications and disqualifications of candidates for election---Judgments under review i.e. of the High Court and of Supreme Court were ex parte on account of which certain factual aspects and legal provisions having bearing on the issues raised, were not brought to the notice of the court and therefore, were not considered leading to miscarriage of justice---Such omission was an error apparent on the face of record warranting review---Realizing the exceptional and extraordinary events relating to unconstitutional removal of Judges of the Superior Courts which, in the judgment under review, had been described as, "enforced by a brutal force, by deviating from constitutional provisions," triggering an unprecedented nationwide movement, culminating in the restoration of those Judges, and during the interregnum, non-appearance of petitioners before the courts then constituted, could neither be termed as contumacious nor reflecting acquiescence, the findings of fact rendered on such assumptions merited to be interfered with in the review jurisdiction---Both the appeals filed under section 14(5) of the Representation of the People Act, 1976 and the information laid or directed against the acceptance of nomination papers (under section 14(5A) of the said Act) were mandated to be decided by or before the period fixed for deciding the appeals in the schedule issued by the Chief Election Commissioner under section 11 read with section 14(5) of the said Act; since the appeals were not decided by then, the order of the Chief Election Commissioner holding that the appeal stood dismissed was in accord with section 14(6) of the Act which stipulated that, "an appeal not disposed of within the period specified in subsection (5) shall be deemed to have been dismissed"; finding that information laid under section 14(5A) of the said Act could remain pending and decided beyond the said date fixed for disposal of appeals was not in consonance with the legislative intent---Last date for disposal of appeal against the acceptance of nomination papers was 31-5-2008 and thereafter the Appellate Tribunal had become functus officio---Order of the Chief Election Commissioner to the effect that since the appeals had not been decided within the cut-off date, the same were deemed to have been rejected (in terms of subsection (6) of S.14 of the said Act) was passed with jurisdiction---High Court not only allowed respondents' writ petitions against said order but while doing so, passed two inconsistent judgments of even date i.e. while in the case of one petitioner it held that the source information/petition (under subsection (5A) of S.14 of the Act) shall be deemed to be pending before the Appellate Tribunal comprising of three Judges of the High Court to be constituted by the Chief Election Commissioner, whereas in the case of "the other it declared him disqualified to contest the elections---Mandate of Art.225 of the Constitution had not been appreciated in the context of the present case---Article 225 of the Constitution places a bar to challenge an election dispute except through an election petition under the law i.e. the Representation of the People Act, 1976; in exceptional circumstances, however, the qualification or disqualification of a candidate could be challenged under Art.199 of the Constitution provided the order passed during the election process was patently illegal, the law had not provided any remedy either before or after the election; and the alleged disqualification was floating on the surface of record requiring no probe and enquiry---In the present cases the issues of unpaid loans, of court contempt and of filing false affidavit were disputed questions of fact which could not have been adjudicated upon in the proceedings under Art.199 of the Constitution and even the material placed before the Court was not sufficient to render the impugned findings---"Presidential pardon", stood admitted by the Federation of Pakistan through the statement made by the Deputy Attorney-General before the High Court, and Supreme Court during the hearing of the main petition and in the present review petition and even by the Attorney-General for Pakistan, who appeared in present review proceedings; to allege that it being conditional or qualified pardon, required deeper probe which exercise entailed factual enquiry---Questions whether petitioners were hit by Art.63(h) and (1) of the Constitution or by S.99 of the Representation of the People Act, 1976 could also not have been decided by the High Court or by Supreme Court in writ jurisdiction---Judgments under review therefore, were not in accord with the law laid down by Supreme Court in the cases reported as Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396, Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer N. A. 158, Naushero Feroze and others 1994 SCMR 1299 and Lt.-Gen. (R.) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 at 763--One of the onerous functions of the Supreme Court was to protect the Constitution and to sustain democracy---Democracy was not merely holding of periodical elections or of governance by legislative majority; it was a multidimensional politico-moral concept epitomizing the abiding values of equality, human dignity, tolerance, enjoyment of fundamental rights and due process of law---Whether it was the issue of denial of a substantive right or of construing a statutory provision, these principles should weigh with the Court---Article 4 of the Constitution was a restraint on the legislative, executive and judicial organs of the State to abide by the rule of law; abdication of this awesome responsibility by any organ leads to arbitrariness and injustice, which were canons of substantive democracy embodied in the Constitution which, inter alia, Supreme Court had kept in view while exercising the power of judicial review.

Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer N.A. 158, Naushero Feroze and others 1994 SCMR 1299 and Lt.-Gen. (R.) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 at 763 ref.

(b) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XVI, R.1, O.XIV, R.14 & O.XIII, R.6---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review of Supreme Court judgment---Non-appearance of petitioners before High Court and a Bench of Supreme Court seized of the matter leading to the judgment under review---Case of the petitioners was that as leaders of one of the main stream political parties they had taken a public stand against the imposition of "State of Emergency" on 3-11-2007 by General Pervez Musharraf, and the arbitrary and unconstitutional removal of Judges of the superior courts and were party to a public and collective oath taken by all the candidates of their party in General Elections held in February, 2008 that if elected, they would struggle for the restoration of superior judiciary and till then they had decided to abstain from appearing before the Court then constituted---Said stand, it was contended, was neither directed against the judiciary as an institution nor any particular Judge was targeted but it was more an effort to save the constitution of the institution of judiciary which was the third most important organ of the State---Court, in the judgment under review, repelled the reasons for non-appearance on the ground that the petitioners were by implication attributing personal bias to the Judges---Validity---Held, petitioners' non-appearance was not attributable to personal bias against the Court then constituted but on account of a public stand that they had taken before entering the process of elections i.e. the collective oath which they and all the party candidates had taken on the issues relating to the imposition of "State of Emergency" on 3-11-2007 and a resolve to launch a movement for the restoration of supreme judiciary---Restoration of Chief Justice of Pakistan and other Judges who were deposed on the imposition of "State of Emergency" and the immediate appearance of the petitioners by way of filing the present review petitions indicated that the stance taken was based on certain moral grounds which. stood vindicated---Same could not be dubbed as either contumacious or reflective of acquiescence to warrant the impugned findings--Order XVI, R.1, Supreme Court Rules, 1980 provided 30 days' time for the respondent to appear, after the grant of leave, but in the present case, instead of waiting for 30 days to enable the petitioner/respondent to appeal, the court allowed the appeal immediately when the petition was converted into appeal---Non-hearing of petitioners in circumstances, was an error on the face of record meriting interference in review jurisdiction.?

Commissioner of Income Tax, East Pakistan v. Syeedur Rehman PLD 1964 SC 410 ref.??????????

(c) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(5), (5-A) & 11---Constitution of Pakistan (1973), Art.225--Proceedings initiated pursuant to a source information against acceptance of nomination paper under S.14(5-A), Representation of the People Act, 1976 could not go beyond the period specified in S.14(5-A) of the Act and the election schedule announced by the Chief Election Commissioner under S.11, Representation of the People Act, 1974 read with Art.225 of the Constitution---Principles.

(d) Interpretation of statutes---

---Deeming clause creating a legal fiction---Whenever such an expression is used in a statute, it shall have to be treated as something stipulated in the said provision, though in reality it may not be---While interpreting a legal fiction the court has to ascertain for what purpose the fiction is created, whereafter the court is to assume all those facts and consequences which are intended.

(e) Representation of the People Act (LXXXV of 1976)---

----S. 14(5)(5-A)---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---Scrutiny of nomination papers---Appeal under S.14(5) of Representation of the People Act, 1976 and an objection through source information against the acceptance of nomination papers under S.14(5-A) of the Act are to be decided within the period fixed for deciding appeals in the Schedule, the order of Chief Election Commissioner holding that as those appeals had not been decided by the cut-off date, the same shall be deemed to have been rejected was unexceptionable---Such order having been passed by the Chief Election Commissioner with jurisdiction could not be interfered with by High Court under Art.199 of the Constitution---After the order of the Chief Election Commissioner, an election dispute ordinarily could only be raised through an election petition and before an Election Tribunal constituted for the said purpose---Legislative intent in such context is unequivocal.

(f) Representation of the People Act (LXXXV of 1976)---

---Ss. 2(xi), 52 & 76-A---Constitution of Pakistan (1973), Art.225---Powers of election Tribunal---Combined reading of Art.225 of the Constitution and Ss.2(xi), 52 & 76-A of the Representation of the People Act, 1976 would show that the election of returned candidate under the provisions of the Constitution and the Act can be challenged by a candidate alone, however, S.76-A, Representation of the People Act, 1976 has provided an additional power to the Election Tribunal to proceed against such a candidate on its own motion or on the basis of material or information laid before it and on the grounds mentioned in S.76-A of the Act.

(g) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(3), (5), (5-A), 52, 76-A, 68, 69 & 70---Provisions of Ss.14(3), (5) & (5-A) of Representation of the People Act, 1976 relate to scrutiny of nomination papers by the Returning Officers and the right of a rival candidate (under S.14(5)) and an objector other than a candidate to file appeal or a source information (S.14(5-A)) against acceptance of such nomination papers before the election process is over---Once that process comes to an end and a candidate is declared elected, the election of a returned candidate can be challenged under Ss.52 & 76-A of the Representation of the People Act, 1976---Elections Tribunal decides the petition in the light of Ss.68, 69 & 70 of the Act.?

(h) Representation of the People Act (LXXXV of 1976)---

---Ss. 14(6), 52 & 76-A---Constitution of Pakistan (1973), Arts.225 & 199---Constitutional jurisdiction of High Court---Scope---After the order of the Chief Election Commissioner declaring the appeal as deemed to have been rejected in terms of S.14(6) of the Representation of the People Act, 1976, candidate and informer-objector having alternate remedy available under Ss.52 & 76-A of the Act, could not invoke the constitutional jurisdiction of High Court which was limited in this respect---Principles.

Election Commission of Pakistan through Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Addl. District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR . 1299; Ayatullah Dr. Imran Liaquat Hussain v. Election commission of Pakistan Islamabad and another PLD 2005 SC 52 and Ltd. Gen.(R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 fol.

(i) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(5), (5-A) & 99---Constitution of Pakistan (1973), Arts.188, 199, 63 & 225---Review of Supreme Court judgment---Qualifications and disqualifications of candidates to contest election---Constitutional jurisdiction of High Court---Scope--In the present case, in the case of one candidate it was alleged that he was a convict of a NAB reference case; that the "Presidential Pardon" granted to him was relatable only to remission of sentence and the conviction remained intact; that he had defamed the judiciary and that he had defaulted in payment of bank loans---Federal Government, had conceded at all the three stages i.e. before the High Court, before the Supreme Court when the petitions were argued and during the hearing of review petitions that the petitioner was granted pardon, Deputy Attorney-General and the Attorney-General had not pleaded that the "pardon" was confined to sentence only and a specific prayer had been made that he be allowed to contest the elections---Federation of Pakistan, writ petitioners/objectors at no stage i.e. either before the Returning Officer or before the Election Appellate Tribunal or before the High Court or before the Supreme Court could show that the pardon was confined to sentence or that it was conditional---No court order was placed on record to indicate that said candidate was either convicted in the contempt case or any observation was made by any court to that effect or that he had defaulted in payment of bank loans or that he was owner of a company "mainly owned by him" (as required under S.12(2)(f), Representation of the People Act, 1976) which had defaulted in payment of loans to be hit by the penal clauses of Art.63(h)(1) of the Constitution or S.99 of 'the Representation of the People Act, 1976---In absence of any document or conclusive order or' material to the contrary, the Retuning Officer was left with no option but to declare him qualified and to accept his nomination papers for the limited purpose of scrutiny in terms of S.11 of the Act---In case of the other candidate, there was no conviction in a criminal case but the other grounds were similar i.e. he had defamed judiciary and that he had defaulted in payment of loans to the bank, however, no document tenable in law, was placed on record from which it could be inferred that he was hit by the disqualifying provisions of law---Alleged disqualifications in the case of both the candidates were not floating on the surface warranting High Court to interfere under Art.199 of the Constitution---Findings under review disqualifying both the candidates to contest elections for all times to come were violative of the fundamental rights as enshrined in the Constitution which had been considered as valid grounds to review the case.

Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363 applied.

(j) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review of Supreme Court judgment---Scope---Power of review of Supreme Court is subject to an Act of the Parliament and to the Rules made by the Supreme Court---In terms of Supreme Court Rules, 1980, O.XXVI, R.1, the court reviews its judgment or order in civil proceedings on the grounds similar to those mentioned in O.XLVII, R.1, C.P.C. and in criminal proceedings on the ground of an error apparent on the face of record---Principles which the Supreme Court may consider while exercising the power of review enumerated.

Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363 quoted.

(k) Representation of the People Act (LXXXV of 1976)---

----Ss. 14(5), (5-A)(6) & 99---Constitution of Pakistan (1973), Arts.4, 17, 199 & 225---Constitutional jurisdiction of High Court---Scope---Qualifications and disqualifications of candidates to contest election---Fundamental rights of such candidates---Scope---Candidates, as leaders of a political party, had high stakes in retaining a certain public image---To be declared disqualified to contest the elections and the findings that they were not "sagacious", "righteous", were "guilty of contempt" and having defaulted in payment of' loans were punishments and had the effect of depriving the candidates of their fundamental rights guaranteed under Arts.4 & 17 of the Constitution---Such findings/declarations could not have been given except with due process of law, which, inter alia, required that the election schedule notified under S.11 of Representation of the People Act, 1976 was honoured in letter and spirit; the objections/appeals filed against the acceptance of candidates' nomination papers were disposed of within the period as provided in law (election schedule); the order of Chief Election Commissioner passed with jurisdiction giving ,effect to the mandatory provision of S.14(6) of the Representation of the People Act, 1976 was not interfered with unless same 'was patently illegal and the objectors were left with no remedy before and after the election process---Canons of due process further required that the findings adversely affecting their dignity, liberty, reputation and political rights were not given ex parte and that too in constitutional jurisdiction without recording of evidence and in derogation to the mandate of Art.225 of the Constitution---Accountability of holders of public offices with .a view of disqualifying those who were found guilty was a laudable object---If such exercise was to be credible; it had to be across the board, had to be fair, and had to be regulated by the rule of law---Any process bereft of such elements may boomerang and defeat the very purpose of the process initiated---Principles.

(l) Constitution of Pakistan (1973)---

----Arts. 188 & 199---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Application for production of document filed after two days of the conclusion of arguments was not maintainable and was misconceived and secondly a probe on merits was the exclusive preserve of a Court/Tribunal of plenary jurisdiction and Supreme Court could not enter into factual enquiry in proceedings arising out a petition under Art.199 of the Constitution in circumstances.?

Per Nasir-ul-Mulk, J. agreeing with Tassaduq Hussain, Jillani, J

(m) Representation of the People Act (LXXXV of 1976)---

---S.14---Scrutiny of nomination papers---Law and procedure.

(n) Representation of the People Act (LXXXV of 1976)---

----S. 14(5-A)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Standing of a person furnishing information to pursue the matter under S.14(5-A), Representation of the People Act, 1976---Informer, however, does not become a party in the legal sense of the term to the proceedings before the Tribunal---Tribunal's order rejecting the information and declaring the candidate concerned qualified cannot be termed as an order adverse to the interest of informer---Such informer, therefore, would not be an aggrieved person within the meaning of Art.199 of the Constitution entitling him to file petition for issuance of a writ of certiorari or mandamus---Principles.

The power conferred upon the Tribunal under subsection (5-A) of section 14, Representation of the People Act, 1976 is expressed to be exercised by it "on its own motion", based upon the knowledge it gains from source information or any material placed before it that might lead to the disqualification of a candidate. The "source" has not been defined in the Act and it could be an individual, an agency or Government department, a bank or any organization or body. Whereas the proceedings under subsection (5) are formally initiated upon filing of an appeal, the process under subsection (5A) commences upon the issuance of show-cause notice by the Tribunal to the concerned candidate. Since the show-cause notice is based upon the information or material received or acquired by the Tribunal, it has first to evaluate tentatively its sufficiency and credibility. The standing of a person who furnishes information under subsection (5A) can, in no way, be equated with that of the appellant under subsection (5A), who has a personal interest in the outcome of the proceedings. The status of such a person is simply of an informer laying information before the Tribunal of certain facts, which he believes disqualifies a candidate to contest the election. He has not been bestowed with any vested right to pursue the matter on a personal level to get a candidate disqualified. Like all powers exercisable suo motu, the Tribunal is empowered to summon the informer, or for that matter anyone, to appear before it to substantiate, clarify or throw light upon the contents of the show-cause notice. The `informer', however, does not become a party in the legal sense of the term to the proceedings before the Tribunal. The Tribunals' order rejecting the information and declaring the candidate concerned qualified cannot be termed as an order adverse to the interest of the informer. Such informer, therefore, would not be an aggrieved person within the meaning of Article 199 of the Constitution entitling him to file the petition for issuance of a writ of certiorari or mandamus.

(o) Constitution of Pakistan (1973)---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Only aggrieved person could maintain the constitutional petition for issuance of writ of certiorari or mandamus.?

(p) Maxim---

---Ubi jus ibi remedium (there is no wrong without remedy)---Applicability---Application of the maxim presupposes the existence of a legal right and is invoked when the law does not apparently provide a remedy for the enforcement of such right.

(q) Representation of the People Act (LXXXV of 1976)---

----S. 14(5-A)---Maxim: ubi jus ibi remedium---Applicability---Scope---Provision of S.14(5-A), Representation of the People Act, 1976 does not confer any vested right on the informer' and rejection of the information furnished by him is not a wrong against him in the legal sense, so as to entitle him to a remedy---Maxim: ubi jus ibi remedium cannot be applied to the case ofinformer' so as to provide such person a remedy to grant him relief for a wrong suffered by him.

Agha Tariq Mehmood Khan, D.A.-G, for Petitioner (in C.R.Ps. Nos. 45 and 46 of 2009 in C.Ps.Nos. 778 & 779 of 2008).

Abid Hassan Minto, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent No.1 (in C.R.P. No.45 of 2009).

Nemo for Respondent Nos. 2-5 (in C.R.Ps. Nos. 45 and 46 of 2009 in C.Ps. Nos. 778 & 779 of 2008).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.6 (in C.R.Ps. Nos. 45 and 46 of 2009 in C.Ps. Nos. 778 & 779 of 2008).

Agha Tariq Mehmood Khan, D.A.-G. with Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.R.Ps.Nos. 47 and 48 of 2009 in C.Ps. Nos. 905 and 878 of 2008).

Ahmed Raza Qasuri, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in C.R.Ps. Nos.47 and 48 of 2009 in C.Ps. Nos. 905 and 878 of 2008).

Khawaja Haris Ahmed, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent No.2 (in C.R.Ps.Nos.47 and 48 of 2009 in C.Ps. Nos.905 and 878 of 2008).

Nemo for Respondents Nos.3-5 (in C.R.Ps. Nos. 47 and 48 of 2009 in C.Ps. Nos. 905 and 878 of 2008).

Muhammad Raza Farooq, Advocate Supreme Court and Ashtar Ausaf Ali, Advocate Supreme Court with Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.R.P. No.50 of 2009 in C.P. No.803 of 2008).

Ahmed Raza Qasuri, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in C.R.P. No.50 of 2009 in C.P. Nos. 803 of 2008).

Khawaja Haris Ahmed, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent No.2 (in C..R.P.No.50 of 2009 in C.P. Nos. 803 of 2008).

Nemo for Respondents Nos. 3-5 (in C.R.P.No.50 of 2009 in C.P. Nos. 803 of 2008).

Agha Tariq Mehmood, D.A.-G. for Respondent No.6 (in C.R.P.No.50 of 2009 in C.P. Nos. 803 of 2008).

A.K. Dogar, Advocate Supreme Court with Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.R.P.No.51 2009 in C.M.A. No.64 of 2008 in C.M.A. No.1674 of 2008 in C.P. No.Nil of 2008).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in C.R.P.No.51 of 2009 in C.M.A. No.64 of 2008 in C.M.A. No.1674 of 2008 in C.P.No.Nil of 2008).

Abid Hassan Minto, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent No.2 (in C.R.P.No.51 2009 in CMA. No.64 of 2008 in in C.M.A. No.1674 of 2008 in C.P.No.Nil of 2008).

Nemo for Respondents Nos. 3-5 (in C.R.P.No.51 of 2009 in C.M.A. No.64 of 2008 in in C.M.A. No.1674 of 2008 in C.P.No.Nil of 2008).

Agha Tariq Mehmood, D.A.-G. for Respondent No.6 (in C.R.P.No.51 of 2009 in CMA. No.64 of 2008 in in C.M.A. No.1674 of 2008 in C.P.No.Nil of 2008).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.R.P.No.52 of 2009 in C.M.A.. No.63 of 2009 in C.M.A.No.1675 of 2008).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record - for Respondent No.1 (in C.R.P.No.52 of 2009 in C.M.A. No.63 of 2009 in C.M.A.No.1675 of 2008).

Abid Hassan Minto, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent No.2 (in C.R.P. No.52 of 2009 in C.M.A. No.63 of 2009 in C.M.A. No.1675 of 2008).

Nemo for Respondents Nos. 3-5 (in C.R.P.No.52 of 2009 in CMA. No.63 of 2009 in C.M.A.No.1675 of 2008).

Agha Tariq Mehmood, D.A.-G. for Respondent No.6 (in C.R.P.No.52 of 2009 in C.M.A. No.63 of 2009 in C.M.A.No.1675 of 2008).

Abid Hassan Minto, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.R.Ps.Nos.59 & 60 of 2009 in C.Ps. Nos.778 & 779 of 2008 along with C.M.As. Nos.1130 and 1551 of 2009).

Agha Tariq Mehmood, D.A.-G. for Respondent No.1 (in C.R.Ps.Nos.59 and 60 of 2009 in C.Ps. Nos.778 & 779 of 2008 along with C.M.As. Nos.1130, 1551 and 1597 of 2009).

Nemo for Respondents Nos. 2-5 (in C.R.Ps. Nos.59 & 60 of 2009 in C.Ps. Nos..778 & 779 of 2008 along with C.M.As. Nos.1130 and 1551 and 1597 of 2009).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.6 (in C.R.Ps.Nos.59 & 60 of 2009 in- C.Ps. Nos.778 & 779 of 2008 along with C.M.As. Nos.1130, 1551 and 1597 of 2009).

Ahmed Raza Qasuri, Senior Advocate Supreme Court for Applicant (in C.M.A. No.1597 of 2009).

Shahid Orakzai for Applicant (in person in C.M.As. Nos.1130, 1551 and 1597 of 2009).

Khawaja Haris Ahmed. Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.R.Ps. Nos.61 & 62 of 2009 in C.P. No. 878 & C.P. No.905 of 2008 (C.A. No.166 of 2009) along with C.M.A. No.1525 of 2009).

Agha Tariq Mehmood, D.A.-G. for Respondent No.1 (in C.R.Ps. Nos.61 and 6 in C.P.R. No.62 of 2009).

Nemo for Respondent Nos. 2-4 (in C.R.Ps. Nos.61 & 62 of 2009 in C.P. Nos. 878 & C.P. No.905/08 (C.A. No.166 of 2009) along with C.M.A. No.1525 of 2009).

Dr. Mohyuddin Qazi, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.5 (in C.R.Ps. Nos.61 and 1 in C.R.P. No.62 of 2009).

Shahid Orakzai for Applicant (in person in C.M.A. No.1525 of 2009).

Muhammad Raza Farooq, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner (in Crl. R. P. No.22 of 2009 in Crl.O.P.No.41 of 2009 in C.P.No.657-L of 2008).

Ahmed Raza Qasuri, Senior Advocate Supreme Court for Respondent No.1 (in Crl. R.P.No.22 of 2009 in Crl.O.P.No.41 of 2009 In C.P.No.657-L of 2008).

Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan (on Court's Call).

Dates of hearing: 11th to 26th May, 2009.

P L D 2009 Supreme Court 707

Present; Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

ZAR MUHAMMAD---Petitioner

Versus

Mian JAFAR SHAH and another---Respondents

Criminal Petition No.4-P of 2008, decided on 23rd April, 2009.

(On appeal from the judgment dated 15-2-2008, of the Peshawar High Court, Peshawar passed in Cr.M.1274 of 2007).

Criminal Procedure Code (V of 1898)---

----S5. 497(5)---Penal Code (XLV of 1860), Ss.302/324/34---Constitution of Pakistan (1973), Art.185(3)---Cancellation of bail, refusal of---Medical board consisting of four eminent Doctors constituted under the order of High Court, had examined the accused and found him suffering from serious heart disease, which needed management---High Court had allowed bail to accused on valid and sound reasons after having considered the matter .from all angles and the medical report---Gravity of the sickness of accused had constituted legitimate basis for his entitlement to bail under the proviso to S.497, Cr.P.C.---Bail granting order did not suffer from any infirmity, legal or factual---Leave to appeal was refused to complainant by Supreme Court in Circumstances.

Muhammad Arshad v. The State and another 1997 SCMR 1275; Raza Mohsin Qazilbash v. Muhammad Usman Malik and. others 1999 SCMR 1794; Haji Mir Aftab v. The State 1979 SCMR 320; Abdul Aziz v. Bashir Ahmed and the State PLD 1966 SC 658 and Muhammad Bashir v. The State 1991 PCr.LJ 2422 ref.

M. Zahoor Qureshi, Advocate-on-Record for Petitioner.

Mian Mohibullh Kakakhel, Senior Advocate Supreme Court for Respondent No.1 (appeared after Court hours).

Date of hearing: 23rd April, 2009.

P L D 2009 Supreme Court 709

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

MUHAMMAD SHARIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.598 of 2005, decided on 12th June, 2009.

(On appeal from the judgment dated 17-12-1998 of the High Court of Balochistan Quetta passed in Criminal Acquittal Appeal No.211 of 1998).

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

----Ss. 302, 342 & 365---Constitution of Pakistan (1973), Art.185(2)(a)---High Court had set aside the judgment of acquittal passed by the Trial Court and awarded death sentence to the accused---Scope of appeal to Supreme Court---Principles.

From the perusal of the constitutional and legal provisions and pronouncements by the esteemed Judges, the developing trend is evident and some of the principles deducible therefrom are that:---

(i) Where the High Court has, on appeal, reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life, the appeal lies before Supreme Court as of right under Article 185(2)(a) of the Constitution of Islamic Republic of Pakistan. Provision of a separate procedure for that purpose under Order XXII of the Supreme Court Rules, 1980, is a strong indicator in this regard. This itself is indicative of the importance and significance of acquittal which places the matter on different footing than others.

(ii) Supreme Court has every right of examining evidence in a criminal appeal if the interest of justice so demand for which purpose each case will have to be adjudged upon its on facts and circumstances and in case the court reaches the conclusion that the person has been dealt with in violation of the accepted principles of the administration of criminal justice then "no technical hurdles should be allowed to stand in its way of doing justice and seeing that injustice is not perpetuated or perpetrated by the decisions of the courts below".

(iii) As an ultimate court, Supreme Court must give due weight and consideration to the opinions of the courts below and normally the findings should not be interfered where the same "are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence". But where defect is discovered about tenability of finding in that case it should be open to the court to come to its own independent finding upon re-examination of the evidence untrammeled by the opinions of the courts below.

(iv) The position of the .trial Court being close to the scene of occurrence and familiar with ways and practices of the people involved having the benefit of recording evidence of witnesses, watching their demeanour, view formed by the said court should not be disregarded lightly.

(v) The benefit of any reasonable doubt must go to the accused person but where the conclusion about such a doubt leading to acquittal is wholly illogical or unreasonable, the same can be reversed by the higher court.

(vi) While giving the benefit of all doubts to the accused, the court has still to discharge the onerous function of not allowing an offender to escape justice.

(vii) The benefit of doubt if any cannot be given to the prosecution.

(viii) Mere suspicion howsoever strong or possible is not sufficient to justify conviction and all circumstances sought to be relied upon for basing conviction upon circumstantial evidence must be established beyond doubt.

(ix) Straining of evidence either in favour of the prosecution or in favour of the accused should neither be countenanced nor encouraged.

(x) While examining the views expressed by the Courts below it should be seen that the findings are not based on mere assumptions and conjectures.

(xi) The acquittal should not be interfered with, merely on the ground that another possible view of the evidence was available.

(xii) It is the fundamental duty of the prosecution to prove the guilt to the hilt and not of the accused to prove his plea of defence to the hilt and that the weakness or falseness of the defence plea is not to be taken into consideration while awarding punishment.

(xiii) That the court is to appraise evidence without being swayed away emotionally as accused is presumed to be innocent, until the guilt is proved against him by producing evidence of incriminating nature to connect him with the commission of crime beyond shadow of reasonable doubt.

(xiv) The principle that if a witness is not coming out with the whole truth his evidence is liable to be discarded as a whole is not that absolute and stand modified as his testimony will be acceptable against one set of accused, though rejected against the other subject to the rider that it must get independent corroboration on material particulars from credible, evidence based on the principle of "sifting chaff out of grain".

These are merely some of the known established principles being followed by the courts and certainly not exhaustive of situations arising from time to time and case to case.

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

---Ss. 302, 342 & 365---Qanun-e-Shahadat (10 of 1984), Art.40---Constitution of Pakistan (1973), Art.185(2)(a)---Appeal to Supreme Court---High Court had set aside the judgment of acquittal passed by the Trial Court and awarded death sentence to the accused---Re-examination, reappraisal and appreciation of evidence on record by Supreme Court, keeping in view the comparative treatment of the evidence made by the Trial Court and the High Court---Evidence brought on record by the prosecution and the defence plea of the accused had been analyzed from angles to find out as to how far the incriminating material was available to bring home the guilt and his involvement in the commission of the offence---Incident was an unseen one, the charge against accused was of the demand of ransom and murder---Father of victim, as per the evidence, was an illiterate person, unable to read or write, it was but natural if was not the meticulous consistency in his stance---Visible and obvious lapses on the part of prosecution were not understandable---Foundation of the case was raised on the ground of friendly contacts between accused and deceased; the transaction of sale of land and the business between them---No investigation, however,- was conducted on such aspect---Even the letter which became the basis for ransom demand its receipt by the father of the deceased had also a question mark---No effort was made to reach those children who delivered the said letter to the Chowkidar of the Hotel, nor even the Chowkidar was investigated---Neither the Chowkidar nor the owner of the Hotel, who read out and explained the letter to the father of deceased were produced before the court which meant that the Investigators did not perform the duty as was warranted by law---Arrest of accused itself appeared to have unfolded the whole episode---Accused made disclosures and provided solid clues; he led the investigators to the place of occurrence wherefrom the dead body and other incriminating articles were recovered; he by making confessional statement before the Magistrate solved the mystery as to how and why all that happened---Altercation that took place between the two (accused and deceased) about the payment of money, the harsh language and abuses hurled by the deceased resulting in spontaneous ugly situation of provocation taking the names of mother, sister and wife, pushing the deceased by the accused from the mountain and stoning him---No valid justification existed to disbelieve the Assistant Commissioner/S.D.M., who was an official and had neither any enmity with the accused nor any reason to misstate the facts---Chain of events, which led the investigators to ultimately unearth the facts was pointation of the place of occurrence by the accused and statement of facts given by him before the Magistrate---Being conscious of the risk of use of retracted confession, it could not be used alone as evidence for conviction, the other evidence of linkage was necessarily to be considered---Recovery of the dead body on the lead provided and at pointation of the accused and disclosures of events as to how it so happened, the medical evidence, the report of Chemical/Serologist, the recovery of currency notes from his residence on his pointation from the box lying underneath the cot were all important pieces of corroborative evidence which could not be ignored---Later denial of every thing by the accused including the disclosures and even appearance before the Magistrate lost its worth in the light of the hard facts---Accused's plea of torture by the investigators as per his statement under S.342, Cr.P.C. also was an afterthought; some doubt, if at all, that could be entertained, was about his intention to kill---Information of facts disclosed which led to the discovery of incriminating articles and material assumed relevance and significance---Held, there remained no doubt that the disclosures made and clue provided by the accused himself and unbroken chain of events furnished sound proof leading to the conclusion that the accused was the person who was responsible for the commission of the offence, whereby the deceased lost life---High Court, in circumstances, was justified in convicting the accused.

