PLD 2010 Judgments

P L D 2010 Federal Shariat Court 1

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

Dr. MUHAMMAD ASLAM KHAKHI and others----Petitioners

Versus

THE STATE and others----Respondents

Shariat Petition No.61/I with Shariat Miscellaneous Application No.10/U of 1998, Shariat Petition No.62/I of -1992 with Shariat Miscellaneous Application No.11/I of 1998, Shariat Miscellaneous Applications Nos.21/I of 1995, 16/I of 1997 19/I of 1997, Shariat Petitions Nos.12/I of 1999 and 4/I of 2004, decided on 28th August, 2009.

(a) Islamic Jurisprudence---

----Religious obligation---Need to watch, examine and adopt new developments in contemporary societies is a religious obligation of every Muslim.

Hadith No.2687 in Kitab-ul-Ilm Jama Tirmazi and Ibn-e-Maja; Ibn-e-Maja, Vol. 1 (Urdu Translation), p.143 Chap. ILM and Hadith No.28697 Bab-ul-Ilm, Vol. 10 Kunzul-Ummal quoted.

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

----Part VII, Ch.3A [Arts.203-A to 203-J] & Art.227---"Repugnant"---Connotation and scope---Meaning and scope of the term "repugnant" is not limited only to the actual state of being contrary i.e. contrariety, conflict, antognistic, opposite or being disparate of the letter of the NASS/Injunctions of Islam alone but would also cover the case when an impugned provision of law, law itself or a custom is, disagreeable, repulsive, offensive, distasteful, inconsistent, incompatible irreconcilable or even averse to the spirit of the NASS i.e. Injunctions of Islam---Principles.

MacMillan: English Dictionary; Word Book Dictionary; Oxford Dictionary; Dictionary of Terms/English Urdu Vol. 3 p.1472, 1985 Edn. Printed by Urdu Science Board; Law 'Dictionary English Urdu published by National Language Authority Pakistan (based upon the famous Black's Law Dictionary); Lexicon Webster Dictionary, Vol.III, p.815; Wharton's Law Lexicon; Vishnu Bhattathiripaid v. Poulo, 1953 Ker. L.T.238: LL.R. 1952 Trav-Co. 670 = AIR 1953 Trav-Co.327(D.B); Presson v. Presson 147 p.1081, 1082, 38, Nev.203 and Words and Phrases Vol. 37, p.90 ref.

(c) Pakistan Prisons Rules, 1978---

----Rr. 180 & 181---Constitution of Pakistan (1973), Art.203-D---Notice to Railway authorities and travelling of superior class prisoners---Vires of Rr.180 & 181 of Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Rules 180 & 181 of Pakistan Prisons Rules, 1978 do not contravene any of the Injunctions of Islam---Federal Shariat Court observed that it will however be appreciated that the superior class prisoner is only given the option to travel in second class compartment on the condition of payment of difference in the railway fare, both for himself and the escort---Principles.

Ayat 27 Sura 22 (AI-Hajj) ref.

(d) Pakistan Prisons Rules, 1978---

----Rr. 147, 148 & 149---Prisoners Act (III of 1900), Ss.29 & 42---Constitution of Pakistan (1973), Art.203-D---Transferring certain categories of prisoners within and beyond the territorial limits of a Province and from one jail to another jail within the Province---Vires of Rr.147, 148 & 149 Pakistan Prisons Rules, 1978 and Ss.29 & 42, Prisoners Act, 1900' on the touchstoneof Injunctions of Islam---Rules 147, 148 & 149 of the Pakistan Prisons Rules, 1978 and S.29 of Prisoners Act, 1900 are repugnant to Injunctions of Islam---Extent of repugnancy and exceptions---Principles.

Federal Shariat Court observed that firstly no provision has been incorporated for any notice being given to the prisoner before his removal within or beyond the local limits of a Province and secondly arbitrary powers have been given to the Provincial Government as well as the Inspector-General of Prisons for transfer of a prisoner to different prisons within the Province and the same unfettered power is enjoyed by the Federal Government when the transfer is to be made beyond the limits of a Province, and thirdly that the right of appeal before an independent tribunal has not been provided against such routine but harsh orders; and fourthly there is no limit to the number of transfers that can be inflicted upon a prisoner.

Arbitrary exercise of power by mundane authorities has not at all been conceded by Injunctions of Islam. Notice and right of appeal has to be provided whenever an order adverse to the interest of an aggrieved person is passed by any authority. In this view of the matter the following principles should be read as part of every statute namely:-

(a) Notice must issue to a person against whom an order/action, adverse to his interests, is proposed to be made disclosing the reasons for the same with an adequate opportunity to show cause against it.

(b) The authority, office or person issuing any order or direction which affects any person prejudicially, will state reasons for making the proposed order. Reasonable opportunity will also be given to the affected person to show cause against the proposed action. [Reference section 24-A General Clause Act, 1897.]

(c) Right of appeal before an independent tribunal/authority, higher than the one which issues the impugned order, vests in the person aggrieved by an adverse order. The District and Sessions Judge of the District should be the appellate authority.

The origin of these principles can be traced to Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29 Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura 84 and. Ayaat 6 through 8 Sura 99 of the Holy Qur'an.

Direction by the Government or the Inspector General of Prison Department for removal of a prisoner from one prison to another prison within the Province or from one Province to another Province must be supported by a speaking order. Unless it is a question of dire necessity or emergency, a notice of transfer must be given to the prisoner. It is the right of a prisoner to know why he is being transferred away from his home town. There must be legal justification to lodge a prisoner far away from the place of his residence. Such a transfer has, in many cases, worked to serious disadvantage, particularly of women folk and children, of prisoner. Muslims have been directed to create facilities for the people and not to add to their hardships and apprehensions: "YASSARA WA LA TOASSARA".

Rules 147 through 149 of the Pakistan Prisons Rules, 1978 as well as section 29 of the Prisoners Act, 1900 are repugnant to the above mentioned Injunctions of Islam. However the repugnancy is to the extent that the Government enjoys unfettered power to transfer a prisoner from one Province to another Province without giving notice to the prisoner or without obtaining his consent or without referring to any lawful reason by way of a speaking order conveyed to the detenue and without providing any remedy against exercise of such authority. Similarly the power of the Inspector General of Prisons to transfer a prisoner from one prison to another within the province without notice or consent of the prisoner and without providing a right of appeal before an independent tribunal is declared as repugnant. Federal Shariat Court observed that Chapter 7 of the Pakistan Prisons Rules, 1978 and section 29 of Prisoners Act, 1900 should be recast in a manner in which (a) arbitrary, unbridled and unfettered powers are neither given to the Government nor the Inspector General of Prisons; (b) and unless the gravity of the situation really demands an expeditious action, transfers within the Province or beyond the limits of Province, without notice or consent, should be eschewed. This however does not cover the case of a convict whose release is due and he is being transferred near his home town as provided in Rule 148 or who is required to be produced in another court in a case being tried elsewhere or there are other reasonable grounds such as safety, security or health. However the transfer policy should be based upon reasonable considerations subject of course to notice and the right of appeal or representation before an independent tribunal. Notice need not be given where a prisoner himself seeks transfer on solid grounds.

The case of Ataullah Mengal v. The State PLD 1965 Kar. 350 and the case of Ali Muhammad v. State reported as 1974 PCr.LJ 249 may also be considered by the amending authorities. Present decision regarding repugnancy of the impugned provisions of law will take effect as from 1-12-2009 during which period the necessary amendments, additions or alterations may be effected by relevant authorities.

PLD 1984 FSC 34; Dr. Muhammad Aslam Khaki and others v. Government of Punjab and others PLD 2005 FSC 3; Pakistan and others v. Public at Large PLD 1987 SC 304; Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29 Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura 84 and Ayaat 6 to 8 Sura 99; Ataullah Mengal v The State PLD 1965 Kar. 350 and Ali Muhammad v. State 1974 PCr.LJ 249 ref.

(e) Islamic Jurisprudence--

----Administration of justice---Notice and right of appeal has to be provided whenever an order adverse to the interest of an aggrieved person is passed by any authority and such principles to be read as part of every statute.

The following principles should be read as part of every statute namely:

(a) Notice must issue to a person against whom an order/action, adverse to his interests, is proposed to be made disclosing the reasons for the same with an adequate opportunity to show cause against it.

(b) The authority, office or person issuing any order or direction which affects any person prejudicially, will state reasons for making the proposed order. Reasonable opportunity will also be given to the affected person to show cause against the proposed action. [Reference section 24-A General Clause Act, 1897.]

(c) Right of appeal before an independent tribunal/authority, higher than the one which issues the impugned order, vests in the person aggrieved by an adverse order. The District and Sessions Judge of the District should be the appellate authority.

The origin of these principles can be traced to Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29 Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura 84 and Ayaat 6 through 8 Sura 99 of the Holy Qur'an.

(f) Federal Shariat Court Procedure Rules, 1981---

---Rr. 7 to 16A---Filing of petition before Federal Shariat Court--Petitions, before Federal Shariat Court are to be filed in accordance with the mandated provision of the Federal Shariat Court Procedure Rules, 1981 so that the precise issues are brought before the Court for determination without loss of time---Federal Shariat Court deprecated non-vigilance of parties and Registry of the Court in that respect.

(g) Islamic Jurisprudence---

----Principle of equality vis-a-vis the teachings of Islam---Equivalence is a distinctive feature of Islam---Islam presupposes that all the human beings are equal and enjoy the same set of liberties and limitations---Equality should not be confused with classification; Islam negates discrimination but upheld reasonable classification---Principles.

Holy Qur'an and the precepts of Prophet Muhammad, p.b.u.h., are vocal on the issue of equality status of human beings. The Injunctions of Islam bear ample testimony, as is evident from Ayat 13 Sura 49, that the noblest among the believers in the sight of Allah is the one who is most mindful of his duties towards Allah. Reference may also be made to the Khutba of the Holy Prophet, p.b.u.h., at the time of conquest of Macca as well as the last Sermons. Both the Sermons constitute an illuminating charter of human rights arid freedoms wherein liberty and equality are declared as basic principles of Divine Message. But equality should not be confused with classification. Islam negates discrimination but uphold reasonable classification.

The principle of equality between human beings is innate in Islamic teachings. When the Holy Qur'an proclaims that every human being is worthy of respect and dignity as is evident from Ayat 70, Sura 17, Bani Israel, it presupposes that all human beings, irrespective of sex, caste, colour, creed, community, country and other man made geo-political divisions, are equal. The divine statement contained in Ayat 76 Sura 38, to the effect that man was created from clay is a loud and clear proclamation that all human beings are in fact equal. Similarly the declaration contained in Ayaat 22 and 29, Sura 2 Al-Baqra, and repeated at number of places in the Holy Qur'an, namely that the bounties scattered in the cosmos are meant for the consumption of human beings, necessarily implies that human beings are not only equal but enjoy equal opportunities. The Qur'anic principle that those who do good shall inherit gardens clarifies the matter further by suggesting that the criteria of success is good conduct whether done by someone from the lower strata of society or done by a politically and financially strong person or a blue-blooded aristocrat. The right to choose, as enunciated in Ayat 104 Sura 6 and Ayat 29 Sura 18, has been granted to all and sundry. Why? Because Islamic jurisprudence pre-supposes that all the human beings are equal and enjoy the same set of liberties and limitations. The Holy Qur'an is that revealed Book which in fact introduced the concept of unity of human race. Reference may be made to Ayat 213, Sura 2, Ayat 32 of Sura 30 and Ayat 19 of Sura 10. Similarly the declaration that no one shall bear the burden of any other soul, as given in Ayat 164 of Sura 67, and that every one is accountable for his deeds as enunciated in Ayat 202 Sura 2, is a clear pointer towards the principle of equality. At the socio-economic and political level, the Holy Qur'an makes it abundantly clear in Ayat 35 Sura 33, that men who submit and the women who submit, the faithful men and the faithful women etc. etc. shall receive rewards. Ayat 173 of Sura 7 refers to the joint covenant of the children of Adam which is a vivid illustration of equality of all human beings irrespective of time and place of birth. Equivalence is a distinctive feature of Islam. These human friendly principles introduced by Divine Message through the honoured Prophets A.S. paved the way for humanism and the International Charter of Human Rights.

Abdul Rashid v. The State 1980 SCMR 632; Waheed Akhtar v. Superintendent, Camp Jail, Lahore and another PLD 1980 Lah. 131; Ayat 13 Sura 49; Khutba of the Holy Prophet, p.b.u.h., at the, time of conquest of Macca as well as the last Sermons; Ayat 70 Sura 17, Bani Israel; Ayat 76 Sura 38; Ayaat 22 and 29; Sura 2 Al-Baqra; Ayat 104 Sura 6; Ayat 29 Sura 18; Ayat 213; Sura 2; Ayat 32 of Sura 30; Ayat 19 Sura 10; Ayat 164 Sura 67; Ayat 202 Sura 2, Ayat 35, Sura 33 and Ayat 173 Sura 7 ref.

(h) Pakistan Prisons Rules, 1978---

----Chap. 9 [Rr. 224-249] & Chap. 10 [Rr. 250-270]---Constitution of Pakistan (1973), Art.203-D---Classification and superior class prisoners---Vires of Chaps. 9 & 10 of Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam--Notwithstanding general equality among human beings, the rule of classification is an established principle of Islamic Jurisprudence.

[Qur'anic Verses extensively quoted].

(i) Interpretation of statutes---

----Entire law on a given subject has to be seen as one integrated whole to carter to social requirement in a particular chapter of human life.

(j) Islamic Jurisprudence---

----Equality among human beings and rule of classification---Principle---Notwithstanding general equality among human beings, the rule of classification is an established principle of Islamic Jurisprudence.

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

----Art. 25---Equal protection of law and reasonableness of classification---Principles---Duty of Court---Scope.

The following are principles with regard to equal protection of law and reasonableness of classification:

(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25 of the Constitution;

(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;

(vii) that in order to make a` classification reasonable, if should be based:

(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

(viii) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.

(ix) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The person, therefore, who pleads that Article 25, has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact;

(x) that it must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds;

(xi) that the Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest;

(xii) that in order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation;

(xiii) that while good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the 'presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation;

(xiv) that a classification need not be scientifically perfect or logically complete;

(xv) that the validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration.

Constitution of Islamic Republic of Pakistan by Syed Shabbar Raza Rizvi and V.N. Shukla's Constitution of India 7th Edn. ref.

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

----Part II, Chap. I [Atts.8 to 28]---Reasonable restriction---Concept of reasonable restriction as emerges on interpretation of constitutional provisions, including Art.25 of the Constitution, is not alien to Islamic teachings---Concept of human dignity received legal recognition for the first time when Ayat 70 of Sura 17 of Holy Qur'an was revealed.

Ayat 32 Sura; Ayaat 178, 179 & 194 Sura 2; Ayat 45 Sura 5 and Ayat 70 Sura 17 ref.

(m) Islamic Jurisprudence---

----Fundamental rights---Right of freedom of expression---Every human being enjoys the right of freedom of expression but Islamic Injunctions Put a limit on the exercise of said fundamental right because an individual is not authorised to violate similar rights of others on the pretext of realization of his own basic rights.

(n) Islamic Jurisprudence---

----Fundamental rights---Scope---Even fundamental rights are not absolute in the eyes of law.

Ayat 256 Sura 2; Ayat 23 Sura 4; Ayat 60 Sura 9; Ayat 41 Sura 8 and Ayat 43 Sura 2 ref.

(o) Pakistan Prisons Rules, 1978---

----Preamble ---Prisoners Act, (III of 1900), Preamble---Constitution of Pakistan (1973), Part II, Ch.1 [Arts.8 to 28] & Art.203-D---Vires of prison legislative instruments on the touchstone of Injunctions of Islam---Fundamental rights guaranteed by the Constitution are firmly based upon various Injunctions of Islam---Existing provisions of prison legislative instruments are presumed to be valid, legal and not violative of constitutional guarantees unless proved to the contrary---Presumption of constitutionality is attached to every legislative instrument and courts generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the Constitution.

Ghulam Mustafa Insari and 48 others v. Government of the Punjab and others 2004 SCMR 1903; East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854; Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 and Darbar Patiala through S. Ajmer Singh v.. Firm Narain Das AIR 1944 Lah. 302 ref.

(p) Islamic Jurisprudence---

----Reasonable classification---Scope---Basic principle of Islamic Jurisprudence is that reasonable classification is permissible but discrimination has to be eschewed because discrimination violates the well-known tradition of Holy Prophet proclaimed in Khutba Hujjat-ul-Wida.

(q) Islamic Jurisprudence---

----Prison discipline---Primary concern of Islamic Jurisprudence is the administration of even-handed justice---Federal Shariat Court observed that prevailing prison system, does not envision rectification, reform, reformation, or rehabilitation of the convict and advised the managers of prison system to adopt objective attitude and bring a change in the prison discipline as well as in the outlook.

Ayat 53 Sura 39; Sunan Abi Daud and Sunan Ibn-e-Maja; Kitab­ul-Kuna-Aldaulaki; Sunan Abi Daud tradition Nos.5215-5216 and Sunan Abi Daud Tradition No.4842 ref.

(r) Pakistan Prisons Rules, 1978---

----R. 546---Constitution of Pakistan (1973), Art.203-D---Facilities to be provided to new entrants in the prison including provisions for reading, writing and meeting friends and relatives, receiving things at the time of interview by the prisoner and censorship of letters delivered to or sent by prisoner---Vires of R.546, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Administration, for the purpose of security can take the steps like checking and censorship and such course of action is permissible in Islam.

(s) Pakistan Prisons Rules, 1978---

----R. 690---Constitution of Pakistan (1973), Art.203-D---List of prohibited articles---Vires of R.690, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---List of prohibited articles as per Item No.5 of the Rule mentions "all books, papers and printed or written matters and materials and appliances for printing or writing of whatever description "---Words "all books, papers and printed or written matters" in Rule 690 of Pakistan Prisons Rules, 1978 are repugnant to Injunctions of Islam---Principles.

Ayat 269 Sura 2; Ayaat 1-5 Sura 96, Ayat 1 Sura 68; Ayaat 73, 76 and 171; 242 Sura 2; Ayat 43 Sura 16; Tirmazi .in . Book of Knowledge (Tradition No.2687), Tradition No.1919 and Ayat 220 Sura 2 ref.

(t) Islamic Jurisprudence---

----Shariah, objectives of---Objectives of Shariah, known as Maqasid-e-Sharia are in fact guarantees for the betterment of humanity and provides five basic principles/values being (i) preservation of Deen (Religion); (ii) preservation of intellect; (iii) preservation of life; (iv) preservation of property and (v) preservation of progeny---Illustration.

Ayat 220 Sura 2 ref.

(u) Pakistan Prisons Rules, 1978---

----Rr. 75 & 690---Constitution of Pakistan (1973), Art.203-D---Amendment made in R.690 in Balochistan and N.-W.F.P. Provinces Permitting the prisoners to have a reasonable quantity of reading and writing material has not been incorporated in R.75, Pakistan Prisons Rules, 1978 which omission is not only violative of Islamic Injunctions but also contrary to the principle of uniformity of laws applicable to same categories of citizens all over the country---Principles.

(v) Pakistan Prisons Rules, 1978---

----Rr. 307 & 314---Constitution of Pakistan (1973), Art.203-D---Confinement of women prisoners and innocent children---Vires of Rr.307 & 314, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Federal Shariat Court observed that there is nothing at all either in R.307 or. R.314 of the Prisons Rules, 1978 which violates Injunctions contained in Ayat 151 Sara 6 of Holy Qur'an on the contrary R.314 specifically mandates that male officer can enter only if he has a legitimate duty to attend to, and is accompanied by the woman warder all the time he remains inside such ward or enclosure---Such is not conceivably covered by the mischief of the term Fawahish i.e. lewdness---Government, at the most, may consider, defining the scope of the word "necessary" occurring in R.314, Pakistan Prisons Rules, 1978 and may restrict the noctural visits only to situation when a prisoner needs emergent medical care, or there are riotous conditions in the barrack, a clamity like fire or an earthquake has damaged the enclosure---Every such visit of senior officers may by law be required to be recorded and its intimation sent to the Inspector-General Prisons next morning telephonically as well as in writing.

Ayat 151 Sura 6 and PLD 1995 Central Statutes 231 ref.

(w) Pakistan Prisons Rules, 1978---

----Rr. 935 & 939---Constitution of Pakistan (1973), Art.203-D---Superintendent of Jail---Vires of Rr.935 & 939, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Petitioner, in the present case, having neither advanced any precise objection as to the text or terminology of the said Rules nor was any Injunction of Islam shown to have been violated by the inclusion of said two provisions in the Pakistan Prisons Rules, 1978---Federal Shariat Court' dismissed the petition.

(x) Pakistan Prisons Rules (1978)---

----Rr. 1180 & 1181---Constitution of Pakistan (1973), Art.203-D---Lady Assistant Superintendent and women warders---Vires of Rr.1180 & 1181, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Contentions of the petitioners were that no woman could be placed in custody of a male not within prohibited degree (non-Mahram) and that any situation, arranger, event or system which might possibly lead to immorality or adultery was prohibited by Islam---Federal Shariat Court observed that Lady Assistant Superintendent had been made physical incharge of a women's prison and Rules also affirmed that women warder should be incharge of the women enclosure in any prison---Women enclosures were already separate from the male enclosures and therefore, there did not exist any situation, arrangement, event which was directed towards or might possibly lead to immorality or adultery---Only because a provision could be used in an oppressive or capricious manner or was capable of being used did not mean that the provision itself became invalid---Sole criteria were the test of repugnancy to Holy Qur'an or Sunnah of the Holy Prophet.

Pakistan and others v. Public At Large and others PLD 1987 SC 304 ref.

(y) Pakistan Prisons Rules, 1978---

----Rr. 1002 & 1004---Constitution of Pakistan (1973), Art.203-D---Deputy Superintendent, general duties---Vires of Rr.1002 & 1004 on the touchstone of Injunctions of Islam---Grounds mentioned in the petition were in fact apprehensions e.g.; that the control of male staff over female prisoners could lead to moral excesses---Federal Shariat Court observed that in fact no male officer was in physical control of female prisoners---Latter were under the supervision of female warders and Lady Assistant Superintendent of Jail---No female prisoner was placed in custody of non-Maharani male and the objection, that anything leading towards immorality was prohibited in Islam was a misplaced feeling and it would certainly not advance the cause of justice if an order was made to read mischievous meaning in any provision of law unless of course, it was shown by reasonable interpretation that provision under review was either expressly hit by an Injunction of Islam or by implication was repugnant to the letter or spirit of Injunctions of Islam---Injunction of Islam, to be relied upon, must be identified so that a bare reading of the Injunction would indicate the obvious mischief complained of---Rules, 1002 & 1004 impugned in the petition were therefore valid as no reason was advanced to show that said provisions related to the performance of normal duties.

(z) Constitution of Pakistan (1973)---

----Art. 203-D---Repugnancy to Injunctions of Islam---Requirements for impugning a provision of law---Federal Shariat Court observed that it would certainly not advance the cause of justice if an order was made to read mischievous meaning in any provision of law unless of course, it was shown by reasonable interpretation that provision under review was either expressly hit by an Injunction of Islam or by implication was repugnant to the letter or spirit of Injunctions of Islam---Injunctions of Islam, to be relied upon, must be identified so that a bare reading of the Injunction would indicate the obvious mischief complained of.

(aa) Pakistan Prisons Rules, 1978---

----R. 1078---Constitution of Pakistan (1973), Art.203-D---Prohibition against employment of persons dismissed or punished criminally with an authority to Government as well as the Inspector-General of Prisons to employ dismissed government officers and previous convicts---Vires of R.1078, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Contention of the petitioner was that R.1078 was un-Islamic as the same prohibited a person from earning legitimate livelihood (Rizq-e-Halal)---No Injunctions of Islam had been referred by petitioner to establish that the impugned Rule was in any manner opposed to Islamic Injunctions---Federal Shariat Court observed that R.1078 did give arbitrary authority to Government as well as the Inspector-General of Prisons to employ dismissed government officers and previous convicts---Such provision was discriminatory and was not covered by the principle of classification on reasonable grounds---Elements of special sanction of Government and that of Inspector-General of Prisons were violative of Injunctions of Islam on account of arbitrariness and other reasons---Rule 1078(i) of the Pakistan Prisons Rules, 1978 was declared to be repugnant to Injunctions of Islam by the Federal Shariat Court---Impugned provision to the extent of special sanction shall ceases to have effect as from 1-12-2009.

Verse 70 of Chap. 25 ref.

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

----S. 382-B---Constitution of Pakistan (1973), Art.203-D---Period of detention to be considered while awarding sentence of imprisonment--Vires of S.382-B, Cr.P.C. on the touchstone of Injunctions of Islam---Objection of petitioner was that the period of detention in custody for the offence should be deducted from the quantum of sentence of imprisonment awarded at the end of trial for the same offence---Federal Shariat Court, in the light of relevant Verses of Holy Qur'an and principles of Injunctions of Islam relating to the realm of administration of justice observed that it appears to be just and reasonable that the period spent by a prisoner in detention/custody for an offence before and during the trial ought to be deducted from the sentence awarded by the trial court for the reason that the prisoner had already suffered incarceration on account of the crime report which became the basis of his conviction and the consequent sentence of imprisonment; omission to deduct such a period of detention in the same cause would fall in the category of ZULM which the Holy Qur'an does not countenance under any situation: (Refer Ayat 85 Sura 3); existing provision i.e. section 382-B of the Code of Criminal Procedure, 1898 in so far as it speaks of taking into consideration the period spent in detention for the same offence, before pronouncement of judgment was derogatory to the Injunctions of Islam; necessary. correction may be made by 1-12-2009 whereafter the order of Federal Shariat Court will take effect and the provision of section 382-B of the Code of Criminal Procedure would read as "Where a court decides to pass a sentence of imprisonment of an accused for an offence, the period, if any, during which such accused was detained in custody ,for such offence, whether before or after submission of report under section 173 of the Code of Criminal Procedure or initiation of a trial in a case instituted upon a complaint, shall be deducted from the quantum of sentence of imprisonment awarded by the trial court or it may be adjusted against imposition of fine if the court so directs"---Federal Shariat Court further observed that Court took notice of this provision also because this point invariably crops up whenever the question of benefit of section 382-B of the Code of Criminal Procedure comes under consideration at the time of award of sentence to the accused both at the conclusion of the trial and at the time of hearing the appeal---Federal Shairat Court hoped that this declaration will put an end to the controversy.

Ayaat 48, 123, 286 Sura 2; Ayat 135; Sura 4; Ayat 8; Sura 5; Ayat 15; Sura 10; Ayat 90 Sura 16; Ayat 41 Sura 42 and Ayat 85 Sura 3 ref.

(cc) Pakistan Prisons Rules, 1978---

----Chap. 20 [Rr.468 to 507] & R.176---Constitution of Pakistan (1973), Art.203-D---Dietry requirements of prison population---Vires of Chap.20, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Amount for diet having not been mentioned in the Rules, Federal Shariat Court declined to declare the same ultra vires the Injunctions of Islam, however, Court observed that adequate provision has to be made by all the Provincial Governments to rationalize the quantum of dietry sanction for the prisoners because Islamic Injunctions are very clear on this point.

Ayat 8 Sura 76; Ayat 56 Sura 24; Ayat 8 Sura 76; Bukhari, in Book LXXXIX, The Book of A'hkaam, Chap.1; Ayat 34 Sura 4; Ansar Burney v. Federation of Pakistan and others PLD 1983 FSC 73 and Al-Mausooatal Qazaya pp.277-278 ref.

(dd) Pakistan Prisons Rules, 1978---

----R. 176(iii)---Constitution of Pakistan (1973), Art.203-D---Food of prisoners on transfer---Vires of R.176(iii) of Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Federal Shariat Court observed that Rule 176(iii) of the Pakistan Prisons Rules, 1978 is violative of Islamic Injunctions for said Rule provides that a prisoner on transfer will get diet money of Rs.3 per meal, which money will not buy even one thin loaf of bread---Unless otherwise deleted or suitably amended, said provision will cease to be part of the Rules after 1-12-2009, the minimum diet money per meal should be Rs.50 which amount will be revisable every three years---Principles.

(ee) Pakistan Prisons Rules, 1978---

----R. 545-A---Constitution of Pakistan (1973), Arts.203-DD, 25(3), 35 & 38---Family life of prisoners---Special meetings---Conjugal Oriented Parole Scheme---Federal Shariat Court appreciated the introduction of Rule 545-A in the Pakistan Prisons Rules, 1978 and remarked that "indeed it was a welcome start"---Court also observed that the Home Department can formulate a policy wherein the married prisoners, except lifers and condemned prisoners, are enabled and encouraged, subject to all necessary and reasonable conditions, to avail a week's parole every four month in the larger interest of maintenance of family life---Spouse and children of the accused have a legitimate claim upon the latter---Family union of the condemned prisoners and lifers can be arranged in the family quarters within the prison walls; it will not only have a salutary effect upon the prison population but these steps will be ;positive measures towards reduction of some problems arising on account of over population in the prisons---Shariat Court hoped that all the Provincial Governments will consider the matter particularly relating to family life of prisoners, and make amends by extending on the one hand the scope of amended Rule 544, but also take positive steps to introduce Conjugal-Oriented Parole Scheme in appropriate cases and also initiate family reunion on auspicious occasions within the prison precincts in the larger interest of preservation of family life---Court further hoped that necessary action will be taken by the end of 2010 and a report to that effect will be sent by the Secretaries Home of all the Provincial Governments, Secretary Interior, Government of Pakistan will also send his own report containing an objective assessment as regards the efforts made and steps taken in this regard---Said reports must reach the Registrar of Federal Shariat Court by 31-1-2011 whereafter this aspect of the case will be examined in February, 2011.

(ff) Pakistan Prisons Rules, 1978---

----Chap. 14 [Rr.329 to 364]---Prisons Act (IX of 1894), S.30---Criminal Procedure Code (V of 1898), S.376---Constitution of Pakistan (1973), Art.203-D---Condemned prisoners---Vires of Chap.14 (Rr.329 to 364), Pakistan Prisons Rules, 1978 and Prisons Act, 1894 on the touchstone of Injunctions of Islam---Federal Shariat Court observed that prisoner under sentence of death shall be deemed to be a condemned prisoner only when the death sentence awarded by the trial court has been confirmed and it becomes executable i.e. when the death sentence has been confirmed under section 376 of the Code of Criminal Procedure, 1898 and consequently portion of the legal provisions which authorize the Prison Authorities to treat a prisoner under sentence of death as a condemned prisoner before confirmation of his sentence i.e. it becomes executable, is declared to be violative of Injunctions of Islam.

Ayat 60 Sura 22; Ayat 126 Sura 16; Ayat 70 Sura 17; Ayaat 58-59 of Chap.24 Sura an-Nur; Ayat 90 Sura 16; Ayat 53 Sura 39; Bab­e-Mazalam, Vol. 9 of Sahih Bukahri; Chap.80 Sahih Bukhari; Ayat 185 Sura 2; Ayat 4 Sura 65; Ayaat 5, 6 Sura 94; 94/5-6 (Al-Inshran); Ayaat 233, 286 Sura 2; Ayat 84 Sura 4; Ayat 42 Sura 7; Ayat 62 Sura 23; Ayat 7 Sura 65 and Ayat 286 Sura 2 ref.

(gg) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---Prisons and prisoners---Ground realities, challenging problems and role of prisons---Federal Shariat Court noted ground realities, challenging problems and role of prisons and offered proposals for solving said problems---Court hoped that necessary steps will be taken by all the Provincial Governments with the active collaboration of the Secretary Interior---Secretary Interior and the Provincial Secretaries will send a detailed report on the various issues identified and discussed should also reach the Registrar, Federal Shariat Court by 31-1-2010 whereafter the court will examine the steps taken by the Federal and Provincial Governments in the matter---Case will be taken up in February, 2011 for consideration and necessary action.

Majeeda Bibi v. Superintendent Jail PLJ 1995 Kar. 1; Ayat 6 Sura 13 Ayat 115 Sura 23 ref.

(hh) Pakistan Prisons Rules, 1978---

----R. 304---Constitution of Pakistan (1973), Art.203-D---Juvenile prisoner---When a juvenile prisoner is released there should be some body to guide him and enable him to enter life as a productive unit of society---Federal Shariat Court observed that Government can consider amending R.304, Pakistan Prisons Rules, 1978 whereby Probation Officers, particularly in cases of orphan juvenile offenders, are deputed to provide necessary assistance---Principles.

Ayat 233 Sura 2; Ayat 9 Sura 4; Ayat 141 Sura 6; Ayat 40 Sura 14; Ayat 31 Sura 17; Ayat 3 Sura 22; Ayat 74 Sura 25; Ayaat 7-12 Sura 28; Ayaat 13-19 Sura 28 and Ayaat 6-7 Sura 65 ref.

(ii) Islamic Jurisprudence---

----Prison discipline--- Human affairs--- Guiding principles.

(jj) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---Prison discipline---Rights of accused persons/prisoners guaranteed by Constitution, Law, Precedents, Dean (Religion) and remedies elaborated--- "Fair friar-Connotation.

Ayat 279 Sura 2; Ayat 57 Sura 3; Ayat 22 Sura 14; Farrukh Salim v. The State PLD 1997 Lah. 385; The State through A.G. N.W.F.P. Peshawar v. Waqar Ahmad 1992 SCMR 950; Allah Rakhi v. The S.H.O. and others NLR 2000 Cr.92; 2002 YLR 3832; PLD 2003 Lah. 217; Corpus Juris Secundum Vol. 88 CJS Edn. 1955, p.88; Garret v. State 193 So.452, 458, 187 Miss.441; Column One Vol. 16 Words and Phrases, 1959 Edn.; Ayat 109 Sura 2, Ayat 134 Sura 3; Ayat 119 Sura 23; Bukhari Muslim and Mishkat; Majeeda Bibi's case PLJ 1995 Kar. 1 and Ayat 110 Sura 3 ref.

(kk) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---Jail riots---Factors that influence the inmates of penal complexes identified by Federal Shariat Court.

(ll) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---Prison discipline---Jurisdictional aspect: Guiding principles from the text of Holy Qur'an; interpretative feature and legal literature on the subject dilated upon by Federal Shariat Court.

Sura 103 Al-Asr; Ayaat 1-3 Sura 103; R.S.N. Co. Ltd. v. Commissioner Chitagong Port PLD 1961 Dacca 412; Broom's Legal Maxims: 10th Edn. Chap. III, p.44; House Building Finance Corporation v. Rana Muhammad Sharif and 4 others PLD 2000 SC 760 and Prisons Code (Jail Manual) by Dr. Abdul Majeed Aulakh ref.

(mm) Pakistan Prisons Rules, 1978---

----Rr. 583, 584, 588, 589, 590 & 591---Prisons Act (IX of 1894), S.46---Constitution of Pakistan (1973), Art.203-D---Prison offences and penalties---Vires of Rr.583, 584, 588, 589, 590 & 591 of the Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Rules, 583, 584, 588, 589, 590 & 591 of Pakistan Prisons Rules, 1978 permit the Superintendent to impose penalty by way of (a) cellular confinement, (b) imposition of link bars (c) imposition of handcuffs and (d) imposition of link fetters are part of existing prison discipline---If a prisoner is handcuffed or is in fetters within a cell as a consequence of the award of punishment by the Superintendent, for violating a prison offence, then he is precluded from performing ablution, offering compulsory prayers five times a day; recitation of Holy Qur'an; reading and writing; and is also handicapped in answering the call of nature apart from facing undue difficulty in performing Tahaarat---Such practice is violative of injunctions of Islam---Provisions in the Rules, being contrary to the letter and spirit of the Injunctions of Islam, have a debasing, demeaning and a negative effect on the prisoners and violates human dignity---No right of appeal is granted against such an inhuman penalty---Federal Shariat Court declared sub-rules (6), (7), (8), (9) of Rule 583; sub-rules (3), (4), (5), (6) and (7) of Rule 584, Rules 588; 589, 590 and Rule 591 in entirety contained in Chap. 23 of Prisons Rules, 1978 as violative of Ayaat 43, 110 of Sura 2; Ayat 43 of Sura 4 and Ayat 6 of Sura 5 as well as Ayat I Sura 58 (Al-Mujadalah) of the Holy Qur'an---Present declaration will take effect from 1-12-2009 and Federal Shariat Court hoped that necessary provisions will be incorporated and a right of appeal before an independent tribunal will also be provided to the accused prisoner against major offences---Inspector General of Prisons of each Province shall intimate in writing, through the Registrar of Federal Shariat Court, by 31-12-2009, about the grant of right of appeal---In case right of appeal is not granted the case will be reviewed by Federal Shariat Court in February 2010 to examine the desirability of declaring the entire Chap. 23 of the Pakistan Prisons Rules, 1978 as violative of Injunctions of Islam and the judicial precedents---Provincial Governments should therefore make provision for incorporating a right of appeal in Chapter 23 of the Pakistan Prisons Rules, 1978 as well in cases involving major penalties or where more than one penalty is sought to be imposed---Forum of appeal should be the Sessions Judge of the District in whose territorial jurisdiction the penalty is imposed---Rule should also provide that the punishment will not be executed till the, disposal of appeal---By providing a legal remedy by way of appeal, the authority awarding the penalty will be under an obligation to frame a charge, record evidence and write a well reasoned order after recording statement of the answering respondent.

Prisons Code (Jail Manual) by Dr. Abdul Majeed Aulakh; Ayat 11 of Sura 49; PLD 1984 FSC 34; Dr. Muhammad Aslam Khakhi and others v. Government of Punjab and others PLD 2005 FSC 3 and Pakistan v. Public-At-Large PLD 1987 SC 304 ref.

(nn) Pakistan Prisons Rules, 1978---

----R. 84---Constitution of Pakistan (1973), Art.203-D---Restrictions on prisoners to issue cheque---Vires of R.84, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Federal Shariat Court observed that provision of R.84 of Pakistan Prisons Rules, 1978 is violative of the various Injunctions of Islam as enumerated in Ayaat 60, 168, 172 and 187 of Chapter 2; Ayaat 4 and 88 of Sura 5; Ayaat 141-142 of Sura 6; Ayat 160 Sura7; Ayat 14 Sura 16; Ayat 81 Sura 20; Ayat 28 Sura 20 and Ayat 15 Sura 34 of Holy Qur'an which makes it abundantly clear that every person is entitled to use his income in any lawful pursuit /occupation/trade that he likes---Every believer is legally responsible to defray the expenses of his wife and children---No law or a provision of law can abridge or adversely affect the legal responsibility of a prisoner to maintain his family---Cheque book of a prisoner may be retained in safe custody and in order to ensure the genuineness of the cheque issued by a prisoner, the Superintendent or Deputy Superintendent of prison can be authorized to counter sign the cheque issued by the prisoner but the condition of seeking permission from District Co-ordination. Officer for an amount exceeding Rs.5,000, as visualized by clause (c) of Rule 84, is an unwarranted clog on the exercise of a right which, according to the Holy Qur'an is an innate ingredient of the legal. capacity of an adult---Cheques can be issued as and when the prisoner wants provided the amount of money lying in the Bank is not subject-matter of any offence like cheating, theft, burglary or some other illicit means---Accused or a convict involved in other offences would be entitled to the concession of issuing cheques or giving advice to the financial Institution/Insurance Companies---Rule, instead of providing facilities creates difficulties for the internees which hurdle in itself is violative also of the tradition of the Holy Prophet (p.b.u.h.) in which the Muslims have been directed to create conditions which make things easy for the people rather than difficult---Said Rule is violative of the Principle of Usar and Yusar as enunciated in Ayat 185 Sura 2 and Ayaat S and 6 of Sura 94 of the Holy Qur'an and is an un-necessary obstacle in earning Rizk-e-Halal which is the fundamental right of every human being---Holy Qur'an exhorts believers to earn livelihood through legitimate means---Rule 84 shall cease to have effect from 1-12-2009 during which period necessary amendments or deletion may be made in Chap. 4 of the Pakistan Prisons Rules, 1978.

(oo) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---Prison discipline---Deficiencies of Prisons Manual---Federal Shariat Court identified certain aberrations in the prevalent prison discipline and observed that said discipline lacks some basic requirements and drastic amendments are needed to make the existing Prisons Rules/Jail Manual a real human friendly document and efforts should be made by policy makers to rationalize the penal system with particular reference to prisons, prisoners and prison discipline---Principles.

(pp) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---Uncompensated labour---Vires of practice of such labour on the touchstone of Injunctions of Islam---Federal Shariat Court observed that element of uncompensated labour is an extremely regrettable feature of prison history and such unfair trend and highhandedness is persisting unabated notwithstanding the fact that said practice violates Injunctions of Islam---Prison officials must realize that compensation for labour is as vital as is the monthly salary of any government servant---Steps should therefore, be taken to initiate judicious system in said neglected field; concern must substitute apathy---Federal Shariat Court further observed that it will not be enough to abolish the system of uncompensated labour but steps will have to be taken to devise a methodology whereby uninterrupted work is provided to the prisoners and payments for the work done is also made regularly---Such an exercise would not be without a policy decision at Government level and its incorporation in the Prisons Rules---Federal Shariat Court also indicated a three pronged strategy in this behalf.

Ayat 188 Sura 2; Ayaat 29, 161 Sura 4; Ayat 34; Sura 9; Ayat 70; Sura 39; Ayat 39; Sura 53; Ayat 90, Sura 16 and Section No.826 Chap. 533 Book of Ijara, Sahih Bukhari ref.

(qq) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1972, Art.203-D---Vires of prison discipline on the touchstone of Injunctions of Islam---Issues agreed upon generally by counsel of all the parties recorded.

(rr) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---Prison discipline---Presumption about knowledge of law---Federal Shariat Court observed that before a penalty is imposed the transgressor should have been forewarned about the consequence of his lapses of commission and omission---Human being has a right to know before he is obliged to do something and to secure a balanced system the citizen should be enable to know the law or rules---Such certainly involves the duty of the State to educate the masses---Federal Shariat Court further observed that necessary information about the rights and responsibilities of prisoners should be readily available in the prisons---Principles.

Ayat 12 Sura 2; Ayat 2 Sura 62; Ayat 15 Sura 17 (Bani Israel); Ayat 43 Sura 16 and Ayat 186 Sura 2 ref.

(ss) Pakistan Prisons Rules, 1978---

---Rr. 329 & 330---Prisons Act (XI of 1894), S.30---Constitution of Pakistan (1973), Art.203-D---Inhuman living conditions of condemned prisoners---Repugnancy to Injunctions of Islam---Federal Shariat Court declared the portions of Rr.329 and 330 of Pakistan Prisons Rules, 1978 and S.30 of the Prisons Act, 1894 which authorise the Prison Authorities to treat a convict as condemned prisoner before the sentence of death becomes executable, to be repugnant to the Injunctions of Islam---First December, 2009 is the date on which said declaration will take effect---Federal Shariat Court hoped that during said period Ch.14 of the Pakistan Prisons Rules, 1978 and S.30 of the Prisons Act, 1894 will be recast---Prisoner should be deemed to be a condemned prisoner only after the death sentence awarded to him by Trial Court has been confirmed---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure, 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prison Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court Office was directed to send copies of the judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment.

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

---S. 382-B---Constitution of Pakistan (1973), Art.203-D---Prisoner in custody---Period of imprisonment to be considered while awarding sentence of imprisonment---Repugnancy to Injunctions of Islam---Federal Shariat Court observed that period spent by a prisoner in custody during and before the initiation of the trial shall be automatically deducted from the terms of sentence awarded to him as a result of his conviction---Such concession will be independent of any remission that a prisoner might as well earn during the period of his incarceration---Said benefit shall be available to such persons who will be serving their sentence on 1-12-2009 if they were not awarded the benefit already granted by the Trial Court or Appellate Court---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prison Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment.

(uu) Pakistan Prisons Rules, 1978---

----Rr. 583(6)(7)(8)(9), 584(3)(4)(5)(6)(7), 588, 589, 590 & 591---Constitution of Pakistan (1973), Art.203-D---Prison offences and prescribed penalties---Repugnancy to Injunctions of Islam---Federal Shariat Court declared Rr.583(6)(7)(8)(9), 584(3)(4)(5)(6)(7), 588, 589, 590 & 591 in entirety, as violative of Injunctions of Islam---Such part of declaration will take effect from 1-12-2009 unless necessary amendments, as indicated, are made by respective Governments before the target date---Inspectors-General of Prisons have been directed to submit report in the Federal Shariat Court by 31-12-2009---In case the right of appeal, on major offences, is not provided the matter will be reviewed in February, 2010 by the Court to examine the feasibility of declaring the entire Chapter 23 of the Pakistan Prisons Rules, 1978 as repugnant to Injunctions of Islam and judicial precedents---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure, 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment.

Prisons Code (Jail Manual) by Dr. Abdul Majeed Aulakh; Ayat 11 Sura 49; PLD 1984 FSC 34; Dr. Muhammad Aslam Khakhi and others v. Government of Punjab and others PLD 2005 FSC 3 and Pakistan v. Public-At-Large PLD 1987 SC 304 ref.

(vv) Pakistan Prisons Rules, 1978---

----R. 147---Prisoners Act (III of 1900), S.29---Constitution of Pakistan (1973), Art.203-D---Unfettered powers of the Government and the Inspector-General of Police to transfer any prisoner from one prison to another within the Provincial borders---Repugnancy to Injunctions of Islam---Federal Shariat Court declared R.147, Pakistan Prisons Rules, 1978 and S.28, Prisoners Act, 1900 violative of the Injunctions of Islam to the extent stated in the judgment---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relation to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure, 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment.

(ww) Pakistan Prisons Rules, 1978---

----R. 1078---Constitution of Pakistan (1973), Art.203-D---Employment of dismissed government servants by way of special sanction of the Government---Repugnancy to Injunctions of Islam---Federal Shariat Court declared R.1078 of Pakistan Prisons Rules, 1978 to the extent of such employment to be violative of Injunctions of Islam---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment.

(xx) Pakistan Prisons Rules, 1978---

----R. 84(a)(c)(d)---Constitution of Pakistan (1973), Art.203-D---Restrictions on prisoners to issue cheques-Repugnancy to Injunctions Islam-Federal Shariat Court declared R.84(a)(c) & (d) of the Pakistan Prisons Rules, 1978 to the extent mentioned in the judgment, to be against Injunctions of Islam---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant; shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment.

(yy) Pakistan Prisons Rules, 1978---

----R. 690---Constitution of Pakistan (1973), Art.203-D---List of prohibited articles---Repugnancy to Injunctions of Islam---Federal Shariat Court declared R.690 of the Pakistan Prisons Rules, 1978 to be repugnant to Injunctions of Islam---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prison Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues - identified in the judgment.

(zz) Federal Shariat Court (Procedure) Rules, 1981---

----Chap. 2, R.7 & Chap. 3---Federal Shariat Court directed that Bench Registry of the Court at Islamabad and all the four Provincial Headquarters shall strictly observe the directions contained in Rule 7, Chap. 2 as well as Chap. 3 .of the Federal Shariat Court (Procedure) Rules, 1981 at the time Shariat Petitions/Shariat Miscellaneous Applications/Appeals and Revisions are filed.

Dr. Muhammad Aslam Khakhi, Capt. (Retd) Mukhtar Ahmed Sheikh and Master Ejaz Hussain, Petitioners (in person).

Hafiz S.A. Rehman, Standing Counsel, Iftikhar Hussain Chaudhry, Standing Counsel, Dr. Abdul Malik Irfani, Muhammad Aslam Uns, Sardar Abdul Majeed, Standing Counsel, Mrs. Naheeda Mehboob Ellahi, Standing Counsel, Rizwan Ahmed Siddiqui, Deputy Attorney-General with Asif Mangi, Zahoor Hussain Soomro, Section Officer Human Rights Division, Zahid Hussain Soomro, Section Officer Human Rights Division Ministry of Law, Amanat Parvaiz Bhatti, Deputy Secretary, Home Department, Government of Punjab, Falaq Sher, S.O. Home Department, Government of Punjab, Haseeb Shah Jehan, S.O. Home Department Government of Punjab and Ch. Liaqat, Deputy Secretary (Judicial) Home Department, Government of Punjab for Federal Government.