Principles and Digest of Qanun-e-Shahadat by Justice (Rtd.) Khalil-ur-Rehman Khan, Vol. I, Emporar v. Chokhey AIR 1937 All. 497; The State v. Mohinder Singh AIR 1953 Punjab 81; State of Uttar Pradesh v. Deoman Upadhyaya AIR 1960 SC 1125; Hakim Ali v. The State 1971 SCMR 412; Sh. Muhammad Amjad v. The State PLD 2003 SC 704 and Sher Zaman v. State and others PLJ 2006 SC 931 ref.

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

----S. 302, 342 & 365---Qanun-e-Shahadat (10 of 1984), Art.121, Illus.(b)---Constitution of Pakistan (1973), Art.185(2)(a)---Appeal to Supreme Court---Grave and sudden provocation---Sentence, reduction -in---Discretion of Court---Scope---High Court had set aside the judgment of acquittal passed by the Trial Court and awarded death sentence to the accused---Re-examination, reappraisal and appreciation of evidence-on?-record by Supreme Court---Provocative conduct and attitude of deceased i.e. hurling of abuses and calling bad names addressing his mother, sister and wife before his death could not altogether be ignored---Such a situation, as stated by accused, led to the incident of pushing of the deceased by him from the mountain, stoning him and covering him with stones recovered from the site---All that tend to show the resultant death of the deceased under such peculiar provocative circumstances, which may be relevant for considering the quantum of the sentence in such a context---Conviction of accused by High Court was absolutely justified, however, the peculiar facts and circumstances including that he was acquitted by the Trial Court but was sentenced to death by the High Court persuaded to adopt a lenient view in the matter of infliction of sentence as there was no apparent planning, premeditation or intention to kill the deceased; there being no preparation by the accused in that regard nor he had any crime weapon with him; filthy and vulgar abuses hurled and cursing by the deceased and thus heated altercation infuriating and giving rise to provocation; action of a man was to be judged in the background of the society to which he belonged as he was creature of his environment; in any case a serious doubt prevailing as to what actually happened just before the incident remained shrouded in mystery---Death penalty, in the facts and circumstances, manifestly appeared out of all proportions to the offence---Law itself (clause (b) of S.302, P.P.C.) empowered the Court to inflict either death penalty or imprisonment for life for which purpose however while exercising the choice, a discretion was left with the court to be exercised keeping in mind the facts and circumstances of a case---Depending upon the circumstances, the background and the facts of a case, the court was obliged to exercise option of awarding penalty---Court could inflict death penalty without hesitation, if the victim had been done to death in a ghostly, cold blooded, brutal manner or roasted alive etc.---Court, however, was expected to proceed very carefully and cautiously in the exercise of such discretion and not to ignore the gravity of the offence committed---Supreme Court found the present case, eminently a fit case in which awarding of life imprisonment would have met the ends of justice---While maintaining the conviction of accused, Supreme Court modified the sentence by converting the same from death to imprisonment for life; rest of the conviction was ordered to remain intact and benefit of S.382-B, Cr.P.C. was also made available to the accused.

Principles and Digest of Qanun-e-Shahadat Vol.II by Justice (R.) Khalil-ur-Rehman Khan; Abdul Haque v. The State PLD 1996 SC 1; Muhammad Imran alias Imrani v. The State PLD 2001 SC 956; Mst. Mumtaz Begum v. Ghulam Farid 2003 SCMR 647; Kora Ghasi v. State AIR 1983 SC 360; Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111; Muhammad Riaz and another v. The State 2007 SCMR 1413; Muhammad Sharif v. Muhammad Javed alias Jeda Tedi PLD 1976 SC 452; Muhammad Sharif and others v. The State 1991 .SCMR 1622; Sh. Liaquat Hussain and others v. Federation of Pakistan PLD 1999 SC 504; Tarun Bora alias Alok Hazarika v. State of Assam AIR 2002 SC 2926; Bachan Singh v. State of Punjab AIR 1980 SC 898; Machhi Singh and others v. State of Punjab AIR 1983 SC 957 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.9---Murder---Sentence, quantum of---Contemporaneous trends to be kept in view---Article 9 of the Constitution attaches great value to the "life and liberty" of human being which is most precious human right regarded by the Constitution as a Fundamental Right, therefore, as far as possible and whenever permissible (depending upon the circumstances of a case), the court may exercise its discretion in favour of lesser punishment, which also will be strictly legal having the statutory backing of S.302(b), P.P.C.---Such an. approach, is likely to be regarded as liberal, but will advance the rationale and philosophy behind the mandate of Art.9 of the Constitution.

(e) Constitution of Pakistan (1973)---

----Art. 184---Interpretation of provisions of Constitution---Duty of court---Scope---Courts including the Supreme Court are creation of the Constitution or the law; they are neither representative/legislative bodies nor supposed to legislate---Of course, courts being the custodian of the rights of the people, especially the Supreme Court, a forum provided by the Constitution itself under Art.184, is obliged and called upon on occasions to interpret any provision of the Constitution and law in the discharge of its sacred and onerous duty, and ensure that specified spheres are not transgressed by the respective organs of the State---Supreme Court thus has a peculiar and a vital role under the Constitution.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

. Muhammad Azam Khattak, Addl.A.-G. Balochistan for the State.

Date of hearing: 6th May, 2009.

P L D 2009 Supreme Court 749

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

MUHAMMAD QURAB KHAN---Petitioner

Versus

THE STATE-Respondent

Criminal Petition No.321 of 2009, decided on 25th June, 2009.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Bail petitions etc., filing of---Instructions to avoid delay in disposal of urgent cases---In view of the difficulties of the accused persons confined in custody, it was ordered on administration side that before submitting bail petitions/appeals, a copy of the same would be handed over to prosecutor against signatures, who would confirm the receipt thereof by acknowledgment, so that he might arrange the record of the case on the date fixed for hearing with a view to avoid delay in disposal of the cases, particularly relating to bail before arrest and bail after arrest etc.---Matters which required urgent hearing were being delayed---In future, therefore, all the Advocates-on-Record may be asked to handover copies of the bail petitions to the Prosecutor General or his representative against the acknowledgment and the Prosecutor General on receipt of the same, shall immediately manage procurement of the record i.e., police record and other necessary documents and after going through the contents of the petition he shall be ready on the first day of the hearing, instead of receiving the notice and delaying the disposal of the matter for two or three dates of hearing, which would add to difficulties and miseries of the persons in custody---Supreme Court directed that copy of this order be circulated to all the Advocates-on-Record by names in Islamabad, as well as at Branch Registries---Incharge Officer, to whom such petitions are presented, shall also ensure compliance of the above order.

Kareem ud Din Khilji, Advocate Supreme Court for Petitioner.

Ch. Tariq M.ehmood, Addl. P.G. Punjab for the State.

Date of hearing: 25th June, 2009.

P L D 2009 Supreme Court 751

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Mahmood Akhtar Shahid Siddiqui, JJ

MUHAMMAD HANEEF---Petitioner

Versus

ABDUL SAMAD and others---Respondents

Civil Petition No.3769-L of 2001, decided on 26th May, 2009.

(On appeal from judgment, dated 5-7-2001 of the Lahore High Court, Bahawalpur Bench, passed in C.R. No.187-D of 1989).

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

----S. 42---Transfer of Property Act (IV of 1882), S.41---Suit for declaration---Exchange mutation showed that mother got transferred in her favour the suit-land of her minor daughter, by way of exchange---Nothing was available on record to show that mother was ever appointed by a competent Court to be guardian of the property of her minor daughter---Mother of the minor daughter was not the natural guardian to deal with the property of her minor daughter under Islamic law, at the most, she was de facto guardian of property of her daughter---Exchange mutation, in circumstances, showing exchange of suit-land between the mother and her minor daughter was illegal---Person who had purchased the suit-land could not be said to have taken any reasonable care, or having acted in good faith to find out whether or not the mother had the power to make transfer of the suit-land on strength of exchange mutation---Said person was not entitled to take protection of S.41, Transfer of Property Act, 1882.

(b) Islamic law---

----Guardianship---Persons entitled to be the guardians of the property of minor---De facto guardian has no power to transfer any right or interest in the immovable property of the minor---Principles.

The following persons are entitled in the order mentioned below to be the guardians of the property of a minor:---

(1) The father;

(2) The executor appointed by the father's will;

(3) The father's father;

(4) The executor appointed by the will of the father's father.

In default of the legal guardians (as above) the duty of appointing a guardian for the protection and preservation of the minor's property falls on the Judge as representing the State. A person may neither be a legal guardian nor a guardian appointed by the court but may have voluntarily placed himself incharge of the person and property of a minor is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor. A de facto guardian has no power to transfer any right or interest in the immovable property of the minor.

Under the Islamic law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni Law), is the legal guardian. If the father dies without appointing an executor (Wasi) and his father is alive the guardianship of his minor children devolves on their grandfather. Should he also be dead, and have left an executor, it vests in him. In default of these de jure guardians the duty of appointing a guardian for the protection and preservation of the infant's property devolves on the Judge as the representative of the sovereign. When the mother is the father's executrix or is appointed by the Judge as guardian of the minors, she has all the powers of a de jure guardian.

Mahomedan Law by D.F. Mulla, (Pakistan Edition) (1995); Ahmed Khan and others v. Rasool Bakhsh and others PLD 1975 SC 311; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Imambandi and others v. Haji Mutsaddi and others (AIR 1918 P.C. 11 = 45 Indian Appeals 73 = 1918 (47 Indian Cases 5"13); Muhammad Ejaz Hussain and another v. Muhammad Iftikahr Hussain and others AIR 1932 P.C. 76; Mst. Abdara v. Salim Khan and others PLD 1992 Pesh. 98; Mst. Subhan Bibi and another v. Mst. Musarrat Jabeen and others PLD 1969 Kar. 563; Musali Khan v. Nazir Ahmed and others PLD 1952 Pesh. 1; Ziarat Gul v. Mian Khan PLD 1950 Pesh. 69; Zinda and others v. Mst. Roshna and another AIR 1928 Lah. 250; Rang Ilahi and another v. Mahboob Ilahi AIR 1926 Lah. 170; Methiyan Siddqu v. Muhammad Kanju AIR 1996 SC 1003; Mahboob Sahab v. Ismail AIR 1995 SC 1205; Mt. Anto v. Mt. Reoti Kuar and others AIR 1936 Allahabad 337; Muhammad Moizuddin Mia and others v. Nalini Bala Devi AIR 1937 Calcutta 284; Bhikaji Ramchandra Shimpi v. Ajagarally Sarafally Bohori and others AIR 1946 Born. 57; Sk. Md. Zafir v. Sk Amiruddin and others AIR 1963 Pat. 108 and Ali Muhammad v. Rammniwas and another AIR 1967 Raj. 258 ref.

Malik Amjad Perwaiz, Advocate Supreme Court and Sh. Salahud Din, Advocate-on-Record for Petitioner.

Muhammad Farooq Qureshi Chishti, Advocate Supreme Court for Respondents Nos. 1 to 5.

Date of hearing: 26th May, 2009.

P L D 2009 Supreme Court 757

Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

NAEEM IQBAL and 2 others---Appellants

Versus

NOREEN SALEEM and others---Respondents

Civil Appeal No. 973 of 2006, decided on 28th April, 2009.

(On appeal from the order dated 12-4-20Q6 of the Lahore High Court, Rawalpindi Bench passed in W.P.No.1899 of 2004).

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether appearance of defendant (husband) through special attorney was illegal.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S.5---Recovery of maintenance---Appearance through special attorney---Compromise between the parties---Suit for recovery of maintenance was decreed in favour of wife by Family Court---Appeal filed by husband was dismissed by Lower Appellate Court on the ground that for the purpose of filing written statement, husband was bound to appear in Family Court himself and his attendance could not be dispensed with, and as husband filed written statement through special attorney, therefore, suit remained uncontested---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Validity---Such view of Lower Appellate Court was contrary to the earlier view of High Court---No party could be non-suited merely for the reason because a plaint/written statement as the case might be, had not been filed by concerned party in person rather through her/his attorney---Attorney of husband had agreed to make payment to wife in instalments, therefore, Supreme Court directed the attorney to deposit the instalments---Supreme Court directed the Family Court to initiate execution proceedings for recovery of balance amount in lump sum, in case of non-payment of two consecutive instalments---Appeal was disposed of.

Shahida Parveen v. Sher Afzal 2006 MLD 1752 ref.

Muhammad Ilyas Sheikh Advocate Supreme Court for Appellants.

Syed Azhar Naveed Shah, Advocate Supreme Court for Respondent No.1.

P L D 2009 Supreme Court 760

Present: Faqir Muhammad Khokhar, M. Javed Buttar and Zia Perwez, JJ

TAUQEER AHMAD QURESHI---Appellant

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others---Respondents

Civil Appeal N.748 of 2008, decided on 2nd February, 2009.

(On appeal from the judgment, dated 4-3-2008 of Lahore High Court, Lahore passed in Writ Petition No.310 of 2006).

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Grant of maintenance allowance, to minors by Family Court---Factors to be kept in mind by the Family Court---Minors were entitled to be maintained by the father in the manner befitting the status and financial condition of the father and for that reason the Family Court was under an obligation, while granting the maintenance allowance, to keep in mind the financial condition and status of the father; court was to make an inquiry in this regard and could . not act arbitrarily or whimsically---Unjust enrichment of the minors could not be permitted---Awarding 20% annual increase in the maintenance allowance granted by Family Court, without any basis or criteria and without giving any reason for awarding said increase, was arbitrary, illegal and whimsical---Contention that school fees of the minors were more than the rate of maintenance allowance granted by the Family Court, therefore, the annual increase should not be interfered with had no force---Father's obligation to maintain the minors was only to the extent of his status and financial condition and Family Court must keep these factors in mind while granting maintenance.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----Ss. 5 & 13----Decree of maintenance allowance to minors by the Family Court with an annual increase of 20% in the amount of monthly allowance---Execution of decree---Executing Court though could not go behind the decree but at the same time the said court could look into the questions whether the decree or part thereof was executable or inexecutable and if for any reason the decree had become in-executable, the Executing Court was empowered to declare so and if a part of the decree was inexecutable and that part was severable from the other part(s) of the decree then the Executing Court was empowered to refuse the execution of the inexecutable part of the decree and may proceed with the execution of the rest of the decree---In the present case, there was nothing on the record to show that the father of the minors had the means to pay the increase as ordered by the Trial Court---Minors, for the future prospects, could always approach the Family Court for the increase in the maintenance a allowance due to any change in the circumstances---Judgment of High Court and the courts below were, therefore, not sustainable to the extent of 20% increase in the maintenance allowance of minors who shall be entitled only to the 5% annual increase in the allowance which would meet the ends of justice. ?

Civil Petition No.76-L of 2007; Haji Hafiz Abdul Shakoor Khan v. Administrator, Municipal Committee, Multan PLD 1951 Lah.32; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Fakir Abdullah and others v. Government of Sindh through Secretary to Government Sindh Secretariat, Karachi and others PLD 2001 SC 131; Messrs A. Z Company v. Messrs S. Maula Bukhsh Muhammad Bashir PLD 1965 SC 505 and Management of the Northern Railway Co-operative Credit Society Ltd., Jodhpur, v. Industrial Tribunal, Rajasthan, Jaipur and another AIR 1967 SC 1182 ref.

Amir Alam Khan, Senior Advocate Supreme Court for Appellant.

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondents Nos.2 and 3.

Date of hearing: 2nd February, 2009.

P L D 2009 Supreme Court 768

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Syed Sakhi Hussain Bokhari, JJ

AZMAT and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No. 365-L of 2008, decided on 28th April, 2009.

(On appeal from order, dated 2-7-2008 of the Lahore High Court, Lahore, passed in Criminal Revision No. 1016 of 2006).

Penal Code (XLV of 1860)---

----Ss. 302(b), 309, 310, 311 & 313(2)(b)---Criminal Procedure Code (V of 1898), S.345(2)(6)---Qatl-e-Amd---Compromise between the parties--Effect-Acquittal was not an automatic consequence of a compromise reached between the parties---Accused persons, facing trial of "Qatl-e-Amd" of their real father, of their step-mother and of their two step-sisters who were minors at the time of occurrence, submitted an application before Trial Court that all the adult "Walis" of the said deceased victims had granted AFW (pardon) to them in the .name of Allah; that they be allowed to deposit the "Diyat" payable to minor to Walis and that they then, be acquitted of the said charge---Trial Court and High Court declined the grant---Validity---Provisions of Ss.309 & 310, P.P.C. did not envisage acquittal of accused persons as a result of the grant of AFW or as a consequence of the compounding of the offence on payment of "Badle-e-Sulh"---Most that could be achieved thereby was merely a waiver of the right of "Qisas" and no more which was also subject to the provisions of S.311, P.P.C. whereunder, despite a grant of AFW or the compounding of the offence, the offender could still be punished even with death by way of "Tazir", if the case was one of "Fasad-Fil-Arz" or where all the "Walis" did not join in the compromise---Acquittal of persons accused, inter alia, of commission of "Qatl-e-Amd" was however, authorised through an amendment of S.345(2)(6), Cr.P.C.---Position which emerges from perusal of the provisions of Ss.309, 310 & 311, P.P.C. and that of S.345(2)(6), Cr.P.C. and as to what would be required to be done by court on being informed of such compromise, detailed.

The position which emerges from a perusal of the provisions of sections 309, 310 and 311 of the P.P.C. and of subsections (2) and (6) of section 345 of the Code of Criminal Procedure, is:---

(a) that grant of "AFW" or the compounding of the offence of "Qatl-e-Amd" under sections 309 and 310, P.P.C., respectively, meant only the waiver of the right of "Qisas" and not acquittal of an accused person;

(b) that where all the "Walis" did not join in the grant of `AFW" or in the compounding of the offence or where even when all the Walis did so join but the case was one of "Fasad-fil-Arz", the offender could still be punished by way of "Tazir" in view of the provisions of section 311 of the Pakistan Penal Code;

(c) that "Fasad-Fil-Arz" had not been defined by the said Code though the provisions of the said section 311, P.P.C. did explain the said concept;

(d) that it would not be wise or even appropriate to attempt a precise definition of the said expression which could restrict its area of operation but the examples of "Fasad-fil-Arz" could include cases of terrorism or, for instance, cases where a State functionary was murdered to deter him from performing his official duties;

(e) that acquittal of persons, accused amongst others of murder cases, as a result of a compromise, was envisaged, authorized and then even regulated by the provisions of subsections (2) and (6) of section 345 of the Cr.P.C.;

(f) that even under the said provisions of section 345, Cr.P.C. acquittal was not an automatic result of a compromise even if reached by all the heirs of a deceased victim of the offence;

(g) that such an acquittal had been made subject to the grant of permission by the competent court meaning thereby that even where all the heirs of a deceased victim entered into a compromise with the offender, the court could still, for valid reasons, withhold its permission to allow the compromise and could consequently refuse to acquit the accused;

(h) that it would again be neither possible nor even desirable to categorise cases into classes where such a permission should be granted or where the same should' be withheld. Such a decision shall have to be taken by the concerned court after applying its judicial mind to all the attending facts and circumstances of a given case such as the past conduct and character of the accused person; the reasons leading him to committing the murder; the manner in which the said crime was committed; how reckless or brutal was such an act and of course the question whether the act in question amounted to "Fasad-fil-Arz".

It will thus be noticed that, acquittal was not an automatic consequence of a compromise reached between the parties. Therefore, what would be required to be done by a court, on being informed of such a compromise, would be;

(a) to see whether all the heirs had joined in the compromise;

(b) to also see whether any of the "Walis" was a minor and if so, whether such a minor had also reached a compromise in accordance with the provision of section 313(2)(b) of the P.P.C. and if not then such a minor would have to be treated as a non-compromising "Wali";

(c) in case of a compromise by all the heirs, to find out whether the case was one of "Fasad-Fil-Arz" and thus, not a case of acquittal despite such a compromise and in fact a case of punishment under section 311, P.P.C.; and

(d) to find out also whether any facts or circumstances existed which could persuade the court not to allow the compromise in terms of section 345(2) of the Cr.P.C.

What, therefore, follows is that, on hearing of a compromise reached between the parties, the court should not rush blindly to record acquittal of the accused person but should hold an inquiry to determine the facts mentioned and it should then be, as a result of such an exercise, that the court should decide whether to acquit the accused person on account of a compromise or not. Where a compromise is claimed after the evidence has been recorded at the trial, it will be easy for the court to find the facts relevant for section 311, P.P.C. and for the purposes of section 345(2) of the Cr.P.C. But where a compromise has been reached before recording of evidence, it may be advisable for the concerned court to postpone its decision about the acquittal or otherwise of the accused person; to discover all the facts and circumstances which could assist such a court to find out whether the case was not one of "Fasad-?fil-Arz" or a case where the court should withhold its permission to the compounding of the offence and might even require leading of evidence for the purpose and it should be then, after application of its judicial mind, that the court should take its decision about the acquittal or otherwise of the accused person. Whatever decision is taken by the concerned court, either way, should be reflected through a speaking order giving reasons for such a decision.

Zubair Ahmed Farooq, Advocate Supreme Court for Petitioners.

Alamgir, Addl. P.G. Punjab for the State.

Dost Muhammad Kahoot, Advocate Supreme Court for the Complainant.

Date of hearing: 28th April, 2009.

P L D 2009 Supreme Court 777

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD ASLAM and others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos.229 and 356 of 2006, decided on 4th May, 2009.

(Against the judgment, dated 1-3-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1009 of 2001 and Murder Reference No.396 of 2001)

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.342--Constitution of Pakistan (1973), Art.185(3)---Qatl-e-Amd---Accused, during the course of his examination under S.342, Cr.P.C., claimed, for - the first time that he was 17/1-2 years of age at the time of making said statement, about six months after the occurrence, and produced a school leaving certificate according to which he was seventeen years and seven days old on the day of occurrence---Trial Court, relying on the Birth Register produced by the prosecution concluded that the accused was not less than eighteen years of age at the time of occurrence and punished him with death sentence---High Court maintained the conviction but converted death sentence to imprisonment for life holding, that accused was less than 18 years of age at the time of occurrence on the ground that the copy of the Birth Register produced by the prosecution had been produced late and had not been put to the accused person during his statement under section 342, Cr.P.C. and thus the same had to be ruled out of consideration---Leave to appeal was granted by Supreme Court to the complainant who had sought enhancement of sentence of accused, to consider question as to what was the option left for the prosecution to rebut the claim of the convict when such a claim had been made, for the first time, during the statement under S.342, Cr.P.C. and by producing the said school certificate during the course of said statement, in view of Supreme Court verdict to the effect that an accused person was obliged to take the plea of minority at the earliest stage preferably during the course of investigation---Convict having also filed petition for leave to appeal seeking his acquittal, Supreme Court granted leave to appeal to him also so that both the matters could be examined together.

Sultan Ahmed v. Additional Sessions Judge and others PLD 2004 SC 758 ref.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.367(5)---Qatl-e-Amd---Sentence, quantum of---Determination---Determining the quantum of punishment deserved by a convict, especially in the matter of offences which are punishable also with death, should not be taken lightly as a mere triviality and court need to keep reminding itself that the normal punishment for such-like offences was death and death alone; it was for this reason that provision of S.367(5), Cr.P.C. commanded that court shall in its judgment state the reasons why sentence of death was not passed---Rule in such-like cases, therefore, was, imposition of sentence of death and a punishment other than death could, thus, be awarded only in exceptional cases and that also on strict proof of facts and circumstances justifying a deviation from the said normal rule.

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

----S. 302(b)---Juvenile Justice System Ordinance (XXII of 2000), S.7---Qatl-e-Amd---Death sentence---If a convict, wishes to avoid death penalty on account of being less than 18 years of age, the onus would be on him to prove his minority for the purpose---Where an accused claims minority then such a plea must be taken by him at the earliest available opportunity and he should not be allowed to throw surprises at the prosecution and at the fag end of the trials or at appellate or revisional stages depriving the prosecution of opportunities to rebut such claims in a proper manner---Whenever such a plea is raised, the courts of law could fall into error by accepting the same only because some school certificate so said---Provisions of S.7, Juvenile Justice System Ordinance, 2000 mandate a proper inquiry into the said issue wherein the courts should require production of evidence for proof of age in accordance with the manner and the procedure prescribed by the Qanun?-e-Shahadat, 1984 and wherein the other side is also afforded opportunities which are envisaged and guaranteed by the Qanun-e-Shahadat---Entertaining documents handed down from across the bar and then acting upon the same, would be fraught with 'the danger of the courts being misled into passing unwarranted orders-Such-like documents should never' be accepted without first testing their authenticity and genuineness which would be possible only if the procedure prescribed by the Qanun-e-Shahadat was followed and where the accused was also put through the requisite medical examination---Exercise undertaken by the Trial Court as also by the High Court, to resolve the issue in question, in the present case, was disapproved and Supreme Court observed that consequent findings about the minority of the convict could not be sustained---Supreme Court further observed that the court would have ordinarily remanded the matter to the Trial Court to hold a proper inquiry in the matter and to determine the question of the convict's age afresh but since some other material was available on record which offered a valid ground to sustain a sentence of imprisonment for life and not to award the normal penalty of death to the convict in case his conviction was maintained, therefore, in order to avoid an avoidable further delay court had decided to dispose of the matter on its present record.

If a convict, for example, wishes to avoid death penalty on account of being less than 18 years of age, then the onus would be on him to prove hid minority for the purpose. Where an accused claims minority then such a plea must be taken by him at the earliest available opportunity and he should not be allowed to throw surprises at the prosecution and at the courts at the fag end of the trials or at the appellate or revisional stages depriving the prosecution of opportunities to rebut such claims in a proper manner. Whenever such a pleads raised, the courts of law could fall into error by accepting the same only because some school leaving certificate so said. The provisions of section 7 of the Juvenile Justice System Ordinance, 2000 mandate a proper inquiry into the said issue wherein the courts should require production of evidence for proof of age in accordance with the manner and the procedure prescribed by the Qanun-e-Shahadat Order, 1984 and wherein the other side is also afforded opportunities which are envisaged and guaranteed by the said order. Entertaining documents handed down from across the bar and then acting upon the same, would be fraught with the danger of the courts being misled into passing unwarranted orders. Such-like documents should never be accepted without being tested for their authenticity and genuineness which would be possible only if the procedure prescribed by the said Order of 1984 was followed and where the accused was also put through the requisite medical examination.

In the present case, it was only after the prosecution had closed its case and while accused was being examined under section 342, Cr.P.C. that he shot out a School Leaving Certificate into the trial, claiming that he was less than 18 years of age at the time of occurrence. Left with no other option, the Prosecutor placed on record, a copy of the Register of Births relating to the birth of the said accused to controvert his claim of minority as according to the said entry, the said accused was more than 20 years of age at the relevant time. The trial Court did not accept the said claim of the accused and while convicting him under section 302(b), P.P.C., punished him with death. But, while hearing his appeal, the High Court declared the said convict to be a "child" after ruling out of consideration, the said copy of the Register of Births, on the ground:---

(a) that the defence had objected to the admissibility of the said copy of the Register of Births but the said objection had not been decided by the Trial Court; and

(b) that the said .document had not been put to the said accused during the course of his examination under section 342, Cr.P.C. and that any piece of evidence not so put to the accused, could not be used against him.

It was the convict himself who had chosen a rather late stage of the trial i.e. during the course of his examination under section 342, Cr.P.C., to lay claim to minority. Where was, in the circumstances, an occasion or opportunity for the Prosecutor or even for the court to put, the entry of his birth in the relevant Register, to him during the said statement? Punishing the prosecution in such a situation would be giving premium to a party for his own follies which could not be approved. Secondly, the special plea of minority, in order to escape death penalty, had been taken by the accused. Onus thus, lay on him to prove the said fact beyond all doubts. The accused could not be deemed to have discharged the said burden by merely placing a School Leaving Certificate on record and more so when no opportunity had been provided to the other side to test the veracity or the genuineness of the said document or the contents thereof. Thirdly, the accused, might well be a favourite child of law but then this favouritism could not be permitted to be extended to an extent where the legal requirements had to be ignored and sacrificed.??

Supreme Court disapproved the exercise undertaken by the trial Court as also by the High Court to resolve the issue in question in the present case. Nor could the consequent findings about the minority of the convict be resultantly sustained. Supreme Court, observed that the court would have ordinarily remanded the matter back to the trial Court to hold a proper inquiry in the matter and to determine the question of the convict's age afresh but since some other material was available on record which offered a valid ground to sustain a sentence of imprisonment for life and not to award the normal penalty of death to the convict in case his conviction was maintained, therefore, in order to avoid an avoidable further delay, Supreme Court decided to dispose of the matter on its present record.?

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

----S. 302(b)---Juvenile Justice System Ordinance (XXII of 2000), S.7---Criminal Procedure Code (V of 1898), S.367(5)---Qanun-e-Shahadat (10 of 1984), Preamble---Determination of age of accused persons vis-a-vis their claim of minority---Procedure to be followed for the purpose summarized.

Principles regulating the determination of age of accused persons vis-a-vis their claim of minority and the procedure to be followed for the purpose summarized as under:---

(a) The normal penalty for an offence punishable with death, is death, and in view of the provisions of section 367(5), Cr.P.C., special reasons must exist to impose, on the convict, a punishment other than a sentence of death;

(b) the plea of minority by an accused is a special plea intended to take the accused off the noose and onus is thus on him to prove the same;

(c) such a plea of minority must be taken by the accused at the earliest' possible opportunity, preferably during the course of investigation so that the requisite evidence about the age of the accused could also be properly collected during the said exercise of collection of evidence and any delayed claim on the said account should be met by adverse inferences;

(d) whenever such a question of age is raised or arises at the trial, the courts should not deal with the same in a cursory. or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of section 7 of the Juvenile Justice System Ordinance including medical examination of the accused for the purpose;

(e) the said inquiry should not be understood to mean only to entertain documents from across the bar and then giving a decision thereon. Such a practice need not only to be discouraged but, in fact, to be discontinued. Basing judicial decisions on untested and un-scrutinised documents was a dangerous path to tread;

(f) proper compliance of the said provisions of section 7 would be to call upon the parties to lead their evidence -- oral or documentary In accordance with the provisions of Qanun-e-Shahadat Order of 1984 with a right to the other party to test the veracity or the genuineness of the same in accordance with law and then to arrive at a judicial decision in terms thereof;

(g) a medical examination of the accused person could furnish a useful guideline in the matter and should be resorted to; and finally, (h) Court must always keep in mind that while it is important, being a legal command, that a "child" should not be sent to the gallows, it is equally important that the one who deserves death must not be allowed to escape the same on the strength of false and fabricated material.?