Muhammad Aslam Uns, on behalf of A.-G. Punjab, Rana Fazal­-ur-Rehman, Mrs. Rukhsana Malik, Assistant Advocate-General, Shafqat Munir Malik, Additional Advocate-General, Haseeb Shah Jehan, Section Officer Home Department, Government of Punjab, Mehboob Ahmed Khan, Advocate for Human Rights Commission, Ch. Liaqat, D.S. (Judicial) Home Department and Ch. Saleem Murtaza Mughal, Assistant Advocate-General for Province of Punjab.

Muhammad Sarwar Khan, Additional Advocate-General on behalf of A.-G. Sindh, Munir Ahmed Khan, Additional A.-G, Miss. Qamar-un-Nisa, Abdul Waheed Siddiqui, Muhammad Shoaib Abbasi, Arshad H. Lodhi, Assistant Advocate-General, Fareed-ul-Hassan, Assistant Advocate-General, Munir Ahmed Khan, Additional Advocate-General, Qasim Mir Jat, Assistant Advocate-General for Province of Sindh.

Mr. Aziz-ur-Rehman, Advocate, Haji Tasleem Hussain, Fazal-­ur-Rehman Rana, with Noor-ul-Haq S.O. (Litigation), Sindh GAD Department, Muhammad Sharif Janjua, Pir Liaqat Ali Shah, Advocate-General, Sardar Shaukat Hayat, Assistant Advocate-General, Qari Abdul Rashid, Standing Counsel, Muhammad Saeed Shangla, Additional Advocate-General, Section Officer (Litigation) S&GAD Department N.-W.F.P., Muhammad Saeed, Acting Advocate-General, N.-W.F.P. Sohail Akhtar, Law Officer for Government of N.-W.F.P. and Noor-ul-Haq, Section Officer, (Litigation) Sand GAD Department, N.-W.F.P. for the N.-W.F.P.

Ch. Ejaz Yousaf, Additional Advocate-General, Malik Sikandar Khan, Advocate-General, Qari Abdul Rashid, Mehmood Raza Khan, Additional Advocate-General, Azam Khan Khattak, Additional Advocate-General, Salahuddin Mengal, Advocate-General, Muhammad Shoaib Abbasi, and Amanullah Jaween, Assistant Advocate-General for the Balochistan.

Dr. Allama Muhammad Hussain Akbar and Dr. Muhammad Yousaf Farooqi, Juris consults.

Officers of Prisons (Punjab, Sindh, N.-W.F.P. and Balochistan):---

(1) Tipu Sultan, Assistant Superintendent Adyala Jail, Rawalpindi.

(2) Raja Abdul Qayyum, Law Officer I.G. Jail Khana Jat, Punjab.

(3) Shahid Saleem Baig, Superintendent Jail, Rawalpindi.

(4) Arshad, Assistant Superintendent, Adyala Jail, Rawalpindi.

(5) Sarmad Tehmoor, Assistant Superintendent Central Jail, Rawalpindi.

(6) Muhammad Yamin Khan, Inspector General Prisons Sindh.

(7) Ajmal Khan, Deputy Superintendent, Central Jail, Peshawar.

(8) Masood-ur-Rehman, Deputy Superintendent Jail, Peshawar.

(9) M. Asghar Munir, Deputy Superintendent, Adyala Jail, Rawalpindi.

Dates of hearing: 12th November, 1992, 24th May, 17th October, 1993, 3rd April, 1994, 26th November, 1995, 29th June, 1998, 31st May, 1999, 29th March, 5th June, 24th October, 2000, .10th November, 2003, 27th, 29th April, 10th May, 14th April, 31st May, 3rd June,. 2004, 23rd January, 3rd April, 4th June, 11th September, 12th September, 2007, 13th February, 12th March, 27th March, 9th April, 30th April, 21st May, 3rd September, 22nd October, 11th November, 2008, 14th, 29th January, and 26th August, 2009.

P L D 2010 Federal Shariat Court 191

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

Dlr. MUHAMMAD ASLAM KHAKI----petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Justice and Parliamentary Affairs, Islamabad---Respondent

Shariat Petition No.2/I of 2006, decided on 28th May, 2009.

Per Allama Dr. Fida Muhammad Khan, J, Haziqul Khairi, C.J. agreeing

(a) Islamic Jurisprudence---

----Prohibition of intoxicant drinks---Four specific Injunctions, regarding intoxicating drinks, which were gradually revealed detailed---Clear and decisive verdict is given on intoxicating drinks and gambling which have been equated with greatest sin like that of associating partners with God---Degree of prohibition of intoxicant drinks mentioned in Qur'anic Verses and Ahadith recorded.

(b) Islamic Jurisprudence---

---"Sin"-Meaning--Sin does not mean only "harm "---Muslims have been ordained to avoid sin in any form, whether open or secret.

(c) Islamic Jurisprudence---

----Prohibition of intoxicant drinks---Punishment---Hadd or Tazir---Whipping---Scope---"Khamr "---Literal meanings--- "Khamr" which was morally used for wine, literally means what obscures the intellect and thus it includes other intoxicant drinks made from wheat, barely, raisins and honey---Prohibition of wine was extended to all intoxicants in any form---Taking any intoxicant is a major sin in Islam and is, therefore, strictly prohibited-Islamic State was duty bound to enforce its prohibition and considering it a heinous offence inflict punishment by way of whipping or, in the alternative, imprisonment as provided by law---Whatever causes intoxication when used in large quantity was prohibited, even in a small quantity---If a large quantity of something caused intoxication, to drink even a palmful of it was prohibited---Court while convicting an accused is to take into consideration the overall condition of society at large, the quantity of intoxicant liquor (i.e. taking a sip or swallowing barrels), commission of other offences in drunk condition, like causing harassment in public, attempting to inflict damage to the persons/honour of other citizens, making nuisance, uttering abuses, using filthy language, being persistently habitual with previous history, causing collateral damage to the property or inflicting injury to some person, trespassing other's house, outraging modesty, committing rape and depending on the nature of proof required for Hadd/Tazir etc. award the punishment accordingly---Court could not remain oblivious to the overall attending circumstances and is therefore, duty bound to consider all conditions and, if any offence was established beyond any doubt, award Hadd or Tazir punishment accordingly.

Bukari, Wudu', 71Maghazi', 60, Ashribah',, 4, 10,Adab', 8, Ahkam', 22, Muslim, Ashribah, 67-9; Abu Da'udAshribah', 5, 71; Ibn Majah; Ashrihbah', 9, 13, 14; Darimi,Ashribah', 8, 9; Muwatta", Dahayat', 8: Ahmad b. Hanbal, Musnad, Vol. 1, pp.274, 289, 350, Vol. 2, pp.16, 158, 171, 185, 329, 501; Vol. 3, pp.66, 112, 119, 361, Vol. 4, pp.4, pp.41, 416; Vol. 6, pp.36, 71, 72, 97, 131 and 226-Ed); Abu Da'ud,Ashribah', 5; Ibn Majah, Ashribah;, 10; Ahmed B. Hanbal, Musnad, Vol.2, pp.167, 179 and Vol. 3, p.343-Ed); Bukhari, Tirmidhi, Abdu Daud, Ibn Maja); Umdatul Qari, Tafheemul Qur'an, Al Thashriul Jinaee Vol. I) and Vol. I, p.437 of Encyclopedia Britannica ref.

(d) Islamic Jurisprudence---

----Crime and punishment---Sentence of whipping---Mode of execution--- Sentence of lashes in Shariah is not severe, its purpose is just to awaken in the convict a realization of his wrong so that he may repent his misdeeds---Shariah also makes sure that neither humiliation takes place nor it remains a permanent scar on him because the execution of sentence followed by repentence washes out the stigma and guarantees the purification of the convict and it is in this light that the sentence, which is obligatory in Islam in some cases, has to be seen.

(e) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Art. 8---Prohibition of intoxicant drinks-;-Punishment---Award of whipping eighty stripes as punishment to the one found guilty of "drinking" liable to "Hadd" when the requisite proof thereof was available before the court is not in conflict with Qur'an and Hadith.

(f) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 8 & 25---Constitution of Pakistan (1973), Art. 203-D---Articles 8 and 25 of Prohibition (Enforcement of Hadd) Order, 1979 being not in conflict with any Verse of Qur'an and Sunnah was not repugnant to Injunctions of Islam.

Per Haziqul Khairi, C.J., Salahuddin Mirza, J agreeing

(g) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Art. 8, proviso---Constitution of Pakistan (1973), Art.13(a)---Proviso to Art.8, Prohibition (Enforcement of Hadd) Order, 1979 suffers from many ambiguities and defects: Firstly, it is presumed that in every case the convict shall prefer an appeal or apply for bail; in case he does not, he shall remain in prison till the time of filing of appeal expires; secondly, imprisonment shall operate as double punishment not provided for either in Qur'an or Sunnah and is in violation of Art.13(a) of the Constitution.

(h) Execution of Punishment of Whipping Ordinance (IX of 1979)---

----S. 4---"Whip"-Meaning.

12:25; 12:32; Black's Law Dictionary (8th Edn.) and BBC English Dictionary (First Edn. 1992) ref.

(i) Execution of the Punishment of Whipping Ordinance (IX of 1979)---

----S. 5---Whipping---Conditions and mode of execution of punishment of whipping detailed.

(j) Execution of the Punishment of Whipping Ordinance (IX of 1979)---

----S. 4---Constitution of Pakistan (1973), Art.203-D---Held, provision of S.4, Whipping Ordinance, 1979 is repugnant to Qur'an and Sunnah and accordingly the President of Pakistan was directed by Federal Shariat Court to take necessary steps for substitution of S.4, Whipping Ordinance, 1979 as "S.4: The whip shall be a stick of palm tree stripped of leaves with two branches"---Federal Shariat Court observed that in case S.4 of the Whipping Ordinance, 1979 was not substituted as directed, within six months hereof, the former shall deem to have been substituted and shall also become effective within six months.

(k) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Art. 8-Constitution of Pakistan (1973), Art.203-D---Held, proviso to Art.8, Prohibition (Enforcement of Hadd) Order, 1979 is repugnant to Qur'an and Sunnah and accordingly the President of Pakistan was directed to take necessary steps for deletion; of the proviso to Art.8 of the Order---Federal Shariat Court observed that in case proviso to Art.8 of the Prohibition (Enforcement of Hadd) Order, 1979 was not deleted as directed, 'within six months hereof, the proviso shall deem to have been repealed and shall also become effective within six months---Federal Government was further directed by Federal Shariat Court to introduce a provision of law, whereby a person accused of taking intoxicating liquor under Hadd, shall be; entitled to get bail before the Trial Court and the Appellate Court avid in case Federal Government failed to do so, said directions shall deem to take effect on the expiry of six months hereof.

Per Syed Afzal Haider, J. agreeing with Dr. Fida Muhammad Khan, J "that Shariat Petition No.2/I of 2006 be dismissed" and adding his own reasonings.

Petitioner in person.

Sardar Abdul Majeed, Standing Counsel and Tariq Ali for the Federal Government.

Allama Shah Tafazul Ali, Maulana Sarfraz Mehmood, Maulana Ibrahim Musa, Muhammad Abdul Manan, Ibrahim Ishaque and Dr. Muharnmad Yousaf Farooqui: Juris-consults.

Dates of hearing: 29th January, 7th May, 27th August, 22nd October, 12th November, 2008, 14th and 15th January, 2009.

P L D 2010 Federal Shariat Court 215

Before Syed Afzal Haider, J

MUHAMMAD SHAHID SAHIL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revisions Nos.4/L and 10/L of 2009, decided on 18th May, 2009.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 10/11---Qanun-e-Shahadat (10 of 1984), Art.164---Constitution of Pakistan (1973), Art.203-DD---Revisions---Complainant/respondent had alleged in the F.I.R. that accused petitioner had raped her as a result of which she had conceived and gave birth to a daughter---Trial Court while accepting the application of the complainant had directed the parties to appear before the Chemical Examiner, CAME (Centre for Applied Molecular Biology) Laboratories, for DNA test in order to ascertain by conclusive evidence whether the paternity of the child was relatable to the accused---Validity---Impugned order had no legal infirmity or jurisdictional defect and it had rather advanced the interest of justice---Law did not favour a person who had evaded execution of a judicial order and thereby obstructed the course of justice---DNA test report when produced in Trial Court could be received as evidence by summoning the expert to prove its contents---Accused in this way would have equal opportunity to cross-examine the expert, if the report would identify him as the culprit---Best possible evidence in the case in order to find out the truth or falsity of the allegation without loss of time would he the DNA test---Need for scientific verification through blood/semen grouping had been repeatedly expressed by superior judiciary, particularly in rape cases---Prosecution agencies should take heed and use latest available technology to trace and locate the actual criminal---DNA finger printing was a successful clincher---Under Art.164 of Qanun-e-Shahadat, 1984, Court might allow to be produced any evidence available because of modern devices or techniques---Holy Qur'an and Sunnah did not forbid employing scientific or analytical methods in discovering the truth---On the contrary the discovery and investigation had been strongly recommended by the Holy Qur'an and Sunnah---Courts in matters relating to Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had all the powers to permit reception of evidence including resort to DNA test, if demanded by the occasion--Fundamental duty of the courts is to arrive at the truth without depriving an affected party to establish its point of view---Revision petitions were dismissed accordingly and the impugned order was directed to be executed immediately---Accused and the complainant along with her minor daughter were directed to appear before CAMB Laboratories on a specified date and time in compliance with the order of Trial Court---Trial Court was directed to proceed further in accordance with law after considering the report of CAMB Laboratories.

Muhammad Mumtaz v. The State 2001 PCr.LJ 370; Mst. Aamna Bibi v. Kashif-ur-Rehman and another 1995 PCr.LJ 730; Abdul Ghafoor v. The State and 2 others PLD 1983 Lah. 139; Ali Nawaz Gardezi v. Colonel Muhammad Yousaf PLD 1962 Lah. 558 and Lyon'.s Jurisprudence and Toxicology 11th Edn. Published by Delhi Law House at pp.671 & 672 ref.

Muhammad Azhar v. The State PLD 2005 Lah. 589 dissented from.

Sher Afghan Asadi, Advocate (in Crl. Revision No.4 of 2009) and Muhammad Akram Jilal, Advocate (in Cr1. Revision No.10 of 2009).

Date of hearing: 18th May, 2009.

P L D 2010 Federal Shariat Court 221

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

Syed MUHAMMAD JAMALUDDIN KAZMI-Petitioner

Versus

FEDERATION OF PAKISTAN through President of Pakistan and another---Respondents

Shariat Petition No.13/I of 1995, decided on 8th May, 2009.

Oaths Act (X of 1873)---

----Ss. 7, 8, 9 & 10---High Court (Lahore) Rules and Orders, Vol. IV, Chap. 12-A, Notification No. 339/Rules X-B, 9(a) dated 26-11-1992---Constitution of Pakistan (1973), Art.203-D---Oath prescribed under Oaths Act, 1873---repugnancy to Injunctions of Islam---Form of oath prescribed and in practice in all the High Courts and subordinate courts had been challenged by the petitioner on the ground of being repugnant to the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.)---Present form of oath prescribed under the Oaths Act, 1873, is

According to the petitioner a witness or ( .f t %) being a respectable "invitee' or "guest' of the Court, deserved a befitting treatment and he under no circumstances should be taxed or burdened with any incriminating treatment---Petitioner had proposed the following text of oath in place of the said present form of oath;--

Federal Government took the plea that the verse of the Qur'an relied upon by the petitioner was not relevant and explained that the provisions of the Qur'an and Sunnah had not fixed any form, procedure, space, time and occasion for an oath and that the companions of the Prophet (S.A. W.S.), Muslim Jurists and Muslim Judges had adopted different forms and procedure according to different occasions and circumstances, and a Judge was at liberty to adopt any form and procedure to make an oath effective and helpful in the administration of justice---Lahore High Court had confirmed the form of oath through a Notification No.339/Rules X.B.9(a), dated 26-11-1992 issued under High Court Rules and Orders, Vol. IV, Chap. 12-A, which was in the following words: "I swear by Almighty Allah that I shall state the truth and if I lie or conceal anything, the wrath of Allah Almighty may fall on me "---Similar form of oath had been prescribed by other High Courts of the country---Witness is not a guest of the Court---No doubt, Islam accords due respect to witnesses, litigants and even to accused in the matter of dispensation of justice---Dictates of the Holy Qur'an and Sunnah reveal that (i) a witness is duty bound to depose what he knows and what he knows not; (ii) the oath might be in the row of Allah; (iii) he should not transgress the limits as witness; (iv) in case he transgresses the limits prescribed by Allah, he will be an evil doer, and (v) hiding testimony would be sinful---Parties may offer and accept special oath under Ss.8 & 9 of the Oaths Act, 1873, and evidence as given thereunder may be conclusive in terms of S.10 thereof---However, even an oath on the Holy Qur'an has no greater sanctity than an oath on its Creator, Allah, the Almighty, the Benevolent, the Merciful---Present form of oath is not at all repugnant to the Holy Qur'an and Sunnah---Petition was dismissed accordingly.?

2:282; Chap. 12-A High Court Rules and Orders, Vol. IV; Muhammad Tahir v. The State PLD 1984 Pesh. 56; Khan Sher v. Mst. Kabla and another PLD 1988 Pesh. 65; 5:53; 6:110; 16:38; 24:53; 35:42; 5:106; 5:107; 16:91; 16:92; 2.224; 2:225; 5:89; Book of Oaths (Kitab Al-Ahman): Book 15: Hadith 4046; Al-Jami-al Sahib; Book 15: Hadith 4040; Al Jami-al Sahih Book 15 the Book of Oaths (Kitab Al-Aman) and 4:135 ref.

Nemo for Petitioner.

Sardar Abdul Majeed, Standing Counsel for the Federal Government.

Peer Liaqat Ali, A.-G., N.-W.F.P., Muhammad Muzammal Khan, Addl. A.-G. N.-W.F.P., Aziz-ur-Rehman, Muhammad Sharif Janjua and Qari Abdul Rasheed, Advocates on behalf of A.-G. N.-W.F.P., Shafqat Munir Malik, Addl. A.G. Punjab, Farid-ul-Hassan, Asstt. A.-G. Sindh along with Muhammad Shoaib Abbasi for A.-G. Sindh, Salah-ud-Din Mengal, A.-G. Balochistan, Mehmood Raza and Azam Khattak, Addl. A.-Gs. Balochsitan for Provincial Governments.

Dates of hearing: 25th January, 15th March, 3rd and 23rd April, 2007, 23rd January, 22nd May, 27th August of 2008, 9th, 28th January, 17th February and 2nd March, 2009.

P L D 2010 Federal Shariat Court 229

Present: Agha Rafiq Ahmed Khan, C. J., Syed Afzal Haider and Shahzado Shaikh, JJ

MOHTARMA BENAZIR BHUTTO and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Finance Islamabad---Respondent

Shariat Petition No.1/K of 2002, decided on 15th April, 2010.

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

----Arts. 203-D & 270-A---Power and jurisdiction of Federal Shariat Court---Scope---Fact that certain instruments were mentioned in Seventh Schedule of the Constitution in terms of Art. 270-A of the Constitution would not preclude the determination of the List on the touchstone of Art. 203-D of the Constitution to examine and decide the question whether or not the provisions under challenge were repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah---Such a proposition was also ascertainable from the Preamble of the Constitution.

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

----Preamble---Oath under the Constitution---Significance---Ruling elite takes oath under the Constitution to preserve its sanctity---One who takes oath to preserve and protect the Constitution cannot break it to the detriment of entire nation; it is not like breaking the oath of an individual whose atonement is made possible by Islamic Injunctions---Constitution does not provide any expiation for the transgressors who were under oath to preserve it ; Constitution declares it to be a very serious offence.

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

----Arts. 4 & 5---Interpretation of Arts. 4 & 5 of the Constitution---Articles 4 & 5 of the Constitution make it clear that deviation from law has not to be countenanced; this is an assurance to the people of Pakistan that people in authority shall treat them in accordance with law and each one is bound by these stipulations of the Constitution.

(d) Zulfiqar Ali Bhutto Trust and Peoples Foundation Trust (Renaming and Administration) Order [P.O. 4 of 1978]---

----Preamble---Zulifqar Ali Bhutto Trust and Peoples Foundation Trust (Renaming and Administration) (Amendment) Order [P.O. 6 of 1979], Preamble---Martial Law Order, 1979 [By Martial Law Administrator Zone No.26---Martial Law Order, 1977 [By Chief Martial Law Administrator] No.21---Constitution of Pakistan (1973), Arts. 2-A, 4, 12, 23, 24, 25 & 203-D---Trusts Act (II of 1882), Chapters III & IV---Civil Procedure Code (V of 1908), S.92---Repugnancy to Injunctions of Islam---Stipulated Presidential Orders/Martial Law Orders were violative of the Injunctions of Islam five Maqasid-e-Shariah and various Articles including Arts. 2A, 4, 23 & 25 of the Constitution; because the name of the Trust was altered; the objectives underwent a change; the administrative machinery was substituted for the original trustees; all the trustees, who were affected by the Martial Law Orders were at the time of promulgation of such Orders were women folk; the intrinsic rights of the appropriator were hacked without lawful authority and the wishes of the dedicators as regards the appointment of a Mutwalli i.e. Managing Trustee had altogether been altered and that impugned Martial Law Orders, put into effect by force, denied to the trustees, the rights and privileges available to them under Chapters III & IV of the Trusts Act, 1882 and S.92, C.P.C. without following the principles of natural justice or principles of legality--Impugned Martial Orders were consequently of no legal effect as these instruments suffered on account of infirmities---Held, all the steps taken, actions suffered, and all orders passed by any court, tribunal or any authority including Martial Law Establishment, under any of the impugned Orders were declared repugnant to the Injunctions of Islam, and thus never to have existed in the eyes of law and resultantly of no legal effect---Presumption would be that the situation that prevailed immediately before 17th October, 1977 i.e. the date of issuance of Martial Law Order No.21 of 1977 was still continuing---Martial Law Order No.21 dated 17th October, 1977; Martial Law Order No.26 dated 28th September, 1977 issued by Martial Law Administrator Zone "C"; President's Order No.4 of 1978, dated 26th March, 1978 and President's Order 6 of 1979, dated 28th February, 1979 were in entirety repugnant to the Injunctions of Islam---Present decision regarding the afore-mentioned impugned Martial Law Orders shall take effect from the date of announcement of the judgment/decision i.e. 15-4-2010.

Holy Qur'an Ayat 251 Sura 2, Al-Baqra; Ayat 38 of Sura 42 Ash Shoora); Ayat 159,Sura 3 Ale Imran, Ayat 1 through 5 Sura 55,Ar-Rahman; Ayat 83 Sura 2 Al-Baqra; Ayat 110 Sura 3 Ale Imran; Ayat 67 Sura 9 Al-Tawbah; Ayat 1 through 4 Sura 96 Al-Alaq; Ayat 149 Sura 4 Al-Nisa; Ayat 1 Sura 58 Al-Mujadalah; Ayat 71 Sura 17 Bani Israel; Ayat 29 of Sura 4; Ayat 286 Sura 2 Al-Baqra; Ayat No.233 Sura 2 Al Baqra; Ayat 152 Sura 6 Al-An'am; Ayat 42 Sura 7 Al-Al'raf; Ayat 38 Sura8, Al-Anfal; Ayat 15 Sura 17, Bani Israel; Ayat 59 Sura 28 Al-Qasas;; Ayat 17 Sura 13 Al-Ra'd; Ayat 4. Sura 48 Muhammad; Muhammad Aslam Khaki v. State PLD 2010 FSC 1 and Ayat 220 Sura 2 Al-Baqra ref.

(e) Islamic Jurisprudence---

----Administration of justice---Appeal, right of---Scope---Islamic Injunctions and teachings grant to every aggrieved person the freedom to lodge protest---Every such a person has a right of representation; he is free to lodge an appeal against an order affecting him adversely and it is his right that his appeal will be adjudicated upon without inordinate delay by an independent Tribunal---Such person under no circumstances be stopped from exercising his basic rights---Principles.

Islamic Injunctions and teachings grant to every aggrieved person the freedom to lodge protest. Every aggrieved person has a right of representation. He is free to lodge an appeal against an order affecting him adversely and it is his right that his appeal will be adjudicated upon without inordinate delay by an independent tribunal. He can, under no circumstances be stopped from exercising his basic right.

There exists in the aggrieved person the unfettered right to lodge a protest or prefer an appeal before a higher authority with the object of seeking redressal of grievance. The authority hearing the appeal is under obligation to decide the same. The arbiter is required to give due weight to violation of human rights and human dignity. The authority may, where necessary, impose a penalty upon the violator of human rights. (reference Ayat No.4 of Sura 58 Al-Mujadilah). Even a law can be amended/repealed on account of a protest. The right of an individual to initiate proceedings cannot be circumscribed.

The reference to Divine attribute of Hearing and Seeing for well over four score times in Holy Qur'an shows that the right of an aggrieved person to lodge protest, appeal or representation against the wrong doer before a higher tribunal, i.e. a person other than the one whose order is to be challenged has Divine sanction. The repeated reminders by Holy Qur'an that Allah is Hearing and Seeing is, on one hand, a permission to an injured soul to initiate proceedings and on the other hand a warning to the adjudicator that Allah constantly watches the way matters are being adjudicated upon. These oft-repeated attributes of Alllah i.e. Seeing and Hearing, mentioned in the Holy Quran are designed to act as guarantees. In other words the rights and freedoms are justiciable.

The Constitution as well as legal instruments in force in Pakistan, provide ample remedies to aggrieved persons by way of appeals, revisions, reviews. The Constitution mandates that the Supreme Court, Federal Shariat Court and the High Courts shall have power to exercise original and Suo Motu jurisdiction, and thereby provide relief to aggrieved persons. The superior judiciary has, while interpreting various provisions of law held that right of appeal, representation, show-cause notice is inherent 'in Islamic teachings. An instrument, having the force of law, which purportedly denies the right of appeal etc. or which does not provide for a show-cause notice will be deemed to be violative of the Injunctions of Islam.

Islam has conferred upon human beings the freedom of expression. Grievances have to be redressed. Any bar on this right is negation of the Divine principle of human dignity.

Human freedom has thus been guaranteed by the Creator Himself for all times to come.

Jamay Tirmazi Vol. 1, Tradition No.1363; Holy Quran Ayat 9 of Sura 33, Al-Mu'minun; Ayat 148 Sura 4 Al-Nisa, Ayat 1 Sura 58 Al-Mujadilah; Pakistan and others v. Public at Large and others PLD 1987 Supreme Court 304; Pakistan through Secretary Ministry of Defence v. the General Public PLD 1989 SC 6; In re: The Civil Servants Act, (LXXI of 1973) PLD 1984 FSC 34; Messrs Sadiq Brothers vs. Appellate Additional Commissioner, Income Tax/Wealth Tax, Rawalpindi and another 2004 PTD 122; Dr. Muhammad Aslam Khaki and others vs. Government of Punjab and others PLD 2005 FSC 3; Nahjul Balega as Khutba No.86 by Imam Ali R.A. the Forth Caliph and Ayat 257 of Sura 2, Al-Baqra ref.

(f) Islamic Jurisprudence---

----Fundamental rights---Freedom of expression---Islam has conferred upon human beings the freedom of expression---Grievances have to be redressed---Any bar on such right is negation of Divine principle of human dignity---Human freedom has thus been guaranteed by the Creator Himself for all times to come.

(g) Islamic jurisprudence---

---Administration of justice---Superamacy of rule of law---Quran contains stern warning for all those who are charged with the onerous duty of regulating the affairs of State or administering justice among people---Arbiter cannot deviate from the principles laid down in the revelations; his decisions must be in accord with the revealed rules---People should be judged by means of precepts and values ordained by Quran for human guidance.

Holy Qur'an Ayaat 44, 45, 47 of Sura 5, Al-Maida; Ayat 42 Sura 5; Ayat 105 of Sura 4 Al-Nisa, Ayat 135, Sura 4 Al-Nisa; Ayat 90 Sura 16 Al-Nahl; Ayat 8 Sura 5 Al-Maida; Ayat 152 Sura 6 Al-Anaam; Ayat 26; Sura 38, Suad; Ayat 15 Sura 42, Al-Shura; Ayat 29 Sura 7, Al-Aaraf; Ayat 42 Sura 5, Al-Maida; Ayat 9, Sura 49, Al-Hujraat; Ayat 9, Sura 55 al-Rehman; Ayat 126 Sura 16, Al-Nahl; Tradition 1962 Vol. 3, Bukhari; Khutba Hujjatual Wida; Ayat 153 Sura 6; Ayat 29 Sura 7; Ayat 135 Sura 4 and Hadith No.1363 Vol. 1,Jame Tirmazi and Ayat 50 Sura 5 Al-Maida ref.

(h) Islamic jurisprudence---

----Acquisition of property---Acquiring assets, interests, properties of others without lawful means---Mandate---Modes of acquisition of property other than the accepted customary or legally permissible methods is termed as batil which is antonym of Haq i.e. truth---Thing which causes mischief would be batil.

Al-Qur'an Ayat 188 Sura 2 Al-Baqra and Ayat 29, Sura 4, Al-Nisa ref.

(i) Islamic Jurisprudence---

---Legal capacity of an adult---Scope.

According to Islamic Jurisprudence the legal capacity of an adult is complete after he/she has attained puberty as well as Rushd. This capacity is the ability or fitness to acquire and exercise rights and to accept and perform corresponding duties and obligations. Both the capacities i.e., acceptance or acquisition of rights and the performance of duties is termed in Islamic Law as Ahliyyat al wajub and Ahliyyat al ada respectively. This legal capacity or Dhimma, is complete and has legal effect. It means the capacity to sue and be sued. It means the capacity to lodge protest or file an appeal as well the capacity of being called upon to answer a charge. It is a status without which an individual cannot be treated as a legal, responsible entity. It is a Divine gift and it cannot be limited by a unilateral order of any mundane authority-without recourse to Injunctions of Islam. Any such attempt would be a challenge to the Creator who conferred not only dignity upon human beings but also clothed them with legal capacity. It is on account of this legal capacity that a human being becomes a Mukallif i.e. an obligee and thus a subject of Khitab i.e. communication from his Lord. A person having legal capacity is answerable to God and no one has the authority to deny a person of the status conferred upon him by his Creator.

The action of Chief Martial Administrator whereby he denied through a special Order the petitioners their rights to supervise and control the Trust without recourse to the provisions of law, and thus the act of issuance of Martial Law Order debarring the courts of Pakistan from providing legal remedy to the petitioners is violative of the principle of Legal Capacity. Extraordinary Power of an individual is death knell of human freedom. Absolute power vests in Allah Almighty alone.

(j) Islamic Jurisprudence---

----Principle of Adam Harj i.e. removal of hardship---Avoidance of hardship is a salient feature of the Islamic teachings.

Al-Qur'an Ayat 6 Sura 5 al-Ma'idah and Ayat 78, Sura 22 Al-Hajj ref.

(k) Islamic Jurisprudence---

----Principle of Taiseer i.e. ease has provided necessary means to encourage flexibility and development of law for the solution of ever increasing human problems.

Al-Qur'an Ayat 184 Sura 2 Al-Baqra; Ayat 185, Sura 2, Al-Baqra; Ayat 196, Sura 2, Al-Baqra; Ayat 280 Sura 2, Al-Baqra; Ayat 92, Sura 4,Al-Nisa; Ayat 157,Sura 7,Al-A'raf; Ayat 4 Sura 58, Al-Mujadalah; Ayaat 19, 20, Sura 80, Abasa; Ayat 55 Sura 39, Al-Zumr.

(l) Islamic Jurisprudence---

----Principle of Takhfeef i.e. reduction of burden---Allah wants to lighten your burdens, for man was created weak.

Al-Qur'an Ayat 28, Sura 4, Al-Nisa and Tradition No.630 Vol.5, Bukhari ref.

(m) Islamic Jurisprudence---

----Trust---Even a revolutionary change of government will not alter the existing right of a trustee to continue retaining the legal office of trusteeship which office shall remain with the progeny of the trustee till eternity.

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

----Art. 203 & Seventh Schedule---Jurisdiction of Federal Shariat Court---Scope---Federal Shariat Court has the jurisdiction to examine any legal instrument on the touchstone of Injunctions of Islam---Principles.

(o) Islamic Jurisprudence---

----Legislation---Beneficent legislation---No legislation or even an executive order which is not for the benefit of people can hold field---Principles.

Al-Qur'an Ayat 17 Sura 13, Al-Ra'd and Ayat 4, Sura 48 Muhammad ref.

(p) Islamic Jurisprudence---

----Administration of justice---Legislation---If the law giver or the arbiter happens to be a person who is either personally aggrieved by the opposite party or who has played a successful part in bringing about a change in the government through revolution or conquest to the determent of the opposite party, he shall then neither be an arbiter in the cause of his opponents nor shall he pass any order to the detriment of his adversaries.

Al-Qur'an Ayat 17 Sura 13, Al-Ra'd and Ayat 4, Sura 48 Muhammad ref.

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

----Part. VII, Ch.3-A [Arts. 203-A to 203-J]---Shariat Appellate Bench of the Supreme Court and the Federal Shariat Court have the jurisdiction and powers to examine Martial Law Regulations and to decide whether or not the provisions thereof are repugnant to the Injunctions of Islam.

Qazalbash Waqf and others v. Chief Land Commissioner, Punjab Lahore and others reported as PLD 1990 SC 99 ref.

(r) Constitution of Pakistan (1973)---

----Art. 203-D---Repugnancy to Injunctions of Islam---Powers of Federal Shariat Court---Scope---Law of limitation---Applicability---Significant feature of the jurisdiction of Federal Shariat Court in that law of limitation does no apply to such proceedings.

Al-Qur'an Ayaat 62 and 63 fo Sura 4, Al-Nisa and Ayat 114 of Sura 11 Hud ref.

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

----Art. 203-D---Examination of laws by the Federal Shariat Court--Primary object illustrated.

Barrister Kamal Azfar, Syed Riaz-ul-Hassan Gillani, Advocate, Sardar Zulqarnain, Advocate and Rafey Altaf, Advocate for Petitioners.

Rizwan Ahmed Siddiqui, Deputy Attorney-Geneal, Aamir Raza Naqvi, Deputy Attorney-General, Muhammad Ashraf Khan Mughal, Deputy Attorney-General, Sardar Abdul Majeed, Advocate, Muhammad Nazir Abbasi, Standing Counsel, Tariq Ali, Advocate, Fareed-ul-Hassan, A.A.G, Sindh, Syed Sajid Ali, Joint Admn Officer Pak P.W.D. Ministry of Housing and Works, Karachi, Khalid Tepu Rana, Solicitor, Muhammad Arif Chaudhary, Federal Inspector of Drugs, M/o Health, Muhammad Aslam Shaikh, Joint Admn Officer M/O Housing and Works and Ihsan Karim, Audit Officer, Auditor General Office for Federal Government.

Dr. Sajid-ur-Rehman Siddiqui for Jurisconsult.

Dates of hearing: 23-10-2007, 12-2-2008, 26-3-2008, 9-4-208, 22-10-2008, 20-11-208, 6-1-2009, 13-1-2009, 11-3-2009, 10-4-2009, 7-4-2010.

P L D 2010 High Court (AJ&K) 1

Before Ghulam Mustafa Mughal, C.J.

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 2 others---Appellants

Versus

Raja MUHAMMAD BASHIR KHAN and 3 others---Respondents

Civil Appeal No.4 of 2007, decided on 31st March, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXIII, Rr.2, 3, 4, 5 & S.96---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.46---Pauper suit for recovery of amount---Appeal to High Court---Pauper suit for recovery of amount had been decreed by the Trial Court ex parte---Plaint had revealed that the Trial Court had not followed the procedure visualized by O.XXXIII, C.P.C., wherein a complete scheme was provided for institution and disposal of pauper suit---Under R.2 of O.XXXIII, C.P.C., it was obligatory for the plaintiff to seek permission to sue as a pauper; application in that respect must contain the particulars required in regard to plaint in suit; a schedule of any movable or immovable properly belonging to the plaintiffs; estimated value thereof was to be annexed thereto and such statement would be signed and verified in the manner prescribed for signing and verification of the pleadings---Under R.4 of O. XXXIII, C.P.C. the court had to examine the applicant; and if it did not satisfy the requirement of Rr.2 & 3 of O. XXXIII, C.P.C., same would be rejected under R.5 of O.XXXIII, C.P.C.---In the present case, the Trial Court had not gone through the provisions of O.XXXIII, C.P.C. and proceedings had been conducted without application of judicial mind, which was duty of every Judicial Officer---Provisions of R.2 of O.XXXIII, C.P.C. were mandatory and departure from the same was not condonable---Failure of the Trial Court to adopt the relevant procedure had rendered the whole proceedings a nullity in the eyes of law---Where special procedure was provided for performance of an act, the same should be performed in the prescribed manner or not at all---Appeal filed by the defendants though was time barred, but High Court was vested with the powers of superintendence and control over the subordinate judiciary under S.46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and could not shut its eyes when some illegality was otherwise noticed while pursuing the record of the subordinate court---High Court was duty bound to rectify the wrongs---Appeal in circumstances was treated as revision and was accepted---Judgment and decree passed by the Trial Court, were set aside and case was remanded with the direction to proceed with the case in accordance with the procedure provided for the purpose.

1991 CLC 360; Khawaja Abdul Qadir v. Abdul Majid PLD 1984 SC(AJK) 166 and AKLASC v. Messrs Muhammad Farid Khan and Company PLD 1986 AJK 228 ref.

Raja Muhammad Hanif Khan for Appellants.

Sardar Muhammad Riaz Khan for Respondents.

Date of decision: 31st March, 2010.

P L D 2010 High Court (AJ&K) 7

Before Rafiullah Sultani, J

FAQIR MUHAMMAD and 3 others---Appellants

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others---Respondents

Civil Appeal No.18 of 2005, decided on 30th January, 2010.

(a) Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance (VI of 1974)---

----S. 3 [as amended by Azad Jammu and Kashmir Regularization of Nautors and Khalsa Land (Amendment) Act, 1989]---Azad Jammu and Kashmir Khalsa Land Rules, 1985, R.3---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration---Grant of proprietary rights---Rejection of suit---Trial Court rejected suit filed by the plaintiffs for want of cause of action as well as want of jurisdiction and Appellate Court had maintained judgment of the Trial Court---Claim of plaintiffs was that they were local destitutes and in possession of suit land, which was kind of khalsa sarkar since long as Nautor Kunaindah and proprietary rights were granted in their favour by Collector under Azad Jammu and Kashmir Grant of Khalsa Land Rules, 1985---Validity---Under amended S.3 of Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974 only those persons were entitled to obtain the grant of khalsa land who were holding Nautor Kunaindah on 15-6-1985 and continuous possession of the Nautor and recorded as such in the revenue record---Plaintiffs had made no Nautor over the suit land and in revenue record no entry had been recorded in that respect in favour of the plaintiffs---Plaintiffs in the earlier round of litigation were also ejected from the suit land-Due to absence of entry in revenue record and after ejectment from suit land, condition of continuous possession was disappeared---Plaintiffs, in circumstances, could not be granted proprietary rights and had no legal right in respect of suit land and had failed to establish the same under S.42 of the Specific Relief Act, 1877---Revenue Authorities were supposed to decide the grant of proprietary rights under Azad Jammu and Kashmir Khalsa Land Rules, 1985 and said authorities had jurisdiction to decide rightly as well as wrongly---Revenue authorities in the present case, had not travelled beyond their jurisdiction---Courts below had rightly declared that civil court had no vested jurisdiction to entertain the suit and the plaintiff had no cause of action---Courts below having committed no illegality while passing impugned judgments and decrees, appeal being devoid of force, was dismissed.

2002 CLC 1634; 993 CLC 244-2445(sic) and 1992 SCR 87 ref.

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

----S. 9---Jurisdiction of civil court---Scope---Civil court had power to entertain a suit to decide civil rights under S.9, C.P.C.---Where however, rights had been created under a special Act and special Authority had been created to adjudicate thereof, the jurisdiction of civil court was barred---Such rights could be decided by the Authority which was created for that purpose, unless it did not travel beyond the jurisdiction.

Malik Muhammad Zariat for Appellants.

Liaqat Ali Ch., Addl. A.-G. and Zaheer Babar Chaughtai for Respondent No.5.

P L D 2010 High Court (AJ&K) 12

Before Rafiullah Sultani, J

AZAD JAMMU AND KASHMIR COUNCIL through Secretary and 3 others---Petitioners

Versus

Messrs PAIDAR BUILDERS (PVT.) LTD. Through Engineer, Chief Executive---Non-Petitioner

Revision Petition No.18 of 2009, decided on 1st February, 2010.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Specific Relief Act (I of 1877), S.42--- Suit for declaration---Amendment in written statement---Scope---Defendants appeared before the court and submitted their written statement and issues were framed by the Court in the light of pleadings of the parties---Later on, the defendants filed application for amendment in written statement, wherein it was pleaded that their counsel filed written statement without their consultation and detailed facts could not be incorporated in the written statement---Application for amendment by the defendants had been rejected by the Trial Court---Validity---Courts were liberal and lenient while allowing the amendment of pleadings, subject to certain conditions---Amendment should not be allowed where amendment sought was to alter the nature of defence or wholly displace written statement originally filed---Amendment in written statement, like plaint could not be allowed so as to introduce an inconsistent defence which would change nature of defence originally taken in earlier written statement---Amendment sought for in the present case, was for the withdrawal of admission made in earlier written statement---Such an amendment could not be allowed---Admission made in written statement had different character and legal significance than admission made generally---Admission made in written statement could not be allowed to be withdrawn through amendment---Application for amendment in written statement, had revealed that defendants had sought amendment in all paragraphs of written statement; introducing inconsistent defence which would change nature of defence originally taken by the defendants in their earlier written statement---Such-like amendment could not be allowed under O. VI, R.17, C.P.C.-Findings of the Trial Court which were in accordance with law and supported by sound reasons, could not be disturbed in revisional jurisdiction of High Court.

PLJ 1986 SC(AJK) 74(sic); PLD 1978 SC 242; Secretary to Government (West Pakistan) Now N.-W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242; Allah Wasaya and another v. Abdul Rahim PLD 1953 BJ 77; Hardia Singh and others v. Sardarni Jaswant Kaur AIR 1913 Lah. and G. Meknezie and Co. (1919) Ltd. v. Tatanlal Surajmall AIR 1935 Pat. 483 ref.

Sardar M. R. Khan for Petitioner.

Mushtaq Ahmed Janjua for Non-Petitioner.

P L D 2010 High Court (AJ&K) 21

Before Rafiullah Sultani, J

REHMAN BEGUM---Appellant

Versus

HASSAN MUHAMMAD---Respondent

Civil Appeal No.8 of 2007, decided on 28th March, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O. IX, R.2---Suit for recovery of amount---Summons not served on defendant due to failure of plaintiff to pay costs---Dismissal of suit---Dismissal of appeal for non filing of correct address of the respondent and non-compliance of order of the court under O. IX, R.2,C.P.C.---Validity--Omission on part of the plaintiff for non-filing of correct address of the defendant for service, would warrant penalty in shape of dismissal of suit under O.IX, R. 2, C.P.C.---Case should be decided on merits; and law favoured adjudication of rights of the parties on merits---Case was at initial stage and only one opportunity was provided to the plaintiff for filing correct address of defendant; it was in the interest of justice to decide the case on merits and not on technical basis---Appeal was accepted, impugned order of Appellate Court was set aside and case was remanded to the Appellate Court for fresh adjudication of appeal on merits and to provide one opportunity to the plaintiff for filing the correct address of the defendant.

1993 CLC 1892; 2003 CLD 531; PLD 1992 Pesh. 18 and Muslim Commercial Bank Ltd. v. Khabeer Trading Corporation (Capt.(b) 2003 CLD 531 ref.

Muhammad Riaz Tabassum for Appellant.

Nemo for Respondent.

P L D 2010 High Court (AJ&K) 23

Before Ghulam Mustafa Mughal, C J

SHAUKAT AZIZ and 4 others---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffaraabad and 8 others---Respondents

Writ Petition No.122 of 2007, decided on 30th April, 2010.

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

----S. 44(5)---Constitution of Pakistan (1973), Art.199(5)---Appointment of Judge of High Court---Validity---Writ---Maintainability---Scope---Word `person' used in S.44(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974 would not include Supreme Court, High Court or a Court or a Tribunal established under law relating to Defence Services---When appointment of Judge was either violative of mandatory provision of Azad Jammu and Kashmir Interim Constitution Act, 1974 or made by an incompetent authority, challenge to such appointment was not covered by S.44(5) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Judicial order/action of Judge of High Court would be immune from challenge in writ jurisdiction and party aggrieved thereby would have to avail remedy provided under Azad Jammu and Kashmir Interim Constitution Act, 1974---Principles.

Zulfikar Ali Bhutto v. The State and another 1977 SCMR 514; Ghulam Mustafa Mughal v. The Azad Government and others 1992 MLD 2083 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 rel.

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

----Ss. 42-E & 44(5)---Appointment of Judge of High Court---Quo warranto, writ of---Alternate remedy---Plea was that judge once appointed could not be removed from his office except on recommendations of Supreme Judicial Council---Validity---Jurisdiction of Supreme Judicial Council being qualified and conditional would commence only on reference made by President or Chairman of Azad Jammu and Kashmir Council on advice of Prime Minister or Chairman of Kashmir Council---Defect in appointment of Judge could not be gone into by Supreme Judicial Council which could only inquire into the matters enumerated in reference and make its recommendations---Such plea was repelled in circumstances.

Ghulam Hyder Lakho's case PLD 2000 SC 179 and Malik Asid Ali's case PLD 1998 SC 161 ref.

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

----S. 44(5)---Writ---Appointment of Judge of High Court---Petitioners being Advocates alleged such appointment to be unconstitutional---Objection of concerned Judge was that petitioners were not `aggrieved persons' for not being eligible for appointment in their place---Validity---Held, it was not necessary for an aggrieved person to have a strict juristic right, but his existing right would be sufficient to assail order for being illegal and adversely affecting his rights---Advocates had always be considered aggrieved in case of act done in violation of the Constitution or undermining of independence of judiciary---Petitioners for being members of legal fraternity were naturally interested in supremacy of the Constitution, law and independency of judiciary---Such objection was repelled in circumstances.

S.P. Gupta's case AIR 1982 SC 149; Supreme Court Advocate­-on-Record Association and another v. Union of India AIR 1994 SC 268 and Azad Government and others v. Genuine Rights Commission and others 1999 MLD 268 rel.

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

---Ss. 7, 42, 42-E, 43(2-A), 44(5) & 58---Azad Jammu and Kashmir Rules of Business (1985), R.3(3), Sched.-II, Item 18(c)---Writ---Notification of appointment of Judge of High Court issued without consultation with both Chief Justices on basis of letter of President stating receipt of advice of Council---Validity---Necessity of transparency in making appointments of Judges, meaningful and purposive consultation would be considered as anvil of independence of judiciary---Record showed that name of so appointed Judge was not included in panel of Judges already sent by Chief Justice to the President---President, later on in letter addressed to Minister for Kashmir Affairs/Minister In charge Kashmir Council recommended said person for appointment as Judge and through another sought No objection' from the Chief Justice in this regard---President after receivingNo Objection' from the Chief Justice wrote letter for appointment of the person as Judge---Such `No objection' of Chief Justice of Azad Jammu and Kashmir could not be treated as consultation as neither he had again recommended the said person nor had arisen any eventuality for fresh recommendations or panels---Though no mode and manner of consultation was provided by existing practice was that process had always been initiated by requesting Chief Justices for sending their respective panels---Both Chief Justice of Azad Jammu and Kashmir and Chief Justice of High Court must have been consulted for appointment of Judges in High Court as none of them could perform functions of other; and the recommendations by any one in absence of other would have no constitutional validity---Combination of two offices, double/duel personality was not permitted by Azad Jammu and Kashmir Constitution Act, 1974---Rules of Business had not been complied with while issuing impugned notification---Neither Law Department nor the President nor Kashmir Council had any authority to appoint any person as Judge not recommended for appointment by Chief Justice of Azad Jammu and Kashmir and Chief Justice of High Court---High Court emphasized on framing of rules or policy for making consultation process transparent, free from objections and confidence-inspiring---Consultation required by Azad Jammu and Kashmir Interim Constitution Act, 1974 was missing in the present case---High Court set aside impugned notification and declared office of the Judge of High Court as vacant.

High Court of Sindh, Karachi and others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs, Islamabad PLD 2000 SC 179; Sardar Muhammad Ayyub Khan v. Secretary S&GAD and 4 others 2000 YLR 2868; Umar Hayyat v. Azad Government and 3 others 1999 PLC(C.S.) 93; Sindh High Court Bar Association through Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad PLD 2009 SC 879; Raja Bashir Ahmed Khan v. Azad J&K Council through Secretary and 2 others 1997 CLC 832; A.K. Trading Corporation v. Messrs Z.H. Construction and 2 others PLD 1998 SC(AJ&K) 7; Syed Amjad Ali v. Ch. Amir Afzal and 5 others PLD 2006 SC(AJ&K) 69; Syed Manzoor Hussain Gillani v. Sain Mullah, Advocate, and 2 others PLD 1993 SC(AJK) 12; Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC(AJK) 41; Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315; Malik Asid Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Ghulam Mustafa Mughal v. The Azad Government and others 1992 MLD 2083 and Sindh High Court Bar Association, through Honorary Secretary v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and 4 others PLD 2009 Kar 408 ref.

Al-Jehad Trust's case PLD 1996 SC 324; AIR 1999 SC 1; Rana Muhammad Irshad Khan's case 2007 SCR 419; Jamat-e-Islami's case PLD 2009 SC 549; Salmond on Jurisprudence 12th Edn., p.304 and Muhammad Ayub Khan's case PLD 1998 (AJK) 127 rel.

M/s. Farooq Hussain Kashmiri and Saddaqat Hussain Raja, Advocates, for the Petitioners.

Raja Muhammad Hanif Khan, Advocate, for AJK Government.

Raja Tariq Mehmood, Assistant Draftsman and Deputy Secretary AJK Council Secretariat, Representative of Respondents Nos.2 to 6.

Kh. Muhammad Nasim, Kh. Farooq Ahmed, Sardar Shahid Hamid, Sardar M.R. Khan, Advocates, for Respondents Nos.8 & 9.

Date of hearing: 30th April, 2010.

P L D 2010 High Court (AJ&K) 47

Before Ghulam Mustafa Mughal, C J

SARDAR KARAM DAD KHAN and 5 others---Petitioners

Versus

CHAIRMAN, AJ&K COUNCIL/PRIME MINISTER OF PAKISTAN through Secretary AJ&K Council, Islamabad and 9 others---Respondents

Writ Petition No.362 of 2010, decided on 7th May, 2010.

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

----Ss. 42, 42-E, 42-G, 43 & 44---Writ Petition---Appointment of Chief Justice of Supreme Court had been challenged on the ground that in the past, senior most Judge of the Supreme Court of A J & K had been advised to be appointed as Chief Justice of Supreme Court, but in the present case in derogation to that practice, respondent had been appointed as Chief Justice of Supreme Court superseding senior most Judge of the Supreme Court---Petitioner further contended that appointment of senor most Judge of the Supreme Court as Chief Justice of AJ&K, was not only in line with the scheme of Azad Jammu and Kashmir Interim Constitution Act, 1974, but was supported by well-established constitutional convention, acted upon and accepted by the functionary exercising the powers to appoint Chief Justice in Pakistan and AJ&K---Counsel for the petitioner had further contended that a Judge could only be ignored from further elevation on the ground that he was incapable of properly performing the duties of his office by reason of physical or mental incapacity or he had been guilty of misconduct, otherwise, neither a Judge could be removed from the office nor could be superseded---Validity---Unlike other public functionaries, Judges of the Superior Courts were not immune from the process of accountability, however, in order to save the Judges from being dragged into the ordinary Courts or Tribunals and in order to strengthen the concept of "Independence of Judiciary" a highest constitutional body was provided for removal of the Judges composed of their own brother Judges on the grounds listed in S.42-E of Azad Jammu and Kashmir Interim Constitution Act, 1974---Supreme Judicial Council, was the highest constitutional body to decide whatever controversy was brought before them without fear, favour and with impartiality---Report of the Supreme Judicial Council would be conclusive and final in all respects and was not challengeable at any forum---Effect of the report could not be nullified by non-issuance of the formal order which was a mere formality---After recommendation/ report of Supreme Judicial Council in which misconduct of respondent was proved, he had ceased to be the Judge/Chief Justice of Supreme Court of AJ&K and office of Chief Justice became vacant---Government was directed to immediately initiate proposal for appointment of permanent Chief Justice of AJ&K by seeking the advice of Chairman of AJ&K Council to the President of AJ&K for approval and notification.

?

Asid Ali v. Federation of Pakistan PLD 1998 SC 161; Raees-ul-Mujahideen Habib Wahab-ul-Kheri v. Federation of Pakistan PLD 1996 SC 324; Al Jehad Trust's case PLD 1996 SC 324; Let.-Gen. (R) Salahuddin Tirmizi's case PLD 2008 SC 735; Flying Krafts Papers Mills (Pvt.) Ltd. Charasadda v. Central Board of Revenue, Islamabad 1997 SCMR 1874; Sandalbar Enterprise's case PLD 1997 SC 334; PLD 1960 SC 260; PLD 1971 SC 585 and Sardar Sabir Hussain Khan Abbasi's case 2002 SCR 62 ref.

Sardar K. D. Khan in person, and for the Remaining Petitioners.

Raja Muhammad Hanif Khan for AJ&K Government.

Raja Tariq Mehmood, Assistant Draftsman/Deputy Secretary AJK Council Secretariat, for AJ&K Council.

Sardar Mushtaq Hussain Khan, Kh. Muhammad Nasim and Kh. Maqbool Waar, Advocates, for the Respondent No.9.

Date of hearing: 7th May, 2010.

P L D 2010 Karachi 1

Before Sajjad Ali Shah and Nadeem Azhar Siddiqi, JJ

ABDUL RAHIM KATIAR and another---Petitioners

Versus

ELECTION TRIBUNAL, HYDERABAD and 14 others---Respondents

Constitutional Petitions Nos.D-32 and 33 of 2007, decided on 24th February, 2009.

Sindh Local Government Elections Rules, 2005---

---Rr. 12, 14 & 65---Constitution of Pakistan (1973), Art.199---Constitutional petition---Rejection of nomination papers---Petitioner filed two nomination papers in different panels for the position of Nazim, one with a different person and other with another person---Both nomination papers were presented at the same date and time---Nomination papers filed with different persons were numbered as No.23 and No.24---Nomination paper No.23 was rejected as the age of said different person was found to be less than 25 years, whereas nomination paper No.24 was accepted---Panel of petitioners for Nazim and Naib Nazim after election having been declared returned candidates, respondents had filed election petitions which were allowed and election of the petitioners to the seat of Nazim and Naib Nazim was declared illegal---Validity---If a candidate had filed more than one nomination papers and candidate had not withdrawn his other nomination papers before the scrutiny, his candidature would be determined on the basis of nomination paper first received by the Returning Officer and remaining nomination papers would be void---Petitioner had not withdrawn second nomination paper and the Returning Officer took up both the nomination papers for the purpose of scrutiny and rejected nomination paper No.23 filed by the petitioner with different person, whereas accepted nomination paper No.24, without realizing that no sooner the first nomination paper (No.23) was taken up for scrutiny, the second nomination paper (No.24) on the basis whereof the petitioners had contested election, stood void---Election of the petitioners on the basis of a void nomination paper could not be termed in accordance with law.

Muhammad Jamil Akhtar v. Appellate Authority District Judge Rawalpindi 2003 SCMR 400 and Sahibzada Farook Abbasi v. Appellate Authority/District and Sessions Judge, Bahawalpur 2003 CLC 64 rel.

Ejaz Ali Hakro for Petitioners.

Sundar Das for Respondents.

Allah Bachayo Soomro, Addl. A.-G.

Muhammad Ali Shaikh, D.A.G. for Election Commission of Pakistan along with Atta-ur-Rehman, Asstt. Election Commissioner.

Dates of hearing; 27th and 28th January, 2009.

P L D 2010 Karachi 6

Before Faisal Arab and Ahmed Ali M. Shaikh, JJ

NIAZ MUHAMMAD---Petitioner

Versus

PROVINCE OF SINDH through Secretary Forest and 12 others---Respondents

Constitutional Petition No.D-403 and D-518 of 2008 and C.M.A. No.1119 of 2008, decided on 7th October, 2009.

West Pakistan Delegation of Powers under the Official Rules and the Powers of the Re-appropriation Rules, 1962---

---Sr. No.7 in Part-II---Constitution of Pakistan (1973), Art.199---Constitutional petition---Extension in lease---Fishing rights in lake owned by Government were awarded in favour of petitioner for one year---Later on, the authorities without any advertisement in newspapers and calling for proposal from public, extended fishing rights for five years, in favour of petitioner---Validity---Lake which was leased out to petitioner was spread over an area of 9 square miles---On account of its vast area and potential of earning huge income, it ought to have been specifically described in advertisement in order to attract offers which commensurate with its fishing potential and no such details were published in newspaper---Advertisement neither described name of lake, nor area or its location---All such was deliberately done so that not many prospective bidders could be attracted and there remained room to lease out the lake at throw away rates to benefit their favoured persons and bring in un-accounted personal benefits for functionaries of forest department---Dishonest intention in the entire process was evident on the part of functionaries of forest department---Manner in which lake was leased and its subsequent extension was based on dishonesty, without lawful authority and of no legal effect---Extension in lease made on the basis of such illegal grant to be void ab initio---High Court directed the authorities to re-auction the lake after describing all its necessary details in newspaper such as the name of lake, its area, its location and boundaries---Petition was disposed of accordingly.

Syed Sardar Ali Shah Jillani for Petitioner.

Liaqat Ali Shar, Addl. Advocate-General for the State.

Muhammad Iqbal Memon for Respondents Nos.11 and 12.

P L D 2010 Karachi 10

Before Shahid Anwar Bajwa, J

Mst. MUSSARAT and 2 others---Petitioners

Versus

MUHAMMAD NAEEM and another---Respondent

Constitutional Petitions Nos.S-107 and 13 of 2008, decided on 2nd October, 2009.

(a) Administration of justice----

----Plaintiff has to make his case stand on its own legs and cannot rely upon weaknesses or lack of evidence of defendant.

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

---S. 5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dowry articles, recovery of---Onus to prove---Shifting of onus--Wife filed suit for recovery of dowry articles which was decreed in her favour by Family Court---Judgment and decree passed by Family Court was set aside by Lower Appellate Court on the ground that plaintiff failed to prove dowry articles---Validity---Father of plaintiff appeared as supporting witness and stated that at the time of her marriage he had given his daughter dowry articles worth more than Rs.500, 000/- and brother in law of defendant received the same---Having. asserted such facts, plaintiff discharged her onus to prove and it was for defendant to lead evidence in rebuttal or to shake evidence of plaintiff through cross-examination---Defendant failed to lead evidence in rebuttal, therefore, he had to bear the consequences--Unless Court had come to the conclusion that value claimed in dowry articles was so disproportionate to the known sources of income of family of bride or items were so out of scene with the situation and standard of living of the family, it would be reasonable for Family Court to require plaintiff before it to produce proof of income of her family---It was not alleged, and even if it was alleged, since defendant did not produce any evidence, therefore, no such burden of proving income of parents of bride could be lumped at the door of helpless woman---Same principle would be held true regarding independent witness regarding purchase of dowry articles---High Court found it unfair that after lapse of more than ten years to hold plaintiff only entitled to recovery of articles because ten years was a long period of time and many of the articles might not have been left with any value in them, therefore, High Court ordered defendant to pay a sum of Rs.400,000/- to plaintiff in lieu of dowry articles---Petition was allowed accordingly.

Muhammad Saleem Akhtar v. Judge, Family Court and others 2004 YLR 2541; Zubair Akbar v. Mst. Mehreen Hayat and others 1992 CLC 1940; Saifur Rehman v. Anarkali and 2 others, 2006 MLD 563; Muhammad Akram v. Mst. Shahida Parveen and others PLD 2004 Lah 249; Major Milton Godwin Shamas v. Mst. Crenza Samuel, NLR 1985 SCJ 128; Ashiq Ali v. Mst. Rasoolan Bibi, NLR 1992 Civil 542; Manzoor Hussain Khan v. Mst. Asia Begum and 21 others, 1990 CLC 1011 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lahore 633 ref.

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

----Art. 199---Constitutional petition--- Maintainability--- Disputed questions of fact---Scope---High Court, in exercise of constitutional jurisdiction, should be reluctant to enter upon questions of fact--Where it appears to be clear misreading of evidence and non-reading of evidence by Lower Appellate Court and propositions of law with respect to nature of proof being not in accordance with dictates of law and Constitution, jurisdiction under Art.199 of the Constitution can be exercised.

Mirza Sarfraz Ahmed for Petitioner (in C.P. No.S-13 of 2008) and for Respondent (In C.P. No.S-107 of 2008).

Syed Fazal Hassan Jillani for Petitioner (in C.P.No.S-107 of 2008) and for Respondent (in C.P. No.S-13 of 2008).

P L D 2010 Karachi 17

Before Mushir Alam and Aqeel Ahmad Abbasi, JJ

Haji ABDUL KARIM and 4 others---Appellants

Versus

Messrs FLORIDA BUILDERS (PVT.) LTD.---Respondent

High Court Appeal No.279 of 2008, decided on 3rd November, 2009.

Specific Relief Act (I of 1877)---

----S.12---Limitation Act (IX of 1908), Art. 113---Contract Act (IX of 1872), S. 65---Civil Procedure Code (V of 1908), O. VII, R.11---Law Reforms Ordinance (VI of 1972), S.3---Intra-Court appeal---Rejection. of plaint---Specific performance of agreement to sell---Limitation---Earnest money, return of---Plaintiff sought specific performance of agreement to sell on 7-1-2003, which was executed in November, 1996---Suit was rejected by Single Judge of High Court, under O. VII, R.11 C.P.C., as the same was barred by limitation---Validity---Where date of performance of agreement to sell was fixed in the agreement as provided for in the first part of Art.113 of Limitation Act, 1908, the limitation would begin to run from date fixed for the performance---Plaintiff stopped payment of cheque dated 2-12-1996, which was first breach on the part of plaintiff---Secondly partial amount was to be paid by plaintiff on or before 2-1-1997, against delivery of possession and execution of power of attorney by defendant in favour of one of the plaintiffs---If at all defendants did not deliver possession, nor executed general power of attorney in their favour, it could be taken as first refusal on the part of defendant to perform the agreement and time under second part of Art. 113 of Limitation Act, 1908 would begin to run from 2-1-1997---Division Bench of High Court did not see any error in the order passed by Single Judge, warranting any interference---Agreement had run out of limitation and could not be enforced but the same did not debar Division Bench of High Court, while dismissing suit or rejecting plaint under O. VII, R.11 C.P.C., to direct defendant/vendor to refund the amount so received in terms of S.65 of Contract Act, 1872---Intra-Court Appeal was dismissed accordingly.

Muhammad Yaqoob v. Hakim Ali 2004 SCMR 584, Mst. Gul Shahnaz v. Abdul Qayoom Soomro PLD 2002 Kar. 333; Javed Iqbal v. PASSCO 2004 CLC 478; Zaheer Ahmed v. Abdul Aziz 1983 SCMR 559; Messrs Galaxy Construction Limited v. Province of Sindh through Secretary, Highway Division of Communications and Works Deptt. 1994 MLD 754; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Syed Muhammad Saleem v. Ashfaq Ahmed Khan 1989 CLC 1883; Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544; Ghulam Hussain Pakseema v. Ebrahim Saley Mayat PLD 1964 (W.P) Kar. 388; Haji Sattar- Haji Muhammad v. Allah Rakhya Dhanji PLD 1963 (W.P.) Kar. 786; Inam Naqshban v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314; M. Hannan v. Dr. Anwarul Hassan 2002 SCMR 361; Haji Muhammad Yaqoob v. Shahnawaz 1998 CLC 21; Messrs Imperial Builders v. Lines (Pvt.) Ltd. PLD 2006 Kar. 593; Ali Muhammad Aslam v. Bilquees Begum PLD 2008 Lah. 42; Muzaffar Javed v. Haji Noor Bukhsh 2002 MLD 1474; Province of Punjab v. Muhammad Hussain PLD 1993 SC 14; S.M. Shafi Ahmed Zaidi v. Moulvi Hasan Ali Khan 2002 SCMR 338; Mst. Parveen Akhter v. Consulate General of U.S.A. 2006 MLD 1657; Mrs. Farm and Foods International v. Hamid Mehmood 2006 CLC 192; Moulana Nur-ul-Haq v. Ibrahim Khalil 2000. SCMR 1305; Muhammad Akram Alias- Akan v. Mst. Pathani. 2001.MLD 1037; T. L. Muddukrishna and another v. Smt. Lalita Ramchandra Rao AIR 1997 SC 772; Mahboob Pasha v. Syed Zaheerudin and others AIR 1988 Karnataka 83; AIR 1997 SC 2631; Sirajul Haq Khan and others v. Sunni Control Board of Waqf AIR 1959 SC 198; Mst. Kulsoom v. Mst. Mariyam 1988 CLC 870; Iqbal Ahmed v. Abdul Kabir 2005 YLR 1916 and Muhammad Aslam v. Bilqees Begum 2008 CLD 38 ref.

Anwar Mansoor Khan and Rehan Aziz Malik for Appellants.

Mushtaq Ahmed for Respondents.

Date of hearing: 3rd November, 2009.

P L D 2010 Karachi 27

Before Shahid Anwar Bajwa, J

Messrs RANYAL TEXTILES through Proprietor/Employer---Petitioner

Versus

SINDH LABOUR COURT NO.3, KARACHI and 3 others-Respondents

Constitutional Petition No.517 and C.M.A. No.2520 of 2009, decided on 20th October, 2009.

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

----Art.175-Judicial powers of court---Concept---Court was a place where justice was judicially administered---"Judicial Power" was the legal right, ability and authority to hear and decide, objectively and after allowing opportunity to produce evidence, a justiciable issue, dispute, or controversy; concerning the existing legal rights, duties or interests of persons or party; arising out of relations and dealings, between two or more parties; who bring the same for an authoritative decision; binding on them and could include the authority to execute or get executed its decision and protect rights, prevent and redress wrongs and punish offences through legal process---Further, the judicial power must be conferred by the State under Constitution or law and not the mere consent of parties, on persons who were paid by the State and removable by it only---Authority or body in which that power was vested was generally called Court' and in performing its functions it would declare, construe and apply law or custom or usage, having the force of law---Judicial power' in circumstances was the instrument to be used by the court.

Iftikhar Ahmed v. The Muslim Commercial Bank Ltd. and another PLD 1984 Lah. 69 and Bharat Bank Ltd.'s case AIR 1950 SC 188 ref.

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

----Arts.175, 195(5), 212 & 225---Industrial Relations Act (IV of 2008), Ss.52 & 55---Establishment of courts and tribunals---Under the judicial system as established by the Constitution there were courts and tribunals---Tribunals, however, were only limited to the Tribunals specified in the Constitution, such as, Election Tribunals, Administrative Tribunals and Tribunals relating to Military affairs---Besides those Tribunals, whenever judicial power was vested in a forum, whatever be its designation be it called a court, be it called a Tribunal or be it called a Commission, for all legal intends and purposes, it was a court; and had to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of courts in Pakistan---Labour Appellate Tribunal, legally speaking, though denominated as a Tribunal, was a court; nothing more, nothing less.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998' SC 1445 and Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542 ref.

(c) Industrial Relations Act (IV of 2008)---

----Ss.52 & 55--Labour Appellate Tribunals---Labour Appellate Tribunal, legally speaking, though denominated as Tribunal, was a court nothing more, nothing less---Labour Appellate Tribunal and the Labour Courts exercise judicial powers and being courts they must be subordinate to respective High Courts in the provinces---Such subordination would include complete administrative and financial control and supervision by the High Court---Such administrative control and supervision could not be achieved, unless complete sway was given to the High Court in matters relating to appointment and other issues relating to Chairman of the Labour Appellate Tribunal and Presiding Officers of the Labour Courts.

Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Government of Balochistan through Additional Chief Secretay v. Azizullah Memon and 16 others PLD 1993 SC 341; Shaikh Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division PLD 2001 SC 607; A & B Beverages Shama Labour Union v. Sindh Lahour Court 2000 PLC 389; Nishat Group of Industry's case 1997 PLC 622; Pakistan Telecommunication's case 1999 PLC 320; Shahid Islam's case PLD 1996 Lah. 699; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs Islamabad and others PLD 2009 SC 789 and Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistn and others PLD 1996 SC 324 ref.

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

----Art 203---Judicial appointments and supervisory control over subordinate judiciary---All judicial appointments must be subordinate to the High Court and it was only High Court which could and should exercise exclusive administrative and supervisory control over subordinate judiciary---Such supervisory and administrative control could not even begin to exist if a credible and pivotal role was denied to the High Court iii appointment of such person---Held, it would be axiomatic to say that account court was subordinate to High Court, but its Presiding Officer was to be decided and appointed by the Provincial Government without consulting High Court---Consultation with the Chief Justice of the High Court was sine qua non, an essential pre-requisite and a condition precedent for all such appointments.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(e) Industrial Relations Act (IV of 2008)---

----S.55---Constitution of Pakistan (1973), Article 203---Labour Appellate Tribunal---Qualification for appointment---Mere fact that a person had been a Judge or an Additional Judge of High Court in the past, would not ipso facto qualify him to be a member of the Labour Appellate Tribunal---Reason was not far to seek---Only the Chief Justice of High Court holding office at the relevant time was the most well equipped person to provide meaningful and purposive consultation which was current and relevant---Any past opinion by a past Chief Justice, though should receive highest consideration, could not be said to be sufficient for the purpose of consultation with the Chief Justice holding such office at the time when the concerned appointment was being made---Before appointing any person to be member of the Labour Appellate Tribunal, it was not only required that such person met requirements of subsection (2) of S.55 of Industrial Relations Act, 2008, but it was also essential that such person was appointed only and only after consultation with the Chief Justice of the High Court.

Munawar A. Malik v. Abdul Salam 2006 PLC 122 ref.

Tasawar Ali Hashmi, Sarwar Jehan, Muhammad Iqbal Bhatti alongwith Zakir Hashmi Khaskheli, Sanaullah Noor Ghori, Khalid Javed, Mehmood Abdul Ghani, Gohar Iqbal, S.M. Yakoob, M.A.K. Azmati, Advocates Syed Ghulam Nabi Shah, Secretary Law and Allam Din Baloch, Secretary Labour.

P L D 2010 Karachi 50

Before Shahid Anwar Bajwa, J

Mst. SHAHNAZ GHULAM RASOOL---Petitioner

Versus

MUHAMMAD SHAKEEL AHMAD SIDDIQUI and 2 others---Respondents

Constitutional Petition No.461 of 2009, decided on 12th November, 2009.

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

----Ss. 12 & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minor---Word "religion" used in S.17 of Guardians and Wards Act, 1890---Scope---Judgmental observations with regard to nature of profession of parents of minor---Desirability---Minor son was more than seven years of age and Trial Court removed him from the custody of mother and handed over to father---Judgment passed by Trail Court was maintained by Lower Appellate Court---Validity---Word "religion" used in S.17 of Guardians and Wards Act, 1890, was to be given its wider interpretation and not narrowing it down to sects and sub-sects---In deciding custody of a minor , it would be of no relevance as to which sect did the father belong and as to which sect did the mother belong---Trial Court had extensively dealt with all questions---High Court disagreed with the observation of Guardian Judge that mother was running a tuition centre and domestic beauty parlour and therefore, it was not conducive to minor---High Court directed Trial Court to stay away from judgmental observations about professions which were permitted by law---While accepting application for custody of minor, two courts below had given cogent reasons after having appreciated the evidence---Minor appeared before Trial Court and clearly stated that his father loved him and he also stated that his grandmother also loved him--High Court in exercise of constitutional jurisdiction declined to interfere in concurrent findings of fact by two courts below---Petition was dismissed in circumstances.

Ch. Nazir Ahmed v. Additional District Judge III, Sahiwal and others 1988 SCMR 1359; Saad Amanullah Khan v. IVth Senior Civil Judge, (South) Karachi and 3 others PLD 2008 Kar: 499; Mst. Zainab Bibi v. Rehmat Ali and 2 others 1994 MLD 1098; Mst. Farah Waqar v. Dr. Waqar Ahmed Khan 2000 YLR 3046; Barkat Bibi v. Zahid Perveen and 2 others 2003 YLR 1105; Khan Muhammad v. Mst. Surayya Bibi 2008 SCMR 480; Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488; Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252; Surraya Bibi v. Abdur Rashid 1980 CLC 785; Imran Ali v. Mst. Iffat Siddiqui and 2 others PLD 2008 Kar. 198.; Khuda Bukhsh v. Muhammad Sharif and another 1974 SCMR 279; Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Pakistan Tobacco Company Limited, Karachi v. Director of Octroi, Karachi and 2 others 2007 YLR 2982; Messrs Karachi Industrial and Textile Mills, Karachi and another v. Settlement Commissioner (Industries), Lahore and another PLD 1978 Kar. 328 and Sabur Rehman and another v. Government of Sindh and 3 others PLD 1996 SC 801 ref.

Khawaja Naveed Ahmad for Petitioner.

Muhammad Nouman Jamali, for respondent No.1.

Date of hearing: 23rd October, 2009.

P L D 2010 Karachi 61

Before Shahid Anwar Bajwa, J

NASEER AHMED---Petitioner

Versus

Mst. AZRAH and another---Respondents

Civil Transfer Application No.40 of 2009, decided on 23rd November, 2009.

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

----S. 25---Civil Procedure Code (V of 1908), S.24---Transfer of case---Principle--Petitioner sought transfer of application under S.25 of Guardians and Wards Act, 1890, on the allegation of losing faith in Court---Validity---Such ground was not available to litigant unless litigant was able to demonstrate from the record that the Judge had acted with malice or that he deliberately-committed an irregularity or some previous circumstances were pointed out or similar other cognate factors were demonstrated to have existed---High Court declined to transfer the case from one court to another court on mere saying of applicant that he had lost faith in Trial Court---Application was dismissed in circumstances.

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

----S. 25---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Parentage of child---Determination---DNA test, need of---Bearing of cost---Scope---Question whether applicant was father of child or not had to be decided on the basis of evidence available---Family Court was to decide whether it needed DNA test or not and cost of such test should be borne by the party who made the application for the test.

Naimat Ali Randhawa for Petitioner.

Yousuf Chohan for Respondents.

Date of hearing: 11th November, 2009.

P L D 2010 Karachi 63

Before Anwar Zaheer Jamali C.J., Khilji Arif Hussain, Sajjad Ali Shah, Nadeem Azhar Siddiqi and Muhammad Karim Khan Agha, JJ

RASHEED A. RAZVI and others---Petitioners

Versus

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

Constitutional Petitions Nos.D-2404 of 2008 and D-38 of 2009, decided on 15th June, 2009.

Sindh Judicial Service Rules, 1994---

----Rr. 2 & 5---Sindh Government Notification No.S.O.R.-I (5GA&CD) 2-3/93, dated 4-12-2008---Constitution of Pakistan (1973), Arts.199, 4, 9, 14, 175 & 203---Constitutional petition---Grievance of the petitioners was that issuance of Notification No. S.O.R.-I(5GA&CD) 2-3-/93, dated 4-12-2008 was violative of Arts.4, 9, 14, 175 & 203 of the Constitution and also against the doctrine of separation of powers and independence of judiciary inter alia, as already laid down by a seven members Bench of Sindh High Court in the case of Sharaf Faridi v. Federation of Pakistan (PLD 1989 Kar. 404), which was maintained by the Supreme Court in the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) and following the directions contained in the said judgment, the Government of Sindh, in exercise of its power under S.26, Sindh Civil Servants Act, 1973 framed Sindh Judicial Service Rules, 1994 for regulating recruitment in the Sindh Judicial Service prescribing various conditions of service for the persons appointed thereto---In. the terms of Sindh Judicial Service Rules, 1994 (before the issuance of impugned notification) the position was that the whole selection process for the recruitment of Civil Judges/Judicial Magistrates was to be undertaken by the "Provincial Selection Board" constituted under R.2(e) of the Sindh Judicial Service Rules, 1994, in a manner prescribed therein, whereafter appointments were to be made by the Provincial Government on the basis of such recommendation of the "Provincial Selection Board"; however, after the issuance of Sindh Government Notification No.S.O.R.-I(5GA&CD)2-3/93, dated 4-12-2008 in this regard now the only authority left with the High Court of Sindh was the formality of sending requisition to the "Commission" as defined under newly added R.2(aa) of the Sindh Judicial' Service Rules, 1994---Moot question for consideration of the present five members Full Bench was, whether, despite clear and unambiguous directions of a Full Bench of Sindh High Court contained in Sharaf Faridi's case affirmed by the Supreme Court, Sindh Judicial Service Rules, 1994 framed in compliance of such directions, could be amended so as to negate the very spirit and directions in the said judgment and' also to cause a serious blow to the' sanctity of a separate and independent judiciary in the Province of Sindh---Held, result of impugned notification was that in a very arbitrary and crude manner the role of superior judiciary in the matter of recruitment and appointment of, Civil Judges-cum-Judicial Magistrates had been completely eliminated, except to the extent of sending a requisition, which was nothing but a formality---Issuance of the impugned notification, amounted to negating the directions of Full Bench of the Sindh High Court contained in Sharaf Faridi's case---By issuing the impugned notification which amended the Sindh Judicial Service Rules, 1994, Government of Sindh took a step which was contrary to settled procedure and practice, unconventional and unilateral, which paralyzed the very basic structure of the recruitment process as earlier envisaged in the said Rules for appointment of Judicial Officers---Terms "recruitment" and "appointed" used in the Rules did not convey a symbolic authorization for the High Court to issue requisition to the Government for this purpose or to sign for or issue appointment letters of the Judicial Officers, leaving the other main crucial exercise of the selection of a transparent subordinate judiciary in the hands of the executive authorities, rather they provided for complete exercise of such selection process commencing from the stage of advertisement in the newspapers for inviting applications against the available vacancies, and culminating at the stage of issuance of appointment letters, after its formal procedural approval from the Provincial Government and consequent notification to that effect---If amended Rules as per notification were implemented, their net result would be that the High Court of Sindh under whom the newly appointed Judicial Officers have to work would become only an authority, that has to make requisition to the Provincial Public Service Commission for such appointments with no further role or participation at any stage---Provincial Public Service Commission had no jurisdiction to play any role in the recruitment/ appointment of Civil Judges and Judicial Magistrates, which exercise exclusively fell within the domain of the "Provincial Selection Board" formed under Sindh Judicial Service Rules, 1994, which was substantiated by the fact that Civil Judges-cum-Judicial Magistrates, after their recruitment, in judicial ,service, did not acquire the status of "civil servants"---All the members of the "Provincial Selection Board" established under Rule 2(e) of the Sindh Judicial Service Rules, 1994 were none else, but sitting Judges of the High Court of Sindh before whom most of the candidates who might have applied for such posts, must have been appearing frequently---Impact of the impugned notification over the Sindh Judicial Service Rules, 1994 was cutting at the very root of the concept of separation of power and independence of judiciary; on one hand by addition of sub-Rule (aa) to R.2, it introduced a new Institution (Sindh' Public Service Commission) which was otherwise an alien to the Rules, and on the other hand, by amendment in R.5, it completely ousted the role of "Provincial Selection Board" and made the highest Court of the Province simply an Institution, that could only furnish requisition for new appointments/recruitment of Civil Judges and Judicial Magistrates to the Government, with no further role to play at any stage of such exercise---Doctrine of separation of Judiciary from the Executive and independence was not only to be gauged on the yardstick of the relevant constitutional provisions and settled law by the superior Courts, but also from the public perspective---Under the doctrine of separation of powers there was no room for any adversarial stance between the pillars of the State viz. Legislature, Executive and Judiciary, rather said system could flourish and become strong when each of three organs of the State function strictly within their domain and jurisdiction, with respect of each other and spirit of harmonious working without any overlapping or sharing of powers---Independence of judiciary was something, which was to be jealously guarded and could not be compromised at any cost---Initial appointment/recruitment of Civil Judges/Judicial Magistrates was its integral part, forming its foundational stone, thus, the impugned notification negating said position and transgressing the limits of judicial independence was liable to be struck down being malts fide, without jurisdiction and ultra vires the Constitution---High Court, declared that amendments made in Rules 2 & 5 of the Sindh Judicial Service Rules, 1994 and the Notification No.S.O.R.-I(5GA&CD)2-3/93, dated 4-12-2008 were without lawful authority, mala fide, of no legal effect and liable to be struck down as ultra vires the Constitution and that the amendments made in Rr.2 & 5 of the Sindh Judicial Service Rules, 1994 were illegal, violative of the concept of independent judiciary and inconsistent with, contradictory to, and in violation of Arts.4, 9, 14, 175 & 203 of the Constitution---Principles exhaustively recorded by High Court with comparative survey of the system of recruitment of Judicial Officers and independence of judiciary of other countries of the world and examined constitutional history of Pakistan and Reports submitted at different times in the past on the subjects.?

Sharaf Faridi v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404; Government of Sindh v. Sharaf Faridi PLD 194 SC 105; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan PLD 1996 SC 324; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Benazir Bhutto v. Federation of Pakistan PLD 1998 SC 416; Chandra Mohan v. State of U.P. AIR 1966 SC 1987; State of Kerala v. A. Lakshimikutty AIR 1987 SC 331; State of Assam v. Kusseswar AIR 1970 SC 1617; Hakim Khan and 3 others v. Government of Pakistan PLD 1992 SC 595; Syed Imam Shah and others v. Government of N.-W.F.P. PLD 2004 SC 285; Federation of Pakistan v. Ammar Textile Mills (Pvt.) Limited and others 2002 SCMR 510; Nawaz Ali Sher v. Province of Sindh 1988 PLC (C.S.) 337; Manthar Ali Jatoi Vs. The Government of Sindh 1988 PLC (C.S.) 344; "Constitutional & Administrative Law" by Hilaire Barnett (Fifth Edition published in the year 2004); De l'Esprit des lois' (The Spirit of the Laws) (1748); Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Haji Hashmatullah v. K.M.C. PLD 1971 Kar 514; Ghulam Mustafa Khar v. Federation of Pakistan PLD 1988 Lah. 49; Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26; Manzoor Ahmed Wattoo v. Federation of Pakistan PLD 1997 Lah. 38 and Muhammad Mubinus Salam and others v. Federation of Pakistan and others PLD 2006 SC 602 ref.

Petitioner No.1 in person assisted by Tahmasp R. Razvi and Mrs. Umaimah A. Razvi (in C.P. No.D-2404 of 2008).

Petitioner No.2 Sindh High Court Bar Association (in C.P. No.D-2404 of 2008) through Petitioner No. 1.

Petitioner No.1 in person in (C.P. No.D-38 of 2009).

Petitioner No.2 Sindh Bar Council (in C.P. No.D-38 of 2009) through Petitioner No.1.

Muhammad Yusuf Leghari, Advocate-General Sindh along with Muhammad Sarwar Khan, Addl., A.-G. Sindh for Respondents Nos.1 and 2 (in both the petitions).

Ashraf Mughal, Deputy Attorney-General for Respondent No.3 (in both the petitions).

Dates of hearings: 10th and 15th June, 2009.

P L D 2010 Karachi 110

Before Shahid Anwar Bajwa, J

SULTAN AHMED SIDDIQUI and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1099 and C.M.A. No.3931 of 2009, decided on 3rd December, 2009.

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

----S. 498---Pre-arrest bail---Prescribed parameters---Grant of pre-arrest bail is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives; pre-arrest bail is not to be used as a substitute or as an alternative for post arrest bail; pre-arrest bail cannot be granted unless the person seeking it satisfies the conditions specified in subsection (2) of S.497, Cr. P. C. 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; in addition thereto accused must also show that his arrest was being sought for ulterior motive, particularly on the part of the police to cause irreparable humiliation to him and to disgrace and dishonour him; 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 at law; and in the absence of a reasonable and a justifiable cause, he must in the first instance approach the Court of first instance i.e. the Court of Session, before going to High Court for bail before arrest.

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

----S. 498---Pre-arrest bail---Forum for filing application for pre-arrest bail---Matter depends on the facts of each case---No universal, iron clad and water tight rule can be framed---High Court can directly entertain application for pre-arrest bail in the presence of reasonable compelling circumstances and the lower judicial forum of Sessions Court can be bypassed.

Rais Wazir Ahmad v. The State 2004 SCMR 1167 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss.427/447/511/34---Mischief causing damage, criminal trespass and attempt to commit offences---Pre-arrest bail, grant of---Opponent being Pakistan Air Force, apprehension of highhandedness at the hands of police by the accused for not might be able to even reach the Sessions Court, was a reasonable ground for entertaining their petition for pre-arrest bail direct by High Court---Grant of bail to accused in bailable offences was their right and not a favour---Offences with which the accused were charged did not fall under the prohibitory clause of S.497, Cr. P. C. and even otherwise maximum punishment was two years---No extraordinary and compelling circumstances were pleaded or pointed out for denying the right of bail to accused, to which they were entitled---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Rais Wazir Ahmad v. The State 2004 SCMR 1167; Riaz Ahmed Goharshahi v. The State PLD 2000 Kar. 6; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Imtiaz Ahmed and another v. The State PLD 1997 SC 545; Dr. Abdul Rauf v. The State 2007 YLR 1483; Hidayat Ullah Khan's case PLD 1949 Lah. 21 = AIR 1949 Lah. 77; Sh. Zahoor Ahmad v.The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmed Jialni v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ 74 ref.

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

----S. 497---Bail in cases not falling within the prohibitory clause of S.497, Cr.P.C.---Principles---Bail in cases not hit by the prohibition contained in S.497(1), Cr.P.C. is a rule and refusal thereof an exception---However, bail will be declined only in extraordinary and exceptional cases, e.g., where there is likelihood of abscondence of accused, where there is apprehension of accused tampering with the prosecution evidence; where there is a danger of the offences being repeated in case of release of accused on bail; and where the accused is a previous convict.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----Ss. 497/498---Bail---Assessment of material---Principles---Court at bail stage has to make only tentative assessments and not to go deeper into appreciation of the fact.

Muhammad Ashraf Kazi along with Applicants.

Muhammad Asif Malik and Miss Alia Khan along with Complainant.

P L D 2010 Karachi 119

Before Shahid Anwar Bajwa, J

NATASHA RASHID---Petitioner

Versus

RASHID ZAR and 4 others---Respondents

Constitutional Petition No.S-930 and C.M.A. No.4179 of 2009, decided on 14th December, 2009.

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

----S. 491---Habeas Corpus---Notification by High Court dated 7th September, 2002 conferring jurisdiction on the Sessions Judges--Effect of Notification on powers of High Court--Conferment of jurisdiction on the Sessions Judges by High Court under Notification dated September 7, 2002, has not divested High Court of its jurisdiction under S.491, Cr.P.C. given to it by the Constitution and the law and High Court does not cease to have jurisdiction under S.491, Cr.P.C.

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

----Art. 199(1)(c)---Criminal Procedure Code (V of 1898), S.491---Constitutional jurisdiction--Maintainability---Custody of minor--For maintainability of petition under Art.199(1)(c) of Constitution respondent need not be a person performing functions in connection with, the affairs of the Federation or a Province or a Local Authority---Use of word "including" in cl. (c), not mentioned in cl. (a) or (b) of Art.199, was most significant---High Court's power to enforce fundamental rights, therefore, was much broader and much more far reaching than the time tested concepts . of writs of Certiorari, Mandamus, Prohibition, Quo Warranto and Habeas Corpus---Right to life not only included one's own life, but also life, liberty and happiness of one's children---Denying a person right of company of his children was as severe a penalty and curse on him than denying him life altogether---Strongest bond that nature had created was bond between the mother and the child and it was not restricted only for the period when the child was within the body of the mother, but would continue thereafter---First food of the child, after all, would come from the body of the mother itself, therefore, if a mother was denied her right of company of her child, it would amount to violation of her fundamental right to life---Petition thus, was maintainable both under S.491, Cr.P.C. as well as under Art.199(1)(c) of the Constitution---Elder child was already with the mother, for the custody of which application had been filed by his father under the Guardians and Wards Act, 1890---Mother petitioner had right of Hizanat of her younger child which was only three years old---Bringing up of the two children together would be more appropriate---Custody of the minor was, consequently given to the mother---Family Court, however, would finally determine the custody of minors after a proper trial---Constitutional petition was allowed accordingly.

Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1; Zubaida Shehzadi v. Muhammad Aslam and another 2007 MLD 512; Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Mst. Nuzhat Sultana v. Syed Farukh Raza and another PLD 2003 Kar. 54; Mahera Fatima v. Province of Sindh and others 2007 YLR 1487; Gazette Notification dated 7-9-2002, p.691; Imdad Hussian v. Noor Hassan and 5 others PLD 1974 Kar. 485 and Muhammad Javed Umrao v. Miss Usma Vahid 1988 SCMR 1891 ref.

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

----Art. 199(1)(c)---Constitutional petition---Maintainability---Perfor­mance of functions by the respondent in connection with the affairs of the Federation, a Province or a Local Authority, is not a condition precedent for maintainability of a petition under Art.199(1)(c) of the Constitution---Use of word "including" in cl. (c) and omission thereof in cl. (a) or cl. (b) is most significant in this regard---Power of High Court to enforce fundamental rights, therefore, is much more broader and far reaching than the time-tested concepts of Writs of Certiorari, Mandamus, Prohibition, Quo Warranto and Habeas Corpus.

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

----Art. 9---Security of person---Right to life---Elaboration---Right to enjoyment of personal rights and to be protected from encroachment of such personal rights, freedom and liberties, is included in the right to life---Word "life" used in the Constitution is not used in limited manner and wider meaning should be given to enable a person not only to sustain life, but also to enjoy it.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 ref.

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

----Ss. 491 & 561-A---Habeas Corpus petition---Maintainability---Custody of minors---Cases pertaining to custody of children should not be decided on technicalities---Where petition under S.491, Cr.P.C. is not found to be competent due to absence of element of illegal custody by the father of his own child, High Court can also pass an appropriate order in exercise of its inherent jurisdiction.

Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 ref.

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

----S. 491---Guardians and Wards Act, (VIII of 1890), S.25---Custody of minor---Enactments do not exclude each other---Power of High Court under S.491, Cr.P.C. although are different from the powers of a Guardian Judge under the Guardians and Wards Act, 1890 yet there is no question of one excluding the other.

Zubaida Shehzadi v. Muhammad Aslam and another 2007 MLD 512 ref.

Rasheed A. Akhund and Irfan Haroon for Petitioner.

Khowaja Navid Ahmed for Respondents.

P L D 2010 Karachi 131

Before Ms. Rukhsana Ahmed, J

MUHAMM4D AYUB KHAN---Petitioner

Versus

Mst. SHEHLA RASHEED and another---Respondents

Constitutional Petition No.S-894 of 2009, decided on 26th November, 2009.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for dissolution of marriage on ground of Khula'---Passing of decree in favour of wife by Family Court in lieu of dower amount---Constitutional petition by husband for declaring his marriage with respondent still subsisting due to non-payment of dower amount---Plea of respondent that she had filed suit due to misunderstanding; that Family Court had not provided her an opportunity of reconciliation; and that she had changed her mind and wanted to maintain her marriage with petitioner---Validity.---Pronouncement of Khula' by court would amount to a single divorce---Petitioner would be at liberty to re-marry respondent after solemnization of Nikah without intervention of third person---High Court set aside impugned judgment/decree in circumstances.

Majmua-e-Qawaneen-e-Islam, Vol. II, Qanun-e-Talak written by Tanzil-ur-Rehman, pp.369 and 597; Hedaya or Guide by Charles Hamilton, 1975, Edn. at p.112 of Chap.VIII and p.107 and Gulzar Hussian v. Mst. Mariyam Naz 2000 MLD 447 rel.

Umar Farooq Khan for Petitioner.

Respondent present in person.

P L D 2010 Karachi 134

Before Munib Akhtar, J

MUHAMMAD ASLAM---Appellant

Versus

Dr. IMTIAZ ALI MUGHAL and 4 others---Respondents

Criminal Acquittal Appeal No.2 of 2007, decided on 21st December, 2009.

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

----S. 318 [304-A (previous)]----Qatl-i-Khata---Ingredients---Crucial elements of the offence both under the previous S.304-A and the present S.318, P.P.C. are rashness and/or negligence.

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

----S. 318---Qatl-i-Khata----Criminal rashness and criminal negligence---Connotation and distinction---Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without the intention to cause injury or knowledge that it will probably be caused---Criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence---Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.

Jamal v. The State 1977 PCr.LJ (?) and Regina v. Idu Beg 1881 3 All. 776, 779, 780 ref.

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

----S. 319---Qatl-i-Khata---Negligence in medical profession, when punishable---Prosecution for conviction of a Doctor must prove his negligence of high degree---Mere lack of proper care, precaution and attention or inadvertance might create civil liability, but not a criminal liability---Courts, therefore, have always insisted in the case of alleged criminal offence against Doctor causing death of his patient during treatment, that the act complained against him must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient---Such gross negligence alone is punishable.

Dr Suresh Gupta v. Govt. of NCT Delhi and another AIR 2004 SC 4091; R v. Adomako 1994 3 All. ER 79 ref.

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

----S. 318---Qatl-i-Khata---Medical negligence---Standard of negligence---Crux of law---Offence of Qatl-i-Khata under S.318, P.P.C. insofar as death is caused by a rash or negligent act and in the specific context of Doctors accused of professional negligence, is committed only if it is proved that the accused had acted with "gross negligence" or with reckless disregard or indifference to the consequences of the act which caused the death---Standard of professional negligence in Civil law, well-recognized as Tort, differs from Criminal negligence in two ways---Firstly and more generally, the standard of proof in all civil litigation is simply the balance of probabilities, whereas in criminal prosecution the offence has to be proved beyond reasonable doubt; secondly the degree of negligence must be much higher to constitute a criminal offence, i.e. it must amount to gross-negligence---Negligent act may attract tortions or civil liability and yet fall short of the level or degree required for it to constitute a criminal offence.

Dr. Suresh Gupta v. Govt. of NCT Delhi and another AIR 2004 SC 4091; R v. Adomako 1994 3 All. ER 79; Jacob Mattew v. State of Punjab and another AIR 2005 SC 3180; Straight J., in Idu Beg the 1881 and Province of Sindh and another v. Shams ul Hasan and others 2009 MLD 1093, 1096 ref.