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

----S. 302(b)---Appraisal of evidence---Sentence, quantum of---Determination---Occurrence in question had taken place in broad-daylight and venue thereof was the shop of the deceased party---No background of any previous enmity or animosity between the two sides was available in the evidence---Both the eye-witnesses of the occurrence were real brothers of deceased and they had no reason or motive to falsely implicate the accused in the murder in question, they were thus, independent witnesses of the occurrence---Record showed that the place of occurrence was one of the two adjacent shops of the deceased party and both these eye-witnesses used to be working on the said shops---Time of occurrence was 2-30 p.m.---Said eye-witnesses were not only independent but even natural witnesses to the crime and their testimony inspired confidence---No exception, in circumstances, could be taken to the finding of guilt recorded against the convict by the Trial Court was maintained by the High Court---Motive alleged for the murder was a trivial altercation between deceased and convict about 3/4 hours before the actual occurrence---Had it been so and if the convict was to return to the place of occurrence after the said period of time only to do the deceased to death, then he would not have come armed only with a Chhuri knowing fully well that the deceased party were four young brothers working and available at the said place of occurrence and a mere Chhuri could not have served the purpose and would have in fact landed the convict himself into trouble--Apparently, it was during the course of the said altercation at the shop of the deceased party that the convict had picked up a Chhuri therefrom and had dealt a solitary blow to the deceased therewith---Eye-witnesses had stated that they ran a vegetable shop and a poultry meat shop at the place of occurrence where' instruments like Chhuris were readily available---Occurrence thus being one which had cropped up at the spur of the moment where the convict had picked up a weapon available at the spot and had given a single blow to the deceased, certainly offered valid reasons for not imposing the normal penalty of death on the convict who was thus, entitled to lesser of the two penalties i.e. a punishment of imprisonment for life---Consequently no ease of awarding a punishment of death to convict was made out---Order accordingly.?

Mian Muhammad Nawaz, Advocate Supreme Court for Appellants (in Criminal Appeal No.229 of 2006).

Ehsan-ul-Haq Ch., Advocate Supreme Court, Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Appellants (in Criminal Appeal No.356 of 2006 and for Respondent No.2 (in Criminal Appeal No.229 of 2006).

Alamgir, Addl. P.G. for the State.

P L D 2009 Supreme Court 789

Present: Iftikhar Muhammad Chaudhry, C.J. Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

SINDH HIGH COURT BAR ASSOCIATION through Secretary and another---Petitioners

Versus

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

Constitutional Petitions Nos. 9 and 8 of 2009, decided' on 31st July, 2009.

Proclamation of Emergency dated 3-11-2007--

----Provisional Constitution Order [1 of 2007]---Oath of Office (Judges) Order, 2007---Provisional Constitution (Amendment) Order, 2007---Constitution (Amendment) Order [5 of 2007]---Constitution (Second Amendment) Order [6 of 2007]---Islamabad High Court (Establishment) Order [7 of 2007]---High Court Judges (Pensionary Benefits) Order [8 of 2007]---Supreme Court Judges (Pensionary Benefits) Order [9 of 2007]---Supreme Court (Number of Judges) Act (XXXIII of 1997)---Constitution of Pakistan (1973), Arts.176, 128, 89, 209(8), 177 & 184(3)---Constitutional petitions before Supreme Court under Art. 184(3) of the Constitution---Removal of Judges of Supreme Court and High Courts in violation of Art.209 of the Constitution; purported acts done by General Pervez Musharraf (Retd.) between 3-11-2007 and 16-12-2007 aimed at suspending and amending the Constitution of Pakistan through several instruments; appointment of Judges of superior judiciary on or' after 3-11-2007 uptill 23-3-2008 without consultation of de jure Chief Justice of Pakistan; opinion of Mr. Justice Abdul Hameed Dogar, as then he was called, that term of office of two Additional Judges of High Court of Sindh had not expired and two judgments of the Supreme Court, dated 23-11-2007 and 15-2-2008 on Constitutional Petitions Nos.87 and 88 of 2007 filed by Tika Iqbal Muhammad Khan and Watan Party reported in (PLD 2008 SC 6 and PLD 2008 SC 178), and Review Petition No.7 of 2008 reported in (PLD 2008 SC 615)---Validity---Held, General Pervez Musharraf (Rtd.) in the garb of Emergency Plus and the Provisional Constitution Order made amendments in the Constitution by self-acquired powers which were all unconstitutional, unauthorized, without any legal basis, hence, without any legal consequences---Mr. Justice Abdul Hameed Dogar, took oath as CJP in violation of the order dated 3-11-2007 passed by a 7 member Bench headed by de jure Chief Justice of Pakistan and in pursuance of unconstitutional instruments introduced by General Pervez Musharraf (Rtd.), additionally knowing well that the office of Chief Justice of Pakistan was not lying vacant---Judges who were either retired or were not holding any judicial office, besides those in High Courts took fresh oath on their appointment on and after 3-11-2007 till 15-12-2007 in Supreme Court where the full strength of Judges along with an Ad hoc Judge appointed under the Constitution were already working and thus there was no vacancy---Similarly, many Judges took oath in Provincial High Courts; all of them did so in violation of order dated 3-11-2007 passed by 7 member Bench headed by de' jure Chief Justice of Pakistan---Four incumbent Judges already functioning in the Supreme Court took fresh oath under the influence of and in pursuance of unconstitutional steps of General Pervez Musharraf (Rtd.)---Petition No.73 of 2007 filed by Mr. Justice (Rtd.) Wajihuddin Ahmad (PLD 2008 SC 25) challenging the eligibility of General Pervez Musharraf (Rtd.) to contest for the office of President in Uniform was dismissed purportedly on merits although the record maintained in the Supreme Court revealed otherwise---Decisions in the cases of Tikka Iqbal Muhammad Khan granting validity to the actions of General Pervez Musharraf (Rtd.) were per incurium, coram non judice, without any legal basis hence, of no legal consequences---Amendments in the Supreme Court (Number of Judges) Act, 1997 by way of Finance Act, 2008 raising the strength of Judges in Supreme Court from 17 (1+ 16) to 30 (1+29) seemingly aimed at providing allocation of funds for increasing the strength of Judges was unconstitutional because the strength of Judges of Supreme Court was to be increased by Parliament as defined in Article 50 to be read with Article 260 of the Constitution which defined the acts of Parliament---In the past the Courts of the time used to extend favours empowering the adventurers to amend the Constitution in actual effect were to achieve their overt and covert agenda but this time, such powers were acquired by General Pervez Musharraf (Rtd.) himself through the Provisional Constitution Order and brought a host of unconstitutional amendments for his own benefits--Present representatives of people firmly believe in strong andindependent judiciary and the democratic system which was evident from the fact that the deposed Judges of Supreme Court, High Courts and the de jure Chief Justice of Pakistan were restored with effect from 3rd of November; 2007 implying that the present representatives of people denied the validity of the actions of General Pervez Musharraf (Rtd.) taken from 3-11-2007 to 15-12-2007 during which the Constitution remained suspended---Judgments purported to have been delivered in Constitutional Petitions bearing Nos.87 and 88 of 2007 in the case titled as Tika Iqbal Muhammad Khan v. General Pervez Musharraf and others (PLD 2008 SC 6 and PLD 2008 SC 178) and the judgment dated 15-2-2008, purported to have been passed in C.R.P.No.7 of 2008 titled as Tika Iqbal Muhammad Khan v. General Pervez Musharraf and others (PLD 2008 SC 615) and any other judgment/judgments passed on the strength of the said two judgments were declared to be void ab initio---Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No.1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; Provisional Constitution (Amendment) Order, 2007 issued by him likewise on 15-11-2007; the Constitution (Amendment) Order, 2007 being President's Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President's Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order, 2007 dated 14th December, 2007 being the President's Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President's Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President's Order No.9 of 2007 dated 14th December, 2007 were declared to be unconstitutional, ultra vires of the Constitution and consequently being illegal and of no legal effect---Legal consequences elaborated.?

Following were held to be the legal consequences of the above:--

(i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the. High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore alleged judgments or any other such judgment and on- account of the abovementioned instruments shall be deemed never to have ceased to be. such Judges, irrespective of any notification issued regarding their reappointment or restoration;

(ii) it was declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it was further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un-constitutional, void ab initio and of no legal effect:

Provided that subject to whatever was contained hereinafter, the said unconstitutional appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office;

(iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, unconstitutionally held the said office from 3.11.2007 to 22.3.2009 (both days inclusive) were declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith:

Provided that the Judges so unconstitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and likewise, the Judges of the High Courts, who were District and Sessions Judges before their said un-constitutional elevation to the High Courts shall revert back as District and Sessions Judges subject to limitation of superannuation;

(iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Court, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3-11-2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3-11-2007 in C.M.A.No.2869 of 2007 in Constitutional Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly:

Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3-11-2007 to 22-3-2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the Constitutional Chief Justice of Pakistan;

(v) any judgments delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which included the afore-described Judges whose appointments had been declared void ab initio, were protected on the principle laid down in Malik Asad Ali's case (PLD 1998 SC 161);

(vi) since the Constitution (Amendment) Order, 2007 being the President's Order No.5 of 2007 and the Islamabad High Court (Establishment) Order being President's Order No.7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, were declared to be un-constitutional and of no legal effect, therefore, the said Islamabad High Court shall cease to exist forthwith. All judicial matters pending before the said High Court before the passing of present order shall revert/stand transferred to the courts which had jurisdiction in the said matters before the promulgation of President's Order No.5 of 2007 and President's Order No.7 of 2007 promulgated on 14th December, 2007. The Judges of the said Court shall, as a consequence thereof, cease to be Judges except such Judges or the Chief Justice of the said court, who prior to their appointments in the said Islamabad High Court, were Judges of some other High Court who shall revert to the court of which they were originally the Judges, subject to their age of superannuation. The officers and employees of the said Court shall also cease to hold their respective appointments and shall become part of the Federal Government Surplus Pool for their further appointments. However, if any such officer or employee was an officer or an employee of some other court or department or office, .such officers or employees shall revert to their respective courts, departments or offices to which they belonged before joining the service in the Islamabad High Court, subject .again to their age of superannuation;

Establishment of a High Court or a Federal Court for the Federal Capital Territory might be a desirable act but such a step was taken in an un-constitutional and a highly objectionable manner. Notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a court in accordance with the Constitution/the law;

(vii) the Ordinances promulgated by the President or a Governor of a Province before 3-11-2007 which were given permanence by the Provisional Constitution Order No.1 of 2007 as also the Ordinances issued by the President or a Governor between 3-11-2007 and 1.5-12-2008 (both days inclusive) which were also, like-wise given permanence through the same instrument and which legislative measures along with the said Provisional Constitution Order had been validated by the aforementioned judgment delivered in Tika Iqbal Muhammad Khan's Case stood shorn of their purported permanence on account of Supreme Court declarations. Since on account of the said judgment in Tika Iqbal Muhammad Khan's case purporting to be a judgment of Supreme Court, the presumption that the said Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Article 89 or 128, of the Constitution and since it was today (31-7-2009) that Supreme Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Article 89 and the said Article 128 of the Constitution, would be deemed to commence to run from today (31-7-2009) and steps may be taken to place the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law;

(viii) since the Constitution, through its Article 176, authorised only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act, 1997, therefore, the increase in the strength of the Judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution. It was resultantly declared that the number of Judges of the Supreme Court for purposes of the said Article 176 shall continue to remain sixteen;

(ix) In the Code of Conduct prescribed for the Judges of the Superior Courts in terms of Article 209(8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any un-constitutional functionary who acquires power otherwise than through the modes, envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution;

(x) In view of findings regarding Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification dated. 26-8-2008 and the notification dated 15-9-2008 extending the term of office of Mr. Justice Abdur Rashid Kalwar and of Mr. Justice Zafar Ahmad Khan Sherwani as Additional Judges of the High Court of Sindh were declared to be un-constitutional and of no legal effect;

(xi) Supreme Court observed that the Court acknowledged and respected the mandate given by the sovereign authority i.e. electorate to the democratically elected Government .on 18th February, 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which was the essence of the rule of law. Any declaration made in the present judgment shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. the President, the Prime Minister, the Parliament, the

Provincial Governments, anything done by these institutions in the discharge of their functions; said acts were fully protected in terms of the age old principle of Salus Populi Est Suprema Lex reflected in PLD 1972 SC 139.

(xii) Supreme Court reiterated that to defend, protect and uphold the Constitution was the sacred function of the Supreme Court. The Constitution in its Preamble, inter alia, mandates that there shall be democratic governance in the country, "wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed wherein the independence of judiciary shall be fully secured." Supreme Court observed that while rendering present judgment, said abiding values had weighed with the Court and the Court was sanguine that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths.

A copy of the judgment shall be sent to the Secretary Law and Parliamentary Affairs, Government of Pakistan, for compliance.?

Syed Zafar Ali Shah's case PLD 2000 SC 869; Tikka Iqbal Khan's case PLD 2008 SC178; Tikka Iqbal Muhammad Khan's case PLD 2008 SC 6; Watan Party's case PLD 2008 SC 178; Justice (Retd.) Wajihuddin Ahmad's case PLD 2008 SC 25; Tikka Iqbal Muhammad Khan v. General Pervez Musharraf and others PLD 2008 SC 615; Malik Asad Ali's case PLD 1998 SC 161 and PLD 1972 SC 139 ref.

Hamid Khan, Senior Advocate Supreme Court, Rashid A. Razvi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record assisted by Messrs Waqar Rana, Waheed Khalid Khan and Haq Nawaz Talpur, Advocates for Petitioner (in Constitutional Petition No.9 of 2009) .

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Barristers Ms. Natalya Kamal and Syed Shehryar, Advocates for Petitioners (in Constitutional Petition No.8 of 2009).

Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan, Agha Tariq Mehmood Khan, D.A.-G., Shah Khawar, D.A.-G. and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Muhammad Yousaf Leghari, A.-G. Sindh and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2 (in Constitutional Petition No.8 of 2009).

Nemo for Respondent Nos. 3 and 4.

Respondent No.5 not represented.

Dates of hearing: 20th to 24th and 27th to 31st July, 2009.

P L D 2009 Supreme Court 809

Present: Iftikhar Muhammad Chaudhry, C.J., Jawed Iqbal, Raja Fayyaz Ahmad, Ch. Ijaz Ahmed, Sayed Zahid Hussain, and Muhammad Sair Ali, JJ

SHAH HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 56 of 2005, decided on 1st June, 2009

\ Judgment of Ch. Ijaz Ahmed, J., was inadvertently omitted to be published along with the judgment of Iftikhar Muhammad Chaudhry, C.J. in PLD 2009 SC 460 (July issue). The omitted judgment is being published now and may be read as part of PLD 2009 SC 460.

(On appeal against the judgment dated 11-9-2003 passed by the Peshawar High Court, Abbottabad Bench in Crl. Appeal No. 61/2001)

Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.---

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

----S. 382-B---Intent, object and scope of S.382-B, Cr.P.C.---Duty of Court---Provision of S.382-B, Cr.P.C. is mandatory in character---Exception.

Justice delayed is justice denied. In view of undue delay in criminal trials, either due to shortage of judicial officers or failure in procedural working, the necessity occurs to give benefit to the accused/prisoners. Section 382-B, Cr.P.C. was therefore, introduced through Law Reforms Ordinance, 1972 in Criminal Procedure Code.

Right of speedy trial of any accused is one of the basic and fundamental rights to life and liberty as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan. It is the constitutional obligation of the State that cases of the under-trial prisoners must be finalized as soon as possible.

The paramount purpose of criminal justice is the protection of the innocent and the punishment to the offender.

Once the benefit of section 382-B, Cr.P.C. has been given to any of the accused at the time of awarding conviction/punishment then it deems to be effected on the date of arrest that is why the period he had remained in jail during the period of trial before the announcement of his conviction would be deducted otherwise it would not be possible. The insertion of section 382-B is based on principles of equity and justice on the basis of which the detention period undergone by accused as under-trial prisoner is deducted from his sentence. The purpose and object of the provisions of law/Act for which it was enacted must be kept in mind at the time of interpretation of the same.

Court can supply an obvious omission in a particular provision of statute or omit the same which is apparently redundant in the context of the provision keeping in view the principle, viz; to advance object of the Act and not to frustrate the same. There are several guiding principles laid down by the superior courts qua supplying of omission such as the one that such interpretation should be preferred which carries into effect the object of the statute.

The object of this section is to compensate the accused if he has remained incarcerated for long period as under-trial prisoner and bail was not granted to him. The object of this provision of law is to grant to the accused the benefit of concession by treating, in appropriate cases, the period of detention undergone by hint as an under-trial prisoner as that spent by him as a convict so as to relieve him from the burden of undue incarceration to which he may have been subject as a result-of any delay in the trial. In view of the mandatory language of this section, the court is duty bound in each case to apply its mind to this question, but this does not mean that it is bound in all cases to grant the concession. The trial Court should therefore, in each case record its reasons for withholding the said concession. Since the provision is founded in equity, this section should be liberally applied, unless for certain strong or special reasons, to be expressly recorded, the court considers otherwise.

Section 382-B, Cr.P.C. cast a duty on a court while awarding sentence of imprisonment to take into consideration the period, if any, during which, such accused was in custody for such offence. This being a palliative provision is an important string to maintain a balance among different theories of punishment. A perfect system of criminal justice cannot be based on any one theory of punishment. Every theory has its own merits and every effort must be made to take the good points of all.

The deterent aspect of punishment must not be ignored. Likewise, the reformative aspect must be given its due place. The personality of the offender is as important as his action and court must not divorce his action from his personality. The offender is not merely a criminal to be punished. He is also a patient to be treated. Punishment must be in proportion to the gravity of the crime. If interpretation of any provision of criminal law confers any benefit upon the accused, then that benefit should be given to the accused as accused is a favourite child of law. Section 382-B, Cr.P.C. takes care of maladies of administration of justice and fundamental rights of accused relating to life and speedy trial. In fact, the intent and object of section 382-B Cr.P.C. is based on a legal maxim actus curiae neminem gravabit, that is, an act of court shall prejudice no man. The use of word "shall" in the above stated contributory circumstances has rendered the provision of section 382-B, Cr.P.C. mandatory in character and, therefore, a court is bound to give benefit of section 382-B, Cr.P.C. to the accused while awarding sentence of imprisonment unless otherwise found by the court.

(b) Interpretation of statutes---

----Court can supply an obvious omission in a particular provision of statute or omit the same which is apparently redundant in the context of the provision keeping in view of the principle that to advance object of the Act and not to frustrate the same---Construction which carries into effect the object of the statute be preferred.

Qadir and another v. The State PLD 1991 SC 1065; Hussain Ara Khatoon's case AIR 1979 SC 1360 at 1367; Hussain Ara Khatoon and others' v. Home Secretary State of Bnihar Patna AIR 1979 SC 1369; State of Andhra Pradesh v. P.V. Pavithran AIR 1990 SC 1266; Abdul Rehman Antulay and others v. R.S. Nayak and another AIR 1992 SC 1701; P. Ramachandra Rao v. State of Karnataka AIR 2002 SC 1856 and Smt. Maneka Gandhi v. Union of India and another AIR 1978 SC 597 ref.\

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Syed Tahaar Hussain, Advocate Supreme Court for the State (on behalf of A.G., N.-W.F.P.)

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court Amicus Curiae.

Muhammad Akram Sheikh, Senior Advocate Supreme Court (Assisted by Barrister M. R. Kamran Sheikh, Advocate).

Sh.Zameer Hussain, Senior Advocate Supreme Court.

Ms. Naheeda Mehboob Elahi, D.A.G.

Qazi Muhammad Amin, Addl. A.-G.

Muhammad Naeem Sheikh, Advocate Supreme Court (with permission of the Court).

Dates of hearing: 7th & 11th May, 2009.

P L D 2009 Supreme Court 814

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk, Muhammad Moosa K. Leghari, Sheikh Hakim Ali and Ghulam Rabbani, JJ

Mian MUHAMMAD NAWAZ SHARIF---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.200 Of 2009, decided on 17th July, 2009

(On appeal from the judgment of the Sindh High Court, Karachi dated 30.10.2000 passed in Special A.T. Appeal No.43, of 2000)

(a) Constitution of Pakistan (1973)---

----Arts. 45 & 185(3)---Penal Code (XLV of 1860), S.402-B---Anti-Terrorism Act (XXVII of 1997), S.7(ii)---Grant of pardon by the President of Pakistan---Effect---Contention of the prosecution was that in view of the pardon granted to the petitioner by the President of Pakistan regarding his conviction and sentence, he was left with no cause and on that score petition for leave to appeal was not maintainable--Validity---Effects of grant of pardon, even in full, were not the same as an order of acquittal by a court of law---Pardon was granted in the exercise of executive authority as a matter of grace, regardless of merits, and could not be a true substitute for finding of not guilty through judicial determination---Whereas the pardon wiped out the consequences of conviction, the conviction itself remained intact until annulled through a judicial process---Notwithstanding the pardon granted to the petitioner,, whether complete or limited he remained invested with a cause to get the question of his guilt determined judicially---Till his acquittal by a court of law, he would continue to carry the stigma of conviction for a crime---Every citizen was entitled to have his name cleared, if unjustifiably sullied, and it should be of particular importance to the petitioner, who remained Prime Minister of the country twice and was presently leading a major political party, to remove the stigma of conviction for a crime and that too of hijacking, generally associated with terrorism---Petition for leave to appeal to Supreme Court was maintainable in circumstances.

Muhammad Asghar v. Government of Sindh PLD1977 SC 212; Kehar Singh v. Union of India AIR 1989 SC 653; Logan v. R. 1996 4AER 190; R. v. Foster 1984 2AER 679 and Halsbury's Law of England, 4th Edn. 609 ref.

(b) Constitution of Pakistan (1973)---

----Art. 185(3)---Supreme Court Rules, 1980, O.XXIII, R.4---Penal Code (XLV of 1860), S.402-B---Anti-Terrorism Act (XXVII of 1997), S.7(ii)---Petition for leave to appeal in criminal matter was delayed by 8 years and 136 days---Second proviso to R.4, O.XXIII; Supreme Court Rules, 1980 empowered the Supreme Court to extend the time if petitioner was able to show sufficient cause---Sufficiency of the cause depended upon the circumstances of each case---Circumstances which prevented the petitioner from filing the petition, in the present case, against his conviction and sentences were indeed extraordinary and could be considered to be sufficient cause to extension of time---Additionally, Supreme Court was always slow in dismissing petitions against conviction and sentence on the question of limitation and was more inclined to examine the case on_ merits in order to prevent grave miscarriage of justice notwithstanding delay---Supreme Court, having accepted as valid the petitioner's explanation for non-appearance before the court and matter being a criminal matter, condoned delay for not filing petition against his conviction and sentence soon upon returning home.

Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 644 rel.

Abdur Rehman v. The State 1978 SCMR 292; Ziaul Rehman v. The State 2001 SCMR 1405 and Muhammad Sadiq v. Muhammad Sarwar PLD 1973 SC 469 ref.

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

----S. 402-B---Hijacking, conviction for---Elements---Three elements are required to be proved for conviction of hijacking, namely that the accused must have acted unlawfully, used or showed force or threats of any kind and thereby seized or exercised control of the aircraft.

(d) Penal code (XLV of 1860)---

----S. 402-B---Civil Aviation Ordinance (XXXII of 1960), S.6---Rules of Business (Federal Government) R.5 (11-A)---Prime Minister who was also the Defence Minister was empowered to exercise the powers conferred on the Federal Government by S.6, Civil Aviation Ordinance, 1960---Although the said provision required notification of the exercise of such powers, however, under R.5(11-A) of Rules of Business, the Prime Minister was competent to pass verbal orders in case of emergency.

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

----S. 402-B--Allegation of hijacking---Defence plea---Burden of proof---Principles---Burden is on the accused to establish a plea taken by him in defence---Burden stands discharged if the defence is able to establish its plea from the prosecution evidence---Whereas the prosecution has to prove its case beyond reasonable doubt the standard of proof required to establish a defence plea is lighter as the accused has only to show that the plea taken by him is reasonably possible.

Shamir v. The State PLD 1958 SC (Pak) 242 and Khalid Javed v. Ansar Khan 1995 SCMR 1846 ref.

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

----S. 402-B---Civil Aviation Ordinance (XXXII of 1960), S.6---Constitution of Pakistan (1973), Art.185(3)---Allegation of hijacking---Unlawful act---Appraisal of evidence---Order of petitioner/Prime Minister diverting the Aircraft carrying Chief of Army Staff to another country---Validity---Narration of facts showed that serious differences had developed between the petitioner/Prime Minister and the Chief of Army Staff; in view of certain moves on the, part of. the latter, he (Prime Minister) was led to believe that Chief of Army Staff was planning a military takeover; it was in this context that the petitioner brought about change in the military leadership and had reasons to believe that the change could create some restiveness in the Army Ranks which turned out to be true---As soon as the flash of the news about the change come out the Army made a move; it was under these circumstances that the petitioner had decided to divert the Aircraft carrying Chief of Army Staff to another country, according to the defence, with two objectives; firstly to prevent division in the Army with two claimants to the office of. Chief of Army Staff and secondly, to protect the constitutional government headed by the petitioner---Question would be whether the petitioner (Prime Minister) was justified in view of circumstances to exercise his powers under S.6 of the Civil Aviation Ordinance, 1960--Held, opinion to be formed under S.6, Civil Aviation Ordinance, 1960, was upon subjective assessment of the facts by the person forming the opinion---Correctness or accuracy of formation of such opinion could not be questioned so long as grounds existed from which it was possible to draw such an inference---Opinion of the petitioner that the prevention of Chief of Army Staff from return to the country was necessary for public safety and tranquility was well-founded in view of the events that had taken place---Correctness of the formation of opinion was not to be adjudged on the touchstone of the subsequent development or events but on the basis of the material available at the time of forming the opinion---High Court had erred in holding that since no. division took place in the Army on the appointment of the new Chief of Army Staff; the petitioner's opinion was unfounded; however, upon said reasoning of the High Court, the petitioner's apprehension that his government established under the Constitution was under threat from the Chief of Army Staff, had turned out to be true---Even upon applying the objective test a prudent man faced with such circumstances, would have drawn the same opinion as the petitioner did---Petitioner; at the relevant time, was not only possessed with the authority under S.6, Civil Aviation Ordinance, 1960 to order diversion of the aircraft but the evidence record showed that on the subjective assessment of the circumstances its exercise was not unjustified---Instructions by the petitioner to divert the flight were, therefore, not unlawful---Prosecution, in circumstances, had failed to prove the first ingredient of the offence of hijacking (unlawfulness)---Finding of the Appellate Court on this point was reversed by Supreme Court---Prosecution on its own standing had not been able to prove its case against the petitioner beyond reasonable doubt--Charge of hijacking, attempt to hijack or terrorism did not stand established against the petitioner, consequently, the petition for leave to appeal was converted into appeal by the Supreme Court and allowed---Conviction and sentence of the appellant were set aside and he was acquitted.

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

----S. 402-B---Civil Aviation Ordinance (XXXII of 1960), S.6--Constitution of Pakistan (1973), Art.185(3)---Instructions of petitioner/Prime Minister to divert the aircraft to some other airport---Allegation of hijacking---Use of force or threat of any kind Appraisal of evidence---Appellate Court as well as Trial Court had wrongly burdened the petitioner with the responsibility of acts done without his instructions and knowledge---For fixing criminal liability for acts done pursuant to instructions, it must be, shown that those very acts were part of the instructions and could not be deduced by implication therefrom---Pilot of the aircraft was, unaware of the reasons for diversion of the aircraft---Petitioner was alleged to have directed the airport authorities that the plane be diverted to the close by airport in Pakistan, for refueling for onward journey to another country---Such instructions allegedly were given by the petitioner almost an hour and half before the plane eventually landed at its scheduled destination---Pilot,' in circumstances, and on account of alleged instructions of the petitioner, was under no threat on account of shortage of fuel and implementation of such instructions would have got the aircraft safely landed at the nearby airport---Pilot had stated that while he was on way to the close-by airport for refueling, he received the instructions from the Control Room to return to its scheduled airport, which made it clear that when the pilot received said instructions about scheduled destination airport and the one which was instructed for refueling were open for landing---Such situation made it clear that pilot was unaware of the alleged blocking of the runway and he had sufficient fuel to land at the close-by airport as well---Pilot, in circumstances, was not influenced by circumstances and thus was under no threat---Petitioner had neither ordered closure of the airport nor blocking of the runway (as alleged) rather he had issued instructions for the plane to land at close-by airport once he gained knowledge on the insufficiency of fuel---Pilot also did not remain under any threat---Findings of the courts below, on these ingredients (use of force or threats of any kind), were contrary to the evidence on record and therefore, warranted reversal and it was accordingly so held---Prosecution on its own standing had not been able to prove its case against the petitioner beyond reasonable doubt---Charge of hijacking, attempt to hijack or terrorism did not stand established against the petitioner, consequently, the petition for leave to appeal was converted into appeal by the Supreme Court and allowed---Conviction and sentence of the appellant were set aside and he was acquitted.

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

---Ss. 402-A & 402-B---Civil Aviation Ordinance (XXXII of 1960), S.6--Constitution of Pakistan (1973), Art.185(3)---Instructions of petitioner to divert the plane to other country---Allegation of hijacking---Seizure or exercising control of the aircraft---Appraisal of evidence---Petitioner, in the present case, was not physically present in the aircraft nor had he in any way ordered the use of force; in actual fact, the petitioner had only ordered the landing of the aircraft on another airport and had issued no direction that the aircraft be seized or its control be taken over, in any ' case the pilot remained in control of the aircraft throughout, so much so that he ignored the instructions of the Control Tower to land at scheduled airport, notwithstanding that he was supposed to follow the directions from the Tower and Radar Control---No evidence, therefore, was on the record that petitioner had either instructed or had personally seized or taken the control of the aircraft, rather the control of the aircraft was never taken away from the pilot--Directions given by the petitioner regarding the disputed flight were neither unlawful, nor did he use force or gave threat of any kind for the implementation of his directions and thus he had also not seized or taken control of the aircraft directly or indirectly---Prosecution, therefore, had failed to prove any of the three ingredients that constitute the offence of hijacking as defined in S.402-A, P.P.C.---Prosecution on its own standing, had not been able to prove its case against the petitioner beyond reasonable doubt---Charge of hijacking, attempt to hijack or terrorism did not stand established against the petitioner, consequently, the petition for leave to appeal was converted into appeal by the Supreme Court and allowed---Conviction and sentence of the appellant were set aside and he was acquitted.

Shahsawar v. The State 2000 SCMR 1331 distinguished.

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

----S. 337---Approver---Testimony of approver, in order to be accepted as worthy of credence, must pass the double test, namely that he is a reliable witness and that his testimony receives sufficient corroboration on material particulars.

Srinivas Mall Bairoliya v. Emperor PLD 1947 PC 141; Ghulam Qadir v.State PLD 1959 SC (Pak) 377; Abdul Majeed v. State PLD 1973 SC 595 and State v. Zulfiqar Ali Bhutto PLD 1978 Lah. 523 ref.