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

----S. 319---Qatl-i-Khata---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Complainant believing that his wife had died in the Hospital as a result of the negligence of the four Doctors, had filed a private complaint against them and examined himself and six other witnesses in support thereof---Trial Court had summoned the accused, but had acquitted then on an application moved by them under S.265-K, Cr.P.C. vide impugned order---Acquittal of accused Doctors under S.265-K, Cr.P.C. by Trial Court was based on proper and careful considerations---Keeping in mind the proper meaning and scope of S.318, P.P.C. in the context of death caused by a rash or negligent act, there was no probability of the accused being convicted under S.319, P.P.C.---Conduct complained against the accused did not amount to gross negligence or recklessness as would constitute a criminal offence---Production of medical evidence was the primary and indispensable requirement to prove the alleged professional negligence especially in the field of medicine, which had not been adduced---Fact that the complainant wished to purchase and provide medicines from his own sources, while the hospital required that only officially procured medicines would be used, did not in any manner amount to gross negligence or recklessness, which might not even amount to the tort of negligence in terms of any civil liability---Allegation of the oxygen cylinder being empty was simply the view expressed by the complainant and his witnesses and none of them being an Export, the same was not relevant---Said witnesses had no full, direct and personal knowledge of the treatment provided to the deceased during her eleven days stay at the Hospital and even if they had been full time attendants or constant and daily visitors, their view and understanding would be limited one of a layman and of very restricted utility---No evidence had been produced by the prosecution to establish or even remotely suggest any pre-arranged plan or a pre-concert by the accused to attract the provisions of S.34, P.P.C.---No probability, therefore, existed by conviction of all or any or any of the accused Doctors in the case for gross-negligence---Appeal against acquittal was dismissed accordingly.

The State v. Raja Abdul Rehman 2005 SCMR 1544, Hafeez Ahmed v. The State and another 2008 PCr,LJ 161; Farman Ali v. Tandi Bakht 2008 MLD 1690; State v. Ashiq Ali Bhutto 1993 SCCMR 523, Zahoor ud Din v. Khushi Muhammad 1998 SCMR 1840; Muhammad Sharif v. The State PLD SC 1063; Sajid v. The State 2000 SCMR 167; Rab Nawaz v. The Crown PLD 1955 FC 63; Jamal v. The State 1977 PCr.LJ 818.; Regina v. Idu Beg 1881 3 All 776, 779, 780; Dr. Suresh Gupta v. Govt. of NCT Delhi and another AIR 2004 SC 4091; R v. Adomako 1994; Jacob Mattew v. State of Punjab and another AIR 2005 SC 3180; Straight J., in Idu Beg the 1881 and Province of Sindh and another v. Shams ul Hasan and others 2009 MLD 1093, 1096 and Shoukat Ali v. The State PLD 2007 SC 93 ref.

Rashid Khan Durrani for Appellant.

Ghulam Shabir Dayo for Respondents.

Shyam Lal APG for the State.

Date of hearing: 3rd December, 2009.

P L D 2010 Karachi 148

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

NAZIMUDDIN AHMED---Appellant

Versus

AINUDDIN AHMED and 2 others---Respondents

High Court Appeal No.403 of 2008, decided on 29th January, 2010.

Specific Relief Act (I of 1877)---

----Ss.39 & 42---Limitation Act (IX of 1908), Arts. 91 & 120---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Declaration of title and cancellation of document-Benamidar, suit against---Limitation---Suit filed by plaintiff was dismissed by Single Judge on the ground that it was barred under Art.91 of Limitation Act, 1908---Validity---First application was filed by plaintiff on 15-12-1996, to authorities requesting not to issue any duplicate document to defendant---Sale agreement was executed by defendant on 30-1-1997, representing himself as owner, which document had come to the notice of plaintiff much later---Reckoning six yeas limitation from application dated 15-12-1996, cut off date for suit of such nature would be expiring on 13-12-2002---Limitation for cancelation of transfer in favour of buyer was to be reckoned within six years from the date of knowledge of disputed entry in the record of rights as maintained by authorities---As the disputed entry in record of rights was 26-5-1997, therefore, under Art. 120 of Limitation Act, 1903, time would run out on 26-5-2003 for declaration of title---Suit was fled on 28-11-2002 and it was well within the period of limitation---Right to sue accrued to real owner against Benamidar, when hostile claim of ownership by Benamidar/ostensible owner had come to the knowledge of real owner---Single Judge of High Court did not properly consider factual position narrated in plaint in the context of cause of action and evidence available on record, thus judgment was on wrong assumption in its entirety, therefore, the same was set aside and suit was decreed in favour of plaintiff---Division Bench of High Court directed the authorities to mutate plot in question in favour of plaintiff---Intra-Court Appeal was allowed in circumstances.

Nazir Ahmed Serang v. Benoya Bhusan Saha P.LD 1957 Dacca 575 at 585 and Abdul Rashid Velmi v. Habibur Rehman 1995 MLD 397 403-rel.

I.H. Zaidi for Appellant.

Nemo for Respondents Nos.1 and 2.

Manzoor Ahmad for Respondent No.3.

Date of hearing: 12th November, 2009.

P L D 2010 Karachi 153

Before Faisal Arab, J

In the matter of: SUCCESSION OF THE ASSETS, SECURITIES, PROPERTIES AND ACCOUNTS OF LATE JAVED IQBAL GHAZNAVI

S.M.As. Nos.64 of 2005, 142 of 2007, decided on 20th January, 2010.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Succession---Post retirement benefits---Entitle­ment---Succession certificate and letter of administration---Deceased was employee of bank and died issueless, leaving behind mother, one widow, one brother and four sisters---Controversy was with regard to distribution of movable and immovable assets left by the deceased among his all legal heirs---Validity---Any financial benefit which an employee could claim from his employer in his lifetime and had also become payable in his lifetime was to be treated as absolute right of employee and if any benefit or any part of it remained unpaid during his lifetime then the same would become heritable and was to be distributed among all his heirs---Service benefit of an employee, which had not fallen due in his lifetime and being a grant or concession on the part of employer of whatever amount, the same would become payable after the death of employee to be distributed only to those members of family who were entitled for the same as per rules and regulations of service---It was the discretion of employer to make rules and regulations in relation to any grant or concession that was intended to give to an employee or after his death to any member of his family---Benefits such as special retirement benefits, special compensation, group insurance under term insurance policy and group insurance under provident fund policy benefits definable as grants and concession on the part of employee and payable after the death of employee could not be treated as heritable by all heirs of employee but were to be distributed to those who were entitled to it under the rules and regulations of service provided by employer---High Court directed to distribute the assets of deceased accordingly.

Amtul Habib and others v. Musarrat Parveen and others PLD 1974 SC 185; Mirza Muhammad Amin v. Government of Pakistan PLD 1982 FSC 143 and Ameeran Khatoon v. Mst. Shamim Akhtar and others 2005 SCMR 512: ref.

Federal Government of Pakistan v. Public-at-Large PLD 1991 SC 731 rel.

Umer Lakhani and Syed Nasir Hussain for Petitioners.

Rizwan Ahmad Siddiqui and Saeedul Hasan for Objectors.

P L D 2010 Karachi 158

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

KARIM DAD KHUSHK---Appellant

Versus

UNITED BANK LIMITED---Respondent

1st Appeal No.40 of 2009, decided on 29th January, 2010.

Civil Procedure Code (V of 1908)---

----O. III, Rr.1, 2 & O. XXIX, R.1---Suit by company---Signing of plaint by authorized agent of company---Copy of power of attorney not filed along with plaint, but filed subsequently---Validity---If plaint was not competently filed, then such anomaly could be rectified subsequently---Suit would not become incompetent on account of subsequent filing of such copy.

Habib Bank Ltd. v. Mts. ESS EMM ESS Corporation Pakistan Ltd and 5 others 2005 CLD 854 rel.

Klb-e-Hyder and Company (Pvt.) Ltd. v. National Bank of Pakistan 2008 CLD 576; Faysal Bank Ltd. v. Genertech Pakistan Ltd. 2009 CI.D 856 and Messrs Prime Road Ways and 2 others v. United Bank Ltd. and 2 others 2005 CLD 1473 distinguished.

Waqar Ahmed Siyal and Tauseef Ahmed for Appellant.

Khalid Mehmood Siddiqui for Respondent.

Dates of hearing: 15th, 18th and 22nd January, 2010.

P L D 2010 Karachi 162

Before Amir Hani Muslim, J

KHAN MAALIK---Plaintiff

Versus

KHALID BASHIR and 4 others---Defendants

Suit No.389 and C.M.As. Nos. 2719 and 4219 of 2009, decided on 27th January, 2010.

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

----Ss. 12, 22 & 25(a)---Civil Procedure Code (V of 1908), S.151---Suit for specific performance of sale agreement---Execution of sale agreement and unregistered General Power of Attorney in favour of plaintiff on payment of entire sale consideration to defendant, who claimed to be owner of suit land on basis of sale agreement and unregistered General Power of Attorney executed in his favour by its original owner---Plea of original owner that sale agreement and unregistered General Power of Attorney alleged to have been executed in favour of defendant were forged documents; that he had mortgaged suit land after depositing with Bank its original titled documents prior to date of such forged documents---Plaintiff and defendant, though required by Court, neither produced original title documents of suit land nor offered any plausible explanation therefore-Validity--Original title documents of suit land were in possession of Bank as security owing to loan facility availed by original owner---Original title documents produced by Bank were seen by Court and returned to Bank---Defendant was neither owner of suit land nor had in law an authority to execute sale agreement or General Power of Attorney in favour of plaintiff---Sale agreement and General Power of Attorney alleged to have been executed by original owner in favour of defendant were ex facie forged documents---Provisions of Ss.22 and 25 of Specific Relief Act, 1877 clearly debarred plaintiff from seeking such relief---High Court in exercise of its inherent jurisdiction dismissed the suit.

Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 and S.M. Shafi Ahmed Zaidi v. Hassan Ali Khan 2002 SCMR 38 rel.

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

----S. 22---Suit for specific performance of contract---Nature of such remedy.

A suit under Specific Relief Act, 1877 is in the nature of discretionary remedy and a party cannot seek such discretionary relief as a matter of right, unless it is shown that it has approached the Court with clean hands.

Saathi M. Ishaq and Naseer Hussain Jaferi for Plaintiff.

Mansoorul Afrin for Defendant No.1.

Mustafa Lakhani for Defendant No.2.

Ali Azam, Arif Khan along with Nisar Ahmed Channa, Litigation Officer for Defendant No.4.

P L D 2010 Karachi 170

Before Faisal Arab, J

Messrs FORBES FORBES & CAMPBELL CO., through Company Secretary---Petitioner

Versus

Messrs EBRAHIM TRUST through Managing Trustee and 2 others -Respondents

Constitutional Petitions Nos.S-518, S-519, S-561, S-563 of 2008, S-194 of 2009 and C.M.As Nos. 85, 1249 of 2009, 3666 of 2008, decided on 29th January, 2010.

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

----Ss.3(1)(2) & 15---Premises built on land of Karachi Port Trust by its lessee--Renting out of such premises by such lessee to a third party---Ejectment petition by such lessee against the third party---Maintainability---Notification No. VIII (3) SOJ/75, dated 15-3-1988 issued by Sindh Government had given immunity to all premises belonging to Karachi Port Trust from operation of Sindh Rented Premises Ordinance, 1979---Such lessee was owner of premises built on Trust's land---Exemption granted under said Notification would not attract to such petition---Principles.

B.S. Khan v. Pakistan State Oil Company 1989 SCMR 75 and Lalazar Enterprises (Pvt.) Ltd. v. Oceanic International (Pvt.) Ltd. 2006 SCMR 140 ref.

Smt. Shanti Sharma v. Smt. Ved Prabha AIR 1987 SC 2028 rel.

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

----Art. 189---Judgment of Supreme Court interpreting any constitutional provision or law or its own previous judgment---Binding effect---Scope.

When the Supreme Court interprets the effect of any provision of the Constitution or a law or its own judgment, it becomes law of the land. When the Supreme Court interprets the legal effect of its earlier judgment in a certain manner, then it is not open to the High Court to differ from such interpretation. All Courts have to examine a controversy in the light of such interpretation, unless the Supreme Court itself overrules it through its subsequent decision. However, as long as a judgment of the Supreme Court stands, it has to be given effect to by all Courts including the High Court.

1999 SCMR 2518 ref.

(c) Jurisdiction---

---Jurisdiction of Court would be determined in accordance with applicable law, but not on basis of conduct of a party---Principles.

A party through its conduct can neither confer nor take away jurisdiction of a Court, which is to be determined purely in accordance with law that for time being regulates the jurisdiction.

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

----Ss.2(i), 15 & 15(1)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Ejectment petition---Tenancy agreement containing an undertaking of tenant to pay all taxes and charges in addition to monthly rent---Failure of tenant to pay such taxes and charges---Order of Rent Controller directing tenant to deposit in Court all arrears and future such taxes and charges---Plea of tenant that such taxes and charges did not fall within definition of rent' as provided in S.2(i) of Sindh Rented Premises Ordinance, 1979---Validity---Definition ofrent' as provided in S.2(i) of Ordinance, 1979 was not exhaustive---Use of word "includes" after word "rent" in S.2(i) of Ordinance, 1979 had left room to incorporate within its meaning any other financial obligation definable as rent---Phrase "such other charges which are payable by the tenant" as provided in S.2(i) of the Ordinance, would include within its meaning an amount undertaken to pay to landlord irrespective of its nomenclature---Such charges on basis of terms and conditions of tenancy agreement would be regarded as part of rent, which if not paid, would give rise to same consequences as provided for non-payment of rent---Tenant could not take turn around and say that such taxes and charges would not fall within definition of `rent'---Rent Controller while passing impugned order had acted within his jurisdiction---High Court dismissed constitutional petition in circumstances.

(e) Interpretation of statutes---

----Definition clause in a statute---Use of word "includes" after the word which was sought to be defined---Effect---Such definition clause could not be treated as exhaustive---Principles.

When the word "includes" follows after the word that is sought to be defined, then the definition clause cannot be treated as exhaustive as the word "includes" leaves room for extending the definition clause, provided it does not come in conflict with the real intent behind defining a term and does not contradict the context in which the law was made, which necessitated the legislature of define a particular term.

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

----Ss. 2(i) & 15---Constitution of Pakistan (1973), Art. 199--Constitutional petition-Non-payment of outstanding electricity charges by tenant as per terms of tenancy agreement---Disconnection of electricity supply by landlord for such failure of tenant---Validity---Tenant was carrying on commercial activity in demised premises, thus, supply of electricity could not be disrupted for his such failure without first serving notice of disconnection upon him---high Court restrained landlord from disconnecting electric supply without first giving to tenant seven days notice annexing therewith current electricity bill and arrears towards electricity charges, if any.

Khawaja Shamsul Islam for Petitioners (in C.P.Nos. S-194/09, 518/09 and 519/08).

Muhammad Arif for Petitioners in (C.P.Nos. S.561/08 and 563/08).

Respondent No.2 in person.

Date of hearing: 11th January, 2010.

P L D 2010 Karachi 182

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

KAWAS B. AGA and another---Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI (CDGK) through Nazim-e-Ala and others---Respondents

Constitutional Petitions Nos. D-1885 and D-1886 of 2006, decided on 27th January, 2010.

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

----Ss.35 & 3S-A---Costs---Scope--Costs awardable by Court can either be actual or compensatory---Actual costs are awardable by Court in order to secure expenses undergone by successful litigant in assertion of his right / claim before Court---Where costs awarded under S.35-A, C.P.C. are not sufficient compensation, Court in addition, has the discretion to award costs by way of compensation to successful litigant---Such costs are compensatory in nature and not awarded as penalty against unsuccessful party.

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

---Ss. 35 & 35-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Costs, awarding of---Scope---In addition to actual costs and compensatory costs, High Court in its Constitutional jurisdiction can award compensatory costs even in excess of twenty five thousand Rupees as prescribed under S.35-A, C.P.C.---Special costs can also be awarded by High Court in exercise of its inherent powers---Costs including compensatory costs as well as exemplary costs can be imposed by High Court in its Constitutional jurisdiction.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28; Haji Muhammad Shafi v. Mst. Hamdani Bibi 1990 MLD 597; M.D. Tahir, Advocate v. Federal Government and others PLD 1999 Lah. 409; Mrs. Asma Begum v. The Commissioner, Karachi Division, Karachi. PLD 1997 Kar. 13; Abdul Razzak v. The Federation of Pakistan 1997 MLD 3283; The Postmaster General, Northern Punjab and (Azad Jammu and Kashmir) Rawalpindi v. Muhammad Bashir 1998 SCMR 2386; Smt. Sulochanamma v. H. Nanjundaswamy 2001 1 Karnatk LJ 215; Mazharuddin v. The State 1998 PCr. LJ 1035 and Muhammad Din v. District Magistrate 1992 MLD 107 rel.

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

----Art. 199---Civil Procedure Code (V of 1908), Ss.35 & 35-A---Constitutional petition---Costs, imposing of---Public department---Petitioners were aggrieved of inaction of registration authorities who failed to execute and register renewal lease in respect of properties in question---Petitioners also sought imposition of costs against the authorities for their such failure---Validity---High Court, in its Constitutional jurisdiction, could award compensatory cost as well as exemplary cost / penal cost in appropriate cases---Such costs could be recovered from State / departments instead of delinquent public officer, as the State / department might recover the same from delinquent officer---Exemplary or penal costs were imposed on delinquent public functionary and was required to be recovered from such person---Petitioners were entitled for claim of costs as well as compensatory costs, therefore, High Court directed the department concerned to deposit actual costs of petition and also compensatory costs---High Court further directed the department concerned to initiate departmental inquiry against delinquent officers and if they were found guilty of such misconduct, then besides any disciplinary action deemed necessary, costs so imposed would be recovered from them---Petition was allowed accordingly.

Muhammad Zia v. Ch. Nazir Muhammad, Advocate 2002 CLC 59; Arivnder Singh Bagga v. State of U.P. and others, AIR 1995 SC 117; Inayatullah v. Sh. Muhammad Yousuf 1997 SCMR 1020; Sayed Ahmad v. Mst. Khatoon Begum 1998 MLD 53; Khurshid Ahmed Naz Faridi v. Bashir Ahmed and 3 others 1993 SCMR 639; Inayatllah v. Sh. Muhammad Yousuf 1997 SCMR 1020 and State of U.P. v. Manohar AIR 2005 SC 488 rel.

Saadat Yar Khan Akhtar for Petitioners.

Manzoor Ahmad along with Imran Hassan Khan, DDO for Respondents/CDGK.

Faisal Siddiqui, Amicus Curiae.

Date of hearing: 6th October, 2009.

P L D 2010 Karachi 193

Before Faisal Arab, J

NATIONAL BANK OF PAKISTAN KARACHI---Decree Holder

Versus

Messrs BACHANI SUGAR MILLS LTD. and 6 others---Judgment-Debtors

Execution Application No.24 of 2006 and C.M.As. Nos. 448, 521, 615, 661 and 663 of 2009 decided on 3rd March, 2010.

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

----O. XXI, R.83(3)---Execution of decree---Sale of entire assets---Objection---Effect---Sale-in execution of decree was objected to by the judgment-debtor on the ground that value of entire property (Mill) ordered to be sold was above four times of the decretal amount---Plea raised by the petitioner was to postpone the entire sale as the sale of only a part of assets would be sufficient to satisfy the entire decretal amount---Validity---Partial sale would be sufficient to cover the decretal amount---High Court accepted plea raised by the judgment debtor and directed that proclamation of sale in respect of plant and machinery of the mills as well as other assets that were movable should be issued first---Separate bids for certain items of plant and machinery which were to be mentioned to the Nazir of the Court by the judgment debtor had also to be invited---In case of shortfall in the decretal amount where judgment-debtor had become unable to make up the deficiency, only then fresh order for issuance of proclamation of sale for the land and building of judgment-debtor should be made.

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

----O. XXI, R.83(3)---Execution of decree---Sale of assets---Disproportionate---Effect---Sale of assets should not be disproportionate to the object of execution proceedings, i.e., the discharge of the obligation under the decree---Judgment-debtor would be well within his right to oppose sale that was excessive, i.e., disproportionate to the amount sought to be recovered.

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

----O. XXI, R.83(3)---Execution of decree---Sale of attached property---Delivery of possession and appointment of security guard---Effect---Decree-holder sought appointment of security guards at the sugar mills (attacked property) in order to secure the fixtures/fittings, plant and machinery and other equipments---Plea raised by the decree-holder was that the judgment debtors had attempted to remove certain machineries and valuables in order to defeat the recovery of the decretal amount and the Nazir of the Court should be directed to take over possession of the mills and to prepare an inventory---Validity---High Court allowed applications filed by decree holder and directed the Nazir of the Court to take possession of the mills, prepare inventory of the machineries and to depute guards at the mills.

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

----O. XXI, R.83(3)---Execution of decree---Postponement of sale---Grant of time---Effect---Sufficient time had already been granted to the judgment debtor to raise the decretal amount---No further time could be allowed.

Salim Salam Ansari and Amir Malik for Decree Holder.

Sofia Saeed Shah for Judgment Debtors.

M. Masood Ghani for Auction Purchaser.

P L D 2010 Karachi 200

Before Amir Hani Muslim and Irfan Saadat Khan, JJ

KHURRUM GHANI---Applicant

Versus

THE STATE---Respondent

Criminal Revision No.110 of 2009, decided on 6th October, 2009.

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

----Ss. 154 & 173---Submission of two challans in one F.I.R.---No bar existed in law which could restrict the prosecution to submit two challans, if one F.I.R. disclosed distinct offences.

State v. Anwar Khattak PLD 1990 FSC 62; State v. Muhammad Younus Dalla PLD 1998 Kar. 159 and Muhammad Ashraf v. State 1995 SCMR 626 ref.

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

----Ss. 497, 499 & 513---Penal Code (XLV of 1860), Ss.409/420/468/471/109---Cheating, forgery and using as genuine a forged document---Bail, grant of---Fixation of surety amount---Object and scope---Special Court while granting bail to co-accused had fixed surety amount of rupees five lacs, but had fixed surety amount of rupees fifty lacs for accused---Validity---Purpose of fixing surety was to ensure that accused would appear in the court as and when required, but it could never be utilized to defeat the very object of the bail granted by the court---If an exorbitant surety amount was fixed while granting bail, which accused could not furnish, it would amount to refusal of bail---Grant of bail would imply transfer of custody of accused from the jail to court and would not mean acquittal from the charge for which he had to face trial---Such aspect should not lose sight of the courts while fixing surety amount---In the present case, the concept of furnishing surety had been lost sight by the special court while fixing the surety amount to the tune of rupees fifty lacs for accused, which ex facie was disproportionate to the surety amounts ordered for co-accused---Fixation of surety was not merely dependant upon the role of accused in the crime, but also on other factors as well---In the present case bail had been granted on merits, but the exorbitant surety amount had been fixed overlooking the surrounding factors, which would include fixing of surety amount for co-accused---Such distinction would not meet the ends of justice; and accordingly was set aside---Trial Court was directed to accept the surety of accused with sum of rupees five lacs as had been done in the case of co-accused---Bail was granted accordingly.

Raja Meer Muhammad for Applicant.

Shahab Sarki, Standing Counsel along with Syed Israr Ali, Deputy Director (Law), FIA., Sindh.

Shahadat Awan, Prosecutor-General, Sindh along with Muntazir Mehdi Memon, Asstt. Prosecutor-General.

Adnan Karim, A.A.G.

P L D 2010 Karachi 204

Before Muhammad Ali Mazhar, J

MOULA BUX and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.219 of 2009, decided on 8th March, 2010.

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

----Ss. 63, 65-B & 70-A---Penal Code (XLV of 1860), Ss.406, 409, 420 & 477-A---Criminal Procedure Code (V of 1898), Ss. 561-A & 249-A---Misappropriation and embezzlement of funds---Quashing of order, application for---Applicants accused who were convicted and sentenced on charges of misappropriation and embezzlement of the funds of the Society, filed application under S.249-A, Cr.P.C. for their acquittal---Said application having been dismissed, accused had filed application under S.561-A, Cr.P.C. for quashing of order of the Trial Court---Counsel for applicants had contended that Trial Court had no jurisdiction to take the cognizance in the matter against the applicants as cognizance was only possible on complaint in writing made by the Registrar of the Co-operation Society or by a person duly authorized for the purpose---Contention was repelled as under S.63 of Co-operative Societies Act, 1925, for the cognizance of offences punishable under said Act, the Act did not give general amnesty or immunity to the officers of Co-operative Societies not to be tried under any other law---Bar contained under S.70-A of Co-operative Societies Act, 1925 was only applicable to the matters in which the Provincial Government, the Registrar or his nominee, any arbitrator or liquidator, a Society, a Financing Bank, a Co-operative Bank or any other person as empowered by or under Co-operative Societies Act, 1925 or the rules or bye-laws framed thereunder to dispose of or to determine---Under S.63 or S.70-A of the Co-operative Societies Act, 1925 the officers of Co-operative Societies could be tried under the provisions of Penal Code, in case they committed any offence in discharge of their duties---Under S.65-B of Co-operative Societies Act, 1925 every officer of a Society, including a Co-operative Bank, would be deemed to be a public servant within the meaning of S.21, P.P.C.---Trial Court had rightly dismissed the application filed by the applicants for their acquittal under S.249-A, P.P.C.---Impugned order not requiring any interference, application for quashing of order was dismissed, in circumstances.?

PLD 1992 Kar. 167; 1987 PCr.LJ 344; 1989 ALD 519(2); 1990 MLD 1060; 1996 SCMR 654; PLD 1988 Lah. 802 and PLD 2007 SC 189 ref.

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

----S. 561-A---Quashing of order or criminal proceedings---Object and scope---Grounds usually available under S.561-A, Cr.P.C. for quashing criminal proceedings, were (a) jurisdictional defect; (b) patent violation of some provisions of law; (c) the allegation as contained in the complaint or F.I.R., even if believed, no case was made out and the continuation of the proceedings would amount to sheer abuse of process of the Court; (d) when an endeavour was made to enforce civil liability through the machinery of criminal court and (e) in certain cases, inordinate delay amounted to abuse of process of court---Determination of the guilt or innocence of accused depended upon the totality of facts and circumstances revealed during the trial---Exercise of power under S.561-A, Cr.P.C. by High Court at pre-trial stage, could not further the ends of justice, if undertaken to determine whether the prosecution evidence likely to come on record was true or false---Inherent jurisdiction as conferred upon High Court pursuant to the provisions as enumerated in S.561-A, Cr.P.C. was neither alternative nor additional in its character and was to be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure was available---Provisions under S.561-A, Cr.P.C. should not be used to obstruct or divert the ordinary course of criminal proceedings.?

PLD 2007 SC 189; 1986 SCMR 303 and 2005 SCMR 1544 ref.

Sikandar Khan for Applicants.

Shahid Ahmed Shaikh, Asstt. Prosecutor-General, Sindh.

P L D 2010 Karachi 213

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

Raja ABDUL HAMEED---Appellant

Versus

SHEHRI-CBE through Vice-Chairperson and 9 others---Respondents

High Court Appeal No.276 of 2009, decided on 10th March, 2010.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908). O.XXXIX, Rr.1, 2 & 4---Sindh Local Government Ordinance (XXVII of 2001), S. 192(2) & Fifth Sched. Part-II, Cl.333---Suit for declaration and permanent injunction---Residential plot---Construction of 4th & 5th floors on such Plot in violation of building plan approved for ground plus three floors---Interim order of court dated 21-10-2002 restraining finishing work of 4th and 5th floors as structure thereof was complete at time of its passing---Road on which such plot situated commercialized subsequently under Change of Land Use and Master Planning Bye Laws, 2003 as notified on 12-2-2004---Application by defendant for modification of such interim order on the ground that cost of construction was increasing day by day and in view of changed legal position, proposed construction of building was permissible on such commercialized road under law---Validity---Question before court at time of passing of such interim order was as to whether commercialization of such plot had been carried out in accordance with applicable law in vogue at relevant time---Supreme Court had approved such notification---Court could vary, modify, or even discharge injunctive order in view of change in law or circumstances---High Court modified such interim order and allowed defendant to complete 4th and 5th floors of building strictly in accordance with approved building plan and Karachi Building and Town Planning Regulations, 2002; and directed him not to create any third party right or interest or part with its possession till decision of suit, which would be subject to final adjudication of suit and without prejudice to rights and defences as might be available to parties.

Haji Amin Proprietor Messrs Datari International v. Navaid Hussain and others C.P. No.129-K of 2007 and Abrar Ahmed Khan Tareen v. Manawar 1994 SCMR 1764 ref.

Ali Asghar v. Creators Builders 2001 SCMR 279 rel.

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

----O. XXXIX, R. 4---Injunctive order, modification or change in---Powers of court---Scope stated.

Where subsequent to the passing of the injunctive order, some development takes place, new circumstances emerge, including change in law having material bearing on substantive rights and interest of parties requiring consideration, the courts do not sit with eyes closed to such change, may in appropriate cases vary, modify or even discharge the injunctive order.

Ali Asghar v. Creators Builders 2001 SCMR 279 rel.

Rehman Aziz Malik for Appellant.

Nemo for Respondents Nos. 1 to 6, 8 and 10.

Mian Khan Malik, D.A.G. for Respondent No.9.

Tufail Ahmed Dehraj for KBCA, Respondent No.6.

Shaikh Riaz Ahmed for CDGK, Respondent No.7.

Miran Muhammad Shah, A.A.-G.

P L D 2010 Karachi 218

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

ZAHID SAEED and 4 others---Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI through District Coordination Officer and 3 others---Respondents

Constitutional Petition No. D-2337 of 2007, decided on 19th January, 2010.

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

----Ss. 107, 109,112, 132, 192(2) & Sched. V, Part-11, Cl. 3---Change of Land Use and Master Planning Bye-Laws, 2003, Cls. 6-5 & 8-4---Constitution of Pakistan (1973), Art.199---Commercialization of land by changing its use---Funds generated by Provincial Government on account of such commercialization---Non-spending of 37.5% share of such funds by Provincial Government on development of concerned areas with consultation of management of its Union Councils---Constitutional petition by Nazims of various Union Councils in Karachi aggrieved with such act of Provincial Government---Validity---Sindh Local Government Ordinance, 2001 being a self-contained Code provided for entire mechanism for smooth functioning of City Government including finance, accounts and audit---Sindh Local Government Ordinance, 2001 also provided for approval of budgets and allocation of funds for development programs---Petitioners being part and parcel of City District Government and entire process of its budgeting participated in its meetings---Petitioners could seek their remedy under Sindh Local Government Ordinance, 2001 against non-observance of its provisions or rules made thereunder---Petitioners at relevant time had neither objected nor resorted to any remedy available to them under the Ordinance for redress of such grievance---Summary of statements of funds and expenditure produced by Provincial Government would show spending of huge amounts on development of areas under respective Union Councils of petitioners---As per Cl. 8-4 of Change of Land Use and Master Planning Bye-Laws, 2003, 37.5% share of funds as claimed by petitioners required to be spent after consultation with management of concerned Union Council was preferably and not compulsorily---Petitioners could not point out violation of any constitutional or statutory provisions liable to be rectified by High Court in exercise of its constitutional jurisdiction without entering into disputed facts or examining entire record or accounts of City District Government---High Court dismissed constitutional petition in limine.

Raja Qasit Nawaz and Saifuddin for Petitioners:

Manzoor Ahmed alongwith Willayat, Addl. District Officer of CDGK for Respondents.

Date of hearing: 18th November, 2009.

P L D 2010 Karachi 236

Before Mushir Alam and Aqeel Ahmed Abbasi, JJ

Mst. UMMATULLAH through Attorney---Petitioner

Versus

PROVINCE OF SINDH through Secretary Ministry of Housing and Town Planning, Karachi and 6 others---Respondents

Constitutional Petition No.D-1583 of 2008, decided on 12th April, 2010.

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

----Arts. 75(3) & 116(4)--- General Clauses Act (X of 1897), Ss.5(3) & 20-A---West Pakistan General Clauses Act (VI of 1956), Ss.2 (41), 3 & 19-A---Date of enforcement of statute---Principles---Question of prospective or retrospective effect ---Scope ---Where any statute does not set out a date on which it is to come into force, then date of enforcement is the day it received assent from the assenting authority (President in case of Central enactment and Governor in case of Provincial enactments)---Where rules, order, regulation or circular having effect of law are issued in exercise of statutory power or delegated authority under any statute, applying ordinary prudence same comes into force on the date of publication in official Gazette---Same principle is applied where any amendment , addition, modification or substitutions made in rules, order, regulation or circular made or issued under any statute---Subordinate delegated legislative instrument applies prospectively unless power to promulgate it retrospectively is specifically conferred or delegated under the statute.

Hashwani Hotel Ltd. v. Federation of Pakistan PLD 1997 SC 315; M/s. Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 and Dadabhoy Cement Industries Ltd. v. NDFC 2002 CLC 166 rel.

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

----Preamble---West Pakistan General Clauses Act (VI of 1956), Preamble---Object and scope---General Clauses Act, 1897 and West Pakistan General Clauses Act, 1956, have been enacted with an object to shorten the language used in Federal and Provincial statutes respectively passed by respective legislature---Provisions of General Clauses Acts, unless a different intention appears in any statute, are to be read as integral part of any statute.

(c) Interpretation of statutes---

----Types of statutes: There are two types of statutes one that mandates applicability of subordinate legislative instruments framed thereunder after publication in the official Gazette and other type do not specifically require publication.

(d) Notification---

----Non-publication in official Gazette---Effect---Merely issuing of notification without publication in official Gazette and keeping same in closet shrouded in secrecy is opposed to public policy and law---Such notification adds another tool of oppression in the arsenal of public functionaries, who may arbitrarily or selectively confer or impinge any privilege, benefit or right of a person at their whims and fancies for extraneous consideration.

Saghir Ahmed v. Province of Punjab PLD 2004 SC 261 and Chief Administrator Auqaf v. Anna Bibi 2008 SCMR 1717 rel.

(e) Interpretation of statutes---

----Subordinate legislation ---Enforcement---Subordinate legislative instrument comes into force on the date of publication provided the same was issued under proper authority.

(f) Interpretation of statutes---

----Preamble of a statute---Scope---Preamble is gateway to any statute; it is bedrock to understand the scope, purpose and object of any statute--- Preamble is one of the important gauges to examine vires of rules, regulations and/or bye-laws framed under delegated authority--Pre-amble is to be read with other provisions of the statute to examine intro vires or ultra vires of rules, regulations or bye-laws framed thereunder.

(g) Sindh Buildings Control Authority Ordinance (V of 1979)---

----S. 21-A---Regulations, enacting of---Powers of Authority---Provisions of S.21-A of Sindh Buildings Control Authority Ordinance, 1979, empowers (Sindh Buildings Control) `Authority' to frame Regulations within the confine and restraint of the Ordinance, indeed the power to frame Regulations under S.21-A (2) of Sindh Buildings Control Authority Ordinance, 1979, as enumerated therein are not exhaustive but illustrative ---Such delegated powers of the Authority to frame Regulations are not unfettered---Authority while framing Regulations cannot travel beyond the purview of parent statute or rules framed thereunder---Provisions of S.21-A (1) and (2) of Sindh Buildings Control Authority Ordinance, 1979, puts double fetters on the Authority to remain within prescribed bounds while exercising power to frame Regulations.

(h) Interpretation of statutes---

----Subordinate legislation---Scope---Subordinate legislative instru­ments, which include rules, regulations and bye-laws are the vehicles through which object of a statute is carried forward and implemented--In order to effectively carry out the purpose of any enactment, subordinate legislative instrument enacted under whatever nomenclature or title, must have rational correlation with object and scheme of enabling statute---Rules, regulations and bye-laws are offspring of statute and must carry gene of parent statute; meaning thereby that it must be in conformity with the object and scheme of the parent or enabling statute---Once it is shown that any rule, regulation or bye-law framed thereunder or any amendment thereto travels beyond the scope and ambit of parent statute, it loses protection of parent statute and does not withstand challenge of legitimacy in Courts of law.

(i) Interpretation of statutes---

----Subordinate legislation---Presumption---Vires of subordinate legislation---Principles---Strong presumption as to Constitutionality, legislative competence, legality, reasonableness and intro vires attached to a statute is also attracted with full force to subordinate legislative instruments as well---Such presumption though refutable, onerous, burden is cast on person challenging validity or vires of legislative instrument on any count---In order to strike down a subordinate legislative instrument, challenger has to show that any of the disqualifications exist namely: it impinges fundamental rights guaranteed under the Constitution; it is in conflict with any Constitutional provision; it is beyond the legislative competence of delegatee making it; and/or it is violative or beyond the scope of parent or enabling statute.

KBCA v Hashwani Sales and Services Ltd. PLD.1993 SC 210 and Maharashtra State Board of Secondary Education and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth AIR 1984 SC 1543 rel.

(j) Sindh Buildings Control Authority Ordinance (V of 1979)---

----S. 21-A---Karachi Building and Town Planning Regulations, 2002, Regln.25 12.2---Land Use and Master Planning Bye-Laws, 2003---Pakistan Environmental Protection Act (XXXIV of 1997), S.11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Conversion of plot from residential into commercial---Jurisdiction---Scope---Respondent installed Compressed Natural Gas Station over plot in question, which was a residential plot situated in residential area ---Permission to install the Compressed Natural Gas Station was granted by City District Government ---Validity---Merely by virtue of the fact that a plot was industrial, commercial or residential, ipso facto would not qualify for installation of Compressed Natural Gas Station---Provisions of Regln. 25-12.2 of Karachi Building and Town Planning Regulations, 2002, provided that before a person sought to install a Compressed Natural Gas Station on industrial, commercial or residential plot, he had to follow due procedure for conversion and after payment of charges, as might be prescribed by City District Government---Such conversion had to further qualify two riders under the Karachi Building and Town Planning Regulations, 2002, firstly that the conversion would be done after calling public objections and secondly with approval of Master Plan 'Group Office---High Court found the need of comprehensive rules on the designated subject to be framed on modern and scientific lines and so also in consonance with the provisions of Environmental Protection Act, 1997---Permission in favour of respondent allowing conversion of a portion of residential plot into Compressed Natural Gas Station, issued by City District Government was declared to be without lawful authority and of no legal effect---Conversion and change in land use could only be resorted to under the provisions of Land Use and Master Planning Bye-Laws, 2003, framed under Sindh Local Government Ordinance, 2001 and not under Karachi Building and Town Planning Regulations, 2002---High Court permanently restrained the respondent from establishing Compressed Natural. Gas Station over residential plot in question---Petition was allowed accordingly.

Dewan Cement v. Collector of Customs and Sales Tax 2009 SCMR 1126; Muhammad Ali v. LDA 2002 MLD 607; Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190; Cowasjee v. Multiline Associates (PLD 1993 Kar. 237 at 262-263; Muhammad Akram v. Zahid Iqbal 2008 SCMR 1715, Amjad Mirza v. Deputy Controller of Buildings PLD 1983 Kar. 579; Muhammad Ishaq v. Chief Administrator Auqaf PLD 1977 SC 639; Mushtaq Ahmed Khan v. Government of N.-W.F.P. PLD 2000 Pesh. 73; Government of Punjab v. United Sugar Mills Ltd. 2008 SCMR 1148; Zaheer Ahmed Chaudhry v. CDGK 2006 YLR 2537 and Works Cooperative Housing v. Najma Salim PLD 2000 Kar. 36 ref.

(k) Administration of justice---

----What cannot be done directly cannot be done or allowed to be dope indirectly---What is not possessed can neither be conferred nor delegated.

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

----Ss. 21-A & 40---Karachi Building and Town Planning Regulations, 2002, Regln. Chapter 18---Master plan, zoning and use of land ---Approval---Jurisdiction---Scope---Only Zila Council, in terms of S.40 of Sindh Local Government Ordinance, 2001, is competent to approve master plan, zoning, land use plan, including classification and reclassification of land, environment control, urban design, urban renewal and ecological balance---For sub-division, amalgamation and/or for change of land use, chapter 18 of Karachi Building and Town Planning Regulations, 2002, cannot be invoked, therefore, use of such power or procedure provided therein travels beyond the scope and ambit of S.21-A of Sindh Buildings Control Authority Ordinance 1979.

Badar Alam for Petitioner.

Nemo for Province of Sindh.

Manzoor Ahmed for CDGK, Respondents Nos. 2 to 4.

Tufail A. Dheraj for KBCA, Respondent No.5.

Moin Azhar Siddiqui and Shamshad Ali Qureshi for Respondents Nos.6 & 7.

Dates of hearing: 28-10-2009 and 10-3-2010.

P L D 2010 Karachi 261

Before Faisal Arab, J

MUHAMMAD NAVEED ASLAM and 3 others---Plaintiffs

Versus

Mst. AISHA SIDDIQUI and 2 others---Defendants

Suit No.1122 of 2009, decided on 26th March, 2010.

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

----S. 7---Civil Procedure Code (V of 1908), Ss.16 to 20 & 120---Bombay Act (1 of 1906), S. 2 ---Sindh Courts Act (VII of 1926), S. 8---High Court of West Pakistan (Establishment) Order (XIX of 1955), Art.5---West Pakistan Civil Courts Ordinance (II of 1962), S.7---Suits or proceedings of civil nature valued at more than three million rupees pertaining to any part of four Districts of Karachi---Original civil jurisdiction of Sindh High Court at Karachi to entertain such suits or proceedings---Scope---Such jurisdiction conferred on High Court under S.7 of West Pakistan Civil Courts Ordinance, 1962 was limited only for territorial limits of four Districts of Karachi and no other territory would come within its ambit---Provisions of Ss. 18 & 19, C.P.C., but not provisions of Ss. 16, 17, & 20 thereof would apply to such suits and proceedings entertained by High Court at Karachi---Place of suing for other suits not falling within ambit of such jurisdiction would be determined under Ss.16 to 20, C.P.C.---Such suits or proceedings, though valued at more than three million rupees and filed in High Court at Karachi, but not related to any part of four Districts of Karachi, would be returned to plaintiff for its presentation before a Court of competent jurisdiction---History of such jurisdiction and reasons for applicability and non-applicability of provisions of Ss.16 to 20, C.P.C. stated.

West Pakistan Industrial Development Corporation v. Messer Fateh Textile Mills Ltd. PLD 1964 Kar 11; Haji Razak v. Usman PLD 1975 Kar. 944; Mian akbar Hussain v. Mst. Aishabai PLD 1991 SC 985; Messrs Muslim Commercial Bank Ltd. v. Messrs Nisar Rice Mills. Lahore 1993 CLC 1627; Haji Abdul Malik v. Muhammad Anwar Khan 2003 SCMR 990; Murlidhar P. Gangwani v. Engineer Aftab Islam Agha (2005 MLD 1506; PLD 1969 Kar. 646; PLD 1987 SC 145; PLD 1987 Kar. 535; PLD 1996 Lah. 528; PLD 1983 SC 46; 2009 MLD 1311, 2006 SCMR 1262; 2003 YLR 42; PLD 1961 Kar. 565; PLD 1964 Kar. 11; 1991 SCMR 920; PLD 1991 SC 985; 1993 CLC 1627; 2003 SCMR 990; 2005 MLD 1506; PLD 1958 SC 437; 1995 MLD 283; 2005 CLC 931; 1993 SCMR 2330; Sh. Muhammad Amin & Co v. PIDC 1991 CLC 684, Agricides (Pvi.) Limited v. Ali K. Agro S. Corporation Limited 1988 CLC 59; Fauji Foundation and others v. Yousuf 1985 CLC Kar. 2799; Ittehad Cargo Services v. Rafaqat Ali PLD 2002 Kar. 420; West Pakistan Industrial Development Corporation v. M/s. Shaikh Mohammad Amin & Company 1992 CLC 2047; Dr. Muhammad Shabbir Khan v. M/s. Abu Dhabi Petroleum Company Limited PLD 1975 Kar.. 138, Hamidullah Khan and another v. Ch. Muhammad Jameel and others 2003 SCMR 995; Chaudhry Nazir Ahmed Asad v. Institute of Chartered Accountant 2004 YLR 2471, Wajid Hussian Farugi v. Shahida Shahnawaz 2007 CLC 394, Abdul Kadir v. Ashraf Ali Khan 1982 CLC 110.; Munawar Ali Khan v. Marfani and Company limited PLD 2003 Kar. 382; Mazhar Valjee v. Sher Afghan Khan Niazi 2004 YLR 2525, Abdul Majid v. Government of Pakistan 1988 CLC Kar. 2454, Aziz Bibi v. Aijaz Ali 2007 YLR 21, Gulfam & others v. Bibi Qudsia Begum 2003 CLC 1183 and Master Mehboob Ali Soomro v. Sindh Road Transport Corporation 1999 CLC 1722 ref.

Firdous Trading Corporation v. Japan Cotton & General Trading Co. PLD 1961 Kar. 565 and Province of Sindh v. Haji Razak PLD 1991 SCMR 985 rel.

Khawaja Shamsul Islam for Plaintiffs.

Kamal Azfar with Osman Hadi, D.M. Lohani and Zayyad Khan Abbasi for Defendant No.1.

Nafees Ahmed Usmani, A.A.G. for Defendants Nos. 2 to 12.

Nemo for Defendants Nos.13 to 15.

Dates of hearing: 10th, 14th, 15th, 22nd, 24th December, 2009; 19th 20th and 28th January, 2010.

P L D 2010 Karachi 274

Before Ms. Rukhsana Ahmad, J

DIGITAL WORLD PAKISTAN (PVT.) LTD. through Chief Executive ---Plaintiff

Versus

SAMSUNG GULF ELECTRONICS FZE through Managing Director/Chief Executive

Officer and another---Defendants

Suit No.1785 and C.M.A. No.11382 of 2009, decided on 29th April, 2010.

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

----Ss.16, 17, 20 & 120---Provisions contained in Ss.16, 17 & 20, C.P.C., would not apply to High Court in exercise of its original civil jurisdiction---Principles.

Abdur Rahim Baig v. Abdul Haq Lashari PLD 1994 Kar.388 and West Pakistan Industrial Development Corporation v. Sheikh Muhammad Amin 1992 CLC 2047 rel.

(b) Jurisdiction---

----Parties by mutual agreement could not invest or divest a court of its jurisdiction.

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

----Ss.16, 17 & 20---Territorial jurisdiction of civil court in civil suits, determination of---Test.

The court in whose jurisdiction the cause of action has arisen has jurisdiction to entertain suit, irrespective of the residence of defendant. Where a party suffered some injury on account of some act of omission or commission relatable to the contract inter se, then the cause of action will be considered to have accrued at such place and the court at such place will always have jurisdiction. Where two Courts may have jurisdiction in respect of the same claim, then it is the prerogative of the plaintiff that weighs more in determining the place of suing.

(d) Jurisdiction---

----Averments made in plaint would be considered true and accepted for purposes of assumption and determination of jurisdiction of court.

For purposes of assumption and determination of jurisdiction of court, averments made in plaint are to be considered true and accepted.

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

----Ss.16, 17, 20 & O.I, R.10(2)---Defendant, if a necessary party to suit, would not be deleted from array of parties on ground of being non-residing or non-carrying on business within jurisdiction of court.

Ittehad Cargo Services v. Rafaqat Ali PLD 2002 Kar.420, Popular Pharmacy v. Nova Bio Medical PLD 1996 Kar.411 and Pak China Chemicals v. Dept. of Plant Protection 2006 CLD 210 rel.

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

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.151, O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Joint venture agreement for assembling electronic home appliances under brand name of "Samsung" and its distribution in Pakistan by plaintiff under licence of defendant---Plaintiff claiming to be exclusive assembler/distributor of Samsung brand products in Pakistan under such agreement, and defendant could neither cancel same nor appoint any other person as an importer / manufacturer / assembler / distributor for such brand---Application under O.XXXIX, Rr.1 & 2 read with S.151, C.P.C., by plaintiff to restrain defendant from doing any act in violation of such Agreement---Defendant's plea that for last six years, no business between parties was transacted---Validity---Plaintiff had installed factory worth Rs.360 million, wherein 350 skilled workers were employed---Record showed that plaintiff from year, 2000 till to-date had purchased parts worth US$ 93 million from defendant---Both parties had agreed to contribute towards development of brand Samsung and its infrastructure in Pakistan for which plaintiff had invested US$ 7 million---Plaintiff had signed dealership contracts with 650 dealers on behalf of joint venture---Plaintiff by investing millions of dollars had established 46 Samsung plazas as exclusive Samsung retail outlets---Plaintiff had invested hugely in purchase of expensive moulds and state of art technology---Plaintiff had taken loan of Rs.106 billion for joint venture---Plaintiff's receivable from market were Rs.356 million---Plaintiff had been brought under great risk in view of sizeable stocks of Rs.1.2 billion---Plaintiff had taken over stocks of previous distributors of defendant---Plaintiff's plea was that damages were inadequate remedy to such case and remedy of filing of present suit was proper---Defendant had not denied business relationship with plaintiff as a duly appointed distributor---Such joint venture was revocable under clause of such agreement and not otherwise---Such joint venture relationship could not be said to be a mere license terminable at will and if same was treated as agency, then same was an agency coupled with an interest---Plaintiff had established a prima facie case---Termination of such working relationship by defendant, if allowed at such stage, would cause irreparable loss and injury to plaintiff---Balance of convenience lay in favour of plaintiff---High Court granted interim injunction till disposal of the suit.

2006 CLD 210 (Lahore); PLD 2002 Kar.420; 1999 YLR 2162; PLD 1996 Kar.411; PLD 1994 Kar.388; 1992 CLC 2047; 1990 CLC 609; PLD 1982 Lah.49; (1973)1 All ER 992; 1996 CLC 507; 1992 CLC 2540; PLD 1983 Kar.387; 1997 SCMR 220; 2003 CLC 695; 1994 CLC 1601; PLD 1990 Kar.1; 1983 CLC 1695; 2006 CLC 430; 1997 MLD 1294; 1993 SCMR 183; PLD 1981 Kar.170; 2004 CLD 343; 2005 CLC 1602; 2002 MLD 1714; 1994 CLC 726; PLD 1987 Kar.112; 1980 SCMR 588; 2004 CLC 1029; 2003 CLC 649; PLD 1968 Kar.222; PLD 1996 Kar.393; PLD 1993 Kar.700; 1998 MLD 1879; Martin Baker Aircraft Co. Ltd. v. Canadian Flight Equipment Ltd. (1955) (2) All E.R. 722; 1997 CLC 1903; PLD 2007 Kar.278; PLD 1965 SC 83; PLD 1961 SC 17; PLD 1975 SC 667; PLD 1958 SC 41; 2003 SCMR 50; PLD 1978 Kar.1041; PLD 2004 SC 860; 2002 AC 114; PLD 1966 Lah.195; PLD 2002 Kar.83; 1992 CLC 2209 and Pakistan Automobile Corporation Ltd. v. General Motors Overseas Distribution Corporation PLD 1982 Kar.796 at 807-809 ref.

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

----O. XXXIX, Rr.1 & 2---Observations of court while granting interim injunction---Validity---Such observations would be tentative in nature and would not come in way of either party at time of trial or final decision of suit.

(h) Administration of justice---

----Each case is to be adjudged on its own facts, merits and strength.

Business Computing International v. IBM World Trade Corporation 1997 CLC 1903 rel.

Makhdoom Ali Khan for the Plaintiff.

Mansoor-ul-Arfin along with Muhammad Shafi Siddiqui for the Defendants.

Dates of hearings: 24th, 25th February, 2010, 3rd, 4th and 17th March, 2010.

P L D 2010 Karachi 291

Before Abdul Hadi Khosa, J

ZEERAN GUL alias ZAREEN GUL---Appellant/Applicant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.144 of 2008 and M.A. No.1545 of 2010, decided on 19th May, 2010.

Penal Code (XLV of 1860)---

----Ss. 320, 331, 337-G & 249---Qatl-e-Khata by rash or negligent driving---Payment of Diyat---Accused while driving the water tanker, committed accident and killed two persons---Accused was convicted and sentenced to undergo R.I. for 3 years and to pay Diyat amount---Report submitted by the Superintendent Central Prison had shown that accused had undergone the sentence for total 3 years, six months and 11 days including remission---Accused had shown his inability stating that he had no means to pay the Diyat by remaining in jail; and that no other relative or friend of him was financially sound to help him in that regard---Accused had further stated that if he was released on bail, he would be able to earn and make arrangements for payment of Diyat amount to the legal heirs of deceased, otherwise he would remain his whole life in jail---Application of accused was converted to bail application under S.331(2), P.P.C. and granted bail for 5 years on furnishing surety amount equivalent to Diyat amount of both deceased and on condition that accused would earn and arrange for payment of Diyat amount to the legal heirs of deceased in instalments within 5 years, otherwise he would be again taken in custody and put into jail.

Abid Hussain v. Chairman, Pakistan Baitul Maal and others PLD 2002 Lah. 482; Qadeeer Mohy-ud-Din v. The State 2005 YLR 803; Muhammad Afzal v. The State 1994 PCr.LJ 934; Reham Ali v. The State 2002 page 407 and 2003 SCMR 1850 ref.

Applicant in person.

Zahoor Shah, A.P.G.

P L D 2010 Karachi 295

Before Faisal Arab, J

MUHAMMAD RAFIQUE---Plaintiff

Versus

Dr. QADIR ALI KHAN and another---Defendants

Suit No.457 of 2004, decided on 6th May, 2010.

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

----S. 12---Specific performance of agreement to sell---Availability of money with buyer---Willingness to complete the agreement---Pre­condition---Where there is clear refusal on the part of seller to complete sale transaction, then there is no occasion for buyer to show that he has cash available with him to purchase the property---Test of being ready and willingness is to be judged only when purchaser calls upon the seller to complete transaction and buyer avoids or refuses to come forward and completes the sale transaction.

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

----S. S5---Fixing of time as essence of contract---Principle---Where there is failure on the part of buyer to complete transaction and time is also not made essence of contract then it is for the seller to make time essence of contract by fixing reasonable time for performance of contract, whereafter if buyer fails to complete the transaction, the contract comes to an end.

PLD 1962 SC 1 ref.

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

----S. 12---Specific performance of agreement to sell---Rescission of agreement---Plaintiff filed suit before expiry of time fixed for completing the transaction as the defendant refused to sell the suit property and sought cancellation of sale agreement---Validity---Contract could come to an end without notice where buyer himself had refused to complete the transaction---Notice for termination of contract was dispatched to plaintiff four days after expiry of contract period without granting any time to plaintiff to complete the transaction---Neither the suit was filed prematurely nor there was failure on the part of plaintiff to complete the sale transaction, on the contrary it was the defendant who prior to expiry of date of agreement had second thought on account of family pressure and refused to perform his part of obligation---High Court directed the defendant to transfer the suit property in the name of plaintiff---Suit was decreed in circumstances.

PLD 1959 Kar. 629; 2007 YLR 1027; 1999 MLD 3345; 2004 MLD 1033; AIR 1930 Pat. 121; PLD 1986 SC 497; 2005 YLR 1905 and AIR 1927 Pat. 121 ref.

Neel Keshav for Plaintiff.

Fazl-e-Ghani for Defendant No.1.

Defendant No. 2 Ex parte.

Date of hearing; 6th May, 2010.

P L D 2010 Karachi 300

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

SALMAN ANSARI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Islamabad---Respondent

Constitutional Petition No.D-1375 of 2010, decided on 28th May, 2010.

Constitution of Pakistan (1973)---

----Arts. 197 & 199---Constitutional petition---Appointment of judges---Notification, legality of---Petitioner was first appointed as Additional Judge of High Court on 15-9-2007 and continued till 3-11-2007 and was again notified to be an Additional Judge of High Court while his period as Additional Judge of High Court was extended for six months by notification dated 15-9-2008---Petitioner was appointed as permanent Judge of High Court vide notification dated 17-3-2009 but on the basis of judgment passed by Supreme Court he ceased to be the Judge of High Court---Validity---Notification dated 15-9-2008 was without lawful authority and therefore, of no legal effect and the same was the position of notification dated 17-3-2009 which was also without lawful authority---Such was the natural, logical and clearly spelt out effect of judgment passed by Supreme Court, therefore, contention of petitioner that notification dated 2-8-2009 was without lawful authority and of no legal effect was without any substance because notification merely performed an administrative chore which executive was duty bound to perform in terms of the judgment passed by Supreme Court---Petitioner was never a permanent Judge of High Court, he was appointed as Additional Judge vide notification dated 15-9-2007---Petitioner took oath on 17-9-2007 and his tenure as Additional Judge came to an end on 16-9-2008, and after that date petitioner had never been a Judge or Additional Judge of High Court---Petition was dismissed in circumstances.

Sindh High Court Bar Association through Secretary and another v. Federation of Pakistan through Secretary, Ministry of law, Justice and Human Rights Division, Islamabad and others PLD 2009 SC 879 fol.

Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice, Human Rights and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Sindh High Court Bar Association through Honorary Secretary v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 4 others PLD 2009 Kar. 408 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary, Law, Justice and Human Rights and others PLD 2010 SC 61 rel.

Abrar Hasan for Petitioner.

P L D 2010 Karachi 309

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

EIJAZ AHMED SHAH---Petitioner

Versus

FEDERATION OF PAKISTAN through Federal Establishment Secretary, Cabinet secretariat Establishment Division, Government of Pakistan, Islamabad and 6 others---Respondents

Constitutional Petition No.D-976 of 2005, decided on 26th April, 2010.

(a) Pakistan Engineering Council Act, 1975 (V of 1976)---

---S. 10 & First Sched.---Engineering qualification, recognition of---Amendment of First Schedule to Pakistan Engineering Council Act, 1976---Pakistan Engineering Council---Powers---Pakistan Engineering Council has been conferred with power under S. 10 of Pakistan Engineering Council Act, 1976, to grant recognition to various qualifications---Once it recognizes a qualification, law confers power on Pakistan Engineering Council of amending First Schedule accordingly---It is the exclusive domain of Pakistan Engineering Council to recognize or not to recognize a particular qualification---Pakistan Engineering Council being apex body of engineering profession in Pakistan, has jurisdiction to recognize degrees issued by various educational institutions in Pakistan as well as abroad.

(b) Pakistan Engineering Council Act, 1975 (V of 1976)---

----S. 10---Engineering qualification, recognition of---Criteria---For recognition of engineering degrees, Pakistan Engineering Council must consider standards of education of a particular institution, contents of the courses, horizontal spread and vertical depth of the courses and whether standard and contents of curriculum of training tests contained for two different degrees are similar or identical and other cognate factors before arriving at the conclusion whether particular educational qualification should be or should not be recognized.

(c) Pakistan Engineering Council Act, 1975 (V of 1976)---

----S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Engineering qualification, recognition of---Substituting finding of a professional body---Scope---High Court cannot substitute its finding for finding by a professional body which has been conferred jurisdiction to grant recognition or not to grant recognition to a particular educational qualification.

(d) Pakistan Engineering Council Act, 1975 (V of 1976)---

----S. 10---Sindh Councils Unified Grades Service Rules, 1982, R. 14---Constitution of Pakistan (1973), Arts.25 & 199---Constitutional petition---Engineering qualification---Degrees of B.E./B.Sc (Engineering) and B. Tech (Hons)---Distinction---Petitioner was engineer having degree of B. Tech (Hons) and his grievance was that his degree should be treated at par with the degree of B.E./B.Sc. (Engineering)---Validity---There were two streams of students; one who had gone for B.E./B.Sc. (Engineering) degree and the other who went for B. Tech (Hons)---Both types of students came through different courses---In one case after passing F.Sc or A level examination students had undergone four years degree programme in the university whose qualification was recognized by Pakistan Engineering Council in the second case students started studying for diploma after matriculation and then after completion of three years diploma and following certain regime they ultimately had acquired B. Tech (Hons)---Not only system was different but fact was that university granted two separate degrees which indicated that horizontal spread and vertical depth of courses were different---Petitioner did not place on record any material to suggest that horizontal spread and vertical depth of two courses of study was the same---As such the same required expert professional opinion and evaluation and universities as well as apex engineering professional body i.e. Pakistan Engineering Council were much better placed in such regard---High Court declined to substitute its findings for conclusion arrived at by the authorities which possessed appropriate technical, academic and professional qualification and had been conferred specific power by law to decide the matters in such regard---Diploma engineers could not be recognized as a professional engineers who held recognized professional engineering qualification, prescription of separate quota in Sindh Councils Unified Grades Rules, 1982, was not violative by provisions of Sindh Local Government Ordinance, 1979 as such the same did not constitute discrimination or violation of Art. 25 of the Constitution---Petition was dismissed in circumstances.

Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another PLD 1995 SC 701; Administrator, Municipal Corporation v. Muhammad Arshad and others 2003 SCMR 813; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Pakistan Diploma Engineers Federation (Registered) through its Chairman v. Federation of Pakistan through Secretary, Ministry of Water and Power, Government of Pakistan, Islamabad and 9 others 1994 SCMR 1807; Muhammad Azim Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railway and 33 others 1992 PLC (C.S.) 637 and LA., Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 ref.

Muhammad Younus Aarin v. Province of Sindh through Chief Secretary Sindh Karachi and 10 others 2007 SCMR 134 rel.

A.D. Shah for Petitioner.

Adnan Karim, A.A.-G for Respondents Nos. 3 to 6.

Date of hearing: 25th March, 2010.

P L D 2010 Karachi 328

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

INDUSTRIAL RELATIONS ADVISORS' ASSOCIATION through General Secretary---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Labour and Manpower, Islamabad and others---Respondents

Constitutional Petition No.D-1432 of 2010, decided on 18th June, 2010.

(a) Interpretation of statutes---

----Sunset legislation---Meaning---Sunset legislation requires periodic review of the rationale for continued existence of the particular law or the specific administrative agency or other governmental function---Legislature must take positive steps to allow the law, agency, or functions to continue in existence by a certain date or such will cease to exist.

Black's Law Dictionary; Craies on Statutes Law 7th Edn. and Crawford's Interpretation of Laws, p.103 ref.

(b) Interpretation of statutes---

----Temporary legislation---Law may be temporary because of nature of legislative power---Principles.

A law may be temporary because of nature of Legislative power. For example power to legislate through Ordinances is quasi legislative power: power is legislative but exercise is executive. The Constitution itself fixes life of such enactment.

Understanding Statutes by S. M. Zafar ref.

(c) Industrial Relations Act (IV of 2008)---

----Preamble & S.87(3)---Section 87(3) of Industrial Relations Act, 2008 had clearly stipulated a death knell moment for the Act, notwithstanding the same having been enacted as an Act of Parliament, said Act had to be treated as a temporary law and had to be given effect accordingly.

There may be Acts of Parliament which may be temporary because either the Act itself or any law provides for a terminal moment for the enactment. Since section 87(3) of the Act clearly stipulated a death knell moment for the Act, notwithstanding same having been enacted as an Act of Parliament it has to be treated as a temporary law and has to be given effect accordingly.

Commissioner of Income Tax, Karachi v. Ebrahim D. Ahmad and others 1992 PTD 1353; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another 1995 SC 66; Federation of Pakistan and others v. Muhammad Nawaz Khokahr and others PLD 2000 SC 26; State v. Muhammad Sharif PLD 1960 Lah. 236; Sargodha Bhera Bus Service Ltd. and others v. Province of West Pakistan and another PLD 1959 SC 127; Gooderham and Worts, Ltd. v. Canadian Broadcasting Corporation AIR 1949 PC 90; State of Orrisa v. Bhupendra Kumar Bose and others AIR 1962 SC 945; Qudrat Ullah v. Municipal Board, Bareilly AIR 1974 SC 396; Ameer-un-Nissa Begum and others v. Mehboob Begum and others AIR 1955 SC 352; Hansraj Moolji v. State of Bombay AIR 1957 SC 597; Abdul Ghani and another v. Province of Balochistan and 2 others PLD 1982 Quetta 63 and Muhammad Arif and another v. State and another 1993 SCMR 1989 ref.

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

----S. 6---Scope and application of S.6, General Clauses Act, 1897--Where an Act expires by its own force rather than by being repealed by another piece of legislation, S.6, General Clauses Act, 1897 was not applicable.

Muhammad Arif and another v. State and another 1993 SCMR 1989 and Muhammad Nawaz Khokhar and others PLD 2000 SC 26 ref.

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

----Art. 264---Scope and application of Art.264 of the Constitution---Where an Act expires by its own force rather than by being repealed by another piece of legislation, case of such a repeal was not under or by virtue of the Constitution---Article 264 of the Constitution therefore, was not applicable to the consequences of such repeal.

(f) Industrial Relations Act (IV of 2008)---

----Preamble & S.87(3)---Constitution of Pakistan (1973), Art.264---General Clauses Act (X of 1897), S.6---Industrial Relations Act, 2008 was a temporary law; it expired of its own force (S.87(3)) on 30-4-2010, it was to be presumed as if it never existed, except for transactions past and closed; neither S.6, General Clauses Act, 1897 nor Article 264 of the Constitution were applicable and for all legal purposes, except for transaction past and closed, the law returned to the position to which it would have been had the Act never been enacted.

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

----Arts. 97 & 137---Extent of executive authority of Federation and Provinces---Parliament and Provincial Assemblies have power to legislate, Federation and Provinces have the executive authority---Legislative power and executive power co-exist.

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

----Art.270-AA(8) [as substituted by the Constitution (Eighteenth Amendment) Act (X of 2010)]---Industrial Relations Act, (IV of 2008), S.87(3)---Repeal and savings---Section 87(3) of Industrial Relations Act, 2008 related to legislative power and had no relationship with devolution of executive authority---Article 270-AA(8) of the Constitution therefore, had, no applicability in respect of S.87(3) of Industrial Relations Act, 2008.

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

----Art. 270-AA(6) [as substituted by the Constitution (Eighteenth Amendment) Act (X of 2010)J---Object and purpose of Art.270-AA(6) of the Constitution---Had there been no Art. 270-AA(6) of the Constitution on 19-4-2010 (date of enforcement of substituted Art.270-AA(6) of the Constitution) all laws made by the Parliament in respect of items enumerated in the Concurrent Legislative List would have come to an end, such was the mischief which was sought to be cured by Art.270-AA(6) of the Constitution---Article 270-AA(6) of the Constitution starts with the words "notwithstanding omission of Concurrent Legislative List"; word notwithstanding' meansdespite' or in spite of' a non obstante clause was used in a provision to indicate that the provision shall prevail despite anything to the contrary in any provision and the same operated so as to set aside as no longer valid anything contained in the relevant existing provision which was inconsistent with what followed the wordnotwithstanding'.

M. Durab Yousuf Qureshi v. Punjab Labour Appellate Tribunal and another PLD 1979 Lah. 406 and M. Tayab Khan v. Punjab Labour Appellate Tribunal Lahore and another 1979 PLD 377 ref.

(j) Interpretation of statutes---

----Non obstante clause---Object and purpose---Non obstante clause was used in a provision to indicate that the provision shall prevail despite anything to the contrary in any provision and the same operated so as to set aside as no longer valid anything contained in the relevant existing provision which was inconsistent with what followed the word `notwithstanding'.

M. Durab Yousuf Qureshi v. Punjab Labour Appellate Tribunal and another PLD 1979 Lah. 406 and M. Tayab Khan v. Punjab Labour Appellate Tribunal Lahore and another 1979 PLD 377 ref.

(k) Industrial Relations Act (IV of 2008)---

----Preamble & S.87(3)---Constitution of Pakistan (1973), Art.270AA(6) [as substituted by Constitution (Eighteenth Amendment) Act (X of 2010)]---Repeal and savings---Article 270AA of the Constitution (as substituted by Constitution (Eighteenth Amendment) Act, 2010) on the date of enforcement of the Amending Act (19-4-2010) protected Industrial Relations Act, 2008 including its S.87(3) (repeal and savings) and on 30-4-2010, S.87(3) of the Act did what it was stated to be its purpose i.e. it repealed the Industrial Relations Act, 2008---Such was the intent of Art.270-AA(6) of the Constitution and therefore on 30-4-2010 Industrial Relations Act, 2008 stood repealed in view of its provisions contained in its own S.87(3).

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

----Art.270-AA(6) [as substituted by Constitution (Eighteenth Amendment) Act (X of 2010)J---Deletion of Concurrent Legislative List front the Constitution---Effect---Such deletion has transferred legislative authority from Federal Government to Provincial Government; Art.270-AA(6) of the Constitution was aimed at avoiding a consequence of such a transfer which could be that a law made by the Parliament on (now) Provincial Subject shall continue till the competent authority amended, repealed or altered the same.

(m) Industrial Relations Act (IV of 2008)---

----S. 87(3)---Constitution of Pakistan (1973), Art.17---Freedom of Association---Vires of S.87(3) of the Industrial Relations Act, 2008---Section 87(3) of Industrial Relations Act, 2008 which had repealed the Act was not ultra vires of Art.17 of the Constitution---Principles.

Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781 and Nisar Ahmed and others v. Federation of Pakistan 1999 SCMR 1338 ref.

(n) Interpretation of Constitution---

---Legislative List---Construction---Scope---Legislative List must be most widely constructed.

(o) Industrial Relations Act (IV of 2008)---

----Preamble & S.87(3)---Industrial Relations Ordinance (XXII of 1969), Preamble---Constitution of Pakistan (1973), Art.270-AA(1) [as inserted by Constitution (Seventeenth Amendment) Act (III of 2003)]--Industrial Relations Act, 2008 having ceased to exist on 30-4-2010, Industrial Relations Ordinance, 1969 again came into force and shall continue unless alternated, repealed or amended by the competent authority---Held, Industrial Relations Act, 2008 stood repealed on 30-4-2010 by force of its S.87(3) and with effect from that date, Industrial Relations Ordinance, 1969 came back into operation---Principles.

Chaudhry Muhammad Ashraf Khan for Petitioners.

Ashiq Raza, D.A.-G. and Sarwar Khan, A.A.-G. for Respondents.

Khalid Anwar, Munir A. Malik, Rashid A. Razvi, Khalid Javed Khan as Amici curiae. S. M. Yaqoob, Mahmood Abdul Ghani and Khalid Imran also assisted the Court.

Dates of hearing: 17th, 20th 24th, 27th 28th and 31st May, 2010.

P L D 2010 Karachi 361

Before Munib Akhtar, J

ALI HASSAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-170 of 2010, decided on 18th May, 2010.

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

----S. 54---Control of Narcotic Substances Act (XXV of 1997), S.22(b)---Constitution of Pakistan (1973), Art.9---Arrest without warrant---Any search or detention of a person, was an interference with his liberty and unless done strictly in accordance with law, would be a grave violation of Art.9 of the Constitution which was one of the most important and indeed the very first of the fundamental rights granted by the Constitution---Neither S.54, Cr.P.C. nor the equivalent provision under S.22 of Control of Narcotic Substances Act, 1997, left the matter of search, detention or arrest of a person to the subjective satisfaction of the Police---Test was objective and there must be clear reasons and reasonable grounds for suspecting that a specific offence had been committed before the Police could take recourse to any of the said provisions of law---First clause of S.54, Cr.P.C. required either a "reasonable complaint" or some "credible information" or "reasonable suspicion" that the person concerned had been involved in a cognizable offence---Section 22(b) of Control of Narcotic Substances Act, 1997, allowed the Police to detain and search a person only if the Police had "reason to believe" that he had committed an offence under the said Act---Mere fact that a person turned away on seeing a Police party in order to avoid any contact with them, would not give the Police ground for having any "reasonable suspicion" that he had committed a cognizable. offence or "reason to believe" that he had committed an offence under the Control of Narcotic Substances Act, 1997---In the present case, prima facie, the action of the Police in stopping, searching, detaining and arresting the person concerned, was completely unlawful and all subsequent events following thereon, were also unlawful.

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

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(a)---Possession of narcotic---Bail, grant of---F.I.R. did not indicate as to whether 100 grams of charas was taken from one piece or from each of the three pieces allegedly recovered from the accused---Accused, in circumstance should be regarded as being in possession of only 100 grants, which would take the matter within the ambit of S.9(a) of Control of Narcotic Substances Act, 1997---F.I.R. itself revealed that the Police party had stopped and searched the passing vehicles, no serious attempt had been made to join private persons as Mashirs in the matter---Police Officials though in appropriate circumstances, could serve as Mashirs, however, it was to be expected that in the first instance a proper and serious attempt would be made in each case to associate private and independent persons with any search and detention matter, as that would ensure transparency and serve to establish confidence in the public about the conduct of the Police---No Proper explanation was forthcoming from the record as to how the local Police party had weighed the substance when the admitted position was °hat their investigation kit did not normally had such equipment---Accused was, admitted to bail, in circumstances.

Abdul Wahid v. The State 2009 MLD 1151 and Qutbuddin v. The State 2009 PCr.LJ 1340 ref.

Ghulam Murtaza Korai for Applicant.

Sardar Ali Shah, Assistant Prosecutor General for the State.

P L D 2010 Karachi 366

Before: Faisal Arab, J

Mst. SHAHANA ALI---Applicant

Versus

Syed MUHAMMAD HARIS JAFFARI and 3 others---Respondents

J.M. No.1 of 2010, J.M. No.49 of 2009 in Suit No.103 of 2009, decided on 27th May, 2010.

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

----S. 12(2)---Intent and object of S.12(2), C.P.C.---Application under S.12(2), C.P.C.---Applicant's right to subject-matter of dispute---Proof---Such application would not proceed as. a regular suit---Court while deciding such application would see whether impugned judgment/order/decree had been passed at applicant's back and had taken away or infringed his rights to contest plaintiff's claim---Before acceptance of his application and his joining as party to suit, neither applicant would be bound to establish in absolute terms his entitlement in subject-matter in dispute nor could he contest plaintiff's claim thereto---Only after acceptance of application and revival of suit, respective rights and entitlements of parties in subject-matter in dispute would be determined---Principles.

While deciding application under section 12(2) of the Civil Procedure Code, the Court has to see whether the impugned order, judgment or decree has been passed at the back of the application without notice to him and the right that the applicant asserts in the subject-matter of dispute is legally enforceable right and has not become barred by time. In other words, had the suit been pending and the applicant had applied to be joined as a party in the suit, the Court would have considered him to be a necessary party. Thus, the Court has to first see that the impugned order, judgment or decree passed in a suit at the back of an applicant has taken away applicant's right to contest the claim of the plaintiff. If a person's rights are being infringed in proceedings in which he was either not made a party or even if was made a party was not fully served with the summons and therefore was not given the opportunity of being heard with regard to his claim in the subject-matter of dispute. Once the applicant establishes this, it is sufficient enough reason to grant him the relief provided under section 12(2) of the Civil Procedure Code. The applicant does not have to first establish in absolute terms his entitlement in the subject-matter of dispute before his application under section 12(2) of the Civil Procedure Code could be allowed. Burdening the applicant to such an extent would amount to converting an application filed under section 12(2) of the Civil Procedure Code into a regular suit. There cannot be a regular trial at the stage of deciding the application filed under section 12(2) of the Civil Procedure Code. It is only when the application under section 12(2) of the Civil Procedure Code is allowed and the order, judgment or decree is set aside and the applicant is joined as a party to the suit, then he would be required to contest the claim of the plaintiff and establish his entitlement in the subject-matter of dispute. Thus, only after the application under section 12(2) of the Civil Procedure Code is allowed and the suit is revived, then the respective rights and entitlements of the parties in the subject-matter of dispute would be determined. If the applicant is called upon to first establish his claim in absolute terms before his application under section 12(2) of the Civil Procedure Code could be granted, then this would also be contrary to the very object for which remedy under section 12(2) of the Civil Procedure Code was devised. This was not the intent and object of the legislature when it incorporated section 12 (2) in the Civil Procedure Code. The remedy under section 12 (2) of the Civil Procedure Code was provided to prevent an aggrieved party to file a regular suit for getting a decree, judgment or order set aside that was obtained by playing fraud and misrepresentation as was the case prior to the incorporation of section 12(2) in the Civil Procedure Code. Hence, application under section 12(2) of the Civil Procedure Code cannot be allowed to proceed as a regular suit as it would give undue advantage to a person, who on account of his own fraud or misrepresentation had obtained an order, judgment or decree and enjoying its fruits. It would also amount to have two full trials with regard to same controversy i.e. one at the stage of deciding application under section 12 (2) of the Civil Procedure Code, and the other when the application is allowed and the suit is decided afresh.?

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

----S. 12(2)---Decree passed at applicant's back modified subsequently---Application under S.12(2), Cr.P.C., for setting aside original decree without challenging modified decree---Maintainability---If applicant established that no effectual decree could have been passed in his absence, then all modifications to original decree would also stand annulled---Principles.?

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

----S. 12(2)---Application under S.12(2), Cr.P.C., acceptance of---Fall out effect---Parties would be relegated to same position where they were before passing impugned order/judgment/decree---Principles.

When an application under section 12(2) of the Civil Procedure Code is granted and decree is set aside, then every change that had taken place pursuant to such decree also stand nullified. On the basis of such decree if title in favour of any person was created, then it also falls to the ground, the moment the decree is set aside. Therefore, while allowing the application filed under section 12(2) of the Civil Procedure Code, Court would not only be setting aside an order, judgment or decree, but at the same time would also be nullifying every change that has taken place on account of such order, judgment or decree. A party may have got the order, judgment or decree executed in his favour from the Court which order, judgment or decree is subsequently set aside under the provisions of section 12(2) of the Civil Procedure Code. In such eventuality, the parties have to be relegated to the position where they were before such order, judgment or decree was passed. This is logical consequence of grant of application under section 12(2) of the Civil Procedure Code. In other words, it is nothing but the fall out effect of nullifying the order, judgment or decree under the provisions of section 12(2) of the Civil Procedure Code.?

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

----S. 12---Civil Procedure Code (V of 1908), S.12(2) & O.XXI, R.34---Suit for specific performance of sale agreement---Passing of consent decree and its subsequent modification and execution of sale-deed in favour of plaintiff and delivery of possession of suit-land to him in pursuant thereto---Application under S.12(2), C.P.C., for setting aside original consent decree---Applicant's claim was that suit-land gifted to defendant by his mother was subsequently sold by her as his attorney through registered sale-deed to applicant, thus, defendant could not sell suit-land; and that applicant was abroad at the time of passing of consent decree---Validity---Defendant had executed such agreement in favour of plaintiff subsequent to sale-deed in favour of applicant---Defendant while making such agreement had no title, right and interest in suit-land---Defendant had deprived applicant of his right in suit-land on basis of such agreement and consent decree obtained at his back, which created sufficient ground for setting aside such decree under S.12(2), C.P.C.---Applicant should be given every opportunity to establish that subsequent to transfer of title in suit-land in his favour on basis of registered sale-deed, no transfer in favour of plaintiff could have been made by defendant---Annulment of sale-deed executed in favour of plaintiff would be fall out of setting aside of decree under S.12(2), C.P.C.---High Court accepted such application, set aside consent decree with all modifications and changes in title and possession taken place in pursuant thereto, and arrayed applicant as defendant in suit and directed Nazir to restore possession of such land back to applicant.?

1990 MLD 1702; PLD 2001 SC 320; 2006 CLD 1424; 2003CLD 320; 2004 MLD 1008; 1999 YLR 793; 2004 YLR 3104; 2009 SCMR 40; 2002 YLR 1046; NLR 1984 Civil 543; PLD 2002 Pesh. 84; 2004 CLC 1427 and 2006 SCMR 594 distinguished.

Suleman Junaiju for Applicant.

Faisal Siddiqui for Respondent Nos. 1 to 3.

Nemo for Respondent No.4.

Date of hearing: 27th May, 2010.

P L D 2010 Karachi 374

Before Mushir Alam and Tufail H. Ibrahim, JJ

ZAINAB GARMENTS (PVT.) LTD. through Chief Executive and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Housing and Works, Islamabad and another---Respondents

Constitutional Petitions Nos.D-70 of 2005 and D-942 of 2007, decided on 5th July, 2010.

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

----Art. 199---Constitutional petition---Commercialization of plot---Principles---Decision of superior courts, implementation of---Grievance of petitioner was that authorities had demanded commercialization charges which was against the decisions made by superior courts---Validity---Once an area was declared commercial by law, there was no requirement to apply and observe any requirement, which otherwise were required to be observed and followed to obtain conversion of individual residential into commercial property---No need to pay conversion fee, as property in question stood converted by operation of some rules and or notification issued under authority of law---When a road had been declared commercial on issuance of notification, there would be no question of commercialization fee---Petition was allowed accordingly.

S.M. Aslam v. KBCA 2005 CLC 759; Ardashir Cowsjee v.

Clifton Cantonment Board 1998 MLD 1818; Irfan v. KBCA 2005 CLC 694; Arshad Abdullah v. Government of Sindh 2006 YLR 3209 and Muhammad Hanif v. Sameena Sibtain 2007 YLR 3113 rel.

Ardashir Cowsjee v. Clifton Cantonment Board 1998 MLD 1818; Irfan v. KBCA 2005 CLC 694; Arshad Abdullah v. Government of Sindh 2006 YLR 3209; Navaid Hussain v. Jehangir Siddiqui 2007 CLC 1568; Syed Tahir Hussain Mehmoodi v.Tayyab 2009 YLR 1254; Haji Amin v. Navaid hussain 2008 SCMR 133; Excel Builders v. Ardashir Cowasjee 1999 SCMR 2089; Multiline Associates v. Ardershir Cowasjee PLD 1995 SC 423 = 1995 SCMR 362 and Sikander A Karim v. State 1995 SCMR 387 ref.

(b) Administration of justice---

----Responsibility---Scope---Dispensation of justice is not alone the function of court, public functionaries are equally responsible to treat all citizens placed in similar circumstances alike---Though under trichotomy of power, it is the. Legislature that makes law, executive through public and statutory functionary make policies and implement law, whereas enunciation, interpretation and exposition of law is the function of Judiciary---When a particular law, rules, regulation, policy etc., is expounded and enunciated by superior courts, it is binding on all---For safe administration of justice, it is duty of public and statutory functionary to apply law, rule, regulation, notification or the policy etc., as enunciation, interpretation and expounded by superior courts with all its implication and or ramification affecting person or group of person coming within its net, whether they have approached the Court or not.

Government of Punjab v. Seema Parveen 2009 SCMR 1; Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Punjab 1996 SCMR 1185; Mqbool Textile Mills Ltd. v. Federation of Pakistan 2001 PTD 1 and Sikander A. Karim v. State 1995 SCMR 387 rel.

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

----Arts. 189 & 201---Judgment in rem---Principle---Where any law, statutory rule etc. on being challenged, is interpreted and decided one way or the other by superior courts, then such interpretation, application of law, rule etc., not only decides the right of the person who had approached the court of law but is also judgment in rem as regards interpretation and application of impugned law, statutory rule etc. applied by concerned public, statutory agencies, authorities, bodies and functionaries etc.---Judgment of High Court and Supreme Court to the extent it decides a question of law or is based upon principle of law or enunciate/interpret law, statutory rule etc. is not only binding on all subordinate courts, tribunals but is also binding on all public and statutory functionaries etc.---Such judgment hold good and should be applied by all such public and statutory functionaries etc. to all persons or class of persons affected by such law, rule etc. without forcing or driving such person to obtain re-affirmation of legal position already declared by superior courts in earlier round of litigation to which such person was not a party, unless such decision is revisited by court in review, revision, appeal or larger bench has taken a different view.

Government of Punjab v. Seema Parveen 2009 SCMR 1; Hameed Akhtar Niazi v. Secretary, Establishment Division, Government Punjab 1996 SCMR 1185; Maqbool Textile Mills Ltd. v. Federation of Pakistan 2001 PTD 1 and Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64 rel.

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

----Arts. 10-A & 25---Dispensation of justice---Equality of citizens---Extending of similar relief---Scope---All persons placed in a similar situation, affected by any law, statutory rule, regulation, notification or policy etc., are to be treated even handedly and in like manner---Public functionaries, invariably derive and force every person affected by law, statutory rules, etc. to approach the court of law to obtain similar relief rather than extending similar relief by itself on the basis of principle of law that has been earlier set at rest---Such conduct of public functionaries is neither desirable nor can be approved as it negates even handed dispensation of justice and meting out equal treatment as mandated per Articles 25 and 10-A of the Constitution.

Sikander A. Karim v. State 1995 SCMR 387 rel.

Latif A. Shakoor for Petitioner (in C.P. No.70 of 2005).

Ashraf Mughal, D.A.G. for Respondent No.1 (in C.P. No.70 of 2005).

Manzoor Ahmed for Respondent No.2 (in C.P. No.70 of 2005).

Shakeel Ahmed for Petitioner (in C.P. No.942 of 2007).

Sartaj Ahmed Malkani for Respondents Nos. 2 and 3 (in C.P. No.942 of 2007).

Date of hearing: 28th April, 2010.

P L D 2010 Karachi 384

Before Muhammad Ali Mazhar, J

GHULAM RASOOL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-5 of 2010, decided on 19th March, 2010.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Juvenile Justice System Ordinance (XXII of 2000), S.7---Qatl-e-amd---Bail, grant of---Further inquiry---Only allegation against accused was to have caught hold of the deceased, while another accused caused Danda blows to the deceased---No direct allegation existed against the accused of committing murder of deceased---Applicability of Juvenile Justice System Ordinance, 2000, was also to be seen keeping in view the exact age of accused, which had not been properly determined by the Trial Court, being its own responsibility, notwithstanding the fact that no application was filed by the accused---Said point was specifically raised in bail application, but instead of constituting the Medical Board, the Trial Court had simply relied upon a certificate of Civil Surgeon, which was an improper approach---Age of accused was yet to be determined properly, therefore, case of accused was that of further inquiry---Accused was admitted to bail, in circumstances, with direction to the Trial Court to refer the matter to Medical Superintendent for constituting a medical board to determine age of accused.

1978 SCMR 353; 2010 MLD 185; 2005 MLD 1487 and 2008 PCr.LJ 715 ref.

(b) Juvenile Justice System Ordinance (XXII of 2000)---

----Preamble, Ss.2(b)(e) & 7---Nature and scope of Juvenile Justice System Ordinance, 2000---Determination of age---Juvenile Justice System Ordinance, 2000 was a special law and same would take precedent over the general law---Ordinance did not give any discretion to Trial Court to ignore its mandatory provisions---Purpose of the Ordinance was to provide protection to children in criminal litigation, their rehabilitation in society, reorganization of Juvenile Courts and matters connected therewith---Under the Juvenile Justice Rules, 2001, it was necessary for Provincial Government to establish and maintain borstal institution to keep and accommodate the juvenile with all arrangements to impart education and training for their mental, physical, moral and psychological development within the borstal institution---In order to properly implement the Juvenile Justice System Ordinance, 2000 and the Rules made thereunder, it was obligatory for all courts of law to ensure the proper process for determination of age, which was most crucial point before commencement of trial---Under the Ordinance Juvenile Courts had been specially set up with exclusive jurisdiction to try cases in which a child was accused---Moving of application by a juvenile under trial was not a condition precedent for conferring jurisdiction upon the court to take cognizance of the element of age under said law.

Ahsan Gul Dahri for Applicant.

Shahid Ahmed Shaikh, Asstt. Prosecutor-General for the State.

P L D 2010 Karachi 390

Before Gulzar Ahmed and Irfan Saadat Khan, JJ

PAKISTAN STEEL MILLS CORPORATION through Authorized Officer---Appellant

Versus

Messrs RAZO (PVT.) LTD. through Director---Respondent

High Court Appeal No.108 of 2009, decided on 5th March, 2010.

Arbitration Act (X of 1940)---

----S. 24---Law Reforms Ordinance (XII of 1972), S.3---Reference to arbitration by some of the parties---Conditions---Conditions for invoking provisions of S.21 of Arbitration Act, 1940 were that the matter desired to be referred to arbitration could be separated from rest of subject-matter of the suit; that the suit would continue so far it related to the parties who had not joined in the said application and the matter not contained in the said reference in the same manner as if no such application had been made; and that the award made in pursuance of such a reference would be binding only on the parties who had joined in the application---Section 24 of Arbitration Act, 1940 apparently seemed to be applicable to the facts and circumstances of the present case and they also stood satisfied from the narration of facts, which facts were not disputed by the counsel for the appellant---No merit was in the submission of counsel for the appellant---Appeal was dismissed.

Abdul Mateen and 3 others v. Yusuf Bilal and 4 others PLD 1985 Kar. 422; Kh. Gulzar Ahmed and 6 others v. Haji Ata Muhammad and 15 others PLD 1971 Kar. 570; Chief Engineer, Building Department, Provincial P.W.D. Government of Sindh v. Messrs Pak National Construction Company PLD 1981 Kar. 553 and F.J. Rambarts (Pakistan) Ltd. v. Pakistan Steel Mil Corporation 1987 CLC 2198 ref.

Syed Amanullah Agha for Appellant.

Mushtaque A. Memon for Respondent.

Date of hearing: 2nd December, 2009.

P L D 2010 Karachi 394

Before Mushir Alam, Actg. C.J. and Muhammad Ali Mazhar, J

FAROOQ SALEH CHOHAN and 2 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF INTERIOR through Secretary/Section Officer, Islamabad and 4 others---Respondents

Constitutional Petition No.D-1316 and Miscellaneous No.5194 of 2010, heard on 21st July, 2010.

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

----Ss. 2 & 3---Constitution of Pakistan (1973), Arts. 4, 9, 10-A, 14, 15, 18 & 199---General Clauses Act (X of 1897), S.24-A--Constitutional petition---F.I.R. lodged against petitioner by his partner in relation of a private business dispute and its pendency in Criminal Court---Enlistment of petitioner's name on Exit Control List (ECL) on basis of such criminal case without speaking order and providing him copy of such restraint order---Validity---Nothing was available on record to show passing of any order before enlisting petitioner's name on ECL---Powers conferred upon Federal Government under S.2 of Exit from Pakistan (Control) Ordinance, 1981 were exercisable in public interest in accordance with law as per Art.15 of the Constitution---Petitioner's case being a private dispute, wherein Government interest was not involved, would not fall in negative list of Policy Document prepared by Government---Any legislation intruding or impinging any fundamental right of a person would be construed strictly---Exit from Pakistan (Control) Ordinance, 1981 being an extraordinary legislation had put fetter on fundamental constitutional right and freedom of a person to travel abroad---Abridgement of right to travel abroad might also infringe right to life, liberty, dignity and lawful trade/business/profession---Government, in order to meet extraordinary exigency could pass an ex parte restraint order against a person, but was bound to inform him of such order no sooner same was made---Without providing copy of restraint order, petitioner could not invoke valuable right of review conferred under S.3 of Exit from Pakistan (Control) Ordinance, 1981-Non-providing copy of such restraint order would be violative of Articles 4, 10-A & 15 of the Constitution---Such restraint order must precede Memo of placement on ECL---Issuance of such memo without any speaking and reasoned restraint order would be without lawful authority and illegal---High Court set aside impugned restraint order in circumstances---Principles.

Habibullah Niaza v. Federation of Pakistan through Federal Secretary, Ministry of Interior, and 2 others PLD 2009 Kar. 243, Zia Mohiuddin v. Additional Director (Immigration) FIA, PLD 2010 Lah 128; Ayez Anwar v. Federation of Pakistan PLD 2010 Lah 250; Majid Bashir v. Federation of Pakistan, decided on 16-7-2009 and Abdul Qudoos Bihari v Chief Commissioner of Karachi PLD. 1956 Kar. 533 rel.

(b) Interpretation of statutes---

----Any legislation intruding or impinging any fundamental right of a person would be construed strictly.

Abdul Qudoos Bihari v Chief Commissioner of Karachi PLD 1956 Kar. 533 rel.

Mrs. Sarwar Jehan for Petitioners.

Mian Khan Malik, D.A.-G.

P L D 2010 Karachi 400

Before Muhammad Ali Mazhar, J

MUHAMMAD AKRAM SHAIKH---Applicant

Versus

Messrs PAK LIBYA HOLDING COMPANY (PVT.) LTD. through Authorized Officer

and 14 others---Respondents

Judicial Miscellaneous No.25 of 2008 in Suit No.420 of 1997, decided on 23rd July, 2010.

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

----S. 12(2)---Fraud and misrepresentation---Scope---Facts, concealment of---Effect---Concealment of facts before judicial forum amounts to fraud and misrepresentation---Fraud, misrepresentation and use of circumstances to obtain a judgment are generally regarded as sufficient cause for opening or vacating thereof, particularly where judgment is obtained against a person without his knowledge.

(b) Administration of justice---

----Rights of parties---Conclusive determination---Scope---Justice requires that every case once tried and finally adjudicated upon by a competent forum must be deemed to be conclusive and binding on litigants and parties deriving title from them---Maintenance of public order, the repose of society and quiet of families require that what has been definitely determined by competent Tribunal has to be accepted as irrefrangible legal truth---If it were not for conclusive effect of all such determinations, there is no end to litigation and no security for any person and rights of parties would be involved in endless confusion and grave injustice often done under cover of law.

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

----S. 12(2) & O. XXIII, R.3---Limitation Act (IX of 1908), Art.181---Decree setting aside of---Fraud and misrepresentation---Limitation---Compromise---Parties not signing compromise---Contention of application was that he was not party to compromise filed in court and the person who signed compromise were not party to proceedings before court---Plea raised by respondent was that the application was barred by limitation---Validity---Persons who were not parties to compromise were not to bound by it and court could not enforce the compromise against them---Where persons other than parties in suit were parties to compromise, it could not be recorded unless such persons were made parties to the suit---As newly-inducted directors of the company had accepted the entire liability and respondent was also signatory to compromise, therefore, instead of setting aside the decree as a whole and in order to meet the ends of justice, it would be appropriate to order that decree had no binding effect on applicant and remaining respondents and it would be deemed to have been passed only against those persons who conceded to compromise application---No limitation could run against void order, as the decree against original directors of the company on the fact of it was void ab initio, therefore, objection that application was time-barred was ill-founded, even otherwise applicant had pleaded the source of information in his application which was a news item published in a newspaper on 21-6-2007 and application was filed in court on 10-6-2008, which was within time---Judgment and decree passed against applicant was set aside---Application was allowed accordingly.

Mst. Bibi Sahiba and others v. Mustaqir Shah and others 2002 SCMR 1838; Abdul Sattar v. Ibrahim PLD 1992 Kar. 323; Abdul Aziz Khan Niazi v. Mrs. Salma Rehman 1992 CLC 777; Syed Nizam Ali and others v. Ghulam Shah and another PLD 2000 Lah. 168; Messrs Arokey Ltd. and another v. Munir Ahmad Mughal and others PLD 1982 SC 204; Ch. Jalal Din v. Mst. Asghari Begum and others 1984 SCMR 586; Khairpur Textile Mills v. National Bank of Pakistan 2003 CLD 326; Dilbar Khan and others v. Government of N.-W.F.P. and others 1992 CLC 416; Nazir Ahmed v. Muhammad Sharif 2001 SCMR 46; Khyber Tractors (Pvt.) Ltd. v. Pakistan through Ministry of Finance PLD 2005 SC 842; The State v. Haji Nasim-ur-Reman PLD 2005 SC 270; Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720 and Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 ref.

Province of Punjab v. Muhammad Rashid and others 1988 MLD 2560; Muhammad Yamin and Company v. United Bank Limited 1989 CLC 1251; Mobile Eye Service of Pakistan, Karachi v. Director Social Welfare/Registration Authority PLD 1992 Kar. 183; Ali Hasan v. Manzoor Ahmad 1997 CLC 268 and Muhammad Saeed v. Indico Paint Colour and Varnish Co. PLD 1995 Kar. 25 distinguished.

Rizwan Dodani for Applicant.

Abdul Sattar Lakhani for Respondent No.1.

Waleed Ansari for Respondents Nos. 3 and 6.

Nemo for the Remaining Respondents.

P L D 2010 Karachi 414

Before Faisal Arab, J

Messrs METALEX (PRIVATE) LIMITED---Plaintiff

Versus

GOVERNMENT OF SINDH through Secretary, B.O.R. ---Defendant

Suits Nos.833, 838 to 852 of 2000, decided on 9th August, 2010.