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

----S. 402-B---Civil Aviation Ordinance (XXXII of 1960), S.6---Criminal Procedure Code (V of 1898), S.337---Constitution of Pakistan (1973), Art.185(3)---Instructions of petitioner/accused to divert the plane to some other country---Allegation of hijacking---Approver, testimony of---Evidentiary value---Tests to determine---Accused person becomes an approver on motivation of self interest to save his own skin---Circumstances, in the present case, that led the person to become an approver indicated that he was not a free agent; he was taken into custody by the Army soon after the incident (take-over) and remained there for about one month and was then in police custody for about 10 days, during which he was tortured to the extent that he feared that "he would die of shock"---Notwithstanding such complaint, made to the Trial Court, .he was again sent to police remand for further 3 days which ended a day before he became an approver---Person did not seem to be a man of strong nerves as according to his own statement he implemented the instructions of the petitioner (Prime Minister) on account of concern of his own future, after he had heard that the Prime Minister/petitioner had replaced the Chief of Army Staff and that he had tried to suppress truth in his testimony at the trial---Testimony of approver, on the most material particulars of the case, the nature of instructions by the petitioner, remained uncorroborated---Held, testimony of the approver failed to satisfy both tests in that he was neither reliable witness nor his testimony was corroborated in material particulars---Prosecution on its own standing had not been able to prove its case against the petitioner beyond reasonable doubt---Charge of hijacking, attempt to hijack or terrorism did not stand established against the petitioner, consequently, the petition for leave to appeal was converted into appeal by the Supreme Court and allowed---Conviction and sentence of the appellant were set aside and he was acquitted.

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

----S. 402-B---Civil Aviation Ordinance (XXXII of 1960), S.6---Criminal Procedure Code (V of 1898), 5.337---Constitution of Pakistan (1973), Art.185(3)---Instructions of petitioner/accused/Prime Minister at the relevant time to divert the plane to some other country---Allegation of hijacking---Appraisal of evidence---Delay in making the F.I.R. for about a month after the incident/take-over by the Army---Collection of evidence was undertaken by the Army personnel prior to the registration of the case as they had not only constituted a Board for the probe but as many as 10 witnesses were contacted by the agencies; apart from this irregularity, the mode adopted would have significant repercussions on certain aspects of the case---Some factual material which could have thrown light on certain serious controversies, like the black box, the audio spools which recorded conversation between the Air Traffic Control and the aircraft were already taken into possession before registration of the case---When already a probe was going on for more than one month before the F.I.R. was lodged and evidence collected by persons, whose identity was not disclosed, the possibility of tampering with these articles could not be ruled out---Statement of the Investigating Officer showed that investigation and collection of evidence had substantially already been done before the F:I.R. was lodged and the materials so collected were simply handed over to him to be produced in the court---Another major gain to the prosecution was the delay in the F.I.R.---Prosecution in the meanwhile managed an approver who remained in custody till the F.I.R. was lodged---Probe carried out by the Army through a Board of Inquiry was not an enquiry under the Criminal Procedure Code, 1898---F.I.R. having been lodged after extensive consultations and deliberations, its veracity stood eroded---F.I.R. was lodged with inordinate delay for which no plausible explanation had been put forth by the prosecution---Investigation was not carried out independently and the testimony of the approver on which the prosecution was founded had not satisfied the conditions of acceptance of his testimony---Regardless of the plea taken by the petitioner with regard to S.6, Civil Aviation Ordinance, 1960, the prosecution on its own standing had not been able to prove its case against the petitioner beyond reasonable doubt---Charge of hijacking attempt to hijack or terrorism did not stand established against the petitioner---Supreme Court consequently converted the petition for leave to appeal into appeal and allowed and conviction and sentence of the appellant was set aside and he was acquitted.

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

----S. 362---Abduction---Abduction is committed when a person is taken from one place to another either by "force" or by "deceitful means"---Where the accused had neither used force nor ordered its use and undisputedly no deceitful means were used, element of "abduction" was not proved.

Khawaja Haris Ahmad, Advocate Supreme Court and Mehr Khan Malik, Advocate on Record for Petitioner.

Shahadat Awan, P. G. Sindh and M. Yousaf Leghari, A.-G. Sindh for the State.

Dates of hearing: 8th to 12th & 16th to 18th June, 2009

P L D 2009 Supreme Court 866

Present: Sardar Muhammad Raza Khan Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

Civil Appeal No.1038 of 2006

GHULAM ABBAS NIAZI---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

(On appeal from judgment dated 29-3-2006 of Lahore High Court, Lahore passed in Writ Petition No.3541 of 2004)

Civil Appeal No.1681 of 2007

MUHAMMAD SALEEM---Appellant

Versus

FEDERATION OF PAKISTAN and others---Respondents

(On appeal from judgment dated 29-3-2006 of Lahore High Court, Lahore passed in Writ Petition No.3363 of 2003)

Civil Appeals Nos. 1038 of 2006 and 1681 of 2007, decided on 8th May, 2009.

(a) Constitution of Pakistan (1973)---

----Art. 199(3)---Constitutional jurisdiction of High Court, exercise of---Principles---Bar under Art.199(3) of the Constitution is not attracted to a case, where authority involved has acted without jurisdiction mala fide and coram non judice.

Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 and Secretary of Religious Affairs v. Syed Abdul Majeed 1993 SCMR 1171(d) rel.

(b) Jurisprudence---

----Legislating penal statute---Principles---While legislating penal statute that aims at creating an offence, legislature sets down definition in such simplest possible manner of drafting that it is capable of being comprehended by ordinary persons, of what is prohibited and what is not---Word of penal statute is always objective and not at all subjective---It has to be intelligibly expressed and reasonably defined---Interpretation of definition of crime is not, therefore, needed at all and becomes so needed only when language employed is ambiguous.

Jamat-i-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111 rel.

(c) Words and phrases---

---"Similarly situated"---Meaning---"Similarly situated" can be defined as similarly circumstanced.

Chambers English Dictionary rel.

(d) Pakistan Air Force Act (VI of 1953)---

---Ss. 2(dd)(i), 37(e) & 52---Penal Code (XLV of 1860), S.34---Criminal Procedure Code (V of 1898), S.403---Constitution of Pakistan (1973), Art.13---Field General Court Martial of civilian---Mutiny---Scope---Offence of theft---Mala fide in law---Separate trials---Principle of double jeopardy---Applicability---Civilian contractors and Air Force officials were involved in theft of jet petroleum---Authorities conducted separate trial of Air Force officials who were convicted for theft only whereas civilian contractors were put to Field General Court Martial on the charges of mutiny and endeavoring to seduce officers of Air Force from their duty or allegiance to government---Validity---Offence committed by accused persons was theft simpliciter as defined by S.52 of Pakistan Air Force Act, 1953, read with S.34, P.P.C. for which civilians could not be tried by Field General Court Martial---Offence was proved to be theft by Field General Court Martial which tired its won officers for the offence of theft, therefore, trial of civilians by Field General Court martial was coram non judice, without jurisdiction and mala fide in law, where provisions of S.2(dd)(i) of Pakistan Air Force Act, 1953, read with S.37(e) of the Act, were remotely attracted so as to bring civilian accused within their jurisdiction---Civilian accused were subject to normal law of land and the same was recognized by Pakistan Air Force Act, 1953 as well except when they were guilty of commission or attempt to commit offence of sedition or mutiny---Mala-fide in law was apparent from the fact that Pakistan Air Force Officers accused were not only tried for much smaller offence as compared to civilian accused but punishment awarded to such accused officers were more than four times lesser than that awarded to civilian accused---In service, officers of highly disciplined force should have been punished more severely as compared to civilian contractors---Pakistan Air Force officers should also have been booked for corruption and corrupt practices---Such disparity in punishment was merely referred by Supreme Court only to highlight mala fide in law, otherwise it was irrelevant when trial of accused happened to be without jurisdiction and without lawful authority by unlawfully attracting provisions of Ss.2(dd)(i) and 37(e) of Pakistan Air Force Act, 1953, in order only, to hook civilian contractors---Such trial of civilian accused was male fide in law thereby rendering trial as coram non judice and without jurisdiction, thus conviction as 'well as' sentence awarded to civilian accused were void and unlawful---Supreme Court found it amazing rather stunning situation as same evidence in same set of circumstances in one trial against Air Force Officers was treated as theft while against civilian accused it was treated as mutiny---If civilian accused had seduced Air Force Officers from their duty or allegiance to government and hence mutiny, then Air Force officers must also have been tried for mutiny and then it would have sounded to be based on' equality but still unreasonable because under no stretch of imagination, theft could be transformed into mutiny---Even if one civilian instigated military officer for any insubordination etc. it could not fall under S.37(e) of Pakistan Air Force Act, 1937, because not an individual but collective act of insubordination could be dubbed as mutiny---As accused have already remained in jail for a period longer than the sentence of Air Force Officers, their fresh trial by regular Courts of country would be nothing but a double jeopardy and violative of Art.13 of the Constitution read with S.403, Cr.P.C.---Conviction and sentence awarded to civilian accused by Field General Court Martial were set aside and they were acquitted of the charge under S.37(e) of Pakistan Air Force Act, 1937---Appeal was allowed.

Mst. Tahira Almas v. Islamic Republic of Pakistan PLD 2002 SC 830(a) and Government of Balochsitan v. Azizullah Memon PLD 1993 SC 43(h) ref.

Mrs.Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632(e); Brig.(R). F.B. Ali v. The State PLD 1975 SC 506 and Mushtaq Ahmed v. Secretary Ministry of Defence PLD 2007 SC 405 distinguished.

Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504(o, p & v) and M.A. Khanedkar v. Pakistan PLD 1959 West Pakistan Lahore' 482 fol.

(e) Criminal trial---

----Joint trial---Import, object and scope---In every civilized State of world people charged of similar offence during same transaction or transactions are to be jointly tried---Such rule of law, practice and procedure is derived from principles of equality---Wisdom behind such principle is that those who are co-accused in same transaction and tried for same offence or cognate offences, as the case may be, should be in a position to defend themselves equally against same narration of facts as well as charges-Another reasons is that if one accused shifts his burden to other one, the other should be in a position to defend himself and rebut allegations there and then.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellant (in C.A.No.1038 of 2006).

Col.(R) Muhammad Akram, Advocate Supreme Court, Malik Muhammad Qayyum, Senior Advocate Supreme Court, Raja Abdul Ghafoor, Advocate Supreme Court, Ch. Muhammad Abdullah, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellant (in C. A.No.1681 of 2006).

Sardar Muhammad Ghazi, D.A.-G. and Ch. Akhtar Ali, Advocate-on-Record for the State.

Altaf-ur-Rehman, Advocate Supreme Court for PAF.

Date of hearing: 24th November, 2008.

P L D 2009 Supreme Court 879

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja. JJ

SINDH HIGH COURT BAR ASSOCIATION through its Secretary and another---Petitioners

Versus

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

Constitutional Petitions Nos. 9 and 8 of 2009, decided on 31st July, 2009.

Per Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ; agreeing

(a) Proclamation of Emergency dated 3-11-2007---

----Provisional Constitution Order [1 of 2007]---Oath of Office (Judges) Order, 2007---Provisional Constitution (Amendment) Order, 2007---Constitution (Amendment) Order [5 of 2007]---Constitution (Second Amendment) Order [6 of 2007]---Islamabad High Court (Establishment) Order [7 of 2007]---High Court Judges (Pensionary Benefits) Order [8 of 2007]---Supreme Court Judges (Pensionary Benefits) Order [9 of 2007]---Supreme Court (Number of Judges) Act (XXXIII of 1997)---Constitution of Pakistan (1973), Arts.176, 177; 89, 128, 209(8), 245, 48, 50, 260 & 184(3)---Constitutional petitions before Supreme Court under Art.184(3) of the Constitution---Removal of Judges of Supreme Court and High Courts in violation of Art.209 of the Constitution; purported acts done by General Pervez Musharraf (Retd.) between 3-11-2007 and 16-12-2007 aimed at suspending and amending the Constitution of Pakistan through several instruments; appointment of Judges of superior judiciary on or after 3-11-2007 uptill 23-3-2008 without consultation of de jure Chief Justice of Pakistan; opinion of Mr. Justice Abdul Hameed Dogar, as then he was called, that term of office of two Additional Judges of High Court of Sindh had not expired and two judgments of the Supreme Court, dated 23-11-2007 and 15-2-2008 on Constitutional Petitions Nos.87 and 88 of 2007 filed by, Tikka Iqbal Muhammad Khan and Watan Party reported in (PLD. 2008 SC 6 and PLD 2008 SC 178), and Review Petition No.7 of 2008 reported in (PLD 2008 SC 615)---Validity---Held, contents of the relevant letter of the Prime Minister addressed to the President/Chief of Army Staff did not show any direction to the Armed Forces in terms of Art.245 of the Constitution to act in aid of civil power, nor the actions of General Pervez Musharraf of 3rd November, 2007 could be said to have been taken or done while acting in aid of civil power, in any case, said letter of the Prime Minister was not an advice tendered by him in terms of Art.48 of the Constitution neither on receipt of such a letter, could the President have authorised Chief of Army Staff to take such kind of steps---General Pervez Musharraf (Rtd.) in the garb of Emergency Plus and the Provisional Constitution Order made amendments in the Constitution by self-acquired powers which were all unconstitutional, unauthorized, without any legal basis, hence, without any legal consequences---Mr. Justice Abdul Hameed Dogar, took oath as CJP in violation of the order dated 3-11-2007 passed by a 7-member Bench headed by de jure Chief Justice of Pakistan and in pursuance of unconstitutional instruments introduced by General Pervez Musharraf (Rtd.), additionally knowing well that the office of Chief Justice of Pakistan was not lying vacant---Judges who were either retired or were not holding any judicial office, besides those in High Courts took fresh oath on their appointment on and after 3-11-2007 till 15-12-2007 in Supreme Court where the full strength of Judges along with an Ad hoc Judge appointed under the Constitution were already working and thus there was no vacancy---Similarly, many Judges took oath in Provincial High Courts; all of them did so in violation of order dated 3-11-2007 passed by 7-member Bench headed by de jure Chief Justice of Pakistan---Four incumbent Judges already functioning in the Supreme Court took fresh oath under the influence of and in pursuance of unconstitutional steps of General Pervez Musharraf (Rtd.)---Petition No.73 of 2007 filed by Mr. Justice (Rtd.) Wajihuddin Ahmad (PLD 2008 SC 25) challenging the eligibility of General Pervez Musharraf (Rtd.) to contest for the office of President in Uniform was dismissed purportedly on merits although the record maintained in the Supreme Court revealed other­wise---Decisions in the cases of Tikka Iqbal Muhammad Khan granting validity to the actions of General Pervez Musharraf (Rtd.) were per incuriam, coram non judice, without any legal basis hence, of no legal consequences---Amendments in the Supreme Court (Number of Judges) Act, 1997 by way of Finance Act, 2008 raising the strength of Judges in Supreme Court front. 17 (1+ 16) to 30 (1+29) seemingly aimed at providing allocation of funds for increasing the strength of Judges was unconstitutional because the strength of Judges of Supreme Court was to be increased by Parliament as defined in Article 50 to be read with Article 260 of the Constitution which defined the acts of Parliament---In the past the Courts of the time used to extend favours empowering the adventurers to amend the Constitution in actual effect were to achieve their overt and covert agenda but this time, such powers were acquired by General Pervez Musharraf (Rtd.) himself through the Provisional Constitution Order and brought a host of unconstitutional amendments for his own benefits---Doctrine of Civil and State necessity and maxim Salus populi est suprema lex absolutely had no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution in a manner not provided for in the Constitution, including but not limited to be a purported promulgation of Proclamation of Martial Law, Proclamation of Emergency, Provisional Constitution Order, Oath Order, Amendments of the Constitution and the Orders, Ordinances, Regulations, Rules, etc. issued in pursuance thereof, notwithstanding any judgment of any court, including the Supreme Court---Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, any Chief Justice or Judges of High Courts who were declared to have ceased to hold office in pursuance of PCO 1 of 2007 and Oath of Office (Judges) Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration---Present representatives of people firmly believe in strong and independent judiciary and the democratic system which was evident from the fact that the deposed Judges of Supreme Court, High Courts and the de jure Chief Justice of Pakistan were restored with effect from 3rd of November, 2007 implying that the present representatives of people denied the validity of the actions of General Pervez Musharraf (Rtd.) taken from 3-11-2007 to 15-12-2007 during which the Constitution remained suspended---Judgments/orders passed by Abdul Hameed Dogar, J, and other Judges in Tikka Iqbal Muhammad Khan's case and Wajihuddin Ahmed's case, that is to say, the short order dated 23rd November, 2007 passed in Tikka Iqbal Muhammad Khan's case, reported as PLD 2008 SC 6, the detailed reasons 'in support of the aforesaid short order, reported as PLD 2008 SC 178, judgment dated 15th February, 2008 passed in Civil Review Petition No.7 of 2008 in the said case, reported as PLD 2008 SC 615 and the order dated 6th November, 2007 passed in Wajihuddin Ahmed's case, reported as PLD 2008 SC 25 were declared to be illegal, mala fide, coram non judice and void ab initio---However, the judgments and orders passed, and proceedings taken in the cases of other litigants involving their rights and interests in civil, criminal and other matters, any function performed under the Constitution including administering of oath to the President, and other acts, whether administrative or financial, done or performed by Abdul Hameed Dogar, J, and such other Judges or by any authority, or by any person, whether in the Supreme Court or a High Court, which were passed, taken, done or performed, or purported to have been passed, taken, done or performed under the Constitution or law from 3rd November, 2007 to 31st July, 2009, i.e. the date of this judgment would not be affected on the principle laid down in Asad Ali's case---Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No.1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the Proclamation of Emergency and the Provisional Constitution Order No.1 of 2007; Provisional. Constitution (Amendment) Order, 2007 issued by him likewise on 15-11-2007; the Constitution (Amendment) Order, 2007 being President's Order No.5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007 being the President's Order No.6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order, 2007 dated 14th December, 2007 being the President's Order No.7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007 being President's Order No.8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007 being President's Order No.9 of 2007 dated 14th December, 2007 were declared to be unconstitutional, ultra vires of the Constitution and consequently being illegal and of no legal effect---Legal consequences elaborated..

In the present-case, the actions of 3rd November 2007 taken by General Pervez Musharraf, viz., Proclamation of Emergency, PCO No.1 of 2007 and Oath Order, 2007 were preceded by a letter of even date addressed by Prime Minister of Pakistan to the President of Pakistan.

As is evident from the opening paragraph of the letter, the Prime Minister wrote to the President "to share his .thoughts on the national security situation and the risks" that it represented for the "future of Pakistan". In Paragraph 2, the Prime Minister noted ascendancy in militancy, extremism and terrorist activities, bomb blasts and suicide attacks including suicide attack on a political rally in Karachi on 18th October, 2007, etc., and the writ of the government being eroded as non-State militants were gaining control, and stated that the executive measures taken against extremist elements to contain militancy and terrorist activities were called into question by some members of the judiciary making effective action impossible. Paragraphs 3 to 8 dilated upon the interference by some members of the judiciary in the executive functions and in Paragraph 9 he stated that a situation had arisen where the routine and smooth functioning of government machinery was becoming increasingly difficult and causing grave concern among ordinary citizens about their security. In Paragraph 10, the Prime Minister closed his letter by saying that his letter reflected his views and public opinion about the current scenario, observing that for any State to function, all the three pillars of State must act in harmony in the best national interest, and that Pakistan achieved independence after immense sacrifices, which had tremendous potential to develop, prosper and be recognized among the comity of nations as a country with an exciting future.

From the contents of the letter of the Prime Minister, it cannot be said that he issued any direction to the Armed Forces in terms of Article 245 of the Constitution to act in aid of the civil power, nor the actions of General Pervez Musharraf of 3rd November, 2007 could be said to have been taken or done while acting in aid of the civil power. Even otherwise, the letter was addressed to the President of Pakistan and not to the Chief of Army Staff. But for the sake of argument, it may be stated that even if the letter was addressed to the Chief of Army Staff, it could not be construed to give to the latter any power to take the kind of steps that he took in pursuance of the aforesaid letter.

No power vested in the Chief of Army Staff under the Constitution and the law to issue Proclamation of Emergency and PCO No. 1 of 2007 on a letter of the Prime Minister written to the President bringing to his notice the national security situation, which was worsening on account of terrorism, extremism, militancy, suicide attacks and the erosion of trichotomy as a result of suo motu actions being taken by some members of the superior judiciary. If the President, on receipt of such a letter, wanted to take any action including imposition of emergency, the same would have been in terms of constitutional provisions on emergency. Nowhere the Prime Minister asked the President to take the actions that he took on 3rd November, 2007. In any case, it was not an advice tendered by the Prime Minister in terms of Article 48 of the Constitution. Neither on receipt of such a letter, could the President have authorized Chief of Army Staff to take that kind of steps. The Constitution does not empower the President to issue an Oath Order, which he did in pursuance of Proclamation of Emergency and PCO No.1 of 2007. Instead of upholding the Constitution in terms of the oath taken by him as member of the Armed Forces he violated the Constitution, suspended it, assumed to himself unconstitutional and illegal powers and imposed upon the country unconstitutional and illegal emergency and PCO No. 1 of 2007. Likewise, in terms of his oath as President of Pakistan, instead of preserving, protecting and defending the Constitution, and performing his functions, honestly, to the best of his ability, faithfully in accordance with the Constitution and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan,` issued Oath Order, 2007, illegally assumed to himself power to remove Judges of the superior Courts in violation of Articles 2A and 209 of the Constitution, which respectively required the securing of independence of judiciary and the guaranteeing of the tenure of the Judges .of the Supreme Court and the High Courts.

Aforesaid acts of the President were violative of the Constitution, pure and simple.

The terms of "supra-constitutional" and "extra- constitutional", that is to say, in an exercise, which was aimed at finding justifications for the unconstitutional and illegal acts of usurpers of power by devising and using such or similar terms and phrases would hardly change the unconstitutional nature and character of the said actions, which not only ex facie lacked the backing of any provision of the Constitution or the law, but were done in violation of the Constitution and the law.

The assumption of power by an authority not mentioned in the Constitution would be unconstitutional, illegal and void ab initio and not liable to be recognized by any court, including the Supreme Court. Henceforth; a Judge playing any role in future in the recognition of such assumption of power would be guilty of misconduct within the ambit of Article 209 of the Constitution.

On 3rd November, 2007, General Pervez Musharraf issued Proclamation of Emergency and PCO No. 1 of 2007 in his capacity of Chief of Army Staff. In the former instrument, he incorporated the contents of the letter of the Prime Minister as grounds for proclaiming emergency throughout Pakistan and holding the Constitution in abeyance. By Article 2 of PCO No. 1 of 2007 it was provided that Pakistan shall, subject to the PCO and any other Order made by the President be governed, as nearly as may be, in accordance with the Constitution. Under the proviso to the above Article, it was provided that the President may amend the Constitution, as may be deemed expedient. By clause (3) of Article 2 it was provided that all courts shall continue .to function subject to PCO No. 1 of 2007 and Oath Order, 2007, but the Supreme Court, a High Court or any other court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority. By clauses (5) and (6) he kept intact the legislative and the executive organs of the State, but by Articles 4 and 5 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or repealed by the President or any authority designated by him. Further, an Ordinance. promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to the limitations as to duration prescribed in the Constitution. He purported to assume all the absolute and unfettered powers of the legislative branch of the government, the executive branch being already under him with a compliant Prime Minister holding office during his pleasure, and the supreme command of the Armed Forces also vesting in him by virtue of clause (1A) of Article 243 of the Constitution.

To have full control over the judiciary, and to be free from the constitutional checks and balances, General Pervez Musharraf issued Oath Order, 2007 and thereby sought to replace the existing superior judiciary with a judiciary which was not bound by the Constitution so that his actions could not be challenged or adjudicated. upon by an impartial court.

The actions of General Pervez Musharraf dated 3rd November, 2007 were the result of' his apprehensions regarding the decision of Wajihuddin Ahmed's case and his resultant disqualification to contest the election of President. Therefore, it could not be said that the said actions were taken for the welfare of the people. Clearly, the same were taken by him in his own interest and for illegal and Unlawful personal gain of manoeuvring another term in office of President, therefore, the same were mala fide as well. The statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect. The Proclamation of Emergency emanated from his person, which was apparent from the words "I, General Pervez Musharraf...." used in it.

The continuation in power of General Pervez Musharraf was all along the result of manoeuvring. The holding of Referendum 2002 and the amendments made in the Constitution by means of the LFO, 2002 were hotly contested at the floors of the Houses of Parliament, but the 'amendments so made in the Constitution were ultimately accepted and the Seventeenth Amendment to the Constitution was passed on 31st December, 2003 under the umbrella of an accord between the PML(Q) and the MMA, thus paving the way for General Pervez Musharraf to be the President of Pakistan for the next five years, i.e. up to 15th November, 2007 while continuing to be the Chief of Army Staff at the same time in terms of the aforesaid Seventeenth Amendment. He promised to relinquish the office of Chief of Army Staff on or before 31 December, 2004, but later in deviation of his promise, he got enacted the President to Hold Another Office, Act,- 2004. That is why his candidature for the election of President was challenged before the Supreme Court, first by the major political parties of the country in Jamat-e-Islami's case, and later by the two rival ' candidates of the election of President in Wajihuddin Ahmed's case. The majority decision in Jamat-e-Islami's case was rendered in favour of General Pervez Musharraf only on a legal ground, namely, the petitions were not maintainable as it did not involve enforcement of any of the Fundamental Rights of the 'petitioners. However, four out of nine Judges gave decision on merits and held him disqualified to contest the election of President.

Contrary to the practice in the past, the Parliament of the relevant time, as also the Parliament that came into existence as a result of the General Election held on 18 February, 2008, that too, stayed their hands off and did not extend validation or protection to the unconstitutional acts of General Pervez Musharraf dated 3rd November, 2007, which displayed their commitment to the rule of law and supremacy of the Constitution.

In forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the present petitions, reports of the relevant period from the electronic and print media have been taken into consideration, which Supreme Court is entitled to.

The actions of General Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and declared to be unconstitutional, illegal, mala fide and void ab initio. In pursuance of the aforesaid declaration, the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, Chief Justices and Judges of High Courts who were declared to have ceased to hold office by the notifications issued by the Ministry of Law and Justice, Government of Pakistan in pursuance PCO No.1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notifications issued by the Ministry of Law in this behalf are declared to be null and void.

General Pervez Musharraf, during the period of the emergency from 3rd November, 2007 to 15th December, 2007, in pursuance of the instruments and measures of 3rd November, 2007, which have been held and declared to be unconstitutional, illegal and void ab initio promulgated some more instruments. On 15th November, 2007, by Provisional Constitution (Amendment) Order, 2007, he purported to make amendments in PCO No. 1 of 2007 so as to provide power to repeal PCO No. 1 of 2007 and to revoke Proclamation of Emergency of 3rd November, 2007.

On 20th November, 2007, by means of the Constitution (Amendment) Order, 2007 (P. O. No. 5 of 2007) General Pervez Musharraf made certain amendments in the Constitution, i.e., in Articles 175, 198 and 218 (Establishment of High Court for Islamabad Capital Territory), Article 186A (withdrawal by the Supreme Court of any case, appeal or other proceedings pending before a High Court to it and disposing of the same), Article 270B (General Elections 2008 to the National Assembly and the Provincial Assemblies to be deemed to be held under the Constitution) and Article 270C (appointment/cessation of office of Judge under the Oath Order, 2007 to be deemed under the Constitution). By the same Order, he purported to add Article 270AAA in the Constitution (validation and affirmation of laws etc.).

On 14th December, 2007, by the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007), amendments were made in Article 193 (appointment of a Judge of the High Court of Islamabad Capital Territory, age limit for appointment of High Court Judges to be 40 years instead of 45 years), Articles 194 and 208 (Oath of the Chief Justice of Islamabad High Court and rules of the Islamabad High Court) and Article 270C (Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts who had not made oath under the Oath Order, 2007 to cease to hold office on and with effect from 3rd November 2007 and the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution to take oath as set out in the Third Schedule to the Constitution.

By the Islamabad High Court (Establishment) Order, 2007 (P.O. No. 7 of 2007 dated 14th December, 2007), matters relating to the establishment of the Islamabad High Court, appointment of Judges, jurisdiction, powers of Chief Justice and other Judges, other courts, procedure as to appeals to Supreme Court, practice and procedure, transfer of proceedings, enforcement of orders etc. of Lahore High Court, Right to appear or to act in proceedings transferred to Islamabad High Court, power to appoint officers and staff, expenditure charged upon the Federal Consolidated Fund, removal of difficulties, power to adapt laws, etc., were provided.

By the High Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 8 of 2007 dated 14th December, 2007) it was provided that a Judge who had ceased to hold office of a Judge of High Court in terms of Article 3 of Oath Order, 2007 or had otherwise retired from service as permanent Judge shall be entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court. A Judge of High Court who was holding the post of District & Sessions Judge immediately before his appointment as Judge and had ceased to hold office with effect from 3rd November, 2007 would not be entitled to pensionary benefits.

By the Supreme Court Judges (Pensionary Benefits) Order, 2007 (P.O. No. 9 of 2007), it was provided that a Judge of the Supreme Court who had ceased to hold office in pursuance of Article 3 of Oath Order,, 2007 would be entitled to full pension and other retirement benefits.

Finally, on 15th December, 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd November, 2007 was revoked on and with effect from 15th December, 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date. This Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall make oath under the Constitution.

It was vehemently contended that General Pervez Musharraf could not have introduced his own amendments into the Constitution for self-service and benefit during the so called emergency. The surreptitious validation, affirmation and adoption made by him through insertion of Article 270AAA were invalid and thus had no legal effect in the absence of a parliamentary validation in accordance with Articles 238 and 239 of the Constitution. The unconstitutional acts of General Pervez Musharraf were never extended constitutional protection by the Parliament through a constitutional amendment. The said amendments were unconstitutionally and illegally validated by the so called judgments in Tikka Iqbal Muhammad Khan's case. Therefore, all such instruments and measures including constitutional amendments along with the judgments were required to be done away with. They were not liable to be condoned on the touchstone of the criteria laid down in Asma Jilani's case:

An analysis of the first phase of amendments made under P.O. No. 5 of 2007 would show that they were intended to protect the unconstitutional and illegal act of removal of Judges, which was sought to be done by insertion of Articles 270C and 270AAA in the Constitution. The provision of Article 270B was also an eyewash, inasmuch as the holding of general elections was an act, which was required to be done under the Constitution. However, by providing that the General Elections of 2008 would be deemed to have been held under the Constitution, an old technique to blackmail the other players of the game was devised as it was done at the time of the passing of the Seventeenth Amendment to the Constitution when it was given to understand that if LFO 2002 was not accepted, the elections held in October, 2002 would stand vitiated. Even otherwise, the elections of 2008 were held under Conduct of General Election Order, 2002, which already stood protected under the Seventeenth Amendment to the Constitution. Further, when the elections were held on 18th February, 2008, the Constitution was in force having already been revived on 15th December, 2007.

To cover up the whole illegality, amendments were purportedly made in Part VII of the Constitution relating to the Judicature and a High Court established for the Islamabad Capital Territory, to be known as the Islamabad High Court. Indeed, the establishment of a High Court or a Federal Court for the Islamabad Capital Territory was an act, which could have been done under and in accordance with the Constitution. It would also tend to advance or promote the good of the people, but unfortunately, it was mixed up with the unconstitutional, illegal, void ab initio and mala fide acts. It was carried out by an authority not mentioned in the Constitution and in a manner not authorized therein. Therefore, it was not possible to condone it. However, it would be open to the Majlis-e-Shoora (Parliament) to take steps to establish such a Court in accordance with the Constitution and the law. Even while making amendments relating to the Judicature, an amendment was made in Article 186A of the Constitution, making a provision for withdrawal of a case from a High Court to the Supreme Court, which was impregnated with the potential of being misused in the then scenario where Abdul Hameed Dogar, J, and such other Judges of the Supreme Court might have withdrawn any case from a High Court so as to decide it themselves on an apprehension that the concerned High Court in the case pending before it might give decision not suitable to General Pervez Musharraf.