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

----Ss. 42 & 54---Karachi Port Trust Act (VI of 1886), Ss.2(3), 3, 18, 25, 26, 27 & Schedule. A---Constitution of Pakistan (1973), Art. 172---Suit for declaration and permanent injunction---State land reclaimed from sea through natural process---Allotment of plots carved out on such land by Sindh Government for industrial and commercial purposes---Transfer of such plots by original allottees to plaintiffs---Denial of plaintiff's title in such land by Karachi Port Trust (K.P.T.) claiming to be its owner on basis of Notification dated 24-3-1887 published in Bombay Gazette and subsequent S.R.O. 307(KE)/91, dated 5-10-1991, thus, Sindh Government was not competent to create any proprietary interest thereon---Validity---Karachi Port Trust constituted for running of Karachi Sea Port had power to acquire immovable properties directly or through process of acquisition---No immovable property could vest in K.P.T. except through transfers made under S.27(1) at the time of enacting of Karachi Port Trust Act, 1886 and subsequent acquisition of immovable properties under Ss. 25 & 26 thereof---Board subject to prescribed conditions could lease, sell and transfer immovable properties vested in K.P.T.---Land reclaimed by K.P.T. at its own cost/expenses from harbour waters could be resumed by Government at any time without payment of compensation---Geographical limits of Karachi Port notified under S.3 Karachi Port Trust Act, 1886, though alterable from time to time, were merely functional or jurisdictional limits of K.P.T. to run and manage affairs of port therein, but such limits could not be taken as if all land falling therein would vest in K.P.T.---Proprietary interest in any immovable property in favour of K.P.T. could be created only under provisions of Ss.25, 26 & 27 of Karachi Port Trust Act, 1886, but not otherwise---Coastline never rem fined permanent due to taking place of constant changes in boundaries between land and sea---Dry land emerged on account of receding sea becoming part of mainland of a Province would vest in its Government---Such reclaimed land would no more remain part of continental shelf or ocean floor---Such reclaimed land or coastal land or an island, if encroached upon by sea and came under continental shelf or ocean water, would vest in Federal Government--- Framers of the Constitution while incorporating therein Art.172 had never intended that apart from existing boundaries of a Province, any land reclaimed from sea should be given under ownership of Federal Government---All land reclaimed from sea would add to boundaries of Sindh Province irrespective of fact that such addition had taken place within limits allocated to Karachi Port Trust---Held Karachi Port Trust could not stake any claim to disputed reclaimed land, which belonged to Sindh Government. ?

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

----Art. 172(1)---Import of Act 172 of the Constitution---Land immersed under sea water would belong to Federal Government---Dry land touching boundaries of a Province, if reclaimed through receding sea, would belong to such Province---Principles.

Under Article 172(1) of the Constitution, any ownersless property located in a Province vests in that Province, whereas under Article 172(2) thereof, all lands within the continental shelf or under the ocean vest in the Federal Government. The real import of Article 172 of the Constitution is that any emergence of dry land, whether it become part of the mainland of the Province or comes into existence in the form of an island, comes under the ownership of the Province, whereas the land that remains under continental shelf or ocean i.e. immersed under sea water, belongs to Federal Government. Thus, where the boundaries of a Province touch sea and on account of receding coast line a piece of land adds to the mainland or an island emerges, then in both the situations, it belong to the Province and vests in the Provincial Government of that Province for the simple reason that such land or island is no more under continental shelf or ocean floor. While incorporating Article 172(2) of the Constitution what the framers of Constitution intended was that the land that remains immersed under sea water, be it continental shelf or under the deep ocean, its ownership be vested in the Federal Government whereas dry land, reclaimed through receding sea should belong to the Province. Therefore, the reclaimed land being no more under continental shelf or deep ocean water cannot be interpreted to be land as described under Article 172(2) of the Constitution; as such reclaimed land is no more part of continental shelf or ocean floor. In order for a land to fall within the provisions of Article 172(2) of the Constitution, it has to be such land which remains within the continental shelf or under the ocean. Therefore, any land on account of reclamation becomes dry land cannot be defined as a land within the continental shelf or underlying the ocean and hence it is not definable under Article 172(2) of the Constitution, but is definable under Article 172(1) of the Constitution. Similarly, whenever coastal land or an island is encroached upon by sea and comes under, continental shelf or under ocean, it vests in the Federal Government in terms of Article 172(2) of the Constitution. While incorporating Article 172 of the Constitution, it was never intended by its framers that apart from the existing boundaries of the Province, any land reclaimed from the sea should be given under the ownership of the Federal Government.?

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

----S.42---Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001), S.3---Suit for declaration---Urban State Land---Allotment of such land by Revenue Mukhtiarkar instead of Land Utilization Department being competent authority---Cancellation of such allotment by Sindh Government---Suit by transferee of original allottee for declaration of his title to suit land---Validity---Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001 would cover disposition of properties by competent authority and not by an incompetent authority---Impugned allotments suffering from inherent defect could not be cured by invoking provisions of Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001---Nothing on record to show regularization of such allotment---After cancellation of allotment under a valid law, no declaration could be made by court as to validity of allotment made in favour of predecessor of plaintiff or legality of plaintiff's title---Suit was dismissed in circumstances.?

Abid S. Zuberi and Haseeb Jamali for Plaintiffs.

Kazim Hasan (in Suit No.833 of 2000) and Javed Farooqi for Karachi Port Trust.

Sarfraz Ahmed Sulehry.

Nafees Ahmed Osmani, A.A.-G. Muhammad Imran.

Date of hearing: 25th May, 2010.

P L D 2010 Lahore 1

Before Mian Saqib Nisar, J

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and another---Petitioners

Versus

CHIEF ELECTION COMMISSIONER, ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 6 others---Respondents

Writ Petition No.18515 of 2009, decided on 9th October, 2009.

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

----Art. 199(5)---Representation of the People Act (LXXXV of 1976), S.103---Constitutional petition---Locus standi---"Aggrieved party" having right to file constitutional petition against a "person" as defined in Art.199(5) of the Constitution---Scope---Provincial Chief Secretary, having been made respondent, in a petition under S.103, Representation of the People Act, 1976 by the Chief Election Commissioner, being "aggrieved" by the order of the Chief Election Commissioner shall have the locus standi to file constitutional petition in the High Court against the said order of the Chief Election Commissioner and such constitutional petition would be maintainable---Principles.

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

----Arts. 225, 222, 260, 51 & 199---Representation of the People Act (LXXXV of 1976), S.103---Constitutional petition under Art.199 of the Constitution---Maintainability---Election dispute---Article 225 of the Constitution shall attract to those matters, which pertains to the election process and against which an election petition can be maintained and has no application at all if an order has been passed by the Chief Election Commissioner while exercising his powers upon the petition under S.103, Representation of the People Act, 1976 or otherwise fixing the schedule of the election---Contention that under Art.222 of the Constitution, the Parliament is empowered to make the electoral laws, thus, on this basis, the provisions of Art.225 or any part of Art.260 of the Constitution be attracted to declare the constitutional petition to be barred or incompetent was repelled---Article 51 of the Constitution ,to which the reference in this context has been made is not relevant at all.

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

----Arts. 129, 130 & 199---Representation of the People Act (LXXXV of 1976), S.103---Civil Procedure Code (V of 1908), O.XXVII---Rules of Business (Punjab), R.11---Constitutional petition---Maintainability---Executive authority of the Province---Institution of constitutional petition under Art.199 of the Constitution against an order of Chief Election Commissioner or a petition under S.103, Representation of the People Act, 1976 wherein Chief Secretary of the Province was made respondent, was not in the nature of the exercise of "executive authority" as contemplated by Art.129 of the Constitution, rather the said petition only called in question an order, for which the principal executive officer of the Province and the Secretary of the concerned division could initiate and maintain a legal action, to which the procedure in O.XXVII, C.P.C. shall be applicable.

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

----S. 103---Election Commission to ensure fair election etc.---Where there is no prohibition and the law on the subject is silent, a constitutional convention has emerged and developed as per which, schedule of the bye-elections should be set out by considering and taking into account the opinion/view of the Provincial Government and the material placed by it before the Chief Election Commissioner of Pakistan---Provincial Government in this context has the right to be heard in the matter, especially for the reason that entire burden of the election is to be shouldered by the Provincial Government, such as providing the entire manpower needed for the election and also for ensuring the security measures not only on the polling day rather throughout the compaign as well which, in the present sensitive days may not be an easy job---If however, the Provincial Government for any unfounded and unsubstantiated reasons has opposed the holding of election, especially while relying upon the alleged precarious law and order conditions, the Chief Election Commissioner of Pakistan is not still bound by such opinion, rather he can ask for information from other relevant sources of the State in that behalf, which all (the other relevant sources) under the Constitution are bound to assist him, so that he can take an independent decision---Chief Election Commissioner of Pakistan being a highest authority in the State to take final decision in the matter, it is expected that material provided by the Provincial Government (the Province) in which the election is to be held, shall be considered by the Chief Election Commissioner of Pakistan by applying his mind.

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

----S. 103---Constitution of Pakistan (1973), Art.199---Constitutional petition---Provincial Government was made respondent in a petition under S.103, Representation of the People Act, 1976 by the Chief Election Commissioner of Pakistan---Held, for holding free, fair, smooth and transparent election on account of constitutional convention, the Provincial Government should have been given sufficient opportunity to place its point of view---Principles.

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others PLD 1988 SC 725; Syed Qaim Ali Shah v. Atta Muhammad Murri and 6 others 1993 MLD 1127; Begum Shireen Bahar Cheema v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and 14 others PLD 1993 Lah. 822 and Durga Shankar Mehta v. Raghuraj Singh and others AIR 1954 SC 520 ref.

Khawaja Haris Ahmad and Mustafa Ramday for Petitioners.

Dr. Syed Farooq Hassan, Raheel Pervaiz Malik, Ijaz Feroze for Respondents.

Aamer Rehman and Muhammad Nasim Kashmiri, Deputy Attorneys-General.

Ch. Shahid Sarwar, Law Officer, Office of the Provincial Election Commission, Punjab, Lahore.

Rana Muhammad Aslam Khan, Assistant Election Commissioner (Elections) Punjab, Lahore.

Respondents Nos. 3, 4 and 6 in person.

Date of hearing: 6th October, 2009.

P L D 2010 Lahore 21

Before Asif Saeed Khan Khosa, J

MUHAMMAD KHAN and another---Petitioners

Versus

THE STATE---Respondent

C.M. No.1 of 2009 in Criminal Appeal No.1148 of 2009, decided on 25th August, 2009.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S. 302(a), (b) & (c)---Suspension of sentence---Unlawful sentence---Proper law, non-­applicability---Fine, imposing of---Trial Court convicted all accused under S.302 P.P.C. and sentenced them to imprisonment for five years and fine---Validity---Sentence of five years rigorous imprisonment was not contemplated by clauses, (a) and (b) of S.302 P.P.C. and Trial Court did not find the case to be one attracting clause (c) of S.302 P.P.C.---Case against accused was appeared to be one falling under S.302(b) P.P.C. which carried only two sentences, i.e. death or imprisonment for life---Trial Court passed sentence of fine against accused, whereas punishments specified in clauses (a), (b) or (c) of S.302 P.P.C. did not include any sentence of fine, therefore, sentences passed by. Trial Court against accused persons were not lawful---High Court in exercise of powers conferred under S.426 Cr.P.C., suspended the sentence awarded to accused persons---Petition was allowed accordingly.

Chaudhry Muhammad Khalid Dogar for Appellants.

Mrs Tarzana Shahzad Khan, Deputy Prosecutor-General for the State.

Chaudhry Muhammad Ashraf for the Complainant.

P L D 2010 Lahore 23

Before Khawaja Muhammad Sharif, C.J., and Ijaz Ahmad Chaudhry, J

THE STATE and others---Petitioner

Versus

DIRECTOR-GENERAL, FIA and others---Respondents

Writ Petition No.15990 of 2009, decided on 9th September, 2009.

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

----Art.199(i)(c)---Constitutional jurisdiction of High Court---Scope---Private person---Jurisdiction of High Court under Art.199 (i)(c) of the Constitution is not restricted to the extent of government functionaries but extends it to any person or authority.

Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507 rel.

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

----Art.199---Constitutional jurisdiction---Public interest litigation---Object and scope---Object of public interest litigation is to ensure public interest and protection of legal or constitutional right of disadvantaged and oppressed groups of individuals and to render social and economic justice to them---There cannot be any reason why in a fit and proper case, High Court would hesitate to entertain public interest action against any non-governmental institution or any person invested with statutory or public duties or public obligations, when their omission or commission affects rights of disadvantaged groups or individuals who do not find any way for vindication of their grievance---There can be such a situation when some persons may not even aware of their rights and about violation thereof and their exploitation, therefore, under such circumstances, a public interest litigation can be maintained for protection and vindication of rights of such aggrieved group of people.

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

----Art.199---Companies Ordinance (XLVII of 1984), Ss.305 & 306--Constitutional jurisdiction---Suo moto action by High Court---Maintainability---Proceedings against company---Liability of company, settlement of---Winding up proceedings---Respondent company was incorporated under Companies Ordinance, 1984, and was engaged in the business of transfer of money to different destinations all over the world---Company was alleged to have defrauded its customers and F.I.R. was registered against company and its chief executive---High Court initiated suo motu action against the company for repayment of the amounts received by the company from its customers---Plea raised by respondent company was that it was a company incorporated under Companies Ordinance, 1984, which could not be proceeded against and its assets could not be disbursed otherwise than under Companies Ordinance, 1984---Validity---Though liquidation of company could be made under Companies Ordinance, 1984, but at the same time company was liable to make good any loss or injury caused by it while doing some criminal acts or omissions---High Court directed Federal Investigation- Agency to disburse amounts of affectees out of the security amount lying with State Bank of Pakistan---Petition was disposed of accordingly.

State of West Bengal v. Union of India and others AIR 1996 Cal. 181 rel.

Syed Ali Zafar, Sardar Asmat Ullah Khan for Zarco Exchange Company.

Tariq Khosa, Director, FIA.

Azhar Mehmood Deputy Director FIA, Crime Circle.

Syed Samar Husnain, Director, State Bank of Pakistan.

Rehan Nawaz for State Bank.

Shahbaz Samar, Joint Registrar, SECP.

Saqlain Arshad, Deputy Director, SECP.

Ch. Muhammad Hanif Khathana, Acting A.G.

Azam Nazir Tarar and Amjad Pervez, Special Public Prosecutor for FIA.

P L D 2010 Lahore 31

Before Ijaz Ahmad Chaudhry, J

Syed MUHAMMAD JAVED IQBAL JAFFARI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.1071-H of 2009, decided on 9th September, 2009.

Pakistan Friendship and Commerce Treaty with Protocol, signed at Washington, dated 12-11-1959---

----Arts. I, II, III, IV, V, IX, XI, XXI, XXIII---Criminal Procedure Code (V of 1898), 5.491---Habeas corpus---Pakistani national detained abroad---Embezzlement in funds---Petitioner sought recovery of Pakistani national facing trial in United States of America and also wanted initiation of proceedings against Pakistani officials who had received huge kick-backs in engaging lawyers to defend case of that Pakistani accused---Validity---High Court directed Foreign Ministry to examine matter after considering Arts. I, II, IV, V, IX, XI, XXI, XXIII of Pakistan Friendship and Commerce Treaty, with Protocol, signed at Washington, dated 12-11-1959, and undertaking given on its behalf by Law Officer for referring the matter of Pakistani in question, to Court of International Justice for fair trial which was right of every accused under the law---High Court further directed the authorities to decide the matter within 30 days from the announcement of judgment and copy of decision should also be supplied to petitioner-Allegation that huge amount had been paid for receiving kick backs, was based on suppositions and no proceedings could be initiated merely on suspicion unless some proofs were provided in support of allegations, which for the time being were lacking---High Court advised the petitioner to approach High Court afresh after he could lay his hands on sound and cogent evidence to supplement the allegations---Petition was disposed of accordingly.

Syed Iqbal Jaffari for Petitioner.

Naveed Inayat Malik, Deputy Attorney-General.

Shair Bahader Khan, Legal Advisor, Ministry of Foreign Affairs.

Mehar Malik Khattak, Deputy Secretary, Ministry of Interior, Islamabad.

Ehsan Ullah Batth, Deputy Chief of Protocol, Ministry of Foreign Affairs.

Date of hearing: 31st August, 2009.

P L D 2010 Lahore 39

Before Khawaja Muhammad Sharif, C. J.

MUNAWAR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Writ Petition No.2464 of Criminal Miscellaneous No.4485-B, 3645-B of 2009, decided on 14th May, 2009.

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

----S. 498---Penal Code (XLV of 1860). Ss.420, 468 & 471---Cheating of forgery---Bail, grant of---Legible copy of F.I.R. not finding mention actual version of complainant as contained in certified copy of F.I.R. filed along with bail application----Validity---High Court declined to take action against counsel for accused for being a young man and newly entered in profession, but warned him to be careful in future while filing legible copy of F.I.R., he should give complete words of F.I.R.-Bail application was dismissed in circumstances.

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

----S.498---Penal Code (XLV of 1860), Ss.420, 468 & 471-Cheating of forgery---Bail, grant of---Filing of copy of case diary showing accused to have been declared innocent by Investigating Officer---Plea of accused that complainant party with connivance of police had removed case diary from police record---Validity---High Court while dismissing bail application directed Superintendent of Police, Investigation to look into matter that how Investigating Officer declared accused to be innocent and how photo copy of case diary reached in hands of accused.

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

----Ss.497 & 498---Bail---Consideration for grant of pre-arrest bail and after arrest bail are totally different.

Malik Muhammad Waseem with the Petitioner.

Rana Bukhtiar, Ali D.P.G. along with Muhammad Nawaz, S.I. Aleem Rasool Morya for the Complainant.

P L D 2010 Lahore 42

Before Kazim Ali Malik, J

MUBARIK ALI FAROOQI and another---Petitioners

Versus

CIRCLE OFFICER, POLICE STATION ANTI-CORRUPTION, FAISALABAD and 3 others---Respondents

Writ Petitions Nos.12862, 13541 and 14074 of 2008, heard on 24th June, 2008.

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

----S. 12---Suit for specific performance of contract---Giving effect to decree in revenue record---Suit having been decreed in favour of plaintiff, he instead of filing an application for execution of decree for specific performance of the contract, adopted a procedure unwarranted in law by approaching Revenue Patwari to get entered a mutation in respect of suit property and Patwari entered mutation on basis of photocopy of decree---Validity---Unless and until a decree for specific performance of contract was executed against the judgment-debtor, it would not create any right in the subject matter in favour of decree­holder---It was not permissible under the law for the Patwari to give effect to said decree in the revenue record without an order of the executing court---Revenue: officials wrongly treated the decree for specific performance of the contract as a declaratory decree in favour of plaintiff/decree-holder---Revenue Officials were required to return the decree for specific performance of the contract to the decree-holder asking him to approach the executing court for the needful.

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

----Ss. 420/468/471---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R., petition for -Prima facie sufficient evidence was available to connect accused persons with the charge---Principle of double ,,jeopardy was also of no help to the petitioners/accused, because the charge in the case was altogether different from that of earlier one---Constitutional petition was dismissed.

Imtiaz Hussain Khan Balouch, Ch. Abdul Saleem, Ghulam Hussain Awan and Farooq Bedar for Petitioners

Fawad Malik, A.A.-G. with Riaz Ahmad, Deputy Director Anti-Corruption, Faisalabad for Respondents.

Khawar Mahmood for the Complainant.

Date of hearing: 24th June, 2009.

PLD 2010 Lahore 48

Before Asif Saeed Khan Khosa, J

PEGGY COLLIN---Petitioner

Versus

MUHAMMAD ISHFAQUE MALIK and 6 others---Respondents

Criminal Miscellaneous No.220-H of 2008, decided on 26th October, 2009.

Penal Code (XLV of 1860)---

----S. 363---Criminal Procedure Code (V of 1898), S.491---Proceedings in the nature of habeas corpus---Allegation of kidnapping of her minor son by mother, a French lady against her husband (father of the minor) holding dual nationality of France and Pakistan-- Minor in issue was born in France, he was a French citizen besides claiming his additional Pakistani citizenship on account of his father being a Pakistani, the minor's parents had got married in France and after living in that country together for some years their divorce had taken place in France and till date the judgments rendered by different French courts regarding custody/residence of the minor with the petitioner/mother were still holding the field---Minor had been recovered by the police in connection with the criminal case lodged by the petitioner/mother against respondent/father and others, for an offence under section 363, P.P.C. in respect of kidnapping of the said minor and after recovering the minor in connection with that criminal case he had been produced before the High Court---Minor in issue had been recovered by the police in connection with investigation of the relevant criminal case and such recovery had come about under the umbrella provided by High Court through. the present petition---Umbrella of High Court had only provided impetus and support to the local police which was even otherwise under a statutory duty to effect the necessary recovery of the minor allegedly kidnapped---Impetus and support provided by High Court in the matter having worked and the minor having been recovered by the police, with the achievement of that objective the role of High Court in the proceedings in the nature of habeas corpus ended for the present and now it was for the local police to deal with the matter in accordance with the law---High Court observed that respondent (further of the minor) was a previous convict, a fugitive against whom International Warrant for Arrest had been issued and he was already under arrest in Pakistan facing a criminal charge---Antecedents of the respondent were checkered as far as obeying the judicial process was concerned; he had repeatedly demonstrated through his conduct over the last many years that his passion for keeping custody of his minor son eluded or outrun his eagerness for his son's welfare---With such credentials and antecedents of respondent mere professing of Muslim faith by him and his mere incidence of birth in Pakistan might not suffice all by themselves to conclude that welfare of the minor would lie in living with him rather than in living with a Christian mother of French origin whose credentials were blotless, whose antecedents were clean, whose proven love and care for the child had dragged her in foreign lands facing untold trials and tribulations and whose courage, fortitude and character might be better suited for imbibing good moral, social and human values in the minor's personality---Investigating officer of the case had stated that the recovered minor was the subject-matter of a case of an alleged kidnapping from the custody of a guardian (mother of minor son) lawfully appointed by a Court of law and, therefore, custody of the recovered minor was to be restored by the police to that guardian till completion of the investigation and trial---Police Officers were allowed by High Court to do the needful and within the view of the court they handed over custody of the recovered minor to the petitioner (mother) who was his real mother and a lawfully appointed guardian.?

Grosvenor Casino Ltd. v. Abdul Malik Badruddin PLD 1988 Kar. 104; Mst. Mangti v. Mst. Noori and others 1995 CLC 210; Mst. Maria Khan v. Muhammad Zubair Khan 1993 P.Cr.LJ. 1097; Mst. Musarrat Parveen v. Muhammad Akram 1991 P.Cr.LJ 878; Mst. Shamshad Begum v. Muhammad Saad Bin Moghani and another 1989 PCr.LJ 1327; Mrs. Suhair Mamdouth Sudki Deais Dar v. Nabeel Dar and another 1996 SCMR 1083; Mst. Mariam Rozina v. Robert Ashraf 1985 PCr.LJ 1469; Mst. Syedan Bibi v. District and Sessions Judge Khanewal and 2 others 2005 PCr.LJ 1780; Ahmed Jawad Sarwar v. Mst. Zenia 1996 SCMR 1907 and Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852 ref.

Miss Hina Jillani with Petitioner in person.

A.K. Dogar with Respondent No.1 (in police custody).

Respondent No. 4 in person.

Raja Nadeem Haider, Addl. A.-G. and Mrs. Farzana Shahzad

Khan, Deputy Prosecutor-General with Muhammad Amin, Superintendent of Police (Investigation), Qamar-uz-Zaman, DSP (Legal), Mumtaz Ahmed, DSP (Legal), Muhammad Shabbir, S.H.O. and Javaid Iqbal, S.I.

P L D 2010 Lahore 56

Before Mian Saqib Nisar, J

Lt. Gen. (Retd.) MUHAMMAD AFZAL NAJEEB---Appellant

Versus

Mst. AYSHA KHANNA through General Attorney---Respondent

F.A.O. No.312 of 2008, heard on 2nd December, 2009.

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

----Ss. 17 & 17-A---Ejectment of tenant---Default in payment of rent---Deposit of rent in court---Change of ownership---Notice to tenant---Scope---Tenant had started depositing rent directly with Rent Controller without First tendering the same to landlord---Plea raised by tenant was that no notice of change of ownership had been given to him after the death of owner of premises, therefore, he had been depositing rent with Rent Controller---Validity---Legal heir of deceased landlady attained status of statutory landlady and requisite relationship had immediately emerged on the occurrence of the death (of original owner)---Tenant could not be said to have committed default in payment of rent, if notice under S.17-A of Cantonments Rent Restriction Act, 1963, had not been given by legal heir---If tenant on attaining knowledge of his own or being verbally apprised in such behalf started paying rent and thereafter defaulted in payment, such tenant could not take refuge on account of absence of notice---Rent Controller had rightly passed eviction order against tenant on the basis of default in payment of monthly rent---Appeal was dismissed in circumstances.

Mst. Yasmeen Khan v. Abdul Qadir and another 2006 SCMR 1501 and Pakistan State Oil Company Ltd. Karachi v. Pirjee Muhammad Naqi 2001 SCMR 1140 ref.

Muhammad Ameen v. Gulzar Muhammad 1994 MLD 2162; Mst. Zubeda Begum v. Muhammad Zaheer 1999 CLC 917; Abbas Khan and 11 others v. Hafeez-ur-Rehman and 2 others 2004 CLC 582 and Muhammad Arif v. Muhammad Raza PLD 1993 Lahore 121 distinguished.

Asghar Hameed Bhutta for Appellant.

Anwar Hussain and Mehr Muhammad Iqbal for Respondent.

Date of hearing: 2nd December, 2009.

P L D 2010 Lahore 60

Before Raja Muhammad Shafqat Khan Abbasi, J

MAZHAR HUSSAIN---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.3873 of 2008, heard on 3rd June, 2009.

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

----Ss. 561-A, 177 & 179---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction---Scope---Quashing of F.I.R.---Petition for---Complainant got registered F.I.R. at Police Station "F.S", district S' against petitioner/accused--Accused had contended that F.I.R. registered at Police Station "F.S" was without jurisdiction as disputed cheque was issued from the Bank at placeA' in district "B" and cheque in dispute. was also dishonoured by said Bank; and that registration of F.I.R. by Police Station at place "F.S" was totally unwarranted and without jurisdiction---Police after investigation, submitted report under S.173, Cr. P. C. in which it was found that F.I.R. had been registered without jurisdiction and was liable to be cancelled---Magistrate disagreed with said report and took cognizance of the case---Validity---Complainant deposited cheque in question in Bank at place 'F.S' district S' where he had his account and cheque was dishonoured---The moment (he cheque was dishonoured offence was completed at placeA' in district B', but complainant came to know about dishonour of cheque at districtS' where he had his account in which he had deposited the cheque in dispute---Offence under S.489-F, P.P.C. was completed at place "A" where cheque in question was dishonoured---However, consequences of the offence in terms of S.179, Cr. P. C. were ensued at place 'F.S' district S'---Complainant/Drawee had validly lodged the impugned F.I.R. at place 'F.S' at districtS'---No legal bar or prohibition existed on complainant/drawee in that regard; it was his option or choice, he could initiate criminal proceedings under S.489-F, P.P.C. at any of the two places---Both Police Stations at place A' and 'F.S'. had got jurisdiction to lodge F.I.R.-Complainant/drawee opted to lodge F.I.R. in Police Station at placeF.S. where Bank was situated and where he deposited the cheque in question---Police Station at place F.S. was competent to conduct inquiry/investigation in the matter---Impugned F.I.R. could not be quashed merely on sole ground that same had. not been registered within the jurisdiction where cheque was dishonored---Discretionary jurisdiction could not be exercised in favour of the petitioner/accused as constitutional jurisdiction was meant for aid of justice and not for the illegal gains---Case was at the initial stage, which could not be quashed at that stage which would amount to deflecting or short-circuiting the normal ordinary procedure provided under the law---Even otherwise disputed question of fact being involved in the matter, same could. not be resolved in constitutional jurisdiction of High Court.

Col. Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Seema Famed and others v. The State 2008 SCMR 839 ref.

(b) Words and phrases---

----'Dishonesty'-Defined and explained.

(c) Words and phrases---

---- `Dishonestly'---Defined and explained.

(d) Words and phrases---

----`Loan'---Defined and explained.

(e) Words and phrases---

---`Finance'---Defined and explained.

(f) Words and phrases---

---'Obligation'---Defined and explained.

(g) Words and phrases---

---`Ensue'---Defined and explained.

(h) Administration of justice---

----No bar on initiation of criminal proceedings in presence of civil suit---Civil and criminal proceedings could be proceeded side by side.

Muhammad Shafi v. DSP and others PLD 1992 Lah. 178 and Malik Naeem Awan v. Malik Aleem Majad and 5 others PLD 2008 Lah. 358 rel.

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

----S.179---Place of inquiry and trial---When any person would commit offence or do some act and due to that act any consequence would ensue, such offence could be Inquired into and tried by the court, where act was done or consequence ensued.

Basharat Iqbal v. The State 1993 PCr.LJ 2151; Muhammad Zafar v. Zahoor PLD 1983 FSC 480 and Shaukat Ali v. District Police Officer, Burewala District Vehari and 2 others 2007 PCr.LJ 997 ref.

Syed Muzammil Hussain Bukhari for Petitioner.

Mian Abbas Ahmad Addl. A.-G. for Respondents.

Date of hearing: 3rd June, 2009.

P L D 2010 Lahore 70

Before Syed Hamid Ali Shah, J

Mian MUHAMMAD TARIQ---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Law and 6 others---Respondents

Writ Petitions Nos.1361 and 1045 of 2009; heard on 2nd April, 2009.

(a) Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance (II of 2000)---

----Ss. 4, 6, 7 & 5 [as amended by Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) (Amendment) Act (IV of 2006)]---Constitution of Pakistan (1973), Art.199---Constitutional petition---Meals and other edibles permissible in marriage functions etc.---Restrictions on wasteful expenses---Meals or other edibles were disallowed to the guests by the host, celebrating the functions of a marriage---Hot and cold soft drinks, were only allowed---Terms Salan',Roti' and Rice' as used in Marriage Functions (Prohibition and Ostentatious Displays and Wasteful Expenses) Ordinance, 2000, had to be interpreted as those were commonly used in meals---Though the liberal meanings would enlarge the scope of those terms, but would rule out the ambiguity which the authorities had created by interpreting those terms differently in their own ways---Authorities were not interpreting serving of drinks according to the meanings assigned to them by the enactment itself---It was provided in the enactment that soft drinks' orhot drinks' could be served to the' participants of the marriage functions---In hot drinks, tea and coffee etc. were included while in soft drinks various variety of juices and other beverages like soda water, lassi, milk etc. were included---Host of marriage function was allowed to serve his guests with one dish (Salan, Roti, Rice and Sweet Dish)---Guests were allowed to be served with one, dish irrespective of the place of function, whether it was arranged within house or in hotel, club, marriage hall etc.---Provisions of S.4 and S.5 of Marriage Functions (Prohibition of Ostentatious and Wasteful Expenses) Ordinance, 2000, were in conflict with each other---Both the enactments could not go side by side as latter was repugnant to the former---Provisions of S.5 of the Ordinance by virtue of amending provisions of Act, IV of 2006 in S.4 of said Ordinance stood repealed.

Ch. Muhammad Siddique and 2 others v. Government of Pakistan through Secretary Ministry of Law and Justice Division and others PLD 2005 SC 1 and Mrs. Shahida Faisal v. Federation of Pakistan and 3 others PLD 2000 Lah. 508 ref.

(b) Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance (II of 2000)---

----Ss. 3 & 4---Constitution of Pakistan (1973), Art.199---Constitutional petition---Prohibition of ostentatious celebrations---Act of omission on the part of authorities in implementing provisions of S.3 of the Ordinance, could not be ignored---Authorities had constituted various committees and had also taken various steps and measures to effectively control violation of S.4 of the Ordinance, however, not a single 'step had been taken to prohibit the ostentatious celebrations---Decorating house, building or street by lights and illuminating was prohibited under S.3 of the Ordinance,---Places of marriage functions were extravagantly illuminated and decorated with lights, offending the provisions of S.3---Provincial Chief Secretary was directed by High Court to seek implementation of provisions of said Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000, including S.3 of said Ordinance in its letter and spirit, through notified officer or through the agency so notified.

(c) Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance (II of 2000)---

----Ss. 4, 6, 7 & 5 [as amended by Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) (Amendment) Act (IV of 2006)]---Constitution of Pakistan (1973), Art.199---Constitutional petition---Prohibition of ostentatious celebrations and prohibitions on wasteful expenses---Cognizance of offence---Cognizance of offence under Ss.3, 4 & 5 of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000 could be taken on the complaint in writing by the. committee or the authorities mentioned in S.7 of the Ordinance---None else, except for the persons mentioned in S.7 of the Ordinance, could lodge a complaint---Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000 had prescribed a particular form and mode for taking cognizance of offences under Ss.3, 4 & 5 of the Ordinance, criminal cases were registered by the Police in neglect of S.9 of the Ordinance---Section 5 of the Ordinance to the extent of its repugnancy with S.4 (as amended) of the Ordinance was struck down by invoking the doctrine of implied repeal---District Police Officer would proceed in the F.I.Rs. in that respect according to the provisions of S.157(1)(b), Cr. P. C. and would finalize the matter expeditiously.

(d) Words and phrases---

----`Roti'---Defined and explained.

(e) Words and phrases---

---- Rice'---Defined and explained.

(f) Words and phrases---

----'Salan'---Defined and explained.

(g) Words and phrases---

----`Curry'---Defined and explained.

Muhammad Shahid Baig and Habibullah Sh. for Petitioners.

Muhammad Hanif Khatana Addl. A.-G. along with Taseer Riaz, S.-I./SHO and Atta Muhammad S.-I./Inv. for Respondents.

Date of hearing: 2nd April, 2009.

P L D 2010 Lahore 81

Before Tariq Shamim and Malik Saeed Ijaz, JJ

Mian MUHAMMAD NAWAZ SHARIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2-E of 2009, heard on 26th June, 2009.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v), 10 & 32---Constitution of Pakistan (1973), Arts.10 & 4---Appreciation of evidence---Appeal---Delay in filing appeal had adequately been explained---Even otherwise superior courts were always slow in dismissing appeals or petitions on question of limitation and were inclined to hear the cases on merits in order to prevent grave miscarriage of justice---Allegation against accused was that he purchased a helicopter and used and maintained the same for his election campaign, while the costs and maintenance expenses incurred by accused were beyond his known sources of income---Case against accused was of no evidence as not a single prosecution witness had stated before the Trial Court that any money had been paid by accused towards the wet-lease or purchase of helicopter in question or its operation or maintenance or in respect of sale price thereof---No evidence was on- record that accused had withdrawn any money from his accounts or the accounts of his dependants or associates for making payment towards the wet-lease or purchase of said helicopter---Helicopter had been established to have been obtained on wet-lease for the election campaign of party of accused. and not for his personal use---Prosecution could not produce any voucher or any document for proving payment in connection with said helicopter---Prosecution had failed to establish any connection of accused with the said helicopter as owner or otherwise---Accused, in the given background, could not have been charged for owning assets in terms of transaction relating to the said helicopter beyond his known sources of income---Co-accused had been acquitted---Trial Court had proceeded on the presumption that in fact the helicopter was purchased by accused on the basis of a benami transaction---No evidence was on the record to even remotely suggest that it was such a transaction--Accused had been convicted by the Trial Court on no evidence direct or indirect and charge framed against him was defective---Gross illegality and irregularities were committed by the Trial Court during the trial proceedings and accused was denied his fundamental rights as enshrined in Art.10 of the Constitution---Conviction and sentence passed against accused was an outcome of an unfair trial conducted in violation of due process of law guaranteed in Art.4 of the Constitution---Accused was acquitted of all charges against him, in circumstances.

Pakistan Muslim League (N) v. Federation of Pakistan and others PLD 2007 SC 642; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Zia ul Rehman v. The State 2001 SCMR 1405; Abdur Rehman v. The State 1978 SCMR 292; Muhammad Sadiq v. Muhammad Sarwar PLD 1973 SC 469; New Jubilee Insurance Company Ltd. Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126 and Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863 ref.

Khawaja Haris Ahmad assisted by Mustafa Ramday and Saad Rasool, for Appellant.

Abdul Baseer Qureshi, Addl. Prosecutor-General Accountability, Mirza Idrees Baig, Senior Legal Consultant NAB, Waheed Iqbal and Afzal Hussain for Respondent.

Date of hearing: 26th June, 2009.

P L D 2010 Lahore 95

Before Syed Mansoor Ali Shah, J

CHIEF EXECUTIVE, FESCO, FAISALABAD and 2 others---Appellants

Versus

NAYAB HUSSAIN---Respondent

F.A.O. No.312 of 2009, heard on 6th October, 2009.

Punjab Consumer Protection Act (II of 2005)---

----Ss. 2(c)(k), 13 & 31---Jurisdiction of Consumer Court---Scope---Complaint against WAPDA---Application for installation" of electricity supply meter---Non-issuance of demand notice by WAPDA---Plea of WAPDA that complainant could not be provided electric connection due to non framing of Electrification Scheme for the area in dispute; that Consumer Court had no jurisdiction to entertain complaint as complainant was not a consumer and no services had been rendered to him; and that WAPDA was ready to provide electric connection to complainant on payment of its capital cost, which he had not paid---Validity---In order to invoke jurisdiction of Consumer Court, complainant had first to qualify to be a "consumer"---Complainant would not qualify to be a consumer in absence of any service being availed by him and payment of consideration in return for such service to WAPDA---No electrical energy was being supplied to complainant, thus no services were being availed by him and he was not a consumer' under Punjab Consumer Protection Act, 2005---Making of such application would not make complainant aconsumer' and inaction of WAPDA to decide such application would not fall under definition of "service" for purposes of the Act---Any administrative step prior td start of actual service was not a "service" under the Act---Consumer Court had to identify a consumer availing service, and if such service was found to be defective, then could fix damages and award same---Consumer Court could not issue a mandamus as prayed for by complainant---In order to get electricity connection, complainant had either to pay capital cost of a transformer or wait till entire area was electrified through a proper Electrification Scheme-Complaint for being not maintainable was dismissed in circumstances.

Mian Ashiq Hussain for Appellants.

Saeed-ul-Hassan Jaffery for Respondent.

Date of hearing: 6th October, 2009.

P L D 2010 Lahore 101

Before Ijaz-ul-Ahsan, J

Syed MANZOOR HUSSAIN---Petitioner

Versus

TEHSIL NAZIM, TEHSIL MUNICIPAL ADMINISTRATION, TESHIL SARAI ALAMGIR, DISTRICT GUJRAT and 3 others---Respondents

Writ Petition No.19067 of 2009, decided on 7th December, 2009.

(a) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 53, 54 & Second Sched. Part-II, Item 5, Cls. N, NN---Cantonments Act (II of 1924), Ss. 3, 11 & 13-A---Camping Ground under control of Army---Holding of private cattle fairs/markets on such Ground under lease agreement executed between Army Headquarters and petitioner without obtaining licence from concerned Town Municipal Administration---Validity---Land under command and control of Army would not under any provision of law make same immune from other laws prevalent in area including laws relating to Local Government---such ground could not be treated as a cantonment in absence of notification of Federal Government---Nothing was available on record to show a Cantonment Board in the relevant area and falling of Camping Ground within its jurisdiction---Nobody could set up and run his own cattle market on basis of a private arrangement and collect fees as same would amount to sanctioning unlawful collection of tax/fees, which was exclusive domain of Local Government---Nobody except Town Municipal Administration had power to establish cattle fairs/markets within its territorial jurisdiction---Establishment of cattle market on a Camping Ground or some property under control of Army could be done only with permission of Town Municipal Administration---Neither petitioner nor Army Headquarters had any lawful authority to collect any tax for sale and purchase of cattle in a cattle market in jurisdiction of Town Municipal Administration of the area---Principles.

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

---Art. 199---Constitutional petition---Alternate remedy, availability of---Effect---Direct recourse to constitutional jurisdiction of High Court could not be encouraged in presence of such remedy.

Ch. Muhammad Suleman for Petitioner.

Dr. Mohy-ud-Din Qazi for Respondents.

Date of hearing: 11th November, 2009.

P L D 2010 Lahore 111

Before Iqbal Hameed-ur-Rehman, J

AMJAD ALI---Petitioner

Versus

MUHAMMAD BOOTA and another---Respondents

Criminal Miscellaneous No.12770-B of 2009, decided on 20th October, 2009.

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

----S. 498-Penal Code (XLV of 1860), Ss.419/420/468/471---Personation, cheating, forging using a forged document as genuine---Pre-arrest bail, grant of---Post arrest bail granted to accused by Magistrate had been recalled by Sessions Court, vide impugned order--Accused, as per F.I.R., had contracted second marriage with a woman, whose previous marriage with the complainant was subsisting---In the Nikahnarna with the accused the said woman was mentioned as unmarried and 18 years old---Offence if any was not committed by the accused---Ingredients of offences under Ss.419, 420, 468 and 471, P.P.C. were not made out---Section 495, P.P.C. though attracted in the case, was not applicable to accused---Sessions Court while passing the impugned order had gone beyond his jurisdiction and had committed illegality and material irregularity not allowed in criminal justice---Co-­accused having already been admitted to bail, accused was also entitled to pre-arrest bail on the rule of consistency---Impugned order was consequently set aside and ad interim bail already granted to accused was confirmed in circumstances.

M. Irshad Ch. for Petitioner.

Ghulam Qadir Bari, Asstt. Prosecutor-General Punjab.

Mian Subah Sadiq Wattoo for the Complainant.

Zahoor Ahmed S.-I. with the police record.

P L D 2010 Lahore 114

Before Khawaja Muhammad Sharif, C. J. and Manzoor Ahmad Malik, J

Ch. KHALID MUSHTAQ---Petitioner

Versus

SPECIAL JUDGE (ADMN.) and 8 others---Respondents

Writ Petition No.7328 of 2008, decided on 12th November, 2009.

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

----S. 173---Anti-Terrorism Act (XXVII of 1997), S. 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Direction of Court to police to submit challan under a specified section---Jurisdiction---Scope---Anti-Terrorism Court had directed the Investigating Officer to submit challan under S.365-A, P.P.C. in the Court---Validity---Special Court constituted under Anti-Terrorism Act, 1997, had travelled beyond its jurisdiction while directing the Investigating Officer to submit challan in the Court under S.365-A, P.P.C. which was the sole job of the Investigating Agency to submit a report under S.173, Cr.P.C. before the Court of competent jurisdiction---Even S.19 of the Anti-Terrorism Act, 1997, did not empower to the Trial Court to issue such type of direction to the police---Impugned order was not sustainable in law and the same was consequently set aside---Constitutional petition was accepted accordingly.

Muhammad Azam v. Judge, Anti-Terrorism Court, Faisalabad and 6 others PLD 2008 Lah. 63; Muhammad Yasir v. The State PLD 2008 Lah. 523 and Muhammad Nazir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 ref.

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

----S. 173---Submission of final report of investigation by police in Court---Court not vested with the power to direct police to submit challan under a specified provision of law---Mandate of law---Section 173, Cr.P.C. is the only provision in the Code of Criminal Procedure enabling the concerned S.H.O. to submit a report of the result of every investigation in the prescribed manner in the Court---No Court including the High Court has the power to override the said legal command and to direct the S.H.O. either not to submit the said report i.e., the challan or to submit the same in a particular manner either against only such persons as the Court desires or only under such offences as the Court wishes.

Muhammad Nazir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 ref.

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

----S. 365-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Challan in the case having been submitted in the Trial Court, accused was directed to approach the said Court for the redressal of his grievance at the appropriate stage through a proper petition as provided under the law, as per guidelines enunciated by Supreme Court in the case reported as 2006 SCMR 276---Constitutional petition was disposed of with the said observation.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 ref.

Ch. Muhammad Rafique Warraich for Petitioner.

Ch. Muhammad Hanif Khatana, Advocate-General, Punjab.

Kh. Suleman Mahmood, Assistant Advocate-General, Punjab.

Muhammad Waseem for the Complainant.

P L D 2010 Lahore 119

Before Asad Munir, J

MUHAMMAD ANWAR KHAN---Petitioner

Versus

SABIA KHANAM and another---Respondents

Writ Petition No.2531 of 2009, decided on 28th October, 2009.

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

----S. 5 & Sched. ---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dower property---House---Not in name of husband---Effect---Plaintiff (wife) filed suit for recovery of dower, comprising a house and gold ornaments, dowry articles or Rs.159,500 in lieu thereof, as well as maintenance of herself and the minor---Defendant (husband) filed written statement wherein he asserted that he did not own the house described in the nikahnama---During pendency of suit, defendant died and the parents, brothers and sister of the defendant were impleaded as defendants---Trial Court partially decreed the claim of the plaintiff to the extent of house in haq mehr and dowry articles as per list or its value to the. sum of Rs.100,000 and further maintenance of the plaintiff and minor as Rs.700 and Rs.1500 respectively, per month from the date of judgment, with 10% increase till the age of majority of the minor---Appellate Court on appeal dismissed the same---Validity---Husband as a rule, could not give as dower property that did not belong to him but belonged to someone else including his father---Exception to this rule could be found if it was shown that the father of the husband agreed to do so---In spite of having knowledge that his house had been given as dower in nikahnama, the father of the husband never took any step to take any legal action for exclusion of the house from nikahnama---House mentioned in the nikahnama as dower even though, it did not belong to the husband was liable to be transferred to the plaintiff as the father of the husband had given his consent for the same---Liability of the grandfather to pay maintenance for the minor would include past maintenance as well as future maintenance as' the grandfather was responsible to maintain his grandchildren in absence of the father or on the inability, of the father to maintain his children---Constitutional petition was dismissed by High Court.

Muhammad Siddique and others v. Shahab-ud-Din and others 1927 All. Series, P.557, Vol. XLIX; Maj. Rifat Nawaz and others v. Mst. Tahira and others 2008 CLC 803; Civil Petitions Nos.136 and 127 of 2009; 2007 CLC 1517 and Writ Petition No.398 of 2009 ref.

Maj. Rifat Nawaz and others v. Mst. Tahira and others 2008 CLC 803 and Muhammad Siddique and others v. Shahab-ud-Din and others 1927 All. Series, P.557, Vol XLIX rel.

Qazi Muhammad Naeem Qureshi for Petitioner.

Ms. Farhana Qamar Rana for Respondents Nos.1 and 2.

P L D 2010 Lahore 123

Before Ijaz ul Ahsan, J

Sheikh MUHAMMAD YOUSAF and another---Petitioners

Versus

DISTRICT COLLECTOR/DISTRICT REGISTRAR (DOR), OKARA and 4 others---Respondents

Writ Petition No.18402 of 2009, heard on 13th November, 2009.

(a) Stamp Act (II of 1899)---

----Ss. 27-A & 75---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Stamp duty---Valuation of---Criteria---Scope---Petitioners evaluated the cost of commercial property to be a sum of Rs.1.5 million and paid stamp duty according to the rate specified by respondent---Authorities objected deficient payment of stamp duty and valued the property for the purpose of payment of stamp duty to its actual value of Rs.3.5 million and further imposed penalty of Rs.40,000 on the petitioners---Validity---Record revealed that authorities had determined "actual value of the shop without making any reference to valuation criteria provided in the law, notification and the valuation table" which constituted unlawful, arbitrary and colourable exercise of jurisdiction, not vested in the authorities---High Court accepted the constitutional petition and declared the orders passed by authorities as illegal, without lawful authority and of no legal effect and further ordered to transmit a copy of the judgment to the Board of Revenue, and Government of the Punjab for circulation to all concerned and for strict compliance of the laws on the subject---Constitutional petition was accepted by High Court.

Messrs Airport Support Services v. The Airport Manager Quaid-­e-Azam International Airport Karachi and others 1998 SCMR 22 rel.