Again, in the second phase of amendments purportedly made through P.O. No. 6 of 2007, judiciary related amendments, e.g. appointment age, oath of the Chief Justice, Islamabad High Court, the rules of that Court etc., which could be considered to "have been done for the ordinary orderly running of the State" were made in conjunction with mala fide amendments, which provided that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts, who had not made oath under Oath Order, 2007 shall cease to hold office on and with effect from 3rd November 2007 and that the Judges including Chief Justices of Supreme Court, Federal Shariat Court or High Courts appointed and/or continued as such by virtue of the Oath Order, 2007, on revival of the Constitution shall make oath as set out in the Third Schedule to the Constitution.

Last, but not the least, the objective of unconstitutional and illegal removal of Judges including Chief Justices having been achieved, on 15th December, 2007, by the Revocation of Proclamation of Emergency Order, 2007, the emergency proclaimed on 3rd November, 2007 was revoked on and with effect from 15th December 2007 and the Constitution as amended by P.Os. Nos. 5 & 6 of 2007 was revived on and from the same date. This Order also provided that the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and Judges of the High Courts holding office at the time of the revival of the Constitution shall take oath under the Constitution. On the pattern of Zafar Ali Shah's case, this was made to appear like "transactions which are"' past and closed, for, no useful purpose can be served by reopening them" as held in Asma Jilani's case.

The power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else. The holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se . No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power. Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority.

Only those acts which were required to be done for the ordinary orderly running of the State could be protected. Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken. The actions taken by General Pervez Musharraf on 3rd November, 2007 and thereafter being unconstitutional, illegal and void ab initio the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd November, 2007 on the other, including passing of order dated 3rd November, 2007 by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc.

The amendments purportedly made .by General Pervez Musharraf from 3rd November, 2007 up till 15th December, 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio. Accordingly, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President's Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Articles 238 & 239 and the Third Schedule to the Constitution (Oath of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra virus of the Constitution and consequently of no legal effect.

On 3rd November, 2007, it was said that there was ascendency in militancy, extremism and terrorism and trichotomy of powers had been eroded due to wide ranging suo motu actions of the courts, which negated the fundamentals of an adversarial system of justice, and there was an increasing interference by some members of the judiciary in government policy, adversely affecting economic growth in particular. Therefore, it was `a situation for which the Constitution provided no solution.' If one was to distinguish between these cases on the basis of facts and circumstances, they were, all different from each other, arid one would end up seeing each time a new scenario. Therefore, if a particular set of facts and circumstances was acknowledged as a justification for the Military takeover and thereby an unconstitutional and illegal act validated, then a yet newer set of facts and circumstances would always be presented in future and on an analysis of those facts and circumstances, same or similar conclusion would be reached once more up to what time, it is not possible to predict. Therefore, one has to see as to where the wrong lies, what options and remedies are available, and then make an objective analysis and reach some conclusion. Every now and then a situation arises for which the Constitution does not provide any solution and it becomes unworkable. On the first two occasions, it was abrogated, but thereafter it was held in abeyance. Was it a reality that the Constitution had become unworkable each time? Were the situations on 7th October, 1958, 25th March, 1969, 5th July, 1977, 12th October, 1999 and 3rd November, 2007 really such that the Constitution provided no solution? Do similar situations not arise in other countries? Are there no protests, rallies, agitations, riots, loss of human life, etc. in other countries? Is there no corruption in the other countries? Are there no deficiencies or inefficiencies in the working of different departments and organizations in other countries? Are there no conflicts or differences of opinion among the various stakeholders of different organs of the State? Does rigging in elections not take place in other countries? What was the wrong with the judiciary in 1958, 1969, 1977 and 1999? Why were the Judges given new oaths each time and not allowed to perform their functions under the Constitution? Why the elected leaders were not allowed to complete their term and why the judgment over their performance not left to the electorate to whom they would be answerable? Never was the need so dire, as it is today to find out answers to these and other similar and relevant questions. It is for the nation to address these questions in all earnestness.

As to the validity of the proclamations of martial laws or of emergencies issued by any functionary of the State, including the Chief of Army Staff, holding the Constitution in abeyance, issuing a PCO and an Oath Order, and thereby requiring the Judges of the superior Courts to make a fresh oath so as not to be able to pass any orders against such authority, it was wrongly examined earlier on the factual plane. On the contrary, all such acts must be judged on the touchstone of the provisions of the Constitution and on no other consideration or criteria, theory, doctrine or principle.

The Constitution is the cementing force of the State and the society. By making a Constitution, the society has already used and applied such a force and brought into existence a Stare and has chosen to govern itself in accordance with the Constitution so made. It has also unequivocally provided the method and manner for making any further changes in the Constitution and by no other manner or means. Thus, how an authority created under the Constitution itself and equipped with certain powers including use of force to be exercised and resorted to under the control and command of a still superior authority created under the Constitution one day turn around and overthrow the Constitution itself considering that the force so vested in it was liable to be used by it at its own, and not at the authorization by the superior authority designated by the Constitution. That is the destruction of the Constitution and if the Constitutions were to be destroyed, State and the society in the modern times could be preserved in no manner. Shall the Constitution of Pakistan continue to meet such a treatment in the garb of the Civil and the State necessity and the welfare of the people, or in the name of "expediency", by its intermittent holding in abeyance or suspension, mutilation and subversion time and again at the will and whim of the military ruler by recourse to flimsy consideration of non-existing facts? The acts/actions of 3rd November, 2007 of General Pervez Musharraf were motivated for personal illegal and unlawful gain, which he carried out to avoid his apprehended disqualification under a judgment of the Supreme Court. The doctrine of Civil and State necessity and the maxim salus populi est suprema lex were not applicable to all or any of the unconstitutional, illegal and ultra vires acts/actions taken by General Pervez Musharraf on and from 3rd November, 2007 until 15th December, 2007 (both days inclusive) because they were not taken in the interest of the State or for the welfare of the people. The doctrine of necessity and the maxim salus populi est suprema lex, as elucidated in the cases of Begum Nusrat Bhutto absolutely have no application to an unconstitutional and illegal assumption of power by an authority not mentioned in the Constitution in a manner not provided for in the Constitution, including but not limited to a purported promulgation of Proclamation of Martial Law, Proclamation of. Emergency, Provisional Constitution Order, Oath Order, Amendments of the Constitution and the Orders, Ordinances, Regulations, Rules, etc. issued in pursuance thereof, notwithstanding any judgment of any Court, including the Supreme Court.

In the present case, none of the Judges who did not make oath in pursuance of the order dated 3rd November, 2007 passed by a seven member Bench of this Court in Wajihuddin Ahmed's case applied for pension, or for revival of their licence to practice law as was the position in Zafar Ali Shah's case. It was a strong rejection of the unconstitutional and illegal use of military force in suppression of the Fundamental Rights of the people. Even at the international level, grave concerns were expressed on the actions of 3rd November, 2007. Statements and resolutions were made by the Bar Associations across the globe.

The nation had stood up against the unconstitutional and illegal acts of 3rd November, 2007. Not only those actions were not accepted by all and sundry, but they were repelled with an equal and opposite force and were thus rejected with vehemence and firmness, rather with contempt. All this was a healthy sign in the nation's journey on the path of rule of law, constitutionalism and democracy.

In a situation where people did not show any reaction or failed to hold even peaceful rallies or protests against the unconstitutional, illegal and void ab initio acts of a usurper of power, such inaction and apathy could not be pressed into service to justify such unconstitutional and illegal acts, as was done in the previous cases. Indeed peaceful rallies and protests are acknowledged all over the world as the proper means of giving vent to the well-founded grievances of the people against the denial of their Fundamental Rights guaranteed under the Constitution. It is the duty of the law enforcing agencies to provide the requisite setting to the protesting crowds so that they remain peaceful and are not compelled or allowed to resort to violence. Resort to violence and use of force for the attainment of legal rights and entitlements cannot be approved. It is the duty of each organ of the State and each institution of the government to ensure that the grievances of the people are redressed by the mechanisms provided under the law and by recourse to peaceful constitutional and legal means so that they do not resort to protests or violence. It was equally wrong in the earlier cases to refer to the stray incidents of jubilations and sweet distributions at the military takeovers of July 1977 and October 1999 by certain quarters, which would always be politically motivated. The unconstitutional and illegal acts would remain unconstitutional and illegal even though nobody comes up to challenge the same in a court of law, or nobody takes to the streets to protest against them, or the political opponents or other disgruntled elements resort to jubilations and sweet distributions at the unconstitutional and illegal ouster of those in power by means of imposition of martial law, Proclamation of Emergency, PCO, Oath Order, etc. Pakistan owes its existence to a peaceful struggle launched and pursued by the Quaid-e-Azam Muhammad Ali Jinnah within the constitutional and legal framework. Supreme Court disapproved the approach adopted in the said cases.

Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 per se were unconstitutional, illegal and ultra wires.

On 3rd November, 2007 certainly it was the first time in the history of Pakistan that the judiciary, instead of accepting or acquiescing in the situation as per past practice, acted boldly and independently and took the most ever needed step, which conspicuously lacked in the past. A seven member Bench of Supreme Court, constituted and convened in the evening of the fateful day after the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, passed the restraint order in Wajihuddin Ahmed's case,. This was the most striking distinction between the action of 3rd November, 2007 on the one hand and those of 12th October, 1999, 5th July, 1977, 25th March, 1969 and 7th October, 1958 on the other. In pursuance of the said order, a vast majority of the Judges of the superior courts rejected the actions of 3rd November, 2007 and did not make oath in pursuance with the order dated 3rd November, 2007 passed by a seven member Bench of Supreme Court in Wajihuddin Ahmed's case. The lawyers, members of the civil society, political activists, the print and the electronic media personnel and the general public played their role for upholding the rule of law and supremacy of the Constitution in the country. Abdul Hameed Dogar, J, and some other Judges violated the aforesaid 'order dated 3rd November, 2007 passed by a seven member Bench of Supreme Court in Wajihuddin Ahmed's case. These Judges, whether they were in Supreme Court or in the High Courts, have all rendered themselves liable for consequences under the Constitution for their disobedience of the aforesaid order of 3rd November, 2007.

Article 176 of the Constitution provides that the Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament) or, until so determined, as may be fixed by the President. Thus, there is a provision of one Chief Justice of Pakistan alone. Next provision relating to the office of Chief Justice of Pakistan is Article 180. It provides that at any time when (a) the said office is vacant; or (b) he is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the Supreme Court to act as Chief Justice of Pakistan. On 3rd November, 2007, the Chief Justice of Pakistan was unconstitutionally and illegally prevented from the execution of the functions of his office. The Constitution envisaged only one office of Chief Justice of Pakistan and the incumbent Chief Justice had already been appointed. On account of a forcible restraint placed upon the movement of the Chief Justice, it could not be said that vacancy had occurred in that office so as to appoint anyone else as permanent Chief Justice. Further, he was neither absent nor unable to perform the functions of that office due to any other cause within the contemplation of Article 180. Therefore, nobody else could be appointed as the Acting Chief Justice of Pakistan. In the circumstances, Abdul Hameed Dogar, J, could neither be appointed as permanent Chief Justice nor Acting Chief Justice. For the same argument, it may be mentioned that in case of a temporary vacancy, he could 'not be appointed as Acting Chief Justice in presence of Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J, who were senior to him. The office of the Chief Justice of Pakistan never fell vacant throughout except as and when he was out of the country and an Acting Chief Justice was appointed under the Constitution. Therefore, the Chief Justice of Pakistan had continued in office without interruption of a single day until the 17th March, 2009 when he was formally restored to the position he was holding prior to 3rd November, 2007. In illegally occupying the office of Chief Justice of Pakistan and taking upon himself the execution of the functions of that office in the presence and availability of its permanent incumbent, knowing fully well that the same had not fallen vacant, Abdul Hameed Dogar, J, became a usurper and he exercised the usurped powers and jurisdiction of the office of Chief Justice. His purported appointment as Chief Justice of Pakistan per se, therefore, was unconstitutional, illegal and ultra vires. Abdul Hameed Dogar, J, was never a constitutional Chief Justice, of Pakistan.

Under Article 176 of the Constitution, the number of the Judges of the Supreme Court is to be determined by an Act of Majlis-e-Shoora (Parliament). Until the number of Judges is so determined, it may be such as may be fixed by the President. By the Supreme Court (Number of Judges) Act, 1997 (Act XXXIII of 1997), it was provided that the number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be sixteen. However, by section 13 of the Finance Act, 2008, the Act No. XXXIII of 1997 was amended and the words "be sixteen", the words "not be more than twenty-nine" were substituted with a deeming clause that the same shall be deemed always to have been so substituted on the 3rd day of November, 2007. Clearly, under Article 176, the number of Judges is liable to be determined in two modes, viz. by an Act of Parliament, and until so determined, by the President. An Act of Parliament is different to and distinct from a Finance Act. All substantial legislation is made by an Act of Parliament, that is to say, the passing of the relevant bill by the two houses of Parliament as defined in Article 50 of the Constitution. On the other hand, a Finance Act, in general, is concerned with fiscal matters. Since the Constitution, through its Article 176, authorises only the Parliament to determine the number of Judges of the Supreme. Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act XXXIII of 1997, the increase in the strength of Judges through the Finance Act of 2008, which was not passed by Majlis-e-Shoora (Parliament), but by the National Assembly alone, the same would be deemed valid only for financial purposes and not for the purposes of Article 176 of the Constitution. Increase of number of Judges in such a manner also militates against the independence of the judiciary. Strength of Judges is only to be increased keeping in view its needs. It is also to be ensured that the courts are not packed with persons in disregard of merit. After 3rd November, 2007, after the purported increase of number .of Judges of the Supreme Court by means of Finance Act, 2008, Judges of High Courts who did not possess the requisite qualification or who were not men of integrity, were appointed on quid pro quo basis. Against one such appointee, there were serious allegations of misconduct and impropriety. However, after restoration of the Judges to the position they were holding prior to 3rd November, 2007, he resigned from office. Thus, the number of Judges of the Supreme Court for purposes of the said Article 176 would continue to remain sixteen.

At the relevant time, the Supreme Court was functioning with its full strength, i.e. Chief Justice plus 16 Judges. Even one Ad hoc Judge, namely, Ghulam Rabbani, J, had also been appointed as such. Thus, neither there was any vacancy in the office of Chief Justice of Pakistan nor any vacancy existed in the office of Judge Supreme Court, against which Abdul Hameed Dogar, J, or other Judges, as purportedly appointed, could have been appointed under the Constitution and the law.

Further, the purported appointment of Abdul Hameed Dogar, J, as the Chief Justice of Pakistan also stood vitiated by virtue of notification No. F.12(4)/2007-A.II dated 17th March, 2009 whereby the Chief Justice of Pakistan was restored to the position he was holding immediately before 3rd November, 2007.

The purported appointment of Abdul Hameed Dogar, J, or for that matter the appointments of other Judges was unconstitutional, illegal and void ab initio. Further, the recital in the notification, which is a contradiction in terms, stands nullified by the dominant intent and spirit of the notifications, which was the restoration of the Chief Justice of Pakistan and other Judges to the position they were holding prior to 3rd November, 2007. It was a loud and clear recognition of the fact that the Chief Justice of Pakistan and all other Judges of the Supreme Court and High Courts continued to be such Chief Justice and Judges despite their unconstitutional, illegal and forcible removal from office in violation of Article 209 of the Constitution and the said position, on the same considerations, was reversed in totality. A wrong stood declared wrong with no mincing of words, for all times to come.

Abdul Hameed Dogar, J, and other Judges all knew that they were not Judges under the Constitution; they knew that they lacked authority, but they shut their eyes to that fact when it was obvious; they knew that some others were the rightful holders of those offices; they had no right in fact and they were not in possession of office by some colour of right; and they were usurpers. They were also intruders because they attempted to perform the duties of an office without authority of law and without the support of public acquiescence. Thus, looked at from whatever angle, the purported appointments of Abdul Hameed Dogar, J, and such other Judges were unconstitutional, illegal and void ab initio.

The other four Judges of the Supreme Court, namely, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar and Saiyed Saeed Ashhad, JJ, and the Judges including the Chief Justices of High Courts, who made oath in violation of the order dated 3rd November, 2007 passed by a seven member Bench of this Court in Wajihuddin Ahmed's case were fully aware of the aforesaid restraint order, which was passed immediately after the announcement made on the TV channels regarding issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007. No sooner the order was passed, its copies were delivered to all the Judges of the Supreme Court at their residences. Copies of the order were sent to the Registrars of all High Courts by fax so as to bring the same to the notice of the Chief Justices and Judges of High Courts at once for compliance.

The TV channels repeatedly televised the contents of the aforesaid order before and after the taking of oath by Abdul Hameed Dogar, J, and other Judges. That continued even after 4th November, 2007. The order was also published in the newspapers of 4th November, 2007. It formed the subject matter of various articles written in the newspapers and comments in the TV talk shows.

On a perusal of the excerpts from the print and. the electronic media, one is left with no manner of doubt that the order dated 3rd November, 2007 passed by a seven - members Bench of Supreme Court in Wajhuddin Ahmed's case was widely covered both in the electronic and print media. The fact that the said order came fully in the knowledge of all Judges of Supreme Court and High Courts by means of the coverage in the electronic and print media is in line with the following parameters for the purpose of taking judicial notice of press reports:

(i) Where direct evidence is not available;

(ii) Where it is sought to be proved that a person has notice of the contents of the newspaper report;

(iii) Where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper, which is to be used against him;

(iv) In cases of defamation; and

(v) If the issue/occurrence is rather old and eyewitnesses are either wanting or less reliable.

Thus, all the Judges knew that a restraint order had been passed by the Supreme Court and also that Abdul Hameed Dogar, J, and some other Judges had made oath in violation of the said order. In fact, all and sundry in the length and breadth of the country knew about it. All such Judges, therefore, wilfully violated the order dated 3rd November, 2007 passed by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case.

The appointment of Judges of the superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary. The Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court. The consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/ confirmation of a Judge in the superior Court shall be invalid. The independence of .the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary. An Acting Chief Justice was not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness. Since .consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution was mandatory, any appointment/confirmation made without consulting any of the consultees interpreted above would be violative of the Constitution and, therefore, would be invalid. In the present case, the permanent Chief Justice of Pakistan was very much available and able to perform the functions of his office. To have access to free, fair and independent court/tribunal would be a fundamental right enforceable by the Courts. Any deviation from the methods prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan would give rise to the infringement of the fundamental right of the citizens to have free, fair and equal access to justice through an independent and impartial Court/Tribunal, thus violating the right guaranteed under Articles 9 and 25 of the Constitution.

Abdul Hameed Dogar, J, who was holding office in violation of the order dated 3rd November, 2007 passed by a seven member Bench of Supreme Court in Wajihuddin Ahmed's case, was not authorized to be consulted for such appointments. All the appointments of Judges of the Supreme Court and High Courts made in consultation with him during the period from 3rd November, 2007 to 21st March, 2009 were violative of the provisions of the Constitution. Therefore, appointments of Judges made in consultation with Abdul Hameed Dogar, J, were unconstitutional, illegal, void ab initio and of no legal effect.

Besides, the purported appointment of four persons as Judges on 5th November, 2007, two such Judges, namely, Muhammad Akhtar Shabbir, J, a retired Judge of the Lahore High Court and Zia Pervez, J, a former Judge of the High Court of Sindh, though as a Judge of the High Court he had not made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case, were appointed vide notification No.F. 1(1)/2007-A-II(A) dated 12th November, 2007 in Supreme Court. Three such Judges, namely, Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, sitting Judges of the Lahore High Court and Syed Zawwar Hussain Jaffery, a retired Judge of the High Court of Sindh were appointed vide notification No. F.1(1)/2007-A.II dated 9th December, 2007. All these appointments stood vitiated on account of the above declaration. Out of the above, the Judges who were sitting Judges of the High Courts violated the order dated 3rd November, 2007 passed by a seven member Bench of Supreme Court in Wajihuddin Ahmed's case, which was enforceable and binding upon them under Articles 187, 189 and 190 of the Constitution, particularly after it had come to their notice through the electronic and print media, or through the respective Registrars, and thus rendered themselves liable to action under and in accordance with the Constitution.

As to the remaining Judges, who were retired Judges of the High Courts or were taken on the basis of their practice, their appointments stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan, but were made in consultation with Abdul Hameed Dogar, J, who was not a consultee within the ambit of Article 177 of the Constitution. Furthermore, all these Judges were appointed against the vacancies occupied by the Judges appointed under the Constitution, who were available and able to perform the functions of their office. Accordingly, the appointments of all the above Judges were unconstitutional, illegal and void ab initio.

Similarly, the appointments of Judges made in consultation with Abdul Hameed Dogar, J, after the revocation of emergency up till 22nd March, 2009, the date of his retirement were too, violative of the provisions of the Constitution. Two such Judges, namely, Sh. Hakim Ali, J, a sitting Judge of the Lahore High Court and Muhammad Farrukh Mahmood, J, a retired Judge of the Lahore High Court were appointed vide notification No. F.2(1)/2008-A-II(A) dated 7th February, 2008. Two Judges, namely, Sabihuddin Ahmed, CJ, and Sarmad Jalal Osmany, J of the High Court of Sindh, who had not made oath in violation of the order dated 3rd November, 2007 passed by a seven -member Bench of Supreme Court in Wajihuddin Ahmed's case, were appointed vide, notification No. F.2(3)/2008-A-II. dated 19th September, 2008. One Judge, namely, Sardar Muhammad Aslam, CJ, Islamabad High Court was appointed vide notification No. F.2(1)/2009-A.II dated 7th March, 2009. Their appointments too, stood vitiated because the same were not made in consultation with the Chief Justice of Pakistan but were made in consultation with Abdul Hameed Dogar, J, who was not a consultee within the ambit of Article 177 of the Constitution. All the aforesaid Judges shall immediately cease to hold office forthwith. However, such Judges who were sitting Judges of the High Court prior to their appointment in the Supreme Court in consultation with Abdul Hameed Dogar, J, shall revert to their respective High Courts subject to their age of superannuation.

Another category of appointments made during the period from 15th December, 2007 to 22nd March, 2009 relates to the reappointment of certain deposed Judges of the Supreme Court and the High Courts, who had not made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case whose cases were processed by Abdul Hameed Dogar, J, being in the office of Chief Justice of Pakistan at the relevant time. However, the actions of 3rd November, 2007 per se having been held and declared to be unconstitutional, illegal and void ab initio, it has further been held and declared that the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan, any Chief Justice of High Court and Judges of High Courts who were declared to have ceased to hold office in pursuance of PCO No. 1 of 2007 and Oath Order, 2007 shall be deemed never to have ceased to be such Chief Justices or such Judges irrespective of any notification issued regarding their reappointment or restoration. The notification of restoration of such Judges has in fact superseded the earlier notification of their reappointment and is a loud and clear recognition that such Judges having been removed in violation of Article 209 of the Constitution, have now been brought back to their original position by force of the provisions of the Constitution itself. They continued to be such Judges throughout without interruption of a single day.

Zia Parwez, J did not make oath as a Judge of High Court on or after 3rd November, 2007 after the order dated 3rd November, 2007 was passed by a seven members Bench of Supreme Court in Wajihuddin Ahmed's case, and was deposed from office. But his subsequent appointment as a Judge of the Supreme Court was made, 'firstly, in violation of the order dated 3rd November, 2007 passed by a seven members Bench of Supreme Court in Wajihuddin Ahmed's case, and secondly, in consultation with Abdul Hameed Dogar, J, who was not competent or authorized under the Constitution for such consultation.

Therefore, his appointment as a Judge of the Supreme Court has been found to be unconstitutional, illegal and void ab initio. Accordingly, he would cease to hold office of Judge of the Supreme. Court.

The Judges including Chief Justices of High Courts, who made oath in violation of the order dated 3rd November, 2007 passed by a seven members Bench of Supreme Court in Wajihuddin Ahmed's case, or were appointed in consultation with Abdul Hameed Dogar, J, whether during the period from 3rd November, 2007 to 15th December, 2007, or thereafter, shall be governed in the same terms. However, any of such Judges who was District & Sessions Judge prior to his appointment as Judge of High Court shall revert to his original position subject to age of superannuation.

Supreme Court proceeded to determine the validity of the decisions rendered by Abdul Hameed Dogar, J, and Judges of the Supreme Court, Chief Justices and Judges of High Courts, who were Judges/Chief Justices on 3rd November, 2007 and who made oath in violation of order dated 3rd November, 2007 passed by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case, as also Chief Justices/Judges appointed in consultation with Abdul Hameed Dogar, J. The actions of 3rd November, 2007 have already been held and declared to be unconstitutional, illegal and ultra vires. The appointment of Abdul Hameed Dogar, J, as Chief Justice of Pakistan, appointments of Judges of Supreme Court and High Courts including Chief Justices made in consultation with Abdul Hameed Dogar, J, and oaths made in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case all have been held to be unconstitutional, illegal and ultra vires. Therefore, the Supreme Court manned by Abdul Hameed Dogar, J, and other Judges was coram non judice and bereft of the power and jurisdiction vested in the Supreme Court under the Constitution, as such they were not entitled to undertake upon themselves the execution of the functions of Judges of the Supreme Court. They exercised the usurped power and jurisdiction of Judges of the Supreme Court including Chief Justice of Pakistan and Chief Justices of High Courts. As such, the decisions rendered by them would be illegal and nullity in the eye of law.

A prime contention of the, counsel for the petitioners on the status of the order dated 6th November, 2007 passed in Wajihuddin Ahmed's case and the decisions rendered in Tikka Iqbal Muhammad Khan's case was that Abdul Hameed Dogar, J, and other Judges, who were occupying the seats of the Chief Justice and Judges of the Supreme Court were acting in collusion with General Pervez Musharraf and consequently in their own interest because their own existence as such Chief Justice and Judges was dependent on the continuity and enforceability of the measures and instruments of General Pervez Musharraf of 3rd November, 2007. They, therefore, had no authority under the Constitution or in law to pass any order in Wajihuddin Ahmed's case, which lay at the root of the actions of. 3rd November, 2007. That is why, according to the counsel, 'the anxiety of Abdul Hameed Dogar, J, and other Judges was to at once purportedly rescind the order dated 3rd November, 2007 passed by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case. The said order was not acceptable to General Pervez Musharraf and his camp because it denuded him of the absolute powers he attempted to wield in yet another coup, which proved to be the last of his successive coups, with a view to once again manoeuvring another term of five years in Presidency before he relinquished the office of Chief of Army Staff. In presence of the said order, Abdul Hameed Dogar, J, and other Judges were not considering themselves secure or at ease to take upon themselves the execution of the functions of Judges of the Supreme Court and to confer validity on the actions of 3rd November, 2007. On 5th November, 2007, the number of such Judges was five, i.e. Abdul Hameed Dogar, J, plus 4 others out of whom one was not available at Islamabad, therefore, they could not pass any order in the said case on that day. However, the same day, Abdul Hameed Dogar, J, earnestly set himself unto the task of adding to the ranks of such Judges and increase their strength. Indeed, Abdul Hameed Dogar, J, was able to make some progress, in that, by notification of 5th November, 2007, four persons, namely, Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari and Ch. Ejaz Yousaf were purportedly appointed as the Judges of this Court. With it, the number was increased to 8 and thus they considered that they now would be able to rescind the order of 3rd November, 2007. Accordingly, on 6th November, 2007, a miscellaneous application (CMA No. 2874 of 2007) was moved on behalf of the Federation in Wajihuddin Ahmed's case.

In the first place, since the appointments of all such Judges, including Abdul Hameed Dogar, J, have been found to be unconstitutional, illegal and ultra vires, all the decisions rendered by them including the order dated 6th November, 2007 passed in Wajihuddin Ahmed's case as well as those in Tikka Iqbal Muhammad Khan's case were coram non judice and a nullity in the eye of law.

Secondly, the order dated 6th November, 2007 marked the presence of Mr. Arshad Ali Chaudhry, ASC/AOR on behalf of the Federation (applicant), and the Attorney General for Pakistan was shown to have appeared on Court's call, but surprisingly no notice was issued to the parties, nor even to the petitioner Wajihuddin Ahmed, or any of his counsel/AOR, though one of them, namely, Barrister Aitezaz Ahsan was in respondent Government's own custody and it was quite convenient to procure his attendance. Therefore, order passed on the application suffered from the very flaw, which was wrongly alleged in respect of order dated 3rd November, 2007 passed by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case, i.e. it was passed without notice to the other side.

As to the invalidity of the order dated 6th November, 2007 passed in Wajihuddin Ahmed's case, it is noteworthy that the order of 3rd November, 2007 was passed in an entirely different setting. The application was presented before the Bench on 2nd November, 2007, but it was directed to be filed in office, to be taken up on the next date of hearing, viz. 5th November, 2007. Since the apprehensions expressed in the application came true and Proclamation of Emergency was issued, in view of the urgency of the situation so presented by the circumstances of the case, it was taken up by a Bench of 7 available Judges in the evening of 3rd November, 2007 and the order was passed thereon, as prayed earlier. It was not something, which was cooked up in the meantime. The filing of application was an already existing fact to the notice of all parties, including the Attorney General for Pakistan. No other option was left with the Court except to pass an interlocutory restraint order, which was within the power and jurisdiction of the Court. In any case, it was not a final order and the matter was ordered to be put up before the Full Court on 5th November, 2007. However, the situation on 6th November, 2007 was entirely different. The unconstitutional acts of 3rd November, 2007 having already been taken by General Pervez Musharraf, if it were a regular and bona fide proceeding, notice would have been issued to the petitioner to say the least, and order passed after providing him an opportunity of hearing because no such pressing urgency existed on 6th November, 2007, as it existed on 3rd November, 2007. But the point was that if the order of 6th November, 2007 was not passed, the purpose either of General Pervez Musharraf or of Abdul Hameed Dogar, J. and other Judges would not have been served.

Now, two orders are before the Supreme Court. One was passed on 3rd November, 2007 by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case, i.e. by the Judges appointed under the Constitution, and the other of 6th. November, 2007 passed by Abdul Hameed Dogar, J, and other Judges. The former order was passed to preserve, protect and defend the Constitution and the law. The latter was passed in the discharge of duties in accordance with Proclamation of Emergency of 3rd day of November, 2007, PCO No. 1 of 2007 and the law. The one had constitutional and moral authority and power behind it. The other had the gun at its backing. The Judges in the former case were bound to abide by the Code of Conduct issued by the Supreme Judicial Council. The Judges in the latter case were bound to abide by the provisions of Proclamation of Emergency and the PCO, though cosmetically also by the same Code of Conduct. There is no manner of doubt left that the order dated 6th November, 2007 was passed to lend support to the unconstitutional and illegal acts of General Pervez Musharraf of 3rd November, 2007 and onward. By all recognized principles, the order dated 6th November, 2007 was collusive and mala fide having been rendered by Abdul Hameed Dogar, J, and other Judges, who were holding office in violation of the order dated 3rd November, 2007 passed by a seven member Bench of Supreme Court in Wajihuddin Ahmed's case. Therefore, the order dated 6th November, 2007 is declared to be unconstitutional, illegal and void ab initio.