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

----S. 24-A---Statutory functionaries---Exercise of powers---Scope---Statutory functionaries derive their powers from the statute; they are creatures of the statute and are bound to act and exercise only such powers and in such manner as is envisaged by law---All actions taken and orders passed must be based on the bedrock of law and statute---No room was available for arbitrary, unbridled, whimsical or capricious exercise of power by State functionaries specially so where rights of citizens are involved---Exercise of jurisdiction must indicate transparency, uniformity and use of objective criteria---Discretion, where not specifically granted could neither be presumed nor exercised---Right of hearing, audi alteram partem and the need for speaking and reasoned orders etc. to be emphasized.

Amer Sohail Sh. for Petitioners.

Rana Shamshad Khan A.A.-G. for Respondents.

Date of hearing: 13th November, 2009.

P L D 2010 Lahore 128

Before Asad Munir, J

ZIA MOHYUDDIN---Petitioner

Versus

ADDITIONAL DIRECTOR (EMIGRATION) FEDERAL INVESTIGATION AGENCY AIRPORT, KARACHI and others---Respondents

Writ Petition No.3273 of 2009, decided on 4th December, 2009.

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

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Exist from Pakistan---Power to prohibit---Pre-condition---Power to prohibit any person from leaving Pakistan must be exercised by means of order which should be communicated to affected person as soon as order is passed under S.2(1) of Exit from Pakistan (Control) Ordinance, 1981---If any order is passed but the sane is not communicated to the person concerned and is kept secret only to surprise that person later at the moment he is leaving the country, such is a case of arbitrary exercise of power.

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

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Exit from Pakistan---Control---Watch List---Scope---Petitioner sought higher education from abroad through Higher Education Commission of Pakistan but instead of serving in Pakistan he again went abroad for doing his Ph.D. but he was arrested at the airport as his name was included in Watch List prepared by Federal Investigation Agency---Validity---Watch List was mere euphemism for Exit Control List as in either case Federal Investigation Agency exercised its authority to ensure that person in question would not leave the country---Since placement of a person on Watch List or Exit Control List curtailed freedom of movement of a citizen, therefore, no person could be placed in such list unless show-cause notice and opportunity of hearing was provided to him before adverse action could be taken against him---Inclusion of petitioner's name in Watch List was done secretively as petitioner was neither served with any notice that his name was included in Watch List nor any opportunity of hearing was provided before placing him on the List---Such act of Authorities/Federal Investigation Agency culminating in off-loading of petitioner from plane was without lawful authority---Higher Education Commission of Pakistan had no authority to take or initiate any coercive or criminal proceedings against petitioner by arresting him and preventing him from leaving Pakistan---Authorities had no lawful authority to place petitioner in Watch List and stop him from proceeding abroad---Act of placing petitioner in Watch List/Exit Control List and disallowing him to proceed abroad was declared by High Court to be unlawful and without lawful authority---High Court directed the authorities to remove name of petitioner from Watch List and allow him to proceed abroad without any hindrance and delay---Petition was allowed accordingly.

2008 CLC 1607 rel.

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

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Watch list---Breach of contract with Higher Education Commission of Pakistan by students---Scope---Watch List includes list of persons who can be kept on watch and stopped from leaving Pakistan---Such list includes drug smugglers, persons associated with terrorism or engaged in human smuggling or trafficking or travellers or deportees with fake documents but nowhere does the list provide for preventing students from proceeding abroad even when they have acted in breach of their contract with Higher Education Commission of Pakistan or are leaving country in breach of the condition, which obliges then to stay in Pakistan for a certain period of time.

Mrs. Raila Sabohi for Petitioner.

Attiq-ur-Rehman Kiani (Standing Counsel).

Malik Anwar Mukhtar for Respondent No.3 along with Asif Kaleem (Project Manager).

P L D 2010 Lahore 134

Before Mian Saqib Nisar, J

Syed ANWAAR KAZMI---Petitioner

Versus

Ch. AKBAR GUJJAR and 3 others---Respondents

Writ Petition No.4736 of 2009, heard on 18th December, 2009.

(a) Words and phrases---

---- "Practice"---Meaning.

Concise Oxford Dictionary New Edn. ref.

(b) Punjab Legal Practitioners and Bar Councils Rules, 1974---

----Rr. 7.10 & 7.13---Lahore District Bar Memorandum of Association, 1981, Art.5(i)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Election of Bar Association--Bar Association, membership of---Scope---Petitioner assailed election of respondent as Vice President of Lahore Bar Association on the ground that respondent did not qualify to contest election---Validity---Any person even having been enrolled as advocate by Bar Council, still in order to practice, the membership of Bar Association was imperative for him---Rule 7.13 of Punjab Legal Practitioners and Bar Councils Rules, 1974, provided that, within six months of a person being enrolled as an advocate, he had to inform the Bar Council of the date of his application for admission as member of such Bar Association and if it was not so done, the licence granted to such advocate, who had no reasonable excuse to propound for such lapse, would stand automatically suspended---Respondent, in the present case obtained his enrolment with Bar Council on 31-3-2001 but till 16-12-2002, he was not enrolled with Lahore Bar Association/or any other, therefore, reading two rules together, not only that respondent was ineligible to practice, rather his licence during that period was not in force and only revived when he got membership of Bar Association on 16-12-2002---Respondent was not practising lawyer till 16-12-2002, as he could not practise unless was a member of Bar Association and resultantly was ineligible in terms of Art.5(i) of Lahore District Bar Memorandum of Association, 1974, and his nomination papers should not have been accepted by Election Board---As the respondent was not eligible to contest for election on the date of filing of his nomination papers as his practising period was short, therefore, High Court declared that the respondent was ineligible under Art.5(i) of Lahore District Bar Memorandum of Association, 1981, to contest election and orders passed by appellate forums to the contrary were set aside---High Court, keeping in view the mandate of electorates and tenure of office was likely to complete within few weeks, declined to annul election of respondent and relief sought by petitioner was declined---Petition was disposed of accordingly.

Muhammad Farooq Warind v. Pakistan Bar Council through Vice-Chairman and 5 others PLD 2009 Lah. 572 ref.

Pir S.R. Abidi for Petitioner.

Shehram Sarwar Chaudhry for Respondent.

Date of hearing: 18th December, 2009.

P L D 2010 Lahore 138

Before Umar Ata Bandial and Ijaz ul Ahsan, JJ

MUHAMMAD AZHAR SIDDIQUE and another---Appellants

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Lahore and 18 others---Respondents

I.-C.As. Nos.843, 851, 852 of 2009, decided on 25th November, 2009.

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

----Art. 199---Constitutional jurisdiction---Expression "aggrieved party"---Scope---Meaning of expression "aggrieved party", under Art.199 of the Constitution is not to be narrowly construed---It is not necessary for a party to have a right in strict juristic sense nor for the loss or curtailment of a benefit, privilege or liberty---In cases involving public element a "sufficient interest" in performance of legal duty is adequate to sustain recourse to Constitutional jurisdiction of High Court.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 ref.

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

----Arts. 199, 210(6), 213, 215 & 218(3)---Judicial review---Scope---Chief Election Commissioner's actions---Constitutional jurisprudence in Pakistan does not recognize non justiciability of any action taken or done by Constitutional functionary of the State---Threshold for attracting judicial review may differ, based upon relevant criteria but complete immunity from judicial review is a misnomer---However strong may be a Constitutional provision for ouster of jurisdiction of superior Courts in a matter, there are three criteria upon which a superior Court can always have jurisdiction to examine any action by a Constitutional functionary---Where action in question suffers from mala fides, is without jurisdiction or is coram non judice, a superior Court has jurisdiction to scrutinize and test validity of such action---High Constitutional functionaries cannot be made accountable for subjective decision that they make in discharge of their constitutional functions---It is merely the test of existence of relevant material and application of mind for taking action that may be applied to assess validity of their discretionary order---Courts thus avoid to proye subjective element of a discretionary decision but may examine its structural elements to consider its validity---Justiciability of constitutionally protected action on the touchstone of triad criteria of impugned action being coram non judice, without jurisdiction or mala fide---Such criteria recognized by Supreme Court in Ghulam Mustafa Khar's case report as PLD 1989 SC 26, represents a settled rule for granting judicial review---Discretionary order passed by autonomous high Constitutional functionary as Chief Election Commissioner is not immune from judicial review under all circumstances---Existence of material and application of mind thereto are two essential ingredients for obtaining immunity from judicial review.

Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 rel.

(c) Words and phrases---

----"Assist"---Meaning.

Oxford Dictionary; Black's Law Dictionary; Strouds Law Dictionary and Corpus Juris Secundum, Vol. VII rel.

(d) Maxim---

----Audi alteram partem---Scope---Rules of audi alteram partem encapsulates the basic principle that no person should be condemned unheard---Such principle, therefore, postulates a right of hearing of affected person in respect of an adverse decision likely to be taken against him---Fair hearing has in turn been interpreted to require that affected person is first confronted with adverse material and then is given opportunity to rebut or explain the same---As such the principle may accordingly, involved issuance of notices and filing of replies before hearing---In essence elements of rule of natural justice suggest its relevance and application to quasi judicial or determinative proceedings in relation to a personal interest.

(e) Interpretation of Constitution---

----Convention---Enforceability---Principle---Development of a convention represents a process, primary characteristic of which is that both parties to the convention acknowledge its existence---Element of consistent practice between Constitutional functionaries point to the existence of a usage that is accepted by both parties---Such may, therefore, be treated to be a Constitutional convention existing between 'them.

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

----Arts. 218(3), 220 & 224(3)---Assistance to Election Commission---Provincial Government, duty of---Scope---Rendering assistance by Provincial Government necessarily includes liberty and privilege to apprise Chief Election Commissioner and the Commission about situation on the ground and to make suggestions as to when and if so under what arrangements an election that meets the requirement of Art.218(3) of the Constitution may be held---Such liberty and privilege cannot authorize Provincial Government to block announcement of election schedule by Chief Election Commissioner or the Commission until a hearing, the attributes of which remain unsettled, is granted to Provincial Government---Such a course may subordinate autonomy by Chief Election Commissioner and Commission to perform his or their duty of holding a bye-election expeditiously pursuant to Art.224(4) of the Constitution which ought to have a mandatory effect in order that political sovereign in that constituency does not go unrepresented and is not disenfranchised.

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

----Ss.11, 11-A, 103---Election Commission Order (I of 2002), Art.6---Constitution of Pakistan (1973), Arts.210(b), 213, 215 & 218(3)---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Bye-­elections---Postponing of election schedule---Law and order situation---Request of Provincial Government---Notifications of four bye-elections issued by Election Commission were set aside by Single Judge of High Court in Constitutional petition filed by Provincial Government-Validity---Constitutional petition filed by Provincial Government was maintainable and discretionary orders passed by Chief Election Commissioner were justiciable on judicial criteria reserved for orders passed by Constitutional functionaries---Order passed by Chief Election Commissioner applied rules of natural justice to S.103 of Representation of the People Act, 1976, regarding bye-elections of one constituency which were not followed for remaining three bye-elections ordered by Chief Election Commissioner---Materials and view of Provincial Government asked for by Chief Election Commissioner remained to be considered by him before announcing a fresh schedule of bye-election in four constituencies in the province---Contention of appellants failed on the challenges to maintainability of Constitutional petition and jurisdiction of High Court but they succeeded on substantive findings assailed---Intra-Court Appeal was allowed accordingly.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Muhammad Shafiq Chaudhry v. The Province of Punjab 1998 SCMR 1957; Shamim Ahmad v. Deputy Speaker, and others C.P.D.-2599 of 1992; Election Commission of India v. State of Haryana AIR 1984 SC 1406; Raheem Shah v. The Chief Election Commissioner of Pakistan PLD 1973 SC 24; Federation of Pakistan v. Haji Muhammad Saif Ullah Khan PLD 1989 SC 166; Ghulam Mustafa Jatoi's case 1994 SCMR 1299; Aftab Shahban Mirani's case 1998 SCMR 1863; Presidents Reference No.1/1988 PLD 1989 SC 75; Shamim Ahmad v. Deputy Speaker Sindh Provincial Legislative Assembly and others Constitutional Petition No.D-255 of 1992; Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Constitutional and Administrative Law by Hilaire Barrett (Third Edn.) and Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

Appellant in person (in ICA No.843 of 2009).

Dr. Farooq Hassan for Appellant (in ICA No.852 of 2009).

Shafqat Mahmood Chohan for Appellant (In ICA No.851 of 2009).

Kh. Haris Ahmad Assisted by Mustafa Ramday, and Adnan Tariq for Respondents Nos.1 and 2 along with Raza ul Karim Butt, AAG.

Aamir Rehman, DAG for Respondents Nos.3 and 4 along with Ch. Shahid Sarwar, Law Officer, Provincial Election Commission of Pakistan, Lahore.

Abdul Rashid Qureshi for Respondent No.7.

Muhammad Asad Manzoor Butt for Respondent No.8.

Date of hearing: 11th November, 2009.

P L D 2010 Lahore 156

Before Ijaz Ahmad Chaudhry and Sh. Najam-ul-Hasan, JJ

Hafiz TANVEER---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1 of 2009 in Criminal Appeal No.30 of 2009, decided on 13th January, 2010.

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

----S. 426---Penal Code (XLV of 1860), S.302(b)/34---Qatl-i-amd---Suspension of death sentence---F.I.R. was lodged against unknown persons---No ocular account of occurrence was available---Prosecution case rested only on circumstantial evidence---No importance could be attached to the evidence of "Wajtakkar" in the absence of ocular evidence---Accused had not made any extra judicial confession---Motive was not attributable to accused---Recovery of weapon from the accused was legally inconsequential in the absence of positive report of the Forensic Science Laboratory about the crime empties recovered from the spot---Question whether the conviction and sentence of accused could be maintained only on the evidence of "Wajtakkar", was yet to be determined by High Court, but for the time being there was no likelihood of hearing of the main appeal in the near future---Ultimately if the accused was acquitted, the period served by him in jail would not be compensated in any manner---Accused could not be kept in jail for indefinite period merely on the basis of "Wajtakkar" evidence---High Court could suspend the sentence of death, if the conviction was not based on cogent evidence and the accused was likely to be acquitted after final hearing of main appeal---Sentence of death of accused was suspended in circumstances and he was released on bail accordingly.

Fazal Rahim v. The State PLD 2004 Lah. 266; 2003 SCMR 477; 2007 SCMR 246 and 1994 PCr.LJ 1516 ref.

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

----S. 426---Suspension of death sentence pending appeal---High Court can suspend the sentence of death if the conviction is not based on cogent evidence and there is likelihood of acquittal of accused after final hearing of appeal.

M. Irfan Malik and Tahir Farooq Chaudhry for Petitioner.

Ahsan Rasool Chattha, D.P.G. for the State.

Sh. Naveed Sheharyar for the Complainant.

P L D 2010 Lahore 160

Before Sh. Azmat Saeed and Syed Mansoor Ali Shah, JJ

SHAZIA MUNAWAR---Appellant

Versus

PUNJAB PUBLIC SERVICE COMMISISON through Secretary, Lahore---Respondent

I.-C.As. Nos.518 of 2008 and 305 of 2009 and W.P.No.19717 of 2009, decided on 18th January, 2010.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-Court Appeal---Limitation---Office objection, removal of---Appeal was originally filed on last day of limitation and office raised some objection to be removed within seven days---Appeal was reified two or three days beyond the time allowed by office to remove the objection---Validity---Appeal having been filed within prescribed period could not be held to be barred by limitation--Office should have placed the appeal before Court to be dealt with in accordance with law---Appellants could not be accused of being contumacious or negligent, as time taken for removal of unclear objection was only 2 or 3 days more than the time allowed specially when it was not on record as to when notice in such behalf was issued to appellant or when list of objection case was actually displayed by office---Intra-Court Appeal was not barred by limitation in circumstances.

Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCMR 847 fol.

(b) Law Reforms Ordinance (XII of 1972)---

----S.3---Intra-Court Appeal---Limitation---Administration of justice---More than one appeals---Even if one appeal or proceedings are barred by limitation, it should be heard and decided on merits where connected appeal or proceedings involving identical legal questions arising from same order has been filed within time.

Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 rel.

(c) Punjab Public Service Commission Regulations, 1987---

----Regln. 11---Punjab Judicial Service Rules, 1994, R. 7---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Civil Judges-cum-Judicial Magistrates---Eligibility of candidate---Experience---Determination---Last date of submission of form / date of advertisement---Relevancy---Appellants applied for the posts of Civil Judges-cum-Judicial Magistrates but their application forms were rejected on the ground that they did not possess required length of practice on the date when vacancies were advertised in newspaper---Validity---For the purpose of selection and appointment through Punjab Public Service Commission, the relevant date prescribed by law for calculating experience was closing date for submission of application---Such principle was applicable to selection and appointments for all posts where process for selection was effected through Punjab Public Service Commission---Critical date for calculating experience was last date for submission of form and not the date of advertisement---Appellants were eligible to be considered for appointment as Civil Judges-cum-Judicial Magistrates and rejection of their forms / applications was illegal and not sustainable in law---High Court set aside the order passed by authorities and appellants were held eligible for selection and appointment for the posts in question through process undertaken by the Commission pursuant to its advertisement---Appellants had already completed process and had passed examination and were on merit list entitling them for appointment, therefore, High Court directed the authorities to appoint appellants as Civil Judges­-cum-Judicial Magistrates with effect from the date other candidates who were appointed in accordance with the process undertaken pursuant to their advertisement---Appeal was allowed accordingly.

Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Naziran Begum and 2 others v. Saleh Muhammad and others 2002 SCMR 37; Province of Punjab through District Collector Lodhran and 6 others v. Muhammad Khalid Khan 2005 CLC 1083; Pakistan through the Secretary, Ministry of Rahabilitation and Works, Government of Pakistan, Karachi and others v. R.S. Roopchand and others PLD 1967 SC 479; Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-I, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and others PLD 1989 Kar. 404; Mian Khan v. N.-W.F.P. PLD 1993 SC 187 and Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105 ref.

(d) Interpretation of statutes---

----Explanation in statutory instrument---Scope---Explanation does not form substantive part of provision to which it is appended---All rights and liabilities can only be spelt out from substantive provision and not from Explanation which cannot be pressed into service to vary or change scope of main provision.

Manj Khan v. The Controlling Authority, Layllpur and others PLD 1968 Lah. 202; Colony Sarhad Textile Mills Ltd. v. Collector, Central Excise and Land Customs and another PLD 1969 Lah. 228; Muhammad Hussain Patel v. Habib Wali Muhammad and others PLD 1981 SC 1 and Arshad Akram and Co. and 8 others v. Divisional Superintendent, Pakistan Railways, Rawalpindi and 5 others PLD 1982 Lah. 109 rel.

(e) Punjab Judicial Service Rules, 1994---

----R. 7, Explanation---Period of experience---Explanation---Scope---Explanation in S. 7 of Punjab Judicial Service Rules, 1994, does not even purport to enlarge period of experience nor attempts to change or vary the same---Explanation only prescribes mode of proof required to establish that the candidate possesses requisite experience.

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

----Arts. 2A & 175---Independence of Judiciary---Selection, appointments and promotion of members of judicial service---Scope---Constitution of Pakistan, 1973, proceeds on the premises of trichotomy of powers with Independence of Judiciary and its separation from Executive as one of its salient features---No statute or Rule or Regulation made under the Constitution can be interpreted so as to offend against the principle of Independence of Judiciary lest its very validity and constitutionality become doubtful---In matters relating to selection, appointments and promotions of members of judicial service the Independence needs to be guarded even more jealously.

Mian Khan v. N.-W.F.P. PLD 1993 SC 187 rel.

(g) Punjab Judicial Service Rules, 1994---

----R.12---Judicial service---Selection, appointments and promotion---Recommendation of High Court---Effect---Despite recommendation of High Court, rules were not relaxed regarding two candidates---Validity---In matter pertaining to members of judicial service and their selection, appointments and promotions, the views and opinions of High Court must take precedence over any purported opinion of Executive---Not only specific observations were made by High Court on judicial side but reference was made by Chief Justice and other Judges forming part of Administration Committee of High Court---Competent Authority should have given deference to such observations rather than override the same, specially as High Court was the appointing authority of the candidates.

(h) Public functionaries---

----Power, authority and jurisdiction---Scope---All powers, authority and jurisdictions exercised by Executive, Legislative or Judiciary in Pakistan are sacred trust and not Divine right---People in respect whereof such powers, authority and jurisdictions are exercised are citizens and not subjects.

Abid Hassan Minto, Mian Abdul Ghaffar and Jahazeb Bharwana for Appellant.

Faisal Zaman, Addl.A.-G. with M. Farooq Raja, Dy. Director (Legal), PPSC, Lahore for Respondent.

Date of hearing: 14th December, 2009.

P L D 2010 Lahore 175

Before Sh. Azmat Saeed, J

Mrs. NASIRA IQBAL---Petitioner

Versus

APPEAL COMMITTEE (PUNJAB NO.II), PAKISTAN BAR COUNCIL through Chairman and 5 others---Respondents

Writ Petition No.14213 of 2009, decided on 15th January, 2010.

(a) Punjab Legal Practitioners and Bar Councils Rules, 1974--

----Rr.7.1 & 7.5---Pakistan Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 3---Bar Association, recognition of---Scope---No body or association of advocates, unless recognized by Punjab Bar Council, could exist in law or use word "Association" or function as such---No fresh application would be entertained in respect of a pre-existing Bar Association---Reference to Bar Association in Pakistan Legal Practitioners and Bar Councils Act, 1973 and Punjab Legal Practitioners and Bar Councils Rules, 1974 would include a High Court Bar Association---Principles.

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

----Ss. 9 & 52---Lahore High Court Bar Association Rules, 1930, Rr.19, 20 & 21---Punjab Rules of Business of Bar Association Memorandum of Association Rules, 1981 [as amended on 7-12-1991], Rr.23, 24, 45, 64 & 67---Punjab Legal Practitioners and Bar Councils Rules, 1974, Rr.7.1 & 7.8---Constitution of Pakistan (1973), Art.199---Filling up of vacancy of office of President of High Court Bar Association---Procedure---Such vacancy must be filled in through election and Vice-President would not automatically assume such office for unexpired period of tenure---Such vacancy of President (also being a member of Executive Committee) would be filled in by a member elected by General House through show of hands---Vacant office of such Association other than a member of its Executive Committee would be filled in by a person having secured next highest votes---Principles.

Muhammad Aslam v. Member Board of Revenue, PLD 1989 SC 45; Federation of Pakistan v. Haji Muhammad Saif Ullah, PLD 1989 SC 166; Manzoor v. Rehabilitation Authority PLD 1957 Lah.228; Dad Muhammad v. Bassa PLD 1965 Lah. 77; Aljehad Trust v. Federation of Pakistan and others PLD 1996 SC 326; Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Zehar Ahmed Choudhry v. City District Government Karachi 2006 YLR 2537; Yousaf Haroon v. Custodian of the Karachi Hotel Project 2004 CLC 1967; Bahadur Yar Jang Foundation Pvt. v. Government of Sindh, PLD 2009 SC 393 ref.

(c) Judgment---

----Judgment of High Court deciding legal issues after dealing with same in great detail---Effect---Such findings could not be treated as mere observations or obiter dicta.

(d) Pakistan Legal Practitioners and Bar Councils Act (XXXV of 1913)---

----Ss. 9 & 52---Lahore High Court Bar Association Rules, 1930, Rr.19, 20 & 21---Punjab Rules of Business of Bar Association Memorandum of Association Rules 1981, R.23---Punjab Legal Practitioners and Bar Councils Rules, 1974, Rr.71 & 7.8---Constitution of Pakistan (1973), Art. 199---Constitutional petition against orders of Pakistan Bar Council and Punjab Bar Council---Maintainability---Constitutional jurisdiction of High Court could not be taken away by any sub-constitutional legislation---High Court could exercise its jurisdiction in respect of both such Councils being statutory bodies.

Bahadur Yar Jang Foundation Pvt. v. Government of Sindh PLD 2009 SC 393 rel.

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

----Ss. 9 & 52---Lahore High Court Bar Association Rules, 1930, Rr.19, 20 & 21---Punjab Rules of Business of Bar Association Memorandum of Association Rules, 1981, Rr.23, 24, 45, 64 & 67---Punjab Legal Practitioners and Bar Council Rules, 1974, Rr. 7.1 & 7.8---Dispute as to election of High Court Bar Association---Remedy---Executive Committee of Punjab Bar Council had jurisdiction to decide such dispute.

(f) Administration of Justice---

----Events occurring pendente lite must necessarily be factored into final judgment of Court.

Ahmad Awais and Tipu Salman Makhdoom for Petitioner.

Muhammad Azhar Siddique and Muhammad Sarfraz Khan Gondal for Respondents.

Date of hearing: 23rd November, 2009.

P L D 2010 Lahore 197

Before Ijaz ul Ahsan, J

MUHAMMAD FIAZ and another---Petitioners

Versus

Ch. YAQOOB HUSSAIN and another---Respondents

Writ Petition No.20844 of 2009, decided on 16th December, 2009.

(a) Punjab Rented Premises Act (III of 2009)---

----S. 9(b)-Constitution of Pakistan (1973), Art, 199--Constitutional petition---Non-deposit of fine by landlord in terms of S.9(b) of Punjab Rented Premises Act, 2009--Order of Rent Tribunal accepting landlord's application directing him to deposit such fine within five days, otherwise ejectment petition would stand dismissed-Plea of tenant that Rent Tribunal had no powers to grant or enlarge time for compliance with provisions of S.9(b) of Punjab Rented Premises Act, 2009; and that due to non-deposit of fine in advance, Rent Tribunal had no jurisdiction .to entertain ejectment petition---Validity---Refusal to entertain ejectment petition would not mean that without payment of fine, same would not be accepted by staff and placed before Rent Tribunal, rather same would mean that Rent Tribunal would not consider, proceed with or adjudicate ejectment petition on merit---Policy of law in matters relating to payments required to be made by a litigant by way of fee, fine or other deposits appeared to point towards flexibility rather than rigidity---Substance rather than form would be underlying principle in such matters---For non-complying with requirement of S.9(a) or (b) of the Act, Rent Tribunal could not consider, proceed or adjudicate upon matter on merits, rather would either on its motion or at instance of defaulting party allow reasonable time to deposit fine or make up its deficiency within specified time---On failure of landlord to deposit fee within fixed or extended time, Rent Tribunal might dismiss ejectment petition---Impugned order specified the amount required to be deposited as fine, identified where same was to be deposited, gave a time frame for such deposit and spelt out consequence of failure to deposit---Impugned order was correct---High Court dismissed constitutional petition in circumstances.

Oxford English Dictionary; Chamber's 21st Century Dictionary; Black's Law Dictionary; Stroud's Judicial Dictionary; DW Superintendent PWR Multan v. A Khaliq 1984 SCMR 1311; Legal and Commercial Dictionary by Mitra (page 270); Words & Phrases by Swendra Malik (Page 232); Pakistan Steel Workers Union v. Registrar Trade Union Karachi 1992 PLC; 715 and All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 rel.

(b) Words and phrases.

----"Entertain"---Meaning.

Oxford English Dictionary; Chamber's 21st Century Dictionary defines the word; Black's Law Dictionary; Stroud's Judicial Dictionary; DW Superintendent PWR Multan v. A Khaliq 1984 SCMR 1311; Legal and Commercial Dictionary by Mitra (page 270); Words & Phrases by Swendra Malik (page 232); Pakistan Steel Workers Union v. Registrar Trade Unions Karachi 1992 PLC; 715 and All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 ref.

(c) Court Pees Act (VII of 1870)---

----Ss.6, 10 & 28---Suits Valuation Act (VII of 1887), Ss.11---Civil Procedure Code (V of 1908), Ss.148, 149, 151 & O. VII, R.11---Plaint or appeal deficiently stamped---Validity--Policy of law not being to penalize a litigant oil account of deficiency of court-fee-Court Fees Act, 1870 not meant to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the State---Plaint presented within limitation period could not be said to be time-barred merely on account of being deficiently stamped---Court could not dismiss suit or appeal without first specifying deficiency in court fee and giving time for making up such deficiency---Deficiency in court-fee could also be made good under S.151, C.P.C.---On compliance of such order, plaint or appeal would have some force and effect as if court fee had been paid in first instance---Conditional order or decree could also be made to effect that failure to supply proper court fee within a time allowed would result in dismissal of suit or rejection of plaint--Principles.

Akbar Ali and 4 others v. Province of Punjab 1989 SCMR 1040: Siddiq Khan and 2 others v. Abdul Shakar Khan and other PLD 1984 SC 289, Shahena Khan v. Aulia Khan and others PLD 1984 SC 157; Muhammad Saleem v. Inayat Ullah PLD 1983 Lah. 215; Mst. Parveen v. Mst. Jamsheda Begum PLD 1983 SC 227, Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159, Wilayat Khatak v. Khalil Ahmad Khan and another PLD 1979 SC 821; Sardar Muhammad Karm Ziaudin Durrani and others v. Sardar Muhammad Asim Fakhruddin Durrani and others 2001 SCMR 148, Ch. Nazir Ahmad v. Abdul Karim and another PLD 1990 SC 42; Messrs Muhammad Siddiq Muhammad Umar v. Australasia Bank PLD 1966 SC 684 and Faqir Muhammad and 8 others v. Noor Muhammad 1970 SCMR 188 rel.

Mian Khurshid Alam Ramay for Petitioners.

Abdur Razzaq Younas for Respondents.

P L D 2010 Lahore 206

Before Iqbal Hameed-ur-Rahman, J

Dr. FAUZIA HANEEF---Petitioner

Versus

Dr. RAASHID JAVAID and 2 others---Respondents

Writ Petition No.18721 of 2009, decided on 3rd February, 2010.

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

----S.25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petition for custody of minor son and daughter by mother---Such petition made by father showing both parents of minors to be residing in one house, while father alleging minors to be in his custody---Validity---Such petition was misconceived as custody of minors had never been removed---Such petition was not entertain able, thus, was dismissed in circumstances.

(b) Islamic Law---

----Female childe, custody of---Disentitlement of mother to such custody---Circumstances stated.

A female could only be disentitled to the custody of her minor child, if she remarries or goes and resides at a distant place or if she leads an immoral life or she neglects to take proper care of the child.

Section 354 of the Muhammadan Law rel.

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

----S. 25---Petition for custody of minor son and daughter by mother---Contest between parents of minors, both being Doctors by profession---Private compromise between parties giving custody of minors to father 'while divorcing their mother---Validity---Court before passing any order would prefer the welfare of minors---Father had not alleged that mother had either remarried or was leading an immoral life or had neglected to take proper care of minors---Father was serving professional doctor and had no female in his house to look after children---Minor so was being looked after by father through a male servant of 14/15 years, while minor daughter was being brought up by his sister residing at another place---Both minors for being of tender age required affection---Mother was a doctor and having sufficient sources---Welfare of minors in circumstances, would be in handing over their custody to mother having preferential right of Hizanat---Private agreement between the parties was neither valid in law nor even enforceable---Application of mother was accepted in circumstances.

Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267; Mst. and Mehmood Akhtar v. District Judge, Attock and 2 others" 2004 SCMR 1839 ref.

Mst. Tahera Begum v. Saleem Ahmed Siddiqui PLD 1970 Kar. 619, Mst. Naseem Kausar v. Muhammad Saleem and 2 others 2003 MLD 1306; Mst. Moondan v. Muhammad Amin 1989 MLD 3427; Muhammadan Law S.54; Mst Razia Rehman v. Statin House Officer and others PLD 2006 SC 533; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 rel.

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

----S.25---Mother's application for custody of minor son and daughter---Denial of mother's right to such custody by father on basis of private agreement reached between the parties---Validity---Mother had preferential right of Hizanat under Islamic Law---Such agreement regarding custody of minor was neither valid in law nor even enforceable---Court, in such circumstances, would prefer welfare of minors before passing any order.

Mst. Tahera Begum v. Saleem Ahmed Siddiqui PLD 1970 Kar. 619; Mst. Naseem Kausar v. Muhammad Saleem and 2 others 2003 MLD 1306; Mst. Moondan v. Muhammad Amin" 1989 MLD 3427 and Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 rel.

Syed Sajid Ali for Petitioner.

Ch. Muhammad Saleem for Respondent.

Date of hearing: 3rd February, 2010.

P L D 2010 Lahore 214

Before Syed Mansoor Ali Shah, J

Before Dr. SHAMSHAD HUSSAIN SYED---Petitioner

Versus

DISTRICT CONSUMER COURT, LAHORE and another---Respondents

Writ Petition No.24729 of 2009, decided on 18th February, 2009.

Punjab Consumer Protection Act (II of 2005)---

---Ss. 2(c), 2(k), 25 & 35---Constitution of Pakistan (1973), Art.199---Constitutional petition---'Consumer'---Definition-Jurisdiction of Consumer Court---Scope---Complainant filed complaint under S.25 of the Punjab Consumer Protection Act, 2005 before the Consumer Court on the ground that services rendered by the respondents were faulty and defective as diagnostic centre of the respondents issued a wrong medical report stating that Anti HCV of the complainant was reactive---Respondents filed an application under S.35 of the Punjab Consumer Protection Act, 2005 before the Consumer Court on the plea that the complaint was vexatious and frivolous---Consumer Court dismissed application of the respondents and allowed application filed by complainant for appointment of Medical Board/Pathologist---Respondents asserted that the Consumer Court had no jurisdiction to entertain the Matter as the complainant was not a "consumer" under S.2(c) of the Punjab Consumer Protection Act, 2005---Validity---Complainant had availed medical services after paying consideration and was, therefore, a consumer under Punjab Consumer Protection Act, 2005---Consumer Court had jurisdiction to try complaint of the complainant---Constitutional petition was dismissed by High Court.

Charan Singh v. Healing Touch Hospital AIR 2000 SC 3138 rel.

Rizwan Mushtaq for Petitioner.

Muhammad Afzal Baig assisted by Shahid Mahmood Aleem for Respondent No.2.

P L D 2010 Lahore 219

Before Ijaz-ul-Ahsan, J

MUHAMMAD ALI NAWAZ and 3 others---Petitioners

Versus

Sh. MUHAMMAD ASLAM---Respondent

Civil Revision No.2530 of 2009, decided on 10th March, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2---Recovery of money---Bank cheques---Leave to defend the suit---Conditional order---Bona fide defence---Non-service of summonses in Form IV, Appendix B, C.P.C.-Trial Court granted to defendant leave to defend the suit subject to their furnishing of surety bond---Validity---Defendants had raised bona fide defence in their application for leave to defend the suit---Summonses were not served on one of the defendants in accordance with the requirements of O.XXXVII, C.P.C.---Defendants had specifically denied signatures on negotiable instruments and plaintiff did not place on record anything to indicate that cheque in question was issued for consideration---Executant of the cheque had passed away and the circumstances in which cheque was issued, presented and subsequently suit was filed, required further probe, recording of evidence and application of mind by Trial Court---Calling upon the defendants to furnish surety bond as a condition for grant of leave to appear and defend the suit was harsh and the same would cause hardship and might result in non-suiting the defendants on technicality, despite the fact that they might have a good defence---Order passed by Trial Court imposing condition of submitting of surety bond was set aside and leave to defend the suit was granted unconditionally---Revision was allowed accordingly.

Pakistan Water and Power Development Authority (WAPDA v. Messrs Sea Gold Traders and 2 others 2003 CLD 392; Fine Textile Mill's case PLD 1969 SC 263; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1996 SC 749; Mst. Bilquees Fatima v. Abdul Razzaq PLD 1986 Kar. 444; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 and Mahmood Ali Butt. v. Inspector-General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823 ref.

Syed Mukhtar Abbas for Petitioners.

Munir Ahmad Khan Zia for Respondent.

P L D 2010 Lahore 224

Before Ijaz Ahmad Chaudhry, J

LIAQAT ALI VIRK---Petitioner

Versus

INSPECTOR GENERAL OF PUNJAB POLICE, LAHORE and 8 others---Respondents

Writ Petition No.1264 of 2010 and C.M. No.651 of 2010, decided on 11th February, 2010.

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

----Ss. 156 & 173---Reinvestigation---Rule of caution---System of reinvestigation is a recent innovation adopted by influential persons in order to obtain favourable reports of investigation---Such reports do not assist the Courts in reaching a right conclusion, rather the same create more complications in the administration of criminal justice---Reinvestigation and successive investigations in a case are, therefore, disapproved.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

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

----Ss. 156 & 173---Reinvestigation after commencement of trial, not lawful---After submission of challan in the Court and commencement of trial, change of investigation or ordering further investigation in the case, is not sustainable in law.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 ref.

(c) Police Order (22 of 2002)---

----Art. 18(6)---Criminal Procedure Code (V of 1898), Ss.87 & 88---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of investigation---Abscondence of accused---Effect---Fugitive from justice is not entitled to any relief from a Court of law, unless he first surrenders himself before it.

Mst. Irshad Begum v. Sessions Judge and 5 others 2007 MLD 258 ref.

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

----S. 156----Penal Code (XLV of 1860), Ss.302/148/149/109---Constitution of Pakistan (1973), Art.199---Qatl-i-amd, abetment---Constitutional petition---Further investigation in the case---Validity---Challan had been submitted in the Court---Trial had commenced and evidence of a prosecution witness had been recorded by Trial Court---Two senior police officers had found the accused guilty in the case---Accused had not so far surrendered before the police and he being a fugitive from law had lost his normal rights of audience---Proceedings initiated on the application of accused for recommendation of further investigation in the matter were quashed in circumstances---Constitutional petition was accepted accordingly.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Mst. Irshad Begum v. Sessions Judge and 5 others 2007 MLD 258 and Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 rel.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13; Muhammad Yousaf v. The State and others 2000 SCMR 453 and Azmat Ullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 ref.

Ch. Imran Raza Chadhar for Petitioner.

Ahmed Awais for Respondent No.8.

Shoukat Rafiq Bajwa and Sheikh Maqbool Hussain for Respondent No.7.

Waqas Qadeer Dar, A.A.G.

Rana Muhammad Anwar Khan DSP, Legal.

P L D 2010 Lahore 230

Before Syed Mansoor Ali Shah, J

Mian AYAZ ANWAR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Interior and 3 others---Respondents

Writ Petition No.24023 of 2009, heard on 20th January, 2010.

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

----Ss. 2(1) & 3--Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability--Alternate remedy of review---Scope---Order passed by authorities--Pre-condition---Plea raised by authorities was that petitioner had alternate remedy of review available to him-- Validity---Order under S.2(1) of Exit from Pakistan (Control) Ordinance, 1981, meant speaking order giving reasons--Such order must also sufficiently should have explained the element of "public interest" that would stand offended if prohibitory order was not passed under S.2(1) of Exit from Pakistan (Control) Ordinance, 1981--Memorandum against petitioner did not constitute an order for the purposes of review, therefore, the remedy of review under Exit from Pakistan (Control) Ordinance, 1981 was illusory and meaningless---Order in question involved interpretation of fundamental rights of petitioner and of S.2 of Exit from Pakistan (Control) Ordinance, 1981, therefore, constitutional petition was maintainable, as remedy of review under S.3 of Exit from Pakistan (Control) Ordinance, 1981, did not constitute adequate remedy for the purposes of Art. 199 of the Constitution---Petition was maintainable in circumstances.

Wajid Shamas-ul-Hassan v. Federation of Pakistan PLD 1997 Lah. 617; Munawar Ali Sherazi v. Federation of Pakistan PLD 1999 Lah. 459 and Sikandar Hayat Khan and 4 others v. Government of Pakistan PLD 2003 Pesh. 102 rel.

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

----Arta 9---Exit from Pakistan (Control) Ordinance (XLVI of 1981), S.2---Right to liberty---Freedom of travel---Scope---Right to travel is part of human liberty as travel signifies freedom and liberty--- Right to travel outside the country is fundamental right and an intrinsic part of right to liberty which is guaranteed under Art. 9 of the Constitution---World today 'has shrunk due to online connectivity, internet, media and faster means of travel---People today travel across the globe to pursue higher education; to seek more challenging and rewarding employment, to carry out academic research or to discover and expand their business into new markets of world---Travel, therefore, has become0an integral part of modern life---Right to education, right to livelihood and right to carry out lawful profession are incomplete without having access and right to travel to any part of the world and in particular to educational or business centres of the world---Right to travel, especially international travel, besides being right to liberty is also an integral part of right to life or right to meaningful, challenging, satisfying and purposeful life---Right to international travel is a right to life in addition to right to liberty.

PLD 2004 Lah. 478; 2003 YLR 3104; Sikandar Hayat Khan and 4 others v. Government of Pakistan PLD 2003 Pesh. 102; Constitution of India by Durga Das Basu 8th Edn. 2207, p.2'793; Kent v. Dulles, 357 U.S.116 (1958); Aptheker v. Secretary of State 378 US 500 (1964); Satwant's case AIR 1967 SC 1836; Government of Pakistan v. Dada Amir Haider Khan PLD 1987 SC 504; Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Kar. 705; Munawar Ali Sherazi v. Federation of Pakistan and others PLD 1999 Lah. 459; Babar Khan Ghauri and another v. Federation of Pakistan and others PLD 1999 Kar. 402; Major (Retd.) Mir Mazhar Qayyum v. Federation of Pakistan 1999 YLR 111; Miss Naheed Khan v. Government of Pakistan and others PLD 1997 Kar. 513; Abdul Hafiz Pirzada and another v. Government of Pakistan 1989 CLC 79; State of the Islamic Republic of Pakistan v. Zulfiqar Ahmad 2005 SCMR 1469; Kishwar Jabeen and another v. Federal Government of Pakistan and others 2005 YLR 2438; Khan Muhammad Mahar v. Federation of Pakistan PLD 2005 Kar. 252; Mehtab Ahmed v. Federation of Pakistan & 3 others 2003 CLC 246 and Chief justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry v. The President of Pakistan through the Secretary and others PLD 2010 SC 61 rel.

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

----Art.9---Exit from Pakistan (Control) Ordinance (XLVI of 1981), S.2---Fundamental rights, abridging of---Scope---Right to life and liberty of a citizen can only be restricted or abridged if it is in "accordance with law" and "law" means Law that caters to larger collective public interest---Fundamental right of an individual guaranteed under the Constitution can only be surrendered and succumb to a lawful collective interest of the community or the society---Public interest or collective community interest is a basket of various public interests including public morality, public order, public health, national security and foreign policy of country, besides fundamental rights of others---Public interest is an essential ingredient of any law that proposes to take away, abridge or interfere with fundamental rights of an individual.

Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642 rel.

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

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional petition---Placing a person on Exit Control List---Criteria---Term "public interest"---Scope---Bank default--- Petitioner was alleged to have committed default in payment of bank loan for more than Rs.100 million, therefore, authorities placed name of petitioner on Exit Control List---Contention of Authorities was that name of petitioner was placed on Exit Control List in public interest as the same was mentioned in the criteria made by Authorities for placing the name of people on Exit Control List---Plea raised by petitioner was that bank default did not in any way offend public interest' which was essential for placing name of petitioner on Exit Control List---Validity---Public interest' was not employed to test reasons/grounds of prohibition for travelling abroad---Requirement ofpublic interest' need not be fulfilled while placing name of petitioner on Exit Control List, as such the same had made constitutionality of S.2 of Exit from Pakistan (Control) Ordinance, 1981, suspect as it could be used discriminatorily resulting in an arbitrary pick and choose by Federal Government---Unless there were judicial proceedings restraining movement of the person' of defaulter, being mere defaulter was no threat topublic interest'---No evidence was placed on record to show that petitioner was required in bank fraud case or that criminal proceedings had been initiated against petitioner under banking laws, it was, therefore, not established that the person' of petitioner was required inpublic interest'---No evidence was available on record that could satisfy High Court that the person' of petitioner was required to be detained in Pakistan forpublic interest' or conversely that petitioner's travelling abroad would undermine and compromise public interest'---Default of more than Rs.100 million alone did not constitute threat topublic interest' unless it could be established that criminal proceedings were initiated against borrower and he was required not to leave country---Criteria for placement of person on Exit Control List failed to pass test of public interest' unless further details were provided---Such criteria to the extent of petitioner did not constitutepublic interest' so as to deprive petitioner of his fundamental right to travel---Placement of name of petitioner on Exit Control List was declared to be unconstitutional, lacking public interest and therefore, unlawful and without lawful authority and of no legal effect---Petition was allowed accordingly.

Olga Tellis and others, v. Bombay Municipal Corporation and others, AIR 1986 SC 180; M.C. Mehta and another v. Union of India and others (1986) 2 SCC 176; State of Maharashtra v. Chandrabhan, AIR 1983 SC 803; Air India Statutory Corporation and others v. United Labour Union and others AIR 1997 SC 645; CJP Case re: 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 and others, PLD 1998 SC 1445; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Nawaz Sharif's case PLD 1993 SC 473; Sweezy v. New Hampshire 354 US 234; Farooq Ahmed Khanb Leghari v. Federation of Pakistan PLD 1999 SC 57; Judicial Review of Public Actions (Chap. 4 on Interpretation of Fundamental rights); Griswold v. Conneticut 381 US 479 and Maneka Gandhi's case AIR 1978 SC 597 rel.

(e) Interpretation of statutes---

---Presumption by Courts-Principles--In interpreting provision of a statute, the Courts presume that legislation was intended to be inter vires and also reasonable---Rule followed is that enactment is interpreted consistent with the presumption which imputes to legislature an intention of limiting direct operation of its enactment to the extent that is permissible---If certain provisions of law construed in one way make them consistent with the Constitution and another interpretation would render them unconstitutional, then Court leans in favour of the former construction.

All Saints High School v. Govt. of AP AIR 1980 SC 1042; Maharao Sahib Shri Bhim Singh Ji v. Union of India AIR 1981 SC 234; Kedar Singh v. State of Bihar AIR 1962 SC 955; Elahi Cotton Mills Ltd. v. Federation of. Pakistan PLD 1997 SC 582 and Delhi Transport Corporation v. D.14 .C. Mazdoor Congress AIR 1991 SC 101 rel.

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

----S. 24-A---Speaking order--Principles of natural justice---Not to furnish reason for decision violates principles of fairness, procedural propriety and natural justice besides S.24 -A of General Clauses Act, 1897.

Asim Hafiz for Petitioner.

Aamir-ur-Rehman, Deputy Attorney-General for Pakistan for Respondent.

Date of hearing: 20th January, 2010.

P L D 2010 Lahore 249

Before Mian Saqib Nisar, J

Dr. MUHAMMAD IQBAL and 9 others---Petitioners

Versus

MEMBER, BOARD OF REVENEU/CHIEF SETTLEMENT COMMISISONER, LAHORE and another---Respondents

Writ Petition No.226-R of 2009, heard on 21st January, 2010.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Fraudulent transactions---Pending proceedings---Notified Officer, jurisdiction of---Past and closed transaction---Property in question was purchased by petitioners in year, 1969, from the person in whose favour it had been permanently transferred---Respondents in year, 2009 filed an application before Member Board of Revenue as Chief Settlement Commissioner alleging that initial allotment of property in question was fraudulent---Plea raised by petitioner was that after repeal of evacuee laws in year, 1975, entire Settlement Department including Chief Settlement Commissioner, was abolished and it was only for the pending cases the Notified Officer had jurisdiction to render his decision---Contention of respondent was that as fraud was committed before Settlement Authorities, therefore, only Chief Settlement Commissioner had inherent power to set aside the transfer order---Validity---Office/officers appointed under S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, did not enjoy any power as Chief Settlement Commissioner but could only act as Notified Officer, therefore, cognizance in the matter and exercise of power on account of that was without lawful authority---Settlement Department including Chief Settlement Commissioner after repeal of evacuee laws had been rendered functus officio to consider any question relating to any allotment / transfer of evacuee property, which had been made under settlement laws when those were in force and prevailing---Settlement Authorities did not have any authority to reopen a case in years 2008/2009, regarding transfer made before year, 1969, as the matter was duly and squarely covered by the rule of past and closed transaction---Notified Officer could only proceed in pending proceedings---Principle that same forum on which fraud had been practised had inherent jurisdiction to set aside the same was applicable where that forum existed---When law had absolved the forum, then that forum could not exercise any jurisdiction being a non est inventus and non entity in the eyes of law---High Court deprecated the practice of interfering in the matter, where transfers were made decades ago, on miscellaneous applications moved by unknown people, who had no direct interest or locus standi---Initiations of such proceedings were interference with fundamental rights of owners of properties, who might be put to great inconvenience and to suffer mental torture etc. on such account---High Court in exercise of Constitutional jurisdiction dismissed the application filed by respondent against transfer of property in question and quashed the proceedings initiated on the basis thereof---High Court restrained Member Board of Revenue as Chief Settlement Commissioner to exercise any authority in the matter---Petition was allowed in circumstances.?