While considering the question of validity of the aforesaid order dated 6th November, 2007, a. grave error was discovered while examining the record and proceedings. It appeared that Constitution Petition No. 73 of 2007 along with another petition viz. Criminal Original Petition No. 51 of 2007 filed by Wajihuddin Ahmed were taken up on 19th November, 2007 by a subsequently constituted ten-member Bench, this time too, headed by Abdul Hameed Dogar J, and were supposedly dismissed the same day on merits as reported in PLD 2008 SC 13 (Wajihuddin Ahmed v. Chief Election Commissioner, Islamabad & others) and (Wajihuddin Ahmed v. Justice (R.) Qazi Muhammad Farooq, Chief Election Commissioner, Islamabad and others).

The record, however, showed that the same day the same Bench had already dismissed the above mentioned two petitions for want of instructions. Therefore, the petitions ought to have been consigned to record but, seemingly, the Bench later preferred to frame anew the abovenoted order, surprisingly without making any reference to, rather ignoring its own earlier order so passed.

In Petition No.73 of 2007, the petitioner had, inter alia, sought a declaration that "General Pervez Musharraf be declared ineligible, lacking in qualifications under Article 62 and other provisions of the Constitution and is disqualified under Article 63 of the Constitution to contest the election of the office of the President of Pakistan." On 5th October, 2007, the Bench passed an injunctive order, whereby it was directed that final notification of the election of the returned candidate would not be issued till the final decision of the petitions. The Bench had been hearing counsel for parties on day-to-day basis till 2nd November, 2007 i.e. a day before General Pervez Musharraf proclaimed emergency, held the Constitution in abeyance and issued PCO and Oath Order, 2007.

After the issuance of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 on 3rd November, 2007, Abdul Hameed Dogar, J, and other members of the Bench again took up Petition No. 73 of 2007, dismissed the same for want of instructions, as is evident from record yet framed the order without issuance of notice to the petitioner. The order dated 19th November, 2007 so passed reflects that a host of counsel, namely, Malik Muhammad Qayyum, Attorney General for Pakistan, Mst. Nahida Mehboob Ellahi, DAG, Raja Niaz Ahmed Rathore, DAG, and five other advocates appearing for Federation of Pakistan, and Syed Sharifuddin Pirzada, Sr. ASC, and Mr. Muhammad Ibrahim Satti, ASC, appearing for General Pervez Musharraf, were present, but surprisingly, not a single argument is recorded in the order as if they had said nothing at the hearing, yet, this petition along with Original Petition No. 51 of 2007 was dismissed on merits. Palpably, the object appears to be, as is evident from the order, to hold General Pervez Musharraf immune from any disqualification under the Constitution, for the Presidential Election 2007 and also to vacate the interim stay order dated 5th October, 2007 earlier passed by a 10-member Bench thereby enabling the Chief Election Commissioner of Pakistan and the Federal Government to make final announcement of the result of the election of President and to issue the necessary notification.

The above order was framed for no consideration other than for ulterior purposes, in a bid to please General Pervez Musharraf, with, whose blessings Abdul Hameed Dogar, J, and other Judges were holding office unconstitutionally, unlawfully and illegally. In such a situation, Constitution Petition No. 73/2007 was, dismissed for want of instructions, as is borne out from the official record of the Court duly supported by the press reports of 20th November, 2007.

The action of 3rd November, 2007, therefore, was unique in the history of the whole world. If anyone had made oath earlier, it did not mean that he would continue to make similar oaths in future as well. It was not so laid down in Zafar Ali Shah's case. What was laid down was that theme action under the Oath Order, 2000 was a past and closed transaction, which could not be reopened. Again, it was not laid down that if such an event occurred in future, that too would be treated as past and closed transaction and would not be reopened and the persons, who had made oath then, would continue making similar, oaths. Nothing could be more fallacious. Enough is enough. There has to be an end to it somewhere. Fortunately, the end to a vicious circle came on 3rd November, 2007. The order dated 3rd November, 2007 passed by a seven member Bench of Supreme Court in Wajihuddin Ahmed's case built a stronghold around the Constitution, so as to save it from its further mutilation and subversion at the hands of General Pervez Musharraf.

The law and order situation had worsened and much deteriorated during the currency and even after Proclamation of Emergency was revoked on 15th December, 2007.

The remedies for curbing terrorism, extremism and militancy lay elsewhere and not in imposing an unconstitutional, illegal and void ab initio Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, the effect of which was to eliminate the existing Judges of the Supreme Court and High Courts and bring in their place compliant Judges under the PCO and the Oath Order. Proclamation of Emergency, if any, could be, promulgated within the ambit of the Emergency Provisions contained in Part X of the Constitution by the authority mentioned therein.

The law and order being a provincial subject, necessary legislative and administrative steps would be required to be taken under the provisions of Article 234, which empowered the President to assume to himself or direct the Governor of the Province to assume on his behalf, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, any body or authority in the Province, etc, in a situation in which the government of the province could not be carried on in accordance with the provisions, of the Constitution. But the imposition of any such emergency too, would be subject to judicial review.

The judiciary was the interpreter of the Constitution and was assigned the delicate task of determining, the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits.

It was the solemn duty of the Court to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly.

The judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was a cardinal principle of the Constitution that no one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution.

Power of judicial review is a cardinal principle of the Constitution. The Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government. It is the duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature.

It is a fundamental principle of our jurisprudence that Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. This expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the courts and Judges. It is to this end that the power of judicial review was being exercised by the judiciary before 3rd November, 2007. Indeed the power of judicial review was, and would continue to be, exercised with strict adherence governing such exercise of power, remaining within the sphere allotted to the judiciary by the Constitution.

Though the exercise of suo motu powers and alleged consequential erosion of trichotomy of powers enshrined in the Constitution was made a ground for imposing the unconstitutional and illegal Proclamation of Emergency, which was upheld in Tikka Iqbal Muhammad Khan's case, not a single case taken up suo motu was referred to, or discussed in the detailed reasons of the said decision - except a bald reference in Para 2(ii) of the short order - to point to any undue interference in the functioning of the other branches of the government. In any event, it was open to the Federation in all such cases to have availed the remedy provided under the Constitution and the law against the judgments of the Supreme Court. But, no such step was ever taken in any case whatsoever. Surprisingly, Abdul Hameed Dogar, J, and others held in Tikka Iqbal Muhammad Khan's case that the suo motu actions were destructive of the constitutional principle of trichotomy of power, but he himself continued to take similar actions from time to time, which fact was established from the record of the Supreme Court after 3rd November, 2007. It was a contradiction in terms.

As to the institution of the Supreme Judicial Council, which was allegedly rendered ineffective, the argument was not available in view of the judgment of a thirteen-member Bench reported as PLD 2007 SC 578. Even otherwise, Abdul Hameed Dogar, J, and 6 other Judges were legally and constitutionally debarred from commenting upon the matter.

The whole grievance was nurtured against the Judges of the Supreme Court who were hearing the disqualification case of General Pervez Musharraf, but in issuing the unconstitutional and illegal Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007 all Judges of the Supreme Court, Federal Shariat Court and High Courts were declared to have ceased to hold office and only such Judges were allowed to occupy the seats of Judges who made oath in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case.

Abdul Hameed Dogar, J, and other Judges who made oath, or were appointed, in violation of the order dated 3rd November, 2007 passed by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case were not even de facto Judges, inter alia, on the ground that the actions taken by General Pervez Musharraf from 3rd November, 2007 to 15th December, 2007, including the appointments and/or oaths of such Judges, were mala fide as the same were taken by him for his own benefit, and did not fall within the scope of his authority under the Constitution and the law and in any case, they were not taken in the interest of the State, or for the welfare of the people.

The Judgments/orders passed by Abdul Hameed Dogar, J, and other Judges in Tikka Iqbal Muhammad Khan's case and Wajihuddin Ahmed's case, that is to say, the short order dated 23rd November, 2007 passed in Tikka Iqbal Muhammad Khan's case, reported as PLD 2008 SC 6, the detailed reasons in support of the aforesaid short order, reported as PLD 2008 .SC 178, judgment dated 15th February,. 2008 passed in Civil Review Petition No.7 of 2008 in the said case, reported as PLD 2008 SC 615 and the order dated 6th November, 2007 passed in Wajihuddin Ahmed's case, reported as PLD 2008 SC 25 are hereby declared to be illegal, mala fide, coram non judice and void ab initio.

However, the judgments and orders passed, and proceedings taken in the cases of other litigants involving their rights and interests in civil, criminal and other matters, any function performed under the Constitution including administering of oath to the President, and other acts, whether administrative or financial, done or performed by Abdul Hameed Dogar, J, and such other Judges or by any authority, or by any person, whether in the Supreme Court or a High Court, which were passed, taken, done or performed, or purported to have been passed, taken, done or performed under the Constitution or law from 3rd. November, 2007 to 31st July, 2009, i.e. the date of this judgment would not be affected on the principle laid down in Asad Ali's case.

All the acts/actions done or taken by General Pervez Musharraf from 3rd November, 2007 to 15th December, 2007 (both days inclusive), that is to say, Proclamation of Emergency and the subsequent acts/actions done or taken in pursuance thereof, having been held and declared to be unconstitutional, illegal, ultra vires and void ab initio are not capable of being condoned. These include Proclamation of Emergency and the PCO No.1 of 2007 issued by him as Chief of Army Staff and Oath Order, 2007 issued by him as President of Pakistan in pursuance of the aforesaid two instruments, all dated 3rd November, 2007; Provisional Constitution (Amendment) Order, 2007 dated 15th November, 2007; Constitution (Amendment) Order, 2007 (President's Order No.5 of 2007 dated 20th November, 2007); Constitution (Second Amendment) Order, 2007 (President's Order No.6 of 2007 dated 14th December, 2007); Islamabad High Court (Establishment) Order 2007 (President's Order No.7 of 2007 dated 14th December, 2007); High Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.8 of 2007 dated 14th December, 2007) and Supreme Court Judges (Pensionary Benefits) Order, 2007 (President's Order No.9 of 2007 dated 14th December, 2007). The aforesaid actions of General Pervez Musharraf are also shorn of the validity purportedly conferred upon them by the decisions in Tikka Iqbal Muhammad Khan's case. The said decisions have themselves been held and declared to be coram non judice and nullity in the eye of law. The amendments purportedly made in the Constitution in pursuance of PCO No. 1 of 2007 themselves having been declared to be unconstitutional and void ab initio, all the actions of General Pervez Musharraf taken on and from 3rd November, 2007 till 15th December, 2007 (both days inclusive) are also shorn of the validity purportedly conferred upon them by means of Article 270AAA of the Constitution.

The Chief Justice and Judges of the Islamabad High Court shall cease to hold office immediately for the reasons: (1) the amendments introduced in the relevant Articles of the Constitution under which they were `appointed have also been annulled; (2) the High Court to which they were appointed has ceased to exist on account of the annulment of the acts/actions of General Pervez Musharraf of 3rd November, 2007 and other instruments including Islamabad High Court (Establishment) Order, 2007 (President's Order No.7 of 2007 dated 14th December, 2007) by means of this judgment; and (3) they were appointed in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for such purpose under the provisions of Article 193 of the Constitution, as held in the Al-Jehad Trust case. However, if the Chief Justice, or any Judge of that Court, prior to his appointment in the said Court, was a Judge of any other High Court, he shall stand repatriated to his respective High Court subject to the age of superannuation. The finding recorded in the preceding part of this judgment regarding the Judges of other High Courts who made oath in violation of the order dated 3rd November, 2007 passed by a seven member Bench of Supreme Court in Wajihuddin Ahmed's case shall apply to a Judge of the Islamabad High Court if he was a Judge of any High Court prior to 3rd November, 2007 and had made such an oath.

However; the judgments and orders passed, proceedings taken in the cases and other acts, whether financial or administrative, passed or done in the ordinary orderly running of the day-to-day business of the Islamabad High Court from 15th December, 2007 till 31st July, 2009, i.e. the date of announcement of this judgment, would not be affected on the principle laid down in Mad Ali's case. All judicial matters pending before the erstwhile Islamabad High Court at the passing of this judgment, whether they were transferred to the said Court from any other court, or were instituted before it, shall stand transferred to the courts which had jurisdiction in such matters before its establishment.

The Islamabad High Court having ceased to exist as mentioned above, all posts on its establishment stand abolished. In consequence, all the officers and employees of the said Court have become surplus. They, therefore, shall become part of the Federal Government Surplus Pool for their further appointment/posting/absorption in accordance with law. However, if any such officer or employee was an officer or an employee of some other court, department or office, such officer or employee shall revert to his respective court, department or office to which he belonged before joining service in the Islamabad High Court, subject to his age of superannuation.

Under Article 37 of the Constitution, State is obliged, inter alia, to ensure inexpensive and expeditious justice. The right of access to justice was a human right universally recognized, which was being implemented and executed by granting relief under the provisions of the Constitution. Similarly, the right to have access to justice through an independent judiciary was a Fundamental Right. The establishment of the Islamabad High Court was a commendable step in aid of the right of access to justice in line with the above constitutional mandate and the law laid down in the aforesaid cases. However, it was unfortunate that the said court was not established in accordance with the provisions of the Constitution, rather it was so done by a person not empowered under the Constitution to do so, with ulterior motive. General Pervez Musharraf, mixed up his mala fide acts of removal of Judges of the superior Courts in violation of the Constitution and his own purported validation of all such unconstitutional and illegal acts by means of Article 270AAA, with the act of establishing a High Court for the Islamabad Capital Territory, otherwise an act, which would tend to advance or promote the good of the people, so that he was able to get validation and affirmation from the Parliament. Thus, having been so unconstitutionally established in a highly objectionable manner, it was not possible to protect it. It is, therefore, added that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a court in accordance with the Constitution and law.

As to the question of protection, if any, of other acts done during the period of the unconstitutional, and illegal Proclamation of Emergency, i.e. from 3rd November, 2007 to 15th December, 2007 (both days inclusive). A distinct feature of the present case was that though on .3rd November, 2007 the Constitution was held in abeyance and Pakistan made to be governed, as nearly as may be, in accordance with the Constitution, but subject to PCO No. 1 of 2007 and any other Order issued by General Pervez Musharraf as President, the fact remained that the other two branches of the government, namely, the executive and the legislative were continued. The Federal' and the Provincial Governments, i.e. Prime Minister, Federal and State Ministers, Chief Ministers and Provincial Ministers all continued in office. The Chairman/Deputy Chairman, Senate and Speaker/Deputy Speaker, National Assembly also continued in office. The National Assembly and the Provincial Assemblies continued and were dissolved on completion of their term of five years. Thereafter, caretaker governments at the Federal and Provincial levels were formed and ultimately the election of 18th February, 2008 was held. Thus, all along the day-to-day business of the executive and legislative branches of the government was carried on under and in accordance with the Constitution. Therefore, all acts/actions of the said branches of the government from 3rd November, 2007 to 15th December, 2007, as aforesaid, were done in the ordinary orderly running of the State under and in accordance with the Constitution and the law. Thus, they would be presumed to be validly and competently done unless challenged on grounds of vires, mala fides, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground. The umbrella of Proclamation of Emergency and PCO No. 1 of 2007 was an eyewash and a blackmailing tool. Though emergency as purportedly proclaimed was in force and the Constitution was held in abeyance, General Pervez Musharraf made oath of President under the Constitution and not under PCO No.1 of 2007. The Proclamation of Emergency having been revoked on 15th December, 2007, the acts/actions done or taken from 16th December, 2007 onward until the swearing in of the elected representatives and formation of governments at the federal and the provincial levels were even otherwise done or taken under and in accordance with the Constitution and the law, and were, therefore, valid and were not affected in any way.

Article 4 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, would continue in force until altered, or repealed by the President or any authority designated by him. Clause (1) of Article 5 ibid provided that an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, under clause (2) of the said Article, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to aforesaid limitations. As a result, all the Ordinances, which were in force on 3rd November, 2007 as well as the Ordinances which were promulgated on or after 3rd November, 2007 up to 15th December, 2007 were continued in force as permanent laws and were not laid before the respective legislatures during the period prescribed by the Constitution.

Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270AAA and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Articles. 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an Ordinance issued by the President, if not so-laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation.

Such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws. Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and section 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd November, 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect.

The quest ion of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies. However, the period of four months and three months mentioned respectively in Articles 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in this case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods. This extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions which they were unconstitutionally and illegally denied under PCO No.1 of 2007. Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground.

The present decision is confined to the questions in issue before Supreme Court, namely, the constitutionality of Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. It is noteworthy that the elections of 18th February, 2008 were held after dissolution of the National Assembly and Provincial Assemblies on completion of their term of five years under the Constitution. Accordingly, in pursuance of the said elections, assemblies came into existence and governments at the Federal and Provincial levels were formed. Further, the elections were held after the revocation of emergency and not during the currency of PCO No. 1 of 2007. The fact that the initial announcement regarding holding of elections may have been made under an instrument issued by General Pervez Musharraf in pursuance of the actions of 3rd November, 2007 in no way affects the process whereby elections were held and the people of Pakistan expressed their will. Nor are the elections affected by Article 6 of the Revocation of Proclamation of Emergency Order, 2007 which purported to provide that the general elections to the National Assembly and Provincial Assemblies would be held as scheduled; and thereafter the National and Provincial Assemblies would meet on the dates to be specified by the President for the election of Speaker and Deputy Speaker and for transaction of such other business as the President may specify, in no way, affects the validity of the general elections. The elections of 18th February, 2008 were held in accordance with the Constitution and the law. Supreme Court acknowledges and respects the mandate given by the sovereign authority i.e. the electorate to the democratically elected government on 18th February, 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which is the essence of the rule of law.

Supreme Court hopes that all institutions, on the well known principles of good governance, and without transgressing their constitutional bounds, will endeavour to eradicate corruption and self-enrichment, and will devote themselves to the service of the people. Needless to add that the Courts will, at all times, remain vigilant in this behalf and will always come to the rescue of any beleaguered citizen or class of citizens whenever and wherever an occasion arises.

In any case, it is made clear that any declaration made in this judgment shall not, in any manner, affect the holding of the general elections, formation of governments and the swearing in of the elected representatives of the people, viz. President, Prime Minister, Parliament, Provincial Governments, or anything duly done by these institutions in the discharge of their functions. However, any validation whether with retrospective effect or otherwise, shall remain subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground.

The Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non-justiciable for the reasons discussed in the Supreme Court Bar Association's case; and last, but not the least, non-justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Articles 177 and 193 of the Constitution, as interpreted in Al-Jehad Trust's case, has to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of the concerned High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciary. At the same time, it is necessary that to achieve the primary objective of mandatory, effective, meaningful, purposive and consensus-oriented consultation, by all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates. However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consider the opinion of the Chief Justice of High Court and the report of the Governor of the Province about the antecedents of the person concerned; which shall be given primacy. The law laid down in Al-Jehad Trust's case that "the Chief Justice of Pakistan, being the pater familias, his views definitely deserve due deference" admits of no other interpretation.

In the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Article 105 of the Constitution. In this view of the matter, the recommendations of the Governor in the case of the respondents Nos. 3 and 4 acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid even though the same coincided with the recommendation of Abdul Hameed Dogar, J.

Syed Zaar Ali Shah's case PLD 2000 SC 869; Tikka Iqbal Khan's cases PLD 2008 SC 178; PLD 1969 Central Statutes 42; PLD 1969 Federal Statues 326; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Wajihuddin Ahmed v. Chief Election Commissioner PLD 2008 SC 25; Asma Jilani v. Government of Punjab PLD 1972 SC 139; Liaquat Husain v. Federation of Pakistan PLD 1999 SC 504; State v. Dossa PLD 1958 SC 533; Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657; Federation of Pakistan v. Moulvi Tamizuddin Khan PLD 1955 FC 240; Watan Party v. Chief Executive/President of Pakistan PLD 2003 SC 74; Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200; 'Reference by His Excellency the Governor-General PLD 1955 FC 435; Cooley's Constitutional Limitations 8th Edn. Vol. 2, p.137; Sabir Shah v. Federation of Pakistan PLD 1994 SC 738; Managing Director, Sui Southern Gas Co. Ltd. v. Ghulam Abbas PLD 2003 SC 724; Supreme Court Bar Association v. Federation of Pakistan PLD 2002 SC 939; Usif Patel v. Crown PLD 1955 FC 387; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233; Dialogue on the Political Chess Board First Edn. 2004, p.276 by S.M. Zafar; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719; Jamat-e-Islami v. Federation of Pakistan PLD 2009 SC 549; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473; Benazir Bhutto v.. President of Pakistan PLD 1998 SC 388; Benazir Bhutto v. President of Pakistan PLD 2000 SC 77; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Watan Party v. Federation of Pakistan PLD 2006 SC 697; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2004 Lah. 130; E.O. Lakanmi v. Attorney-General West Nigeria (1970) 6 N.S.C.C. 143; Muhammad Ayub Khuhro v. Pakistan PLD 1960 SC 237; Farzand, Ali v. Province of West Pakistan PLD 1970 SC 98; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Re James (an insolvent) [(1977) 1 All ER 364, at 378-379]; Coppard v. C & E Commissioner [(2003) 3 All ER 351, p.356; Federation of Pakistan v. Aitezaz Ahsan PLD 1989 SC 61; Ghulam Hyder Lakho v. Federation of Pakistan PLD 2000 SC 179; Wajihuddin Ahmad v Chief Election Commissioner, Islamabad and others PLD 2008 SC 13; Manzoor Elahi's case PLD 1975 SC 66; Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789; A.K. Kaul v. Union of India AIR 1995 SC 1403; Raja Ram Pal v. Speaker, Lok Sabha [(2007) 3 SCC 184]; LR. Coelho v. State of Tamil Nadu AIR 2007 SC 861; L. Chandra Kumar v. Union of India [(1997) 3 SCC 261]; S.R. Boxnmai v. Union of India [(1994) 3 SCC 1]; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Darshan Masih v. State PLD 1990 SC 513; Shehia Zia v. WAPDA PLD 1994 SC 693; Employees of the Pak. Law Commission v. Ministry of Works 1994 SCMR 1548; General Secretary v. Director, Industries 1994 SCMR 2061; Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Muhammad Younas v. State PLD 2005 SC 93; Mukhtar Ahmad v. State PLD 2003 SC 126; Feroze Din v. Mehr Sardar Muhammad 2002 SCMR 1993; Tikka Iqbal Muhammad Khan's case PLD 2008 SC 6; PLD 2008 SC 615; Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404; S.P. Gupta v. President of India AIR 1982 SC 149; Supreme Court Advocate-on-Record Association v. Union of India AIR 1994 SC 268 and Re: Special Reference No. 1 of 1998 [(1998) 7 SCC 739] ref.

Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.---

The efforts of Supreme Court of Pakistan to revitalize the judiciary for ensuring social justice, economic justice and political justice for the welfare of the people of Pakistan did not find favour with General (Retd.) Pervaiz Musharraf who despite Order dated 3-11-2007 passed by Supreme Court but following ill-advice, in his capacity as Chief of Army Staff, promulgated Provisional Constitution Order No: 1 of 2007 followed by the Oath of Office (Judges) Order, 2007.

Constitution of Pakistan (1973) for the first, time has prescribed Oath for the members of the Armed Forces. Earlier they only took oath prescribed in the Army Act, 1952. Military Courts cannot be equated with the original courts on the basis of well known principle, that establishment of military courts militates the independence of judiciary. Articles 243 and 245 of the Constitution do not show that the Chief of Amy Staff has any authority whatsoever to impose emergency which is in violation of Articles 232 to 236. Even the emergency which was imposed by Chief of Army Staff cannot be imposed by the President of Pakistan in terms of the aforesaid provisions of the Constitution. There are certain parameters and restrictions upon the President to impose emergency wherein fundamental rights were suspended. The President of Pakistan had no authority whatsoever to interfere or remove the judges of the superior courts through extra constitutional instruments i.e. Proclamation of Emergency, PCO and Oath of Judges Order. It is also interesting to note that President of Pakistan is the supreme commander of the forces. Chief of Army Staff has imposed emergency through extra constitutional measures and thereafter delegated powers to the President.

Delegation ought not to be permitted unless it is authorized by statute or by necessary implication meaning thereby whereas specific officer or authority is authorized to exercise his discretion, exercise of that power by a different body in the absence of statutory provision to the effect. In view of the rules of business Minister has authority to delegate power to any Officer of that department. It is not known to any canon of justice in any part of the world that subordinate can delegate powers to superior. Extra constitutional steps were taken by Gen. Musharraf when his own case for the candidature for the office of the President was fixed before Supreme Court.

Mehram Ali and others v. Federation of Pakistan, and others PLD 1998 SC 1445; Ghualm Mohi ud Din v. Chief Settlement Commissioner (Pakistan) Lahore and others PLD 1964 SC 829; Messrs Oberoi Motors and others v. The Union Territory Administration, Chandigarh and others AIR 1978 Punjab Haryana 294; H. Lavender .and Son Ltd. v. Minister of Housing and Local Government (1970 Vol. III AELR 871; R.V. Police Complaints Board (1983 Vol II, AELR 353; B. Raja Gopala Naidu v. The State Transport (AIR 1964 SC 1573 and Ellis v. Dubowski (1921 Vol.3 KB 621) ref.

Actions of 3-11-2007 are based on mala fide therefore they are not sustainable in the eyes of law. In fact it was admitted by the Gen. Pervez Musharaf that he had taken extra constitutional actions which tantamounts to amend the Constitution, which is not permissible. It is pertinent to mention here that power to amend the Constitution is vested in the Parliament by Part II vide Articles 238 and 239. Constitution may be amended by Parliament vide Article 238 whereas Article 239 prescribes procedure for amending the Constitution. Even the Parliament cannot change the salient features of the Constitution to destroy one organ of the judiciary in view of Article 238 and 239 of the Constitution.

Mehmood Achakzai's case PLD 1997 SC 426 ref.

In case all the three instruments (Proclamation, PCO and Oath Order) be read together then Emergency Plus, does not remain within the parameters of emergency as Constitution was in fact abrogated under the garb of emergency coupled with the fact that action was taken by him for his personal benefit which does not fall in the category of good faith.

The said actions were taken by him at night in spite of the fact that the order dated 3-11-2007 of Supreme Court was communicated to all concerned as is evident from news clippings, published on, all electronic media and the daily evening newspapers dated 3.11.2007 which contained this news. This fact was further borne out that all the daily newspapers contained this news in the newspapers published on 4-11-2007. Almost more than 60 Judges had refused to take oath under the provisions of Proclamation of Emergency, (PCO) and Oath of Office of Judges Order, 2007. Mr. Justice Abdul Hameed Dogar had taken oath on the night of 3.11.2007 as Chief Justice of Pakistan and 4 other Judges of Supreme Court had taken oath on the said night as Judges of the Supreme Court under PCO inspite of the restraining order and the fact that post of Chief Justice was not vacant as the Chief Justice had not resigned or removed or had gone out of the country. Four other Judges had also taken oath as the order dated 3-11-2007 was passed by seven Judges Bench, therefore new four Judges were also appointed with the consultation of Chief Justice Abdul Hameed Dogar for the purpose to complete the quorum. The said application was taken up for hearing on 6-11-2007 wherein the said order set aside by the Court and subsequently petition was also dismissed. The case was decided by the Court which was coram non judice in terms of Articles 175, 177 and 184(3).

The Judges who had not taken oath under the command of the Chief of Army Staff, were detained in their houses. This fact was also known to every one. Not only in this country but also in the whole world it was considered a unique action that the Judges of the superior courts were detained. Judges and Advocates are two parts of one body i.e. Judiciary. Every part of the body had played unprecedented historical role for the supremacy of Constitution and law. Their struggle was highly supported by media without fear and favour by showing their courage for the welfare of the country and for supremacy of Constitution and law, duly supported by the civil society. People of Pakistan had also joined hand in the struggle of the lawyers. On account of this unprecedented struggle by sacrificing even lives of the Advocates, consequently the dictator had to go and the Prime Minister of Pakistan had restored the Judges of the superior courts vide notification dated 17-3-2009. All the appointments of the, Judges of the Superior Courts from 3-11-2007 to 24-3-2009 were made with the consultation of Chief Justice Mr. Abdul Hameed Dogar which was not in terms of the mandate of the Constitution. He was not even holding status of Acting Chief Justice as he was not senior puisne Judge on 3-11-2007, therefore, appointees were appointed after consultation with a stranger in terms of the law.

Chittaranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197; Al-Jehad Trust through Raeesul Mujahideen Habib ul Wahabb ul Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Malik Asad Ali and others v. Federation of Pakistan thr. Secretary, Law, Justice and Parliamenmt Affairs, Islamabad and others PLD 1998 SC 161; Al-Jehad Trust through Raeesul Mujahideen Habib ul Wahabb ul Khairi and others v. Federation of Pakistan and others PLD 1997 SC 84; L.Kalra and others v. President of India and others (AIR 1982; SC 149; S.P. Gupta v. Union of India AIR 1994 SC 268 and Presidential Reference. AIR 1999 SC 1 at 1 ref.

When the constitution of the Court falls in the category of coram non judice then any order passed by such tribunal comes within the purview of without lawful authority. General Muhammad Yahya Khan was declared as usurper in Asma Jillani's case (PLD 1972 SC 139) when he was not in power whereas General Musharraf was restrained to pass any order on 3-11-2007 when he was in full power. Supreme Court has been validating actions of the usurper since imposition of Martial Law in Dosso's case (PLD 1958 SC 533) till Zafar Ali Shah's case (PLD 2000 SC 869). General Pervez Musharraf wanted to contest the election of the President of Pakistan while in service of Pakistan as Chief of Army Staff. Justice (R.) Wajihuddin Ahmed had also filed nomination papers to participate in the election of President and had filed objections before the Chief Election Commissioner qua his candidature. On rejection by the Chief Election Commissioner he filed petition before Supreme Court which was pending adjudication at that time before the Bench consisting of 11 Judges of Supreme Court. General Pervez Musharraf had the apprehension that case would be decided against him as his counsel were not ready to conclude their arguments in spite of the suggestion of the Bench to hear the case after Jummah Prayer and even on Saturday. The manner of appointing the judges after 3-11-2007 for the purpose to complete the strength to form a Bench of seven Judges as the earlier order was passed by a Bench of Supreme Court consisting of seven Judges whereas the other case was fixed before a Bench of 11 Judges. Therefore, assumption of jurisdiction by Supreme Court to decide the cases of Wajihuddin Ahmed, Tikka Muhammad Iqbal and Wattan Party are not synonymous with the precedents of Supreme Court apart from the orders passed for their benefit, therefore, such type of judgments are not sustainable in the eyes of law and such types of orders/judgments are without lawful authority.

Asma Jillani's case PLD 1972 SC 139; Dosso's case PLD 1958 SC 533; Zafar Ali Shah's case PLD 2000 SC 869; Wajihuddin Ahmed v. Chief Election Commissioner and others PLD 2008 SC 25; Jamat-e-Islamic through Amir and others v. Federation of Pakistan and others PLD 2008 SC 30; Tikka Iqbal Muhammad Khan v. General Pervez Musharraf and others PLD 2008 SC 178 and Tikka Iqbal Muhammad Khan v. General Pervez Musharraf, Chief of Army Staff, Rawalpindi and 2 others PLD 2008 SC 615 ref.

Both the orders/judgments in Tikka Muhammad Iqbal's case are judgments per incuriam. Supreme Court has ample power to review such type of orders/judgments which are not sustainable in the eyes of law. Judgment of larger Bench of Supreme Court has binding effect on the Bench consisting of lesser number. The aforesaid judgments/orders of the Court are not sustainable in the eyes of law and in terms of well known maxim per incuriam and sub silentio. These doctrines parted as exceptions to the rule of precedents.

Decision which is not based on reason is not judgment in the eyes of law.

Following are three basic ingredients of every decision:-.

(a) Findings of fact both direct and inferential.

(b) Statement of principles of law applicable to the legal terms disclosed by the facts.

(c) The judgment passed on the combined effect of the above ingredients.

The reasons or principles on which the question is decided is alone binding as precedent. The word decision or decisions means decision of Supreme Court binding only when it fulfils the following three conditions:--

(a) It decides a question of law.

(b) It is passed upon the basis of law.

(c) It enunciates a principle of law.

To determine whether the decision has `declared law', it is immaterial whether the Supreme Court gave the decision ex parte or after a hearing. But no' law is laid down when a point is disposed of on the concession. However, if the Supreme Court is satisfied that the earlier judgments have resulted in deprivation of fundamental right of a citizen or rights created under any substantive law; it can take a different view notwithstanding the earlier judgments.

Zafar Ali Shah's case PLD 2000 SC 869; Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority and others 1999 SCMR 2883 at 2912; N.S. Giri v. The Corporation of City of Mangalore and others AIR 1999 SC 1958; State of U.P. and another v. Synthetics Chemicals Ltd. and others 1991 Vol. 4 SCC 139; State of Manipur v. Thingujam Brojen Meetei AIR 1996 SC 2124; Ajit Kumar Rath v. State of Orissa and others 1999 Vol. 9 SCC 596 para. 32; State of Gujarat and another v. S.S. Murthy and others AIR 1998 SC 2735 para. 2; Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158; Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1978 SC 173; Maj. Gen. (Retd.) Mian Ghulam Jilani v. The Federal Government through the Secretary, Government of Pakistan, Interior Division, Islamabad PLD 1975 Lah. 65; Lakshmi Shanker Srivastava v. State (Delhi Administration) AIR 1979 SC 451 and Lily Thomas and others v. Union of India and others AIR 2000 SC 1650 ref.

Supreme Court has ample power to reconsider, revise its earlier decisions, nothing in the Constitution to prevent the Supreme Court from departing from a previous decision of its own if it is satisfied of its error particularly constitutional or other matters, its effect on the general interests of the public as perpetuation of a mistake will be harmful to public interests. This power vests in Supreme Court in terms of Article 188 of the Constitution.

K. Mills Co.'s case (AIR 1965 SC 1636 at 1643 and 1644); Corporation of Calcutta's case (AIR 1967 SC 997 at 1001 para 5); Lt.-Col. Nawabzada Muhammad Ameer Khan's case (PLD 1962 SC 336); Asima Jillani's case (PLD 1972 SC 139); Greater Bombay Municipality's case (AIR 1974 SC 2009 at 2043 and 2044 paras 44 and 45); Dwarkadas case (AIR 1954 SC 119 at 137); State of Bihar's case (AIR 1955 SC 661 at 672); State of Washington v. Dasen and Corn {1924 (264) U.S.- 219}; London Street Tram Ways Com. Ltd v. London City Council (1898 A.C.375); Municipal Committee Amritsar v. State of Punjab (AIR 1969 SC 1100) and Sajjan Singh's case (AIR 1965 SC 845 at 855 para 21) ref.

Supreme Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty, it is a fundamental right of the people of Pakistan to have an independent judiciary.

It is no doubt that in Iqbal Tikka's case, the earlier decision of the larger Bench was noted but it was neither followed in its true sense nor made any attempt to distinguish it and in fact had taken a counter view to the one adopted by Larger Bench in Syed Zafar Ali Shah's case. Therefore, judgment of Iqbal Tikka's case is liable to be reviewed.

State of Bihar's case AIR 1955 SC 661 at 672 ref.

`Incuria' literally means "carelessness". In practice per incuriam is taken to mean per ignoratium and ignored if it is rendered "in ignoratium of a statute or other binding authority.

What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute or forgetfulness of some inconsistent statutory provision or of some authority binding on the court, so that in such cases some part of the decision or some step in the reasoning on which it was based was on that account demonstrably wrong, so that in such like cases, some part of the decision, or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.

Nirmal Jeet Kaur's case [2004 SCC 558 at 565 para 21]; Cassell and Co. Ltd.'s case (LR 1972 AC 1027 at 1107, 1113, 1131); Watson's case [AELR 1947 (2) 193 at 196]; Morelle Ltd.'s case [LR 1955 QB 379 at 380], Elmer Ltd.'s case [Weekly Law Reports 1988 (3) 867 at 875 and 878]; Bristol Aeroplane Co.'s case [AELR 1944 (2) 293 at page 294] and Morelle Ltd.'s case [AELR 1955 (1) 708] ref.

Once the court has come to the conclusion that judgment was delivered per incuriam then Court is not bound to follow such decision on the well known' principle that the judgment itself is without jurisdiction and per incuriam, therefore, it deserves to be over-ruled at the earliest opportunity. In such situation, it is the duty and obligation of the apex Court to rectify it. The law has to be developed gradually by the interpretation of the Constitution then it will effect the whole nation, therefore, Supreme Court, is bound to review such judgments to put the nation on the right path as it is the duty and obligation of the Court in view of Articles 4, 5 (2) read with Articles 189 and 190 of the Constitution.

When the particular point of law involved in the decision is not perceived by the court or present to it its mind. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law' or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is' for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.

State of U.P's case [1991 (4) SCC 139 at 163]; State of Punjab v. Baldev Singh etc. [AIR 1999 SC 2378] and Lancaster Motor Co.'s case {AELR 1941 (2) 11 at page 13 ref.

Decisions rendered, without reference to crucial 'words of rule and without any citation of authority are not binding and would not be followed.

Principle laid down by any provision of law or Constitution by the larger Bench has binding effect over the smaller Bench.

All Pakistan Newspapers Society's case (PLD 2004 SC 600 at 618); Multilines Associates' case (PLD 1995 SC 423); Muhammad Saleem's case (1997 SCMR 314); Babar Shahzad's case (1999 SCMR 2518);, Union of India's case (AIR 1976 SC 2433 at 2437 para 12); Trilok Nath Mehrotra's case [1982 (2) SCC 289 at 290 para 4] and Abdullah Kunhi's case (AIR 1991 SC 574) ref.

It is a long standing convention that decision of the larger Bench is binding upon the smaller Bench. It is also duty and obligation of the larger Bench in the circumstances if, however, the decision of the smaller Bench is erroneous the larger Bench has necessarily to interfere with the decision as Supreme Court will not permit a wrong decision to operate as a good law of the land.

The binding nature of judicial decisions may be derived either from a constitutional or statutory provision or It may be derived from the conventions which the courts observe in the administration of justice. The judgment of Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of. the Constitution whereas the judgment of the High Court is binding on each and every organ except Supreme Court by virtue of Article 201 of the Constitution. In case there is a conflict between the judgment of Supreme Court and the High Court, then the judgment of Supreme Court is binding on all State organs.

Judgment Debtor v. Central Bank of India Ltd, Bombay AIR 1943 Nag 340 (345) and Kishori Lal Potdar v. Debi Prasad Kejriwal and another AIR 1950 Pat 50 (FB) ref.

Decision of-Supreme Court is binding not only under Article 189 of the Constitution but also with the doctrine of binding precedents with one exception that a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have binding effect as contemplated in terms of the aforesaid Article.

Judgment is a precedent for what has been decided therein and cannot become precedent what can be inferred from it. The purpose and Object of principle of precedent is to achieve consistency in judicial pronouncements, the courts have evolved the role of precedents, principle of stare decisis etc. which are based on public policy and if these are not followed by courts and not implemented in letter and spirit by the other organs of the State then there will be chaos in the administration of justice.

Extract from the Book "Suneray Faislay" under the heading "Adulka Krishma written by Al-Sheikh Ali Al-Tnatawi R.A. in his book "Qasus mun Al-Tareek" ref.

In case two irreconcilable decisions of Supreme Court are consisting of two different Benches i.e. earlier judgment of larger Bench subsequent judgment of smaller Bench, not considering decision of earlier larger Bench - Latter decision, per incuriam in that important aspect of the matter considered by earlier Bench not considered by latter Bench.

Judgment in Tikka Iqbal's case is not sustainable in the eyes of law inspite of the fact that in the latter judgment reference was made to Zafar Ali's case which was rendered by a larger Bench. The judgment was delivered in Tikka Iqbal's case in violation of ratio of Syed Zafar Ali Shah's case. The relevant paragraphs were not even noted specially paragraphs No.282 and 283. The judgment of Tikka Iqbal's case is not sustainable in the eye of law on any canon of justice. The action of 3rd November, 2007 by General Pervaiz Musharraf former Chief of Army Staff is not within the parameters of the Constitution as highlighted herein above and also accepted by him, therefore, the same is declared to be void and is hereby set aside.

Per Jawwad S. Khawaja, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.---

"In my humble opinion, the whole case before us can be reduced to one foundational question. Can Constitutional legitimacy flow from the force of arms or as is more graphically put at times - from the barrel of a gun? This is the basic issue here because General Musharraf, on 3rd November, 2007 took actions in his capacity as the Chief of Army Staff (and then purportelly, as President) without the slightest pretence that these actions were permitted to him by the Constitution. As noted in the main judgment, he was also afforded an opportunity to appear in the case, personally or through counsel, to justify his actions of 3rd November, 2007. He, however, chose not to avail this opportunity.

For reasons which have been spelt out in the main judgment, there can be no doubt at all that the aforesaid actions of 3rd November, 2007 were un-Constitutional. It is for this obvious reason that General Musharraf, lacking legitimate authority abused the office of Chief of Army Staff and relied on the physical force which had been placed under his command. This constituted a frontal attack on the Constitution and directly undermined the writ of the State. It is only through the unremitting struggle by the people, for their right to be governed in accordance with the Constitution, that the assault on their guaranteed rights, was thwarted. If reliance on coercive force in gaining power is legitimized or condoned, there can be no rational basis for decrying the assault on the writ of the State by any band of marauders, robbers, adventurers and zealots of varying extremes in the political spectrum, who undoubtedly will be encouraged in adopting similar use of arms and violence to force their ideological creeds on the people of Pakistan.

It is not for this Court to embark on a discussion on questions which do not directly arise in this case. It would, however, be for the representatives of the people and for all thinking people to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which so permeates our society today. I can only venture to say that the causal connection very strongly suggests itself.

In the main judgment, a letter addressed by the then Prime Minister of Pakistan, Mr. Shaukat Aziz to the President, General Pervez Musharraf has been reproduced. The contents of the letter have also been commented upon but at this stage I would like to make a few observations in relation to, the same. At two places in the said letter the term writ of the government" has been used and interference with the said `writ' by the judiciary has been criticised. It is a measure of the abysmal lack of understanding of Constitutional rule on the part of the then Prime Minister and President, that the distinction between the writ of the government and the writ of the State has not been recognized by them. It is the writ of -the State which has to be enforced and not the writ of the government because the government represents only the executive organ of the State and in that capacity it can and must be checked by the Judiciary if it starts acting in violation of the Constitution.

It has to be noted that in a constitutional system such as ours, it is the duty of Courts to call in question all executive measures which transgress and are not in line with constitutional norms. Instead of complaining of judicial interference, any politically responsible government committed to the rule of law would have been appreciative of a Court which had identified any shortcomings of the government, and in response would have adopted measures to improve governance and adherence to constitutional principles. The wholly specious and untenable reasoning in the Prime Minister's, letter was used by General Musharraf with the sole object of launching an unashamed attack on the Constitution and in particular on the judicial organ of the State. On 3.11.2007, with utter disdain for the Constitution and in a manner which was brazenly imperious, General Musharraf arrogated on himself the right to decide what was good for the people of Pakistan and the manner in which they ought to be governed. This was an anachronistic throw-back to the notion (discredited in all civilized dispensations) where an absolutist ruler could say "l'Etat, c'est moi." Surely, as President of Pakistan, General Musharraf cannot be presumed to have been ignorant of the Constitution of the country. The people of Pakistan have consciously chosen the method for their own governance. The Constitution is a document which at a conscious level records, in classical terms, the social contract between the people and those who they choose to entrust with the governance of the State. The initial lines appearing in the preamble to the Constitution stipulate, inter alia, "that it is the will of the people of Pakistan to establish an order; wherein the State shall exercise its powers and authority through the chosen representatives of the people." The operative part of the preamble in the clearest possible terms, states that "we the people of Pakistan do hereby adopt, enact and give to ourselves this Constitution." In this context it was nothing but haughty arrogance on the part of General Musharraf to claim to be above the Constitution and to assume the power of arbitrarily amending it. Even if the concept of salus populi and the best interest of the people were to be invoked, it would inevitably demand adherence to the Constitution because ignoring it necessarily implies the conceited notion that the people of Pakistan who had chosen their own method of governance, were incapable of knowing what was best for them. There can be no other explanation for the actions of 3rd November, 2007 when these are examined in the context of the contents of the preamble referred to above. Fortunately for the people of Pakistan, the troubled events starting on 9th March, 2007 enabled them to see behind the false face and deceptive veneer of an essentially anti-people dispensation. These events also enabled the people to realize, what heretofore had been mere rhetoric, viz. that they were the sarchashma (fountain-head) of power. This heady realization must, however, be tempered with the awareness that Judges can exercise constitutional and moral authority, but they alone cannot thwart un-Constitutional forces without the people actively standing up in defence of their Constitution. As upholders of constitutional rule, and in the context of the present case, Judges and society must have faith in themselves and take courage from what Hafez said eight centuries ago in the face of Halaku and the Mongol horde:

Following were held to be the legal consequences of the above:---

(i) the Chief Justice of Pakistan; the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Courts and the Judges of the High Courts who were declared to have ceased to hold their respective offices in pursuance of the afore alleged judgments or any other such judgment and on account of the abovementioned instruments shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;

(ii) it was declared that the office of the Chief Justice of Pakistan never fell vacant on November 3, 2007 and as a consequence thereof it was further declared that the appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan was un-constitutional, void ab initio and of no legal effect:

Provided that subject to whatever was contained hereinafter, the said unconstitutional appointment of Mr. Justice Abdul Hameed Dogar as the Chief Justice of Pakistan shall not affect the validity of any administrative or financial acts performed by him or of any oath made before him in the ordinary course of the affairs of the said office;

(iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justices of the High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, unconstitutionally held the said office from 3.11.2007 to 22.3.2009 (bath days inclusive) were declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith:

Provided that the Judges so unconstitutionally appointed to the Supreme Court while holding the offices as Judges of any of the High Courts shall revert back as Judges of the respective High Courts subject to their age of superannuation and likewise, the Judges of the High Courts, who were District and Sessions Judges before their said un­constitutional elevation to the High Courts shall revert back as District and Sessions Judges subject to limitation of superannuation;

(iv) the Judges of the Supreme Court of Pakistan, if any, the Chief Justices of the High Courts, if any, and the Judges of any of the High Courts, if any, who stood appointed to the said offices prior to 3-11-2007 but who made oath or took oath of their respective offices in disobedience to the order passed by a Seven Member Bench of the Supreme Court of Pakistan on 3-11-2007 in C.M.A.No.2869 of 2007 in Constitutional Petition No.73 of 2007, shall be proceeded against under Article 209 of the Constitution. The Secretary of the Law Division of the Government of Pakistan shall take steps in the matter accordingly:

Provided that nothing hereinabove shall affect those Judges who though had been appointed as Judges/Chief Justices of any of the High Courts between 3-11-2007 to 22-3-2009 but had subsequently been appointed afresh to other offices in consultation with or with the approval of or with the consent of the constitutional Chief Justice of Pakistan;

(v) any judgments delivered or orders made or any decrees passed by any Bench of the Supreme Court or of any of the High Courts which comprised of or which included the afore-described Judges whose appointments had been declared void ab initio, were protected on the principle laid down in Malik Asad Ali's case (PLD 1998 SC 161);

(vi) since the Constitution (Amendment) Order, 2007 being the President's Order No.5 of 2007 and the Islamabad High Court (Establishment) Order being President's Order No.7 of 2007 establishing Islamabad High Court for the Federal Capital Territory, were declared to be unconstitutional and of no legal effect, therefore, the said Islamabad High Court shall cease to exist forthwith. All judicial matters pending before the said High Court before the passing of present order shall revert/stand transferred to the courts which had jurisdiction in the said matters before the promulgation of President's Order No.5 of 2007 and President's Order No.7 of 2007 promulgated on 14th December, 2007. The Judges of the said court shall, as a consequence thereof, cease to be Judges except such Judges or the Chief Justice of the said court, who prior to their appointments in the said Islamabad High Court, were Judges of some other High Court who shall revert to the court of which they were originally the Judges, subject to their age of superannuation. The officers and employees of the said court shall also cease to hold their respective appointments and shall become part of the Federal Government Surplus Pool for their further appointments. However, if any such officer or employee was an officer or an employee of some other court or department or office, such officers or employees shall revert to their respective courts, departments or offices to which they belonged before joining the service in the Islamabad High Court, subject again to their age of superannuation;

Establishment of a High Court or a Federal Court for the Federal Capital Territory might be a desirable act but such a step was taken in an unconstitutional and a highly objectionable manner. Notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a court in accordance with the Constitution/the law;

(vii) the Ordinances promulgated by the President or a Governor of a Province before 3-11-2007 which were given permanence by the Provisional Constitution Order No.1 of 2007 as also the Ordinances issued by the President or a Governor between 3-11-2007 and 15-12-2008 (both days inclusive) which were also, 'like-wise given permanence through the same instrument and which legislative measures along with the said Provisional Constitution Order had been validated by the aforementioned judgment delivered in Tikka Iqbal Muhammad Khan's case, stood shorn of their purported "permanence on account of Supreme Court declarations. Since on account of the said judgment in Tikka Iqbal Muhammad Khan's case purporting to be a judgment of Supreme Court, the presumption that the said Ordinances were valid laws not requiring approval of the Parliament or the respective Provincial Assemblies in terms of Article 89 or 128 of the Constitution and since it was today (31-7-2009) that Supreme Court has attributed invalidity to the said legislative instruments, therefore, the period of 120 days and 90 days mentioned respectively in the said Article 89 and the said rule 128 of the Constitution, would be deemed to commence to run from today (31-7-2009) and steps may be taken to place the said Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law;

(viii) since the Constitution, through its Article 176, authorised only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges) Act, 1997, therefore, the increase in the strength of the Judges through the Finance Act of 2008 which Act was not passed by the Parliament but was passed only by the National Assembly would be deemed to be valid only for financial purposes and not for the purposes of Article 176 of the Constitution. It was resultantly declared that the number of Judges of the Supreme Court for purposes of the said Article 176 shall continue to remain sixteen;

(ix) In the Code of Conduct prescribed for the Judges of the Superior Courts in terms of Article 209(8) of the Constitution, a new clause shall be added commanding that no such Judge shall, hereinafter, offer any support in whatever manner to any un-constitutional functionary who acquires power otherwise than through the modes envisaged by the Constitution and that any violation of the said clause would be deemed to be misconduct in terms of the said Article 209 of the Constitution;

(x) In view of findings regarding Mr. Justice Abdul Hameed Dogar not being a constitutional and a valid consultee, the notification dated 26-8-2008 and the notification dated 15-9-2008 extending the term of office of Mr. Justice Abdur Rashid Kalwar and of Mr. Justice Zafar Ahmad Khan $herwani as Additional Judges of the High Court of Sindh were declared to be un-constitutional and of no legal effect;

(xi) Supreme Court observed that the Court acknowledged and respected the mandate given by the sovereign authority i.e. electorate to the democratically elected Government on 18th February, 2008 and would continue to jealously guard the principle of trichotomy of powers enshrined in the Constitution, which was the essence of the rule of law. Any declaration made in the present judgment shall not in any manner affect the General Elections held and the Government formed as a result thereof i.e. the President, the Prime Minister, the Parliament, the Provincial Governments, anything done by these institutions in the discharge of their functions; said acts were fully protected in terms of the age old principle of Salus Populi Est Saprema Lex reflected in PLD 1972 SC 139;

(xii) Supreme Court reiterated that to defend, protect and uphold the Constitution was the sacred function of the Supreme Court. The Constitution in its Preamble, inter alia, mandates that there shall be democratic governance in the country, "wherein the principles of democracy, freedom, equality, tolerance, and social justice as enunciated by Islam shall be fully observed; ……..wherein the independence of judiciary shall be fully secured." Supreme Court observed that while rendering present judgment, said abiding values had weighed with the Court and the Court was sanguine- that the current democratic dispensation comprising of the President, Prime Minister and the Parliament shall equally uphold these values and the mandate of their oaths.

(b) Constitutional developments in Pakistan---

----A cursory glance.

Usif Patel v. Crown PLD 1955 EC 387: F1. P. The Governor-General PLD 1955 FC 435; State v. Rosso PLD 1958 SC 533; Asma Jilani's case PLD 1972 SC 139; Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 637; Syed Zafar Ali Shah's case PLD 2000 SC 869; Wasim Sajjad v. Federation of Pakistan PLD 2001, SC 233; S.M. Zafar's Book "Dialogue on the Political Chess Board", 1st Edn. 2004, p.276; Tikka Iqbal Muhammad Khan v. General Pervez Musharraf PLD 2008 SC 178 and Wajihuddin Ahmad v. Chief Election Commissioner PLD 2008 SC 25 ref.

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

---Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule-High treason---Command and functions of Constitution does not envisage any situation where e the Armed Forces act without any direction by the Federal Government---Proclamation requiring the aid of Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role---Any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect---Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their authority or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and law and does so at his own risk and cost---Any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subservt the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason---Martial Law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan---No Proclamation of Emergency can be issued, the effect of which is to hold in abeyance of the Constitution, or its subsequent mutilation by incorporating amendments in it by any authority not mentioned in the Constitution and in a manner not provided for in the Constitution---By Article 6 of the Constitution, an in-built mechanism is provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever---Unless and until the Constitution is altered or amended in accordance with the procedure laid down in Arts.238 and 239 of the Constitution, or it is repealed on the. pattern of the Interim Constitution under the provisions of Art.266 of the Constitution, which too is possible by recourse to the provisions of Arts.238 and 239 of the Constitution, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself---Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the Chief of Army Staff and to. be revived after he has achieved his objectives---Validity accorded to such an action, in the past did not give a licence to any holder of the office of the 'Chief of Army Staff of repeating such acts at his will---Holding in abeyance the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner nor authorised, under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus, constitutes the offence of high treason---Principles.

On a plain reading of the provisions of Article 245(1) of the Constitution the functions of the Armed Forces can be bifurcated into two categories, namely, they shall (1) defend Pakistan against external aggression or threat of war, and (2) subject to law, act in aid of civil power when called upon to do so. Under clause (1) of Article 243 of the Constitution the control and command of the Armed Forces is vested in the Federal Government, therefore, in the performance of both the categories of functions, the Armed Forces act under the directions of the Federal Government. Thus, the provisions of clause (IA) of Article 243 under which the supreme command of the Armed Forces vests in the President, does not, in any manner, derogate from the power of the Federal Government to require the Armed Forces to defend Pakistan against external aggression or threat of war, or to act in aid of civil power in accordance with law. The Constitution does not envisage any situation where the Armed Forces may act without any direction-by the Federal Government.

Thus, essentially, a proclamation requiring the aid of the Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and .assume its normal role.

In the cases of State v. Dosso (PLD 1958 SC 533), Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1997 SC 657), Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and Tikka Iqbal Muhammad Khan v. Federation of Pakistan (PLD 2008 SC 25 and 178) the court did not take into consideration the above aspect of the matter and rendered judgments, not on the force of the constitutional provisions, but by recourse to the theory of revolutionary legality propounded by Hans Kelsen, the doctrine of civil and State necessity and the principle of salus populi est suprema lex, and thus kept open the gate for military intervention for all times to come. Any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently .of no legal effect. Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their authority, or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and the law and does so at his own risk and cost. Supreme Court, in Liaquat Hussain's case (at page 626 of the report), has held that martial law cannot be imposed in Pakistan in view of the change in the language of Article 237 of the Constitution wherein the words "martial law." have been omitted, the legal effect of which is that the Parliament cannot make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan. This change in the language of Article 237 of the Constitution was preceded by a discussion of the term `martial law' in Asma Jilani's case, a decision which was rendered only a year before the promulgation of the Constitution of 1973.

Along with Article 237 as finally approved, the framers of the Constitution also legislated Article 6 of the Constitution, which provided that any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.

Supreme Court while affirming Asma Jilani's case (PLD 1972 SC 139) ruled that Martial Law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan. No Proclamation of Emergency can be issued, the effect of which is to hold in abeyance the Constitution, or its subsequent mutilation by incorporating amendments in it by an authority not mentioned in the Constitution and in a manner not provided for in the Constitution.

Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Article 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people. He is also sworn not to engage himself in any political activities whatsoever. He also solemnly affirms and declares that he will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution. The Constitution was framed to continue to be in force at all times. By Article 6, an in-built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever. Thus, unless and until the Constitution is altered or amended in accordance with the procedure laid down in Articles 238 and 239, or it is repealed on the pattern of the Interim Constitution under the provisions of Article 266, which too, is possible by recourse to the provisions of Articles 238 and 239, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself. The Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the Chief of Army Staff and to be revived after he has achieved his objectives. The validity accorded in the past did not give a licence to any holder of the office of Chief of Army .Staff of repeating such acts at his will. The holding in abeyance of the Constitution or any other Act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorized under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus constitutes the offence of high treason.

Therefore, the military rule, direct or indirect, is to be shunned once and for all. Supreme Court made it clear that it was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever. Military rule is against the dignity, honour and glory of the Nation that it achieved after great sacrifices 62 years ago; it is against the dignity and honour of the people of. Pakistan, who are committed to upholding the sovereignty and integrity of the Nation by all means; and it is against the dignity and honour of each and every soldier of the Armed Forces: Pakistan Army, Pakistan Navy and Pakistan Air Force, who is oath-bound to bear true faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people; not to engage himself in any political activities whatsoever; and to honestly and faithfully serve Pakistan in the respective services. Within such parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government. In the course of the discharge of his duties, a soldier, therefore, is obligated to see that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated, and to say the least, it is not held in abeyance and it is not amended by an authority not competent to do so under the Constitution. If a member of the Armed Forces acts in aid of a person who does any of the above acts, or any other similar act, he violates his oath and renders himself liable to action under and in accordance with the Constitution and the law.

The power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else. The holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power. Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority.

Only those acts which were required to be done for the ordinary orderly running of the State could be protected. Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken. The actions taken by General Pervez Musharraf on 3rd November, 2007 and thereafter being unconstitutional, illegal and void ab initio , the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd November, 2007 on the other, including passing of order dated 3rd November, 2007 by a seven - member Bench of Supreme Court in Wajihuddin Ahmed's case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc.

The amendments purportedly made by General Pervez Musharraf from 3rd November, 2007 up till 15th December, 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio. Accordingly, the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President's Order No: 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Articles 238 & 239 and the Third Schedule to the Constitution (Oath. of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect.

Usif Patel v. Crown PLD 1955 FC 387; H.E. The Governor-General PLD 1955 FC 435; State v. Dosso PLD 1958 SC 533; Asma Jilani's case PLD 1972 SC 139; Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 637; Syed Zafar Ali Shah's case PLD 2000 SC 869; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233; S.M. Zafar's Book "Dialogue on the Political Chess Board", 1st Edn. 2004, p.276; Tikka Iqbal Muhammad Khan v. General Pervez Musharraf PLD 2008 SC 178; Wajihuddin Ahmad v. Chief Election Commissioner PLD 2008 SC 25 and Liaquat Hussain's case PLD 1999 SC 504 ref.

(d) Constitution of Pakistan (1973)---

----Art. 209---Misconduct---Assumption of power by an authority not mentioned in the Constitution would be unconstitutional, illegal and void ab initio and not liable to be recognized by any Court, including the Supreme Court---Judge playing any role in the recognition of such assumption of power would be guilty of misconduct within the ambit of Art.209 of the Constitution.

(e) Constitution of Pakistan (1973)---

----Arts. 177, 193 & 105---Appointment of Judges of the Supreme Court and High Courts---Constitutional consultative process---Mandatory---Chief Justice of Pakistan is head of the Judiciary, therefore his views deserve due deference and his recommendation is non-justiciable which, is inextricably linked with the independence of judiciary---Recommendations of the Governor acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid---Principles expounded.

The appointment of Judges of the 'superior Courts indeed is a matter of great significance in ensuring the independence of the judiciary. The Constitution provides that appointment of Judges of the Supreme Court shall be made by the President in consultation with the Chief Justice of Pakistan, while that of Judges of the High Court shall be made in consultation with the Chief Justice of Pakistan, the Governor of the Province and the Chief Justice of the concerned High Court. The consultative process was mandatory and without it no appointment or confirmation could be made and that in absence of consultation as contemplated and interpreted, the appointment/confirmation of a Judge in the superior Court shall be invalid. The independence of the judiciary was inextricably linked and connected with the constitutional process of appointment of Judges of the superior judiciary. An Acting Chief Justice was not a consultee as envisaged by the relevant Articles of the Constitution and, therefore, mandatory constitutional requirement of consultation would not be fulfilled by consulting an Acting Chief Justice except where the permanent Chief Justice concerned was unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness. Since consultation for the appointment/confirmation of a Judge of a superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution was mandatory, any appointment/confirmation made without consulting any of the consultees would be violative of the Constitution and, therefore, would be invalid. In the present case, the permanent Chief Justice of Pakistan was very much available and able to perform the functions of his office. To have access to free, fair and independent Court/Tribunal would be a fundamental right enforceable by the courts. Any deviation from the methods prescribed under the Constitution for appointment to the high office of Chief Justice of Pakistan would give rise to the infringement of the fundamental right of the citizens to have free, fair and equal access to justice through an independent and impartial Court/Tribunal, thus violating the right guaranteed under Articles 9 and 25 of the Constitution.

The Chief Justice of Pakistan is the pater familias, i.e. the head of the judiciary, therefore, his views definitely deserve due deference; the recommendation of the Chief Justice of Pakistan is non-justiciable for the reasons discussed in the Supreme Court Bar Association's case; and last, but not the least, non-justiciability of the opinion of the Chief Justice of Pakistan is inextricably linked with the independence of judiciary. Correct, that the consultation envisaged by Articles 177 and 193 of the Constitution, has to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play; it was a participatory consultative process between the consultees and also with the executive; and the views of the two judicial consultees would be binding on the executive in absence of strong reasons to be recorded in writing, which would be justiciable; however, to make the opinion of the Chief Justice of Pakistan justiciable on the ground that it is not fully supported by the opinion of the Chief Justice of the concerned. High Court is a proposition, which cannot be countenanced on account of its being violative of the principle of independence of judiciary. At the same time, it is necessary that to achieve the primary objective of mandatory, effective, Meaningful, purposive and consensus-oriented consultation, by all means the first priority has' to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates. However, if the opinion of the Chief Justice of Pakistan is not fully supported by the Chief Justice of the concerned High Court, it is the final opinion of the Chief Justice of Pakistan, formed after taking into consideration the opinion of the Chief Justice of Nigh Court and the report of the Governor of the Province about the antecedents of the person concerned, which shall be given primacy. The law laid down in Al-Jehad Trust case that "the Chief Justice of Pakistan, being the pater familias, his views definitely deserve due deference" admits of no other interpretation.