Sagheer Muhammad Khan and 5 others v. Member (Judicial-V) Board of Revenue, Punjab and 4 others 2009 YLR 1255; Province of the Punjab through Member Board of Revenue (Residual Properties), Lahore and others v. Muhammad Hussain through Legal heirs and others PLD 1993 SC 147; Aminuddin v. Settlement Commissioner and others 1973 SCMR 624; Mst. Jehan Ara Begum v. Bashir Ahmad and others 1975 SCMR 401; Muhammad Shafi v. Mauj Din Khan and 3 others PLD 1976 Lah. 17; Bilqis Begum and others v. Fazal Muhammad and others 1987 SCMR 1441; Khawaja Bashir Ahmad v. The additional Settlement Commissioner, Rawalpindi and others 1991 SCMR 1604; 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; Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore and others 1999 SCMR 1719; Jamal-ud-Din v. member, Board of Revenue and 4 others 2001 CLC 81; Syed Ahmad Nusrat Ullah and others v. Member, Board of Revenue and others 2002 CLC 384; Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob PLD 2002 SC 5; Member (S&R/Chief Settlement Commissioner Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132; Syed Hassan Askari v. Board of Revenue, Punjab, Lahore and 2 others PLD 2009 Lah. 78; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Samrooz Khan v. Muhabbat Khan and another 1989 SCMR 819; Mst. Azam Jahan Ara Begum and 4 others v. Commissioner, Sargodha Division Sargodha and 3 others 2004 MLD 1053 and Muhammad Baran and others v. Member Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1991 SC 691 rel.

Muhammad Khalid Mehmood Khan for Appellant.

Hafiz Muhammad Yusuf for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 21st January, 2010.

P L D 2010 Lahore 260

Before Asad Munir, J

WATEEN TELECOM (PRIVATE) LTD.---Petitioner

Versus

P. T. A. and others---Respondents

Writ Petitions Nos.2997, 3349, 3221 and 3211 of 2009, decided on 5th March, 2010.

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

----Ss. 4(k), 4(1), 5(1), 5(2)(b), 20, 21 & 33-A---Access Promotion Rules, 2004, R. 5(2)---Access Promotion Regulations, 2005, Regln.10(2) & (6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suspending of incoming service---Delay in deposit of contribution---Petitioner company was holder of Long Distance International (LDI) licence and for not depositing Access Promotion Contribution (APC) for Universal Service Fund (USF), therefore, authorities suspended its international incoming traffic---Plea raised by petitioner company was that authorities had no power to suspend incoming international traffic carried by LDI licence but could only impose fine---Validity---Provisions of R. 5(2) of Access Promotion Rules, 2004, as well as Regln. 10(2) of Access Promotion Regulations, 2005, were to the same effect as each of them allowed payment of APC for Universal Service Fund (USF) without fine for upto 90 days from the expiry of the month to which it related---Provisions of Pakistan Telecommunication (Re-organization) Act, 1996, Access Promotion Rules, 2004, Access Promotion Regulations, 2005 and LDI licence did not confer any power on Pakistan Telecommunication Authority to authorize it to suspend incoming international traffic carried by petitioner company on account of delay in payment of Access Promotion Contribution towards Universal Service Fund---High Court, in exercise of constitutional jurisdiction declared the act of authorities, suspending incoming international traffic of petitioner, as unlawful and without lawful authority--- Petition was allowed in circumstances.

Khaliq-uz-Zaman for Petitioner.

Barrister Muezzim Qureshi for Respondents.

Date of hearing: 24th December, 2009.

P L D 2009 Lahore 265

Before Sagheer Ahmad Qadri, J

Mst. KALSOOM BIBI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.231 of 2009, decided on 5th March, 2010.

Criminal Procedure Code (V of 1898)---

----S. 176---Constitution of Pakistan (1973), Arts.199---Constitutional petition---Cause of un-natural death---Determination---Magistrate, powers of---DNA test---Magistrate, on the application of complainant, directed police to hold inquiry about cause of death of child and also directed for procurement of samples for DNA test-Validity--Magistrate, under S.176, Cr. PC was only empowered to hold inquiry to know cause of death in cases when there were suspicion or circumstances in which one could say the death of a person was caused in un-natural way-Magistrate was not empowered under S.176, Cr. P. C. to hold an inquiry or direct for procurement of samples for DNA test, etc; it was only the prerogative of investigating officer, if any such circumstances existed---Order passed Magistrate and upheld by Lower Appellate Court to the extent of passing direction for conducting DNA test of dead body of minor was declared by High Court as without lawful authority, in excess of jurisdiction and the same was set aside---Constitutional petition was allowed in circumstances.

Sheikh Zameer Hussain for Petitioner.

Raja Asif Mahmood for Respondent No.3.

Nazar, A.S.-I., Police Station Tammon, District Chakwal with record.

P L D 2010 Lahore 270

Before Sagheer Ahmed Qadri and Ijaz ul Ahsan, JJ

ZAKI UR REHMAN LAKHWI---Petitioner

Versus

Malik MUHAMMAD AKRAM AWAN and another---Respondents

Writ Petition No.185 of 2010, decided on 9th March, 2010.

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

----Ss. 7/11-F(5)(6)/11-J/11-N/11-V/21/21-C---Penal Code (XLV of 1860), Ss.302/34/109---Prevention of Electronic Crimes Ordinance (IV of 2008), Ss.11/17/19---Passports Act (XX of 1974), S.6---Foreigners Act (XXXI of 1946), S.14---Criminal Procedure Code (V of 1898), Ss.164, 540-A & 512---Qanun-e-Shahadat (10 of 1984), Art.43---Constitution of Pakistan (1973), Art.199---Terrorism, Qatl-e-amd, abetment offence relating to passport---Constitutional petition---Quashing of order---Principal accused was reportedly arrested in India as a result of terrorist attack and on the basis of his statement recorded there under S.164, Cr.P.C. before a Magistrate, present accused and his co-accused had been arrested in the case after an inquiry conducted in Pakistan---In none of three successive interim challans submitted by the prosecution in the Trial Court the principal accused was shown as an accused person or as an absconder---Application moved by the present accused under S.265-K, Cr.P.C. for acquittal had been dismissed by the Trial Court by impugned order---Validity---Confessional statement of an accused could be used against his co-accused in the same case, but until and unless a person was shown as accused therein, his statement could not be used against his co-accused, which was the pre-condition under Art.43 of the Qanun-e-Shahadat, 1984---Contention that principal accused was not shown as an accused in S.173, Cr.P.C. report and by mere mentioning his name in the F.I.R., and on the basis of his alleged confessional statement before a Magistrate in India, he could not be given a status of co-accused of the present accused seemed to be technically sound---Trial Court while applying S.540-A(2), Cr.P.C. had exempted the appearance of principal accused and his co-accused and separated their case from the case of present accused and proceeded further by framing the charge---Principal accused had been taken by Trial Court as an accused in the case---Absconder or a person who never appeared before the court to face trial, his case was not covered under S.540-A(2), Cr.P.C.---Without having enforced the attendance of accused under Arts. 87 and 88, Cr.P.C. and proceeding under S.512, Cr.P.C.; separation of the trial was not lawful---Presence of accused before the court for application of S.540-A, Cr.P.C. was necessary and if subsequently he became incapable of remaining before the court, then he might apply for dispensation of his attendance and court might pass an appropriate order---Procedure adopted by Trial Court while applying S.540-A(2), Cr.P.C. for separation of the trial of alleged principal accused, therefore, was totally illegal and to that extent the impugned order was set aside---As regards the dismissal of the application of accused under S.265-K, Cr.P.C., Trial Court had framed the charge while applying judicial mind and trial had commenced---At such stage it was not appropriate for High Court to go into deeper appreciation of evidence in exercise of its constitutional jurisdiction or to discuss the merits or demerits of the case---Contention about the admissibility of the aforesaid statement of the principal accused and other material available on record, would be seen by Trial Court after recording some relevant evidence---Since after framing of the charge no evidence had been recorded in the case, application under S.265-K, Cr.P.C. at that stage was not maintainable and the same had rightly been dismissed by Trial Court and the impugned order to that extent was upheld---Accused could move such application before Trial Court at proper stage after recording of evidence---Constitutional petition was disposed of accordingly.

Hashim v. Gul Muhammad and 2 others 2009 PCr.LJ 36; State through Director-General, Pakistan Coast Guards, Turbat v. SABRO and another 1992 PCr.LJ 1795; Malik Muhammad Ibrahim v. The State and 4 others 1985 PCr.LJ 929; The Karachi Electric Supply Corporation v. Naseer Ahmad 1986 PCr.LJ 1684; Mamaras v. State and others PLD 2009 SC 385; Mst. Naseem Akhtar and another v. The State 1999 SCMR 1744; Babar Shah v. The State 2006 PCr.LJ 174; Nazir Muhammad v. The State and another 2004 PCr.LJ 1684; M. Saleem Babar v. The State PLJ 1987 Cr.C. (Lahore) 285 and Sher Muhammad v. Falak sher and 5 others 1984 PCr.LJ 3002 ref.

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

----S. 164---Qanun-e-Shahadat (10 of 1984), Art.43---Confessional statement of an accused involving his co-accused---Evidentiary value---Essentials---Confession made by an accused can be used against his co-accused in the same case, but unless a person is shown as an accused in the case his statement cannot be used against his co-accused, which is a precondition for application of Art.43 of the Qanun-e-Shahadat, 1984.?

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

----S. 540-A---Exemption from appearance---Pre-requisites---Two conditions are essential to dispense with attendance of an accused during an enquiry or trial, firstly that the accused should be before the court and secondly that the accused is incapable of remaining before the court---Words "before the Court" imply the physical presence of accused during the trial before the court and the words "incapable of remaining before the Court" contemplate that the accused was present in court and for same reasons is incapable to continue to remain present before the court on each and every date of hearing---Absconding accused cannot claim any benefit under S.540-A, Cr.P.C..

?

M. Saleem Babar v. The State PLD 1987 Lah. 288 ref. Khawaja Sultan Ahmad for Petitioner.

Ch. Zulfiqar Ali and Malik Rab Nawaz Noon for Respondents along with Zahid Akhtar, Asstt. Director/IO with record.

P L D 2010 Lahore 281

Before Syed Mansoor Ali Shah, J

MUHAMMAD USMAN and another---Petitioners

Versus

ADDITIONAL DISTRICT JCDGE, LAHORE and 2 others---Respondents

Writ Petition No.19643 of 2009 and Writ Petition No.188 of 2010, decided on 10th February, 2010.

(a) Punjab Rented Premises Ordinance (XXI of 2007)---

----Preamble, Ss. 2(m), 5, 8, 9(b) & 19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Eviction application on basis of tenancy agreement dated 30-4-2007 without registering same in office of Rent Registrar---Imposition of penalty on landlord as provided under S.9(b) of Punjab Rented Premises Ordinance, 2007---Scope and application of Ss.5, 8 and 9 of Punjab Rented Premises Ordinance, 2007---Plea of landlord that Punjab Rented Premises Ordinance, 2007 was promulgated on 16-11-2007, thus, such tenancy being existing was protected under S.8 thereof allowing a grace period of two years for bringing same in conformity with provisions thereof---Validity---Object of Punjab Rented Premises Ordinance, 2007 as underlined in its preamble was to regulate relationship of landlord and tenant and provide an expeditious mechanism for settlement of their disputes--Purpose of S.5 of the Ordinance was to minimize unnecessary rent related litigation and provide enforcement of tenancy agreements Reduction in unnecessary rental litigation and raising confidence of public in enforcement of rental agreement would boost rental market and encourage more real estate to enter in rental sector thereby reducing shortage of houses and providing an impetus to economy--Punjab Rented Premises Ordinance, 2007 being a beneficial legislation would be construed liberally in order to bring out real intent of legislature and ensure enforcement of its multiple benefits---Written tenancy agreement registered under S.5 of the Ordinance would act as proof of relationship of landlord and tenant---Phrase "as soon as possible " used in S. 8 of the Ordinance would reflect legislative urgency of bringing tenancy in conformity with provisions thereof as soon as possible despite providing at same time a grace period of two years---Invocation of S.9 of the Ordinance without registration of existing tenancy agreement with Rent Registrar would render landlord or tenant liable to pay fine provided therein and he could not stand behind grace period of two years provided in S.8 thereof---High Court upheld impugned order of penalty---Principles.

Messrs Wateen Telecom (Pvt.) Ltd. through Attorney v. Malik Abdul Ahad and 2 others PLD 2009 Lahore 429 ref.

Messrs Ashraf Sugar Mills Ltd. through General Manager v. Manzoor Ahmad 2006 SCMR 1751 and Ijaz Akhtar v. Secretary, Punjab Public Service Commission and other (1990 PLC (C.S.) 749 rel.

(b) Interpretation of statutes---

----Best interpretation of a statute would be knowing the object of its enactment and making its textual interpretation match the contextual---Principles.

The task of interpretation is not a mere exercise of any mechanical jurisdiction. Courts are entitled to probe and find the intention of the instruments, and its purpose and give meaning to the words to further the same so as to suppress the mischief and further just and fair results. The statutes have to be construed in a manner so as to promote the purpose and object of the Act, and not too literally so as to defeat the purpose or render the provision meaningless and otiose---Interpretation must depend on the text and the context---There are the bases of interpretation---One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when one knew why it was enacted.

Interpretation of statutes by N.S. Bindra (10th Edn.) p.338 rel.

(c) Interpretation of statutes---

----Duty of Judge not to alter statute, but to remove its defects, if any, by giving force and life to intention of legislature---Judge must not alter the material of which the statute was woven, but he could and should iron out the creases---Principles.

Seaford Court estates Ltd. v. Ashar {1949} 2 All. ER 155 fol. M. Raheel Kamran Sheikh for Petitioners.

Ms. Aaliya Neelum for Respondent No.3.

Sarfraz Ali for Respondent No.3 (in connected W.P. No.188 of 2010.

P L D 2010 Lahore 289

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

Messrs MALIK MUSHTAQ GOODS TRANSPORT CO., LAHORE---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Railways, Islamabad and 9 others---Respondents

I.-C.As. Nos.951 and 991 of 2009, in Writ Petitions Nos.11923 and 12808 of 2009, decided on 5th April, 2010.

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

----S. 1(2)(3), 2(j) & 26---Public Procurement Rules, 2004, Rr.2(c), 3, 4, 20, 34(2), 40, 42 & 48---Auction of contract of luggage vans attached with railway trains running on specified routes---Failure of auction proceedings to procure satisfactory offers and return of call-deposits to bidders---Offer of revised bid by respondent-bidder finalized through private negotiation---Acceptance of revised bid and awarding of contract to respondent for one year through letter issued by authority without signing any formal agreement---Validity---Authority could not show any law, rule, regulation and instruction permitting Pakistan Railways to award contract without inviting bids---Authority had not undertaken fresh process of inviting bids through proper publication---Pakistan Railways being a department of Federal Government would fall within definition of "procuring agency" as given in S.2(j) of Public Procurement Regulatory Authority Ordinance, 2002---Concept of open competitive bidding introduced by Public Procurement Rules, 2004 was with a view to ensure a transparent exercise of powers by a procuring agency in awarding of its contract-Awarding of contract through negotiations was specifically prohibited by R.40 of Rules, 2004--Transparent exercise of powers by public authorities in awarding contracts of valuable rights was always insisted---Emergent situation to bypass competitive bidding process as provided in R.42(v) of Rules, 2004 did not exist in the present case---No order of competent authority was available on record for adopting process of negotiation for awarding contract to respondent---Process for award of contract to respondent was not only without lawful authority, but same had been conducted in a non-transparent manner, thus, could not be sustained in eye of law---Running of contract by respondent on account of injunctive order of High Court would not justify to give protection to illegal and non-transparent method of awarding contract by authority---No complaint in the present case had been made to Committee under R.48(2) of Public Procurement Rules, 2004 nor had any order been passed thereon, thus, question of preferring of appeal under R.48(5) thereof would not arise so as to attract prohibitory clause of R.3(2), Proviso (1) thereof---High Court directed authority to invite fresh bids for auction of contract and directed Auditors of Pakistan Railways to assess loss, if any, accrued to public exchequer on account of illegal award of contract to respondent and its cancellation and submit report before Committee constituted by Authority, which if was found correct, then such financial loss would be made good by respondent and officials of Pakistan Railways in equal share, who issued such letter and contributed towards awarding of such contract to respondent in addition to other action which such Committee would direct to be taken against persons held and found responsible for loss.

PLD 1976 Lah. 453 ref.

Arsalla Khan v. Bashir Ahmed Blour and 3 others PLD 1976 SC 581; Malik Atta Muhammad and another v. Government of Punjab through Secretary, Local Government and Rural Development Lahore and others 2007 SCMR 178; Mubashar Iqbal Cheema v. Cantonment Board PLD 2009 Lah.506 and Dr. Tariq Mehmood Memon v. Province of Sindh through Chief Secretary and another 2007 MLD 1225 rel.

Kh. Saeed-uz-Zafar for Appellant (in ICA No.951 2009).

Muhammad Shahzad Shaukat for Appellant (in ICA No.991 of 2009).

Umar Sharif Legal Advisor for Pakistan Railways for Respondents Nos.1 to 5.

Salman Aslam Butt for Respondent.

P L D 2010 Lahore 300

Before Sagheer Ahmad Qadri, J

Malik MUHAMMAD SHOAIB BHUTTA, EDITOR, DAILY TULOU, ISLAMABAD---Petitioner

Versus

ABDUL AZIZ MOHMAND and another---Respondents

Criminal Revision No.30 of 2010, decided on 25th March, 2010.

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

----Ss.198 & 439---Penal Code (XLV of 1860), Ss.499/500/501/502-A---Defamation---Respondent complainant being the Resident Manager of a Group of Newspapers had filed a complaint against the accused petitioner alleging that the material published by him in his newspaper amounted to defamation of the Group of Newspapers, Companies, their News Channal as well as its CEO---Trial Court after recording cursory evidence led by the complainant, had summoned the accused under sections 499/500/501/502-A, P.P.C. to face the trial---Application filed by accused under section 265-K, Cr.P.C. had been dismissed by trial Court vide impugned order ---Main contention of the accused was that as the complainant was not an aggrieved person as defined in section 198, Cr.P.C. the compliant was not maintainable---Section 198, Cr.P.C. had specifically provided that for prosecution of an offence of defamation the complaint must have been filed by a aggrieved person---Person" included not only an individual but a body or association, a company and an offence of defamation could also be committed against such person, juristic person or body of persons collectively---Wordaggrieved' had not been defined in Pakistan Penal Code, but according to its literal dictionary meaning an aggrieved person is one whose legal right had been invaded by an act complaint of---Facts and circumstances of the case would be looked into in order to consider if a person was aggrieved of an imputation levelled against him---Complainant in the contents of his complaint as well as in his cursory statement recorded by Trial Court, had in so many words specifically agitated that due to the defamatory material published by the accused, not only said Group of Newspapers/Companies had suffered loss to their reputation, but the complainant in his personal capacity had also been defamed----Complainant had made out a prima facie case showing him as an aggrieved person as defined under section 198, Cr.P.C. entitled to initiate the complaint for the commission of alleged offences of defamation against the accused--- Impugned order did not call for any interference----Petition was dismissed accordingly.

Aslam Akbar Kazi and 3 others v. Gulzar Ahmad Channa and another 2003 PCr.LJ 1892 distinguished.

Muhammad Abdullah v The State 2000 PCr.LJ 576; Bashir Ahmad v Zafar ul Islam and others PLD 2004 SC 298; Imdad and 3 others v The State and 2 others 2006 PCr.LJ 1243; SHEVO v Regional Police Officer, Hyderabad Region, Hyderabad and 15 others PLD 2009 Kar. 24; Municipal Board,Konch v. Ganesh Prasad Chaturvedi AIR (99) 1952 All. 114; Black's Law Dictionary, 5th Edn. ; Shabana Mustafa v. Dr. Muhammad Khalid and others PLD 2001 Lah. 98; Hosseinbhoy Ismailji v. Emperior AIR 1934 Sindh 188 and Surajmal v. Ramnath AIR 1928 Nag 58 ref.

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

----S. 198---Prosecution for breach of contract, defamation and offences against marriage--- Aggrieved person only competent to prosecute--- Nature of accusation would determine whether the person is aggrieved or not, who should have suffered directly or indirectly in his own reputation.

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

----Ss. 499, 11 & 44---Defamation---Person aggrieved---Scope--- Person includes not only an individual but a body or association, a company and a juristic person as well.

Municipal Board, Konch v. Ganesh Prasad Chaturvedi AIR (99) 1952 All. 114 ref.

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

----Ss. 499/500/501/502/502-A---Defamation---Person aggrieved, determination of ---Facts and circumstances of each case have to be looked into to determine if the complainant is aggrieved of the imputation levelled against him.

Black's Law Dictionary, 5th Edn.; Shabana Mustafa v. Dr. Muhammad Khalid and others PLD 2001 Lah. 98; Hosseinbhoy Ismailji v. Emperior AIR 1934 Sindh 188 and Surajmal v. Ramnath AIR 1928 Nag 58 ref.

Muhammad Arshad Tabrez for Petitioner.

Amjad Afsar Ghakhar for Respondents No.1.

P L D 2010 Lahore 308

Before Syed Mansoor Ali Shah, J

Mst. RAHMAT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE-II, MUZAFFARGARH and 2 others---Respondents

Writ Petition No.410 of 2008, heard on 28th January, 2010.

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

----Ss. 10(4) & 14(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Plaintiff/wife filed suit for dissolution of marriage on the ground of physical maltreatment by husband/defendant---Defendant was proceeded ex parte---Trial Court dissolved marriage on the ground of khula and plaintiff was directed to return 4-Kanals of land as `Badl-e-Khula' as well as the maintenance allowance for the period of Iddat---Plaintiff filed appeal, which was dismissed by Appellate Court---Contention raised by plaintiff was that she did not file suit for dissolution of marriage on the ground of Khula'---Plaintiff further contended that the disputed land was not given to her as a part of dower rather the same was given as a part of settlement in a suit for maintenance filed earlier---Validity---Plaintiff had failed to prove the ground of cruelty as her own witness did not depose in her favour---Marriage was dissolved on the ground of Khula'---Record revealed that disputed land was transferred to the plaintiff through a settlement in a court of law, much later after the marriage---Maintenance allowance granted to the plaintiff also did not fall within the ambit of "Haq Mahr" as provided in the proviso of S.10(4) of the West Pakistan Family Courts Act, 1964---Appeal was not maintainable under S.14(2) of the West Pakistan Family Courts Act, 1964 against the order of Trial Court---High Court treated the constitutional petition to be filed against the order of Trial Court and declared the said order illegal, suffering from material irregularity by setting aside the same to the extent of return of 4-Kanals of land and further return of maintenance allowance---Order passed by Appellate Court was also set aside by High Court---Constitutional petition was disposed of accordingly.

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

----Ss. 10(4) & 14---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage on ground of Khula'---Appeal---Competency of---Appeal was not competent against the order of dissolution of marriage on the ground of Khula'.

Pirzada Niaz Mustafa Qureshi for Petitioner.

Nemo for Respondents.

Date of hearing: 28th January, 2010.

P L D 2010 Lahore 312

Before Syed Mansoor Ali Shah, Nasir Saeed Sheikh and Muhammad Anwaarul Haq, JJ

SAJID MAHDI---Appellant

Versus

NAZIR AHMED and others---Respondents

Election Appeal No.7-A of 2010, decided on 22nd April, 2010.

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

---Ss.62 & 99---Conduct of General Election Order (7 of 2002), Art.8-A---Constitution of Pakistan (1973), Arts.62(d)(f) & 63---Election appeal---Bye-election for seat of National Assembly---Filing of nomination papers by respondent/candidate found by Supreme Court in earlier round of litigation to be guilty of having managed to get such seat in general election on strength of fake and bogus academic degrees---Acceptance of such nomination papers by Returning Officer---Validity---Respondent before Supreme Court had elected not to defend such allegations and tendered resignation from seat of National Assembly---While discussing conduct of respondent, Supreme Court in its judgment observed "Such-like "House Breaking" tendencies on the part of dishonest and unscrupulous individuals need to be strongly checked before the virus becomes an uncontrollable epidemic"---Such act of respondent not to contest such allegations levelled against him had amounted to a confession of repentance and he could resile from same---Moral and ethical standards of respondent could be gauged from such facts---Person having employed such deception and deceit could not pass test prescribed for a parliamentarian under the Constitution---Provisions of Art. 62(d)(f) of the Constitution, though not being self-executory, could be set in motion on basis of evidence on record and conduct of respondent---Respondent could not pass test of "good character" or of being "righteous, honest or ameen "---Object of Arts. 62 & 63 of the Constitution read with S.99 of Representation of the People Act, 1976 being to guard pious house of chosen representatives of people with a view to save its sanctity, honour and prestige from being tarnished---High Court set aside impugned order and rejected nomination papers of respondent.

Intisar Hussain v. Akhtar Hussain and 4 others 2003 SCMR 204, Ch. Qamar Javed v. Intisar Hussain and 3 others PLD 2008 Lah. 130, Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others PLD 2008 SC 310; Muhammad Yousuf v. M. Irshad Sipra and others 1988 CLC 2475; Mian Intsar Hussain Bhatti v. Returning Officer and 2 others 2008 YLR 2386; Mirza Abdul Rehman v. Deputy Commissioner/Returning Officer Attock and 2 others 2004 SCMR 979, Election Commissioner of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644 ref.

Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736, Ghazanfar Ali Gul v. Ch. Tajammal Hussain and others 1997 CLC 1628. Mian Intsar Hussain Bhatti v. Returning Officer and 2 others 2008 YLR 2386; Ch. Qamar Javed v. Intsar Hussain and 3 others PLD 2008 Lah. 130; Intsar Hussain v. Akhtar Hussain and 4 others 2003 SCMR 204 and Muhammad Yousuf v. M. Irshad Sipra and others 1988 CLC 2475 rel.

Shahzad Shaukat, and Tahir Munir Malik for Appellant.

Ahmed Awais for Respondent.

Shahid Sarwar, Law Officer, Election Commission.

P L D 2010 Lahore 318

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

PROVINCE OF PUNJAB through Secretary Colonies, Punjab---Petitioner

Versus

Mst. WAZIRAN BIBI through Legal Heirs and 4 others---Respondents

Writ Petition No.2280 of 2004, heard on 21st April, 2010.

Land Reforms Regulations 1972 [M.L.R.115]---

----Para. 29---Constitution of Pakistan (1973), Arts.184(1) & 199---Constitutional petition---Maintainability---Dispute between two Governments---Earlier judgment passed by High Court---Effect---Provincial Government sought setting aside of orders passed by Federal Land Commission whereby Provincial Government was deprived of benefit of resumption of land---Provincial Government contended that Constitutional petition was maintainable and provisions of Art.184(1) of the Constitution were not applicable---Validity---High Court had earlier passed a judgment on similar question of law and declined to change the view---Controversy between the parties qualified as a dispute between Provincial Government and Federal Government as envisaged in the provisions of Art. 184 of the Constitution because Member Federal Land Commission was a delegatee of Federal Government by virtue of paragraph No.29 of Martial Law Regulations, 115 of 1972---High Court declined to interfere in allotment orders passed by Federal Land Commission---Petition was dismissed in circumstances.

Union of India and others v. State of Mysore AIR 1977 SC 127; The State of Bihar v. The Union of India and another AIR 1970 SC 1446; Mrs. Jamila B. Naimat v. Mian Abdul Waheed PLD 1981 Kar. 138; Pakistan Railways, Headquarters Office, Lahore through Chairman and another v. Border Area Allotment Committee Lahore through Chairman and another 2005 CLC 905; Union of India v. State of Rajasthan 1984 (4) SCC 238; PLD 1976 Lah. 1135 and Punjab Province v. The Federation of Pakistan PLD 1956 FC 1972 ref.

Judgment dated 8-4-2010 in Writ Petition No.2961/2008 fol.

Khawaja Haris Ahmad A.G. Punjab with Muhammad Hanif Khatana, Addl. A.G. for Petitioner.

Syed Murtaza Ali Zaidi for Respondents.

Date of hearing: 21st April, 2010.

P L D 2010 Lahore 326

Before Khawaja Muhammad Sharif, C.J., and Waqar Hassan Mir, J

THE STATE---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 2 others---Respondents

Writ Petition No.9728 of 2010, heard on 12th May, 2010.

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

----Art. 199(1)(b)(ii) & (c)---Press news showing issuance of notification by Provincial Government posting respondent as Capital City Police Officer---Respondent already found to be responsible for acts of commissions and omissions in a very serious incident as a result of judicial inquiry held by Judge of High Court on asking of Provincial Government---Suo motu exercise of constitutional jurisdiction by High Court while treating such news item as a petition under Art.199(1)(c) of the Constitution---Validity---Respondent was serving as Regional Police Officer when said tragic incident took place, wherein number of Christians lost their lives and their houses were burnt---Respondent was held responsible for acts of commissions and omissions by such Tribunal, which had already forwarded its recommendations to Federal Government along with statements of allegations for initiating proceedings against him---Government instead of taking any action against respondent had awarded him premium of such negligent performance of his duties by giving him most important assignment as Capital City Policy Officer---Suo motu proceedings being corrective measures, whereby High Court could enquire from holder of a public office to show that under what authority he/respondent was holding said office (Capital City Police Officer) particularly in view of recommendations rendered against him by Tribunal and forwarded to Federal Government---If respondent was found to be responsible for such acts of commissions and omissions, then how could he be allowed to work during interregnum, when he was not qualified for such post---High Court declared such notification to be without lawful authority and of no legal effect while directing respondent to relinquish charge forthwith.

The State v. Zulfiqar Ali Bhutto and others PLD 1978 Lah. 523 distinguished.

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

----Art. 199(1)(c)---Fundamental Rights guaranteed under the Constitution---Validity---Such rights would be regarded as inviolable under all conditions and could not be abridged by any legislative or executive orders, except by virtue of provisions of the Constitution---Constitutional jurisdiction of High Court to enforce such rights was wide---Principles.

The powers of High Court .for enforcement of Fundamental Rights guaranteed under the Constitution are wide and in terms of Article 199 of the Constitution, it can pass any order which would be appropriate in the facts and 'circumstances of a case. The expression "as may be appropriate for the enforcement of any of the Fundamental Rights" appearing in Article 199 confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary. The object of having declaration of Fundamental Rights in the Constitution is that rights should be regarded as inviolable under all conditions. According to Article 199, the Fundamental Rights guaranteed in the Constitution arc not mere a pious enunciation of the principles on which the Constitution is based, but are made specifically justiciable in Article 199(1)(c). They are not liable to be abridged by any legislative or executive orders except by virtue of the provisions of the Constitution. Where there is clear abuse of powers/authority, the High Court is under constitutional duty to ensure that people are dealt with in accordance with law.

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

---Art. 199(1)(b)(ii)---Quo warranto, writ of---Jurisdiction of High Court---Scope stated.

The writ of quo warranto in its nature is an information laying against person who claimed to retain such office. The Court is not only to see that the incumbent is holding the office under the order of a Competent Authority but it goes behind that and see as to whether he is legally qualified to hold the office or to remain in the office. The Court has also to see if statutory provisions have been violated in making the appointment of such a person against whom certain recommendations have been made and if that being so, the Court cannot close eyes and has every constitutional power to declare such appointment to be without lawful authority and of no legal consequences. Article 199 is intended to enable this Court to control executive actions so as to bring it in conformity with the law. Whenever the Executive acts in violation of the law, an appropriate order can be passed which will relieve the citizen of the effects of illegal action. High Court under Article 199(1)(c) of the Constitution has the power to issue a declaration in respect of any act done or proceedings taken within its territorial jurisdiction by a person performing functions in connection with affairs of the Federation, a Province or a local authority to be without lawful authority or of no legal effect.

Khawaja Haris Ahmad, A.-G., Punjab assisted by Muhammad Hanif Khatana, Addl. A.-G.

Nadeem Hassan Asif, Home Secretary, Punjab.

Tariq Saleem, I.-G., Punjab.

Sikandar Raja, Secretary Service Punjab.

Date of hearing: 12th May, 2010.

P L D 2010 Lahore 332

Before Syed Mansoor Ali Shah, J

MAQBOOL AHMED and others---Petitioners

Versus

DISTRICT OFFICER (R) and others---Respondents

Writ Petition No.20305 of 2009, decided on 16th March, 2010.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

---Ss. 10, 32 & 34---Constitution of Pakistan (1973), Arts. 4 & 199---Constitutional petition---State land in possession of petitioner as an encroacher since year 1947 and construction raised thereon since year 1995---Filing of earlier constitutional petition against threat of Collector to demolish construction---Disposal of earlier constitutional petition by High Court with direction to Collector to decide petitioner's claim in accordance with law and rules---Order of Collector to take over possession of land from petitioner without payment of compensation---Validity---Collector had not complied with such earlier v order of High Court and had passed impugned order without issuing notice and affording opportunity of hearing to petitioner---Petitioner, even if being encroacher, trespasser or squatter, had inalienable right to enjoy equal protection of law and to be treated in accordance with law---Passing of impugned order in blatant violation of Art.4 of the Constitution could not be permitted---Without hearing petitioner, Collector could not be said to have been satisfied under S.32 of the Colonization of Government Lands (Punjab) Act, 1912---Dispossession might not be the only option in the present case, rather allotment of alternate land, sale or at least grant of time to vacate land could be possible options---If Collector was fully satisfied after hearing that there was no other alternative but to invoke S.34 of Colonization of Government Lands (Punjab) Act, 1912, then he had all the rights to proceed further subject to compliance of due process under law---Impugned order had been passed without due process of law as enshrined under Art.4 of the Constitution---High Court set aside impugned order while directing Collector to grant petitioner a fair hearing and then pass a speaking order within specified time.

Muhammad Sharif and others v. A.C. Samundri and others 1990 ALD 152(1); Madad Ali Shah v. Revenue Minister and others 1991 MLD 2394 and Muhammad Zafar and others v. Yousaf Ali and others 2003 CLL 1922 rel.

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

----Art. 4---Protection of law or to be treated in accordance with law being due process clause of the Constitution carrying therein many legal principles i.e. principles of natural justice, fairness, procedural propriety, procedural due process, reasonableness, transparency, openness, participation and inclusiveness---Principles.

Article 4 of the Constitution is due process clause. Protection of law or to be treated in accordance with law carries in it a basket of legal principles. Therefore, the principles of natural justice, fairness, procedural propriety, procedural due process, reasonableness, transparency, openness, participation, inclusiveness are all embedded in Article 4, which is, therefore, a citadel of administrative and judicial governance in the country.

Article 4(2)(a) of the Constitution moves from "citizen" to "any person" and announces further protection when it states that, "no action detrimental of life, liberty, body, reputation or property of any person shall be taken except in accordance with law." Article 4 is a constitutional reminder especially for the Government and its functionaries to treat everyone in accordance with law.

"Law" carries all the principles of law including principles of natural justice including the maxim audi alteram partem.

Article 4 of the Constitution carries more "Law" under the said Article must reflect the constitutional ethos of a welfare State. The principles of democracy, freedom, equality, tolerance and social justice given in the Objectives Resolution and the Preamble of the Constitution are essential ingredients of "Law" under Article 4 of the Constitution. It is obvious that the Constitution does not envisage a "Law" i.e. un­democratic, against freedom of the people, intolerant or opposed to equality and social justice. Therefore, public functionaries while exercising discretion or taking administrative actions must be constantly reminded of the principles mentioned above, so that their discretion and administrative actions are aligned with the basic fundamentals of the Constitution. To be treated in accordance with law and to enjoy the protection of law under Article 4 should be all embracing fully engulfing the spirit and fundamental principles of the Constitution of a welfare State.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; New Jubilee Insurance Company Limited. Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1363; Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2009 PLC (C.S.) 966; Judicial Review of Public Actions, (Vol.2, P.1331; Ridge v. Baldwin (1963) 2 All ER 66; A.G. v. Ryan (1980) AC 718; Collector Sahiwal v. Muhammad Akhtar 1971 SCMR 681; University of Dacca through its Vice-Chancellor and others v. Zakir Ahmad PLD 1965 SC 90; Chief Commissioner Karachi and another v. Mrs. Dimao Sohrab Katrak PLD 1959 SC 45; Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 and Ramana Shetty v. International Airport Authority AIR 1979 SC 1628 rel.

(c) Words and phrases---

----"Law"-Connotation.

Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; New Jubilee Insurance Company Limited. Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Government of Pakistan through Director General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2009 PLC (C.S.) 966 rel.

(d) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 32---Word "satisfied" as used in S.32 of Colonization of Government Lands (Punjab) Act, 1912---Connotation.

The word "satisfied" in this section 32 of the Colonization of Government Lands (Punjab) Act, 1912 will be incomplete if the satisfaction arrived at by the public functionary is behind close doors without hearing the person against whom the action is being proposed. Participation and inclusiveness is an essential part of decision making in any democratic State. Without hearing the other side, the officer cannot be said to have been satisfied. In particular when the action proposed is detrimental to life and property of a person. Therefore, section 32 of the Colonization of Government Lands (Punjab) Act, 1912 cannot even begin to be put in motion unless the test of procedural due process provided in Article 4 of the Constitution along with all its concomitant principles are first exhausted.

(e) Words and phrases---

----"Hearing"-Connotation.

Hearing is not a mere mechanical and perfunctory ritual or a desultory cosmetic requirement that has to be hurriedly complied with. There is a deeper meaning to a hearing. Hearing first of all requires that the person against whom the action is proposed is made a part of the decision making process and the officer exercising discretion has given due weightage to the submissions made during the hearing. Additionally, in-built in a hearing is the wisdom that there might be alternative choices available to resolve the problem, which can surface once the hearing takes place. As every law is in the public interest and made for the welfare of the people, this inherent and intrinsic welfare embedded in every law necessitates that alternatives or options are be deliberated upon in the public interest.

Judicial Review of Public Actions, (Vol.2, P.1331; Ridge v. Baldwin (1963) 2 All ER 66; A.G. v. Ryan (1980) AC 718; Collector Sahiwal v. Muhammad Akhtar 1971 SCMR 681; University of Dacca through its Vice-Chancellor and others v. Zakir Ahmad PLD 1965 SC 90; Chief Commissioner Karachi and another v. Mrs. Dimao Sohrab Katrak PLD 1959 SC 45; Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 and Ramana Shetty v. International Airport Authority AIR 1979 SC 1628 rel.

M.A. Ghaffar-ul-Haq for Petitioners.

Malik Abdul Aziz Awan, Asstt. Advocate-General.

P L D 2010 Lahore 341

Before Ijaz-ul-Ahsan, J

SAIFULLAH and 6 others---Petitioners

Versus

MEHR MUHAMMAD and 3 others---Respondents

Writ Petition No.13866 of 2009, decided on 17th May, 2010.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Civil Procedure Code (V of 1908), O. VII, R.11---Pre­emption suit---Talb-i-Muwathibat, performance of---Date and place of acquisition of knowledge of suit sale mentioned in plaint, but not its time---Application by defendant under O. VII, R.11, C.P.C. for rejection of plaint---Validity---Exact time of gaining knowledge of sale was neither mentioned nor ascertainable from contents of plaint---Such Talb being a jumping demand must be performed immediately in same sitting/meeting on coming to know of sale---Talb-i-Muwathibat which was required to be made without delay and instantly could not be established without mentioning in plaint a specific time of making demand---Plaint suffered from a fatal defect, thus, was rejected in circumstances.

Muhammad Nawaz and 7 others v. Muhammad Ibrahim and 5 others 1986 CLC 1680; Khadim Hussain v. Ghulam Eissa and others 2009 SCMR 488; Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 and Black's Law Dictionary 7th Edn. ref.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Sardar Muhammad Nawaz v. Mst. Firdous Begum 2008 SCMR 404 and Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 rel.

Ch. Aamar Rehman for Petitioners.

Sajid Latif Hanjra for Respondents.

Date of hearing: 1st April, 2010.

P L D 2010 Lahore 349

Before Asad Munir, J

RAHM DAD and 7 others---Petitioners

Versus

MANAGING DIRECTOR, FAUJI FOUNDATION, RAWALPINDI CANTT. and 2 others---Respondents

Civil Revision No.424 of 2006, decided on 13th April, 2010.

Punjab Land Acquisition Rules, 1983---

----R. 14---General Clauses Act (X of 1897), S.3(21) & (28)---Specific Relief Act (1 of 1877), S.8---Suit for possession---Acquisition of land in year 1952 for Punjab Post War Services Reconstruction Fund, and Fauji Foundation---Sale of such land by the Foundation to a company in year 1985---Utilization of such land by company for a purpose other than the public purpose---Plaintiff being original owner of acquired land seeking restoration of its possession---Validity---Rule 14 of Punjab Land Acquisition Rules, 1983 would apply only where land had been acquired for any department of Government or Local Authority for a Public purpose---Such Fund and Foundation formed under Charitable Endowments Act, 1890 would not fall with definition of Government or Local Authority as given in S.3(21) & (28) of General Clauses Act, 1897---Benefit of R.14 of Punjab Land Acquisition Rules, 1983 was not extendable to an acquisition of land in favour of a company or other legal entity of similar nature---Rule 14 of Punjab Land Acquisition Rules, 1983 would apply, where land was never used for public purpose, but would not apply where public purpose was abandoned after having used land for declared public purpose for a considerable period of time---Rule 14 of Punjab Land Acquisition Rules, 1983, if applicable in a case, did not provide return of land to its original owners or their heirs, but gave discretion to Government to return land to its owners---Such Fund and Foundation had utilized land for public purpose for more than 30 years and then transferred same to a company, which abandoned declared public purpose---Plaintiff was not entitled to return of land acquired---Suit was dismissed in circumstances.

Rana Abdul Qadir and others v. Government of Pakistan, M/O Defence Production Division through Secretary Defence, Rawalpindi and others 2006 CLC 1 and Bashir Ahmad Akhtar and others v. Collector, Land Acquisition and others 1992 MLD 2364 rel.

Rana Ziladar Khan v. Province of Punjab through Collector Sialkot and others 2010 YLR 1212 and Province of Punjab through Collector and others v. Saeed Ahmad and another PLD 1993 SC 453 distinguished.

Mujeeb ur Rehman Kiyani for Petitioner.

P L D 2010 Lahore 353

Before Khawaja Muhammad Sharif C. J. and Waqar Hassan Mir, J

A. REHMAN MALIK and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.2070 of 2009, decided on 17th May, 2010.

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

----Ss. 87 & 88---Constitution of Pakistan (1973), Arts. 9 & 10---National Accountability Ordinance (XVIII of 1999), S.31-A---Trial in absentia---Provisions of Ss.87 and 88, Cr.P.C. and 31-A, National Accountability Ordinance, 1999---Scope---Proceedings under Ss.87/88, Cr.P.C. and 31-A of National Accountability Ordinance, 1999, being compelling process issued against accused to procure his attendance in Court, therefore, both provisions are complimentary to each other---If there was no sentence attached to S.31-A of National Accountability Ordinance, 1999, both provisions were synonymous, thus Courts are left with no option but to initiate proceedings forcing an accused to appear before the Court---Trial in absentia was declared void ab initio within the meaning of Arts. 9 and 10 of the Constitution.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 16-A---Transfer of case---Scope---Provision of S.16-A of National Accountability Ordinance, 1999, is not a non obstante clause rather a self-executory provision in which mechanism evolves is to see whether offence falls within the ambit of S.9 of National Accountability Ordinance, 1999, and also contains deeming clause, therefore, case requested to be transferred to Accountability Court can be treated as Reference within the meaning of S.18 of National Accountability Ordinance, 1999.

(c) National Accountability Ordinance (XVIII of 1999)---

----Preamble---Retrospective effect---Scope---Provisions of National Accountability Ordinance, 1999, have been given retroactive effect from year, 1985--Sentence of offence cannot be enforced retroactively, whereas offence can be applied prospectively.

(d) National Accountability Ordinance (XVIII of 1999)---

----Ss. 16-A, 31-A & 32--National Reconciliation Ordinance (LX of 2007), S.6--Conviction in absentia---Maxim `Custodia Legis'-Applicability-Transfer of cases to National Accountability Bureau---Declaration of National Reconciliation Ordinance, 2007 as ultra vires the Constitution---Effect---Accused were declared proclaimed offenders and they were convicted in their absence by Trial Court under S.31-A of National Accountability Ordinance, 1999---Validity---When S.31-A of National Accountability Ordinance, 1999, was declared ultra vires by Supreme Court with reference to sentence and proceedings therein, the cases would go and revert to the position when those were transferred to Accountability Courts under S.16-A of National Accountability Ordinance, 1999, therefore, warrants of arrest containing grounds of arrest would be deemed to be intact and still executable by National Accountability Bureau---Custodia Legis was legal custody and amounted to surrender before Court of law under the principle that presence of accused was sine qua non before the Court---One could only seek protection of Court if he had surrendered before the Court of law---There was longstanding abscondence of accused persons who deliberately avoided service of Courts coupled with the fact that warrants of arrest issued by Chairman National Accountability Bureau were still intact, therefore, accused were to be arrested in cases to execute warrants of arrest---With transition of jurisdiction from other Courts to Accountability Courts, the offences were also changed after transitional process in which accused were not on bail, but having created the vacuum also the accused were left to be not on bail in substantive offences, therefore, they were to be arrested otherwise---High Court declined to interfere in the conviction and sentence awarded by Trial Court under S.31-A of National Accountability Ordinance, 1999, to accused persons in their absence---Appeal was dismissed in circumstances.

Abdul Sattar Dero v. The State 2002 YLR 1870; Abdul Rehman v. The State 1978 SCMR 292; Faisal Jameel v. The State 2007 MLD 355; The State through Prosecutor General, NAB Pakistan v. Dr. Dad Muhammad Khawaja Khalil PLD 2003 SC 11; Land Acquisition Collector, Nowshera and others v. Sarfaraz Khan and others PLD 200.1 SC 514; Mst. Mussarat Ara Khannum v. Umaid Ali and another 2001 SCMR 1647; Muhammad Shafi v. Mushtaque Ahmad through legal heirs and others 1996 SCMR 856; Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; N.M.V. Vellayappa Chettiar v. Alagappa Chettiar 'AIR 1942 Mad. 289; Zahid Iqbal v. State PLD 1991 SC 575; Hayat Bakhsh and others v. The State PLD 1981 SC 265; Haji Rehmdil v. The Province of Balochistan and another 1999 SCMR 1060; Mansoor Ahmad Qureshi v. The State PLD 2005 Kar. 443; Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889; The State through Prosecutor General, NAB, Islamabad v. Aftab Ahmad Khan Sherpao PLD 2005 SC 399: Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814; Ziaul Rehman v. The State 2001 SCMR 1405; The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman PLD 2005 SC 270 and Mrs. Shahida Faisal v. Federation of Pakistan and others (PLD 2005 SC 323 ref.

Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 fol.

(e) Interpretation of statutes---

----Special laws, controversy between---Effect---In case of controversy or lis between two special laws, later prevails.

Ch