In the matter of appointment of Judges of the High Courts, the Governor could act only on the advice of the Chief Minister in terms of Article 105 of the Constitution. In this view of the matter, the recommendations of the Governor acting otherwise than on the advice or in absence of the advice of the Chief Minister were invalid.

(f) Judicial review---

----Scope.

The judiciary was the interpreter of the Constitution and was assigned the delicate task of determining the extent of the power conferred on each branch of the government, its limits and whether any action of that branch transgressed such limits.

It was the solemn duty of the court to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly.

The judicial review was a basic feature of the Constitution and that the power of judicial review was a constituent power which could not be abrogated by judicial process of interpretation. It was a cardinal principle of the Constitution that no one could claim to be the sole judge of the power given under the Constitution and that its actions were within the confines of the powers given by the Constitution.

The Judges, to keep the power of judicial review strictly judicial, in its exercise, do take care not to intrude upon the domain of the other branches of the Government. It is the duty of the judiciary to determine the legality of executive action and the validity of legislation passed by the Legislature.

It is .a fundamental principle of jurisprudence that courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. 'This expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of, the law by the executive and not 'for personal aggrandizement of the courts and Judges.

(g) Constitution of Pakistan (1973)---

----Arts. 270AAA, 89 & 128---Validation of laws---Proclamation of Emergency, dated 3-11-2007 and Provisional Constitution Order, 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270AAA of the Constitution and by the judgment in Tikka Iqbal Muhammad Khan's case (PLD 2008 SC 6; PLD 2008 SC 178 and PLD 2008 SC 615) also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Arts.89 & 128 of the Constitution---Any validation whether with retrospective effect or otherwise shall remain subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights or on any other available ground---Principles.

Article 4 of PCO No. 1 of 2007 provided that notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, would continue in force until altered, or repealed by the President or any authority designated by him. Clause (1) of Article 5 ibid provided that an Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution. Likewise, under clause (2) of the said Article, an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of Proclamation of Emergency of the 3rd day of November, 2007 shall also not be subject to aforesaid limitations. As a result, all the Ordinances, which were in force on 3rd November, 2007 as well as the Ordinances which were promulgated on or after 3rd November, 2007 up to 15th December, 2007 were continued in force as permanent laws and were not laid before the, respective legislatures during the period prescribed by the Constitution.

Proclamation of Emergency and PCO No.1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly. conferred on all such Ordinances by means of Article 270AAA of the Constitution and by the judgment in Tikka Iqbal Muhammad Khan's case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Articles 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an Ordinance issued by the President, if not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation.

Such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws. Thus; the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and section 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities . would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd November, 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect.

The question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies. However, the period of four months and three months mentioned respectively in Articles 89 and 128 of the Constitution would be deemed to commence from the date of short order passed in the present case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods. This extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No.1 of 2007. Needless to say that any validation whether with retrospective effect' or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground.

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

----Art. 164---Judicial notice---Reports of the relevant period from the electronic and print media' had been taken into consideration by the Supreme Court, in forming the opinion generally as to the prevailing state of affairs having bearing on the issues involved in the matter---Parameters for the purpose of taking judicial notice of press reports detailed.

Per Ch. Ijaz Ahmed, J. agreeing with Iftikhar Muhammad Chaudhry, C.J.---

(i) Independence of judiciary---

----Supremacy of law---Two nation theory---Genesis of Pakistan is based on justice---Historical events recapitulated.

Bal Gangadhar Tilak v. Emperor AIR 1916 Bom.9 ref.

(j) Constitution of Pakistan (1973)---

----Preamble---Basic salient feature of Constitution of Pakistan is justice and independence of judiciary---Constitutional history of Pakistan surveyed.

Shahabnama by Qudurat Ullah Shahab ref.

(k) Interpretation of. Constitution---

----Basic rules enumerated.

Understanding Statute by S.M. Zafar ref.

(l) Constitution of Pakistan (1973)---

----Preamble---Each and every organ of the State is bound to discharge its duties within the command of the Constitution---Principles.

Each and every organ of the State is bound to discharge its duties within the command of the Constitution. The moment when one organ interferes or encroaches the sphere of the other organ then situation will automatically arise when said constitutional organs would not discharge their duties and obligations due to which the only net result is chaos. When system is disturbed then destruction is must as abnormal situation creates an opportunity for the adventurers to get the benefit of the situation which was created on account of incompetency of the three organs of the State which do not perform their functions within their parameters. Constitution of Pakistan has a very beautiful scheme which consists of rights and obligations. When any person, body, organ is not vigilant about its rights then he is also not vigilant and aware about his obligations and duties.

Balance must be maintained in each and every sphere of life otherwise destruction is must. Once the constitutional machinery has broken on account of interference by one of the organs into the sphere of the other organs, then destruction is must. Constitution is based on trichotomy, i.e. legislature, executive and judiciary. Role has also been defined with regard to the function of the said organs. There are four organs which are as follows:-

(1) Legislature

(2) Executive

(3) Judiciary

(4) People of Pakistan

It is the paramount duty and obligation of first organ of the State to perform duties for the welfare of the people of Pakistan. But unfortunately since the creation of Pakistan this principle has not been acted upon in letter and spirit and that is why the nation has not progressed in real sense in every sphere of life. No body is above the Constitution. Even the Chief Executive of the country is bound to obey the command of the Constitution.

Constitution is a social binding contract: Conduct of all organs has to be in terms of the Constitution subject to the condition that you accept the Constitution from the core of your heart. No body is above the Constitution and cannot imagine to do anything in violation of the Constitution and rule of law.

Understanding Statute by S.M. Zafar ref.

(m) Rule of law---

----Definition and application---Scope.

Governmental power must be exercised within the constraints of rules that apply to ample categories of persons and acts, and these rules, whatever they may be, must be uniformally applied.

Rule of law as defined by Aristotle is "Rule of law is to be preferred to that of any individual" whereas in the words of the Massachusetts Constitution it Means "a Government of laws and not of men" which described in one word means supremacy of law. Supremacy of law defined with the Divine Command in the Holy Qur'an 4:59 which is translated in English as under:-

"0 ye who believe!

Obey Allah and obey the Apostle, And those charged with authority among you".

Hazrat Abu Bakr Siddique (R.A.A.) in his first speech as Caliph explained the above words; the nub of it is that obedience to persons in authority is an obligation only if what they require you to do so is in accordance with the Holy Qur'an and Sunnah of the Holy Prophet (S.A.W.S.). This is the highest authority in the power to judicial review.

Chapter 4, Judicial Review of Public Actions by Justice Retd. Fazal Karim and Haq Nawaz and others v. Province of Punjab through Chief Secretary, Lahore and 2 Others 1997 MLD 299 ref.

(n) Constitution of Pakistan (1973)---

---Art. 177--Appointment of Judges of the superior courts---Consultation with the consultees--Scope.

According to Article 177 of the Constitution Chief Justice of Pakistan is appointed by the President and each of the other Judges are appointed by the President after consultation with the Chief Justice of Pakistan whereas Judges of the High Courts are appointed by the President after consultation with the Chief Justice of Pakistan, Governor concerned and except appointment of the Chief Justices of the High Courts, with the Chief Justices of the High Courts. The consultation must be meaningful and executive has no authority whatsoever to ignore the recommendations of the Chief Justices. The Governor has no right to disagree with the 'recommendations of the Chief Justice. However executive has authority to judge/evaluate the antecedents of the appointees.

Opinion of the Chief Justices must be given preference and the Governor has no right to directly send the proposal for appointment of Supreme Court or High Courts Judges.

P.L. Lakhanpal v. Ajit Nath Ray Chief Justice of India (AIR 1975 Delhi 66 at 73); Tara Singh and others v. The State of Punjab (AIR 1991 SC 63 at 640 to 641, 645 to 646); L. Kalra and others v. President of India and others (AIR 1982 SC 149); Presidential Reference. (AIR 1999 SC 1); S.P. Gupta v. Union of India (AIR 1'994 SC 268 at 437, 342, 431, 434, 438, 439, 356); Al-Jehad Trust through Raeesul Mujahideen Habib ul Wahabb ul Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324); Al-Jehad Trust through Raeesul Mujahideen Habib ul Wahabb ul Khairi and others v. Federation of Pakistan and others (PLD 1997 SC 84); Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, . Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161); Mr. Justice Ghulam Hyder Lakho, High Court of Sindh, Karachi & others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 2000 SC 179) and PLJ 2007 Mag. 195 at 195 and 198 rel.

(o) Constitution of Pakistan (1973)---

----Art. 243(1)A---Command of Armed Forces---Scope---Principles.

According to Article 243(1) of the Constitution the Federal Government has control and command of the Armed Forces whereas the supreme command of the Armed Forces shall be vested in the President in terms of Article 243(1)(A).

Following are the principles in this regard: ---

(i) The personnel of the Armed Forces are under the final administrative control of the Federal Government.

(ii) Every member of the Armed Forces has to take oath in the term stated in the Third Schedule in term of Article 244.

(iii) Armed Forces which owe allegiance to Pakistan cannot be used for political motive by the party in power.

(iv) It not only is violative of the oath prescribed in the Third Schedule which prohibits engagement of the army in political activities and further tarnishes the image of the Army.

Sh. Liaqat Hussain's case PLD 1999 SC 504 and Darwesh M. Arbey, Advocate v. Federation of Pakistan through The Law Secretary and 2 others PLD 1980 Lah. 206 ref.

(p) Decision---

---Basic ingredients of `decision' enumerated.

(q) Constitution of Pakistan (1973)---

----Art. 188---Review of Supreme Court judgment---Scope.

K. Mills Co.'s case (AIR 1965 SC 1636 at 1643 and 1644); Corporation of Calcutta's case (AIR 1967 SC 997 at 1001 para.5); Lt.-Col. Nawabzada Muhammad Ameer Khan's case (PLD 1962 SC 336); Asima Jillani's case (PLD 1972 SC 139); Greater Bombay Municipality's case (AIR 1974 SC 2009 at 2043 and 2044 paras 44 and 45); Dwarkada's case (AIR 1954 SC 119 at 137); State of Bihar's case (AIR 1955 SC 661 at 672); State of Washington. v. Dasen and Corn [1924 (264) U.S. 219]; London Street Tram Ways Corn. Ltd. v. London City Council (1898 A.C.375); Municipal Committee Amritsar v. State of Punjab (AIR 1969 SC 1100) and Sajjan Singh's case (AIR 1965 SC 845 at 855 para 21) ref.

(r) Maxim---

----"Per incuriam". Meaning and applicability---Scope.

Nirmal Jeet Kaur's case [2004 SCC 558 at 565 para 21]; Cassell and Co. Ltd.'s case (LR 1972 AC 1027 at 1107, 113, 1131); Watson's case [AELR 1947 (2) 193 at 196]; Morelle Ltd.'s ease (LR 1955 QB 379 at 380); Elmer Ltd.'s case [Weekly Law Reports 1988 (3) 867 at 875 and 878], Bristol Aeroplane Co.'s case [AELR 1944 (2) 293 at p.294] and Morelle Ltd.'s case [AELR 1955 (1) 708] ref.

(s) Maxim---

----"Sub silentio"---Scope and application.

State of U.P's case [1991 (4) SCC 139 at 163]; State of Punjab v. Baldev Singh etc. (AIR 1999 SC 2378) and Lancaster Motor Co.'s case [AELR 1941 (2) 11 at page 13] ref.

(t) Precedent---

----Principle laid down by a Larger Bench---Binding effect---Scope and extent.

All Pakistan Newspapers Society's case (PLD 2004 SC 600 at 618); Multilines Associates' case (PLD 1995 SC 423); Muhammad Saleem's case (1997 SCMR 314); Babar Shahzad's case (1999 SCMR 2518); Union of India's case (AIR 1976 SC 2433 at 2437 para 12); Trilok Nath Mehrotra's case {1982 (2) SCC 289 at 290 para 4} and Abdullah Kunhi's case (AIR 1991 SC 574) ref.

(u) Precedent---

----Source and authority of judicial precedents---Binding effect---Scope.

Judgment Debtor v. Central Bank of India Ltd. Bombay [AIR 1943 Nag 340 (345) (FB)] and Kishori Lal Potdar v. Debi Prasad Kejriwal and another [AIR 1950 Pat 50 (FB)] ref.

(v) Constitution of Pakistan (1973)---

----Art. 189---Supreme Court judgment-Binding effect of---Scope and extent.

(w) Precedent---

----Two irreconcilable decisions of court consisting of two different Benches---Principles.

Hamid Khan, Sr. ASC, Rashid A. Razvi, ASC, M. S. Khattak, AOR Assisted by Waqar Rana, Waheed Khalid Khan & Haq Nawaz Talpur, Advocates (in Const.P.09/2009)

Muhammad Akram Sheikh, Sr. ASC Assisted by Barristers Natalya Kamal & Sajeel Shehryar, Advocates for Petitioners (in Const.P.08/2009)

Sardar Muhammad Latif Khan Khosa Attorney General for Pakistan, Agha Tariq Mehmood Khan, DAG, Shah Khawar, DAG, Ch. Akhtar Ali, AOR for respondent No.1.

Yousaf Khan Leghari, AG Sindh and Raja Abdul Ghafoor, AOR for respondents No.2.

Nemo for Respondents Nos. 3 & 4.

Mazhar Ali B. Chohan, Advocate-on-Record (absent) for Respondent No. 5:

Dates of hearing: 20th to 22nd and 29th to 31st July, 2009

P L D 2009 Supreme Court (AJ&K) 1

Present: Muhammad Reaz Akhtar Chaudhry, C. J. and Muhammad Azam Khan, J

Mst. HAMEEDA BEGUM and another---Appellants

Versus

MAZHAR HUSSAIN and 40 others---Respondents

Civil Appeal No.76 of 2006, decided on 14th February, 2009.

(On appeal from the judgment of the High Court dated 7-4-2006 in Civil Appeal No.92 of 2003).

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

----S. 42---Civil Procedure Code (V of 1908), O.XXII, R.3(2)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974) S.42---Suit for declaration---Abatement of appeal for non-impleading of legal heirs of deceased appellant---Appeal to Supreme Court---Suit filed by the plaintiff was partly decreed and judgment and decree passed by the Trial Court having been maintained by the Appellate Court, legal heirs of deceased appellant filed appeal before High Court---During pendency of appeal before Appellate Court, plaintiff died---No person was to communicate to the Appellate Court with regard to death of deceased who was a woman as her attorney had gone abroad---Legal heirs of deceased plaintiff who filed appeal before the High Court against judgment and decree of the Appellate Court, filed application in which it was prayed that order of abatement be set aside---High Court not only dismissed said application, but also dismissed appeal holding that appeal filed before the Appellate Court stood abated for non-impleading of legal heirs of deceased appellant---Validity---No order for abatement of appeal was passed by the Appellate Court---Neither any such point was raised before Appellate Court nor same was considered by the Appellate Court, but High Court had found that abatement would automatically operate---Appeal was sub judice before the Appellate Court when the plaintiff died and not before the Trial Court---Had the plaintiff died during the pendency of original suit, even then the suit would not have been dismissed on account of abatement in view of O.XXII, R.3(2), C.P.C., whereby the powers of dismissal of suit on account of abatement had been taken away---Order XXII, R.3(2), C.P.C. had laid down that if no application was moved for impleading legal representatives, it would make no difference---Judgment of High Court was set aside, in circumstances.

(b) Interpretation of statutes---

----Amendment in procedural law---Retrospective effect of---Any amendment in the procedural law would always apply retrospectively---Procedural law would always operate retrospectively, unless contrary intention was expressed---If a matter was merely of procedural nature, it would operate retrospectively, however, if the amendment was of such a nature that it would also affect the existing rights of substantive nature which could cause inconvenience and injustice, then the court would not give retrospective effect to such procedural amendment---Procedural law should be interpreted in such a manner that it should not obstruct the course of justice; and the court should avoid from such interpretation---Case should be decided on merits---Rights of the parties should be resolved by the court after considering the merits of both sides, instead of disposing of the same on mere technicalities.?

Abrar Hussain Shah v. The State 1992 SCR 294; Muhammad Ayub v. Mst. Rehmat Jan PLD 1996 SC(AJ&K) 1; Muhammad Aslam v. Senior Vice-President HBL and others 2003 PLC(C.S.) 388; Ghulam Murtaza v. Mst. Rahifa Begum 2003 SCMR 17 and Abrar Hussain Shah v. The State 1992 PSC 363 ref.

(c) Administration of justice---

----Rules of procedure---Technicality of procedure---All the rules of procedure were meant for the sake of administration of justice and they have to serve that very purpose---Technicalities of procedure should not be considered for thwarting the intention of law---Basic purpose of procedure in the system of administration of justice was to keep and not to thwart the grant of rights to the people---Technicalities should be avoided as far as possible---All rules of procedure were indeed to aid and assist the main cause of justice---Provisions of procedure were meant for the sake of administration of justice and such provisions should be subservient to cause of justice---Such provisions did not restrict the powers of court from passing an oilier necessary for doing full justice in a case.?

Alam Din alias Alam Sher and 3 others v. Alam Din PLD 1990 SC(AJ&K) 1; Sh. Muhammad Aslam Khan v. Malik Sher and 2 others 1992 CLC 196; Giyani Khan and 7 others v. Sher Ali and 3 others 2005 CLC 686 and Province of Punjab and others v. Col. Abdul Majeed and others 1997 SCMR 1692 ref.

Ch. Muhammad Yunus Arvi for Appellants.

Ch. Lal Hussain for Respondents.

Date of hearing 9th February, 2009.

P L D 2009 Supreme Court (AJ&K) 9

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Muhammad Azam Khan, J

KHADIM HUSSAIN---Appellant

Versus

MUHAMMAD AFSAR and 7 others---Respondents

Civil Appeal No.102 of 2008; decided on 13th February, 2009.

(On appeal from the order of the High Court dated 10-9-2008 in Revision Petition No.67 of 2007)

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure. Code (V of 1908), O.XXXIX, Rr.1 & 2---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Suit for declaration and perpetual injunction---Grant of stay order---Recalling of order granting stay order---Appeal to Supreme Court---Plaintiff filed suit for declaration with perpetual injunction---Plaintiff along with plaint moved application for grant of stay order maintaining status quo---Trial Court granted stay order prayed for, but later on, an objection was filed by the defendant, on which stay order granted to the plaintiff was recalled---Appeal filed against order recalling stay order was dismissed by the Appellate Court and revision by the High Court was also dismissed---Validity---Name of plaintiff was not entered as owner of land in dispute either in survey numbers or in khewat concerned---Only name of defendant was entered as sole owner of said land---Prima facie, plaintiff had no concern whatsoever with the land in dispute and he had failed to make out a-good, arguable case for maintaining the suit---Keeping in view the principles governing the issuance of injunction i.e. prima facie case, irreparable loss and balance of convenience, orders passed by the High Court and subordinate court were perfectly legal and merited no interference by the Supreme Court---Appeal was dismissed, in circumstances.

Ch. Muhammad Younus Arvi for Appellant.

Ch. Muhammad Mumtaz for Respondnet No.1.

Nemo for Respondents Nos. 2 to 8.

Date of hearing: 11th February, 2009.

P L D 2009 Supreme Court (AJ&K) 13

Present: Muhammad Reaz Akhter Chaudhry, C.J. and Muhammad Azam Khan, J

MAQSOOD AHMED and another---Appellants

Versus

MUHAMMAD RAZZAQUE and 9 others---Respondents

Civil Appeal No.86 of 2006, decided on 14th February, 2009.

(On appeal from the judgment of the High Court dated 27-5-2006 in Civil Appeal No.117 of 2006)

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

----Ss. 42 & 54---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(ii)---Qanun-e-Shahadat (10 of 1984), Art.79--Suit for declaration and perpetual injunction---Appeal to Supreme Court---Original owner of suit-land, who was nearest relative of plaintiffs, despite having died long ago, defendant fraudulently obtained power-of-­attorney in his favour by producing some other person in place of deceased before Sub-Registrar---Defendant on basis of said forged power-of-attorney, executed sale-deed in respect of property of deceased in his favour; and then said property was sold by defendant in favour of a person (defendant) who was son of defendant, who further alienated said property to another person (defendant)---Plaintiff filed suit for declaration and perpetual injunction against defendants in which power­-of-attorney and sale-deeds were challenged---Trial Court decreed the suit and declared said documents as illegal and forged one and cancelled same---Sale-deeds executed on the basis of said power-of-attorney were also cancelled---Appellate Court, however, accepting appeal, dismissed suit filed by the plaintiffs---High Court having upheld judgment and decree of Appellate Court, plaintiffs had filed appeal in Supreme Court---Defendant being the beneficiary of power-of-attorney, onus was on him to prove execution of said document, but he failed to prove the execution of power-of-attorney---In the light of Art.79 of Qanun-e-Shahadat, 1984, it was necessary for proving, execution of power-of-­attorney to produce at least two attesting witnesses of the deed in whose presence document was executed, but in the present case only one witness was produced---Said sole witness too had failed to prove execution of document---Defendant having failed to prove execution of power-of-attorney, two sale-deeds executed by other persons (defendants), were declared null, void and inoperative on the rights of the plaintiffs---Appeal was accepted, judgments of the High Court and Appellate Court, were set aside and judgment passed by the Trial Court/Sub-Judge, stood restored.

1995 CLC 1951; AIR 1953 Nag. 339; AIR 1953 Pat. 240; AIR 1955 Raj. 39(b); PLD 1956 AJK 47; PLD 1979 AJK 53; PLD 1983 SC (AJK)56; 1988 MLD 552; 1996 CLC 1596; Muhammad Riaz v. Sandal Begum and others 2004 MLD 1885; Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633 and Maj. Rtd.Syed Baqar Hussain Shah v. Mst. Rashida Begum 1992 MLD 2515 ref.

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

----Arts.17, 79, 82 & 84---Execution of document---Proof---For proving the execution of any document, it was essential that two attesting witnesses should appear before the Court and state that document was executed by the executant in their presence; and that they identified his signature.

Muhammad Shafi v. Liaqat Hussain and 6 others 1999 CLC 1130; Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 and Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR 214 ref.

(c) Contract Act (IX of 1872)---

----Ss.188 & 214---Alienation of property of principal by attorney---Attorney before transferring the land to his own kith and kin had to obtain permission from the principal.

Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Khushi Muhammad and others v. Jannat Bibi 2004 CLC 1747; Asif Raees Ahmad v. Mst. Zubaida Bibi and another 2005 YLR 2761 and Mst. Shumal Begum v. Mst. Gulzar Begum and others 1994 SCMR 818 ref.

Abdul Majeed Mallick for Appellants.

Muhammad Reaz Alam for Respondents Nos. 1 to 3.

Date of hearing: 9th February, 2009.

P L D 2009 Supreme Court (AJ&K) 22

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

NIAZ AHMED---Appellant

Versus

THE STATE and 2 others---Respondents

Criminal Appeal No.38 of 2006, decided on 11th November, 2008.

(On appeal from the judgment of the Shariat Court dated 28-4-2006 in Criminal Appeals Nos.42 of 2004 and 16 of 2005)

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

----S. 154---Penal Code (XLV of 1860), Ss.302 & 341---Recording of F.I.R. after investigation of the case---Effect---If at all F.I.R. had been recorded after preliminary investigation, then that irregularity, by itself, would not be sufficient to discard the prosecution case as false---Prosecution case could not be thrown away simply on the ground that the F.I.R. was recorded after the preliminary investigation---If preliminary investigation was conducted before the recording of F.I.R. then merely on that ground the case should not be thrown away, but the court had to take into consideration the other factors and evidence, etc.

Muhammad Yaqub v. The State and another 2007 SCR 332; Muhammad Tariq and others v. The State 2007 PCr.LJ 47; Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524; Kareem Bakhsh v. The State 1976 PCr.LJ 911; Liaqat Ali and 2 others v. Raja Shahid Nawaz and another 2007 PCr.LJ 246; Harson v.The State 1989 PCr.LJ 809; Anwar v. The State 1975 PCr.LJ 750 and Muhammad Haneef v. The State PLD 1977 Lah. 1253 ref.

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

----Ss. 302 & 341---Appreciation of evidence---Sentence, reduction in---Chance witness---Evidentiary value---Evidence of a person involved in a murder case---Credibility---Eye-witness in 'the case who was real brother of deceased, was a chance witness---Where a witness was a chance witness, and was highly interested in the deceased person, his evidence could not be considered to be worthy of credit especially when he was inimical towards accused---Said chance witness was also involved in a murder case---Normally the courts were hesitant to award capital punishment or life imprisonment on the basis of statement of a criminal person---While appreciating the evidence of a chance witness, the court should be careful and should scrutinize the evidence very strictly---Conviction should not be recorded simply on the statement of a chance witness unless and until the same was corroborated by other strong and cogent evidence---Recovery was conducted and witnessed by S.H.O., who had no interest with any party---S.H.O. was an independent witness---Recovery could be proved by a single witness---Evidence of recovery of .222-bore gun corroborated the version of prosecution; it found corroboration from the post-mortem report, according to which deceased died after sustaining fire-arm injury---Capital punishment or life imprisonment in the case would be harsh, on the basis of statement of sole eye-witness, recovery of gun and post mortem report---Sentence of fourteen years was sufficient to meet the ends of, justice keeping in view the overall circumstances and evidence of the case---Sentence of life imprisonment awarded to accused by the Trial Court and upheld by the Shariat Court, was set aside and converted into fourteen years imprisonment---Accused would also be entitled to benefit of S.382-B, Cr.P.C.

Soomer and another v. The State 1990 MLD 1077; Zafar Hayat v. The State 1995 SCMR 896; Jaffar and another v. State 1999 MLD 2233; Nawab and others v. The Crown AIR 1925 Lah. 397 and Muhammad Bashir alias Pervaiz and another v. The State 2005 PCr.LJ 1135 ref.

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

---Ss. 302 & 341---Appreciation of evidence---Chance witness and sole eye-witness---Evidentiary value---Evidence of a chance witness should only be accepted if his presence at the place of occurrence was established; and where no corroborative evidence in support of his version was available, then the statement of such witness had to be excluded from consideration---Where a chance witness had enmity with the family of accused, then his evidence should not be relied upon unless and until same was corroborated by some other strong and cogent evidence---No doubt where the testimony of a sole witness inspired confidence and his character was beyond any doubt he had no enmity with accused or relationship with deceased and his evidence was corroborated by other strong and cogent evidence, then conviction could be recorded on the statement of sole-eye-witness, but where the sole eye-witness was also a chance witness, closely related to deceased, had enmity with accused and his character was also not above board, then capital punishment or life imprisonment could not be awarded, simply on the basis of statement of such solitary eye-witness and it would be unjust and unsafe to award capital punishment or life imprisonment on the statement of such a person---Where the prosecution case was based on sole eye-witness and his evidence was full of infirmities, then, the capital punishment could not be awarded on the basis of such eye-witness---Conviction in a murder case on the evidence of solitary eye-witness, was highly unsafe.

Khalid Javed and another v. Tile State 2003 SCMR 1419; Mumtaz Khan v. The State 1984 PCr.LJ 407; Noora and Shera v. The State PLD 1973 SC 469; Sikandar v. The State 1978 PCr.LJ 504 and Najeebullah Khan v. The State and others 2002 MLD 872 ref.

(d) Sentence---

----Sentence must be weighed in golden scale and should be properly balanced to deter the rest of society from the commission of crime without being unnecessarily harsh---To award punishment was primary function of all the social States---Crucial problem was whether a criminal was considered by the society as a nuisance to be abated or an enemy to be crushed or a patient to be treated or a refectory child to be disciplined or should be regarded as nothing of those things; but simply be punished to show others that anti-social conduct attracts heavy punishment---Problem of crime, criminals and awarding punishment required attention of Criminologists and Penologists all around the social world,, but there was dearth of such individuals or institutions, who could give opinions in Criminology and Penology based on social conditions and provide guidance in respect of punishment---Court, in circumstances; could not resolve the issue of awarding sentence blindly or without taking note of theories of punishment and background of offenders---Such duty fell on the superior courts to fill in the vacuum and the courts should do justice keeping in view all the circumstances and backgrounds of the offenders---Punishment awarded should neither exceed a ceiling equal to a level just deserved by the offender for the offence nor far below a floor level necessary to protect public from further serious crimes; and to show that the gravity of offence was deprecated---Where the case of prosecution was proved beyond any doubt, then it was the legal duty of the court to award punishment to an offender to make the evil-doer an example and warning for the like minded persons---Court was bound to do complete justice with both the parties---Whenever people failed to secure justice from the court of law then they would resort to take law in their own hands to settle their matters themselves---Such a situation was very alarming---While awarding sentence, the court should keep in view all such considerations.

Bostan Chaudhry for Appellant.

Abdul Majeed Mallick for the Complainant.

Muzaffar Ali Zafar, Addl. Advocate-General for the State.

Date of hearing: 9th June, 2008.

P L D 2009 Supreme Court 861

[Shariat Appellate Bench]

Present: M. Javed Buttar Chairman, Muhammad Farrukh Mahmud, Mahmood Akhtar Shahid Siddiqui, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, JJ

ABDUL MAJID---Appellant

Versus

GOVERNMENT OF PAKISTAN---Respondent

Civil Shariat Appeal No. 2(s) of 2004, decided on 7th May, 2009.

(On appeal from the judgment/order, dated 5-11-2003 passed by the Federal Shariat Court, Islamabad, in Shariat petition No.1/I/2003).

(a) Islamic jurisprudence---

----Qur'an and Sunnah---Use of words "Qur'an and Sunnah" so frequently on one's own far fetched ideas, having been drawn in some general directions of the Qur'an and Sunnah was disapproved by Shariat Appellate Bench of the Supreme Court and observed that when Ijtihad could be given due consideration in such matters why to refer such issues directly to "Qur'an and Sunnah" and degrade their sanctity---Principles.

(b) West Pakistan Arms Ordinance (XX of 1965)---

----Preamble---Constitution of Pakistan (1973), Art.203-F---Vires of Pakistan Arms Ordinance, 1965----Contentions of the appellant was that every citizen had a right to protect his life and property and ultimately he had to keep any kind of weapon for that purpose; that there was no requirement in Islam for grant of license for retaining fire-arm weapons as envisaged by Pakistan Arms Ordinance, 1965 and rules framed thereunder and that levying of annual fees for grant of license was also not in accordance with Injunctions of Islam---Validity---Held, Pakistan Arms Ordinance, 1965 and rules thereunder placed no embargo on keeping of weapon for the purpose of self-protection as well as protection of honour and property but as highlighted in the Preamble of the said Ordinance that the Ordinance was aimed at consolidating the law relating to " the sale, transport, bearing or possession of arms ammunitions for military store by making certain Rules and Regulations for the same---Purpose of the Ordinance appeared to regularize the possession of weapons etc. and thereby identify misuse of the same so that the lives and properties of innocent people were properly safeguarded---No infirmity or illegality, misreading or non-reading of the record having been found in the impugned judgment of Federal Shariat Court, interference was declined by the Supreme Court---Principles.

Al-Ma'arij-23; Jami ul-Tirmidhi Vol-I, P.260 ref.

(c) Islamic jurisprudence---

----Ijtihad plays a vital role in the evolution of laws and making them progressive, modern and dynamic.

Al-Ma'arij-23 ref.

Appellant in person.

Nemo for Respondent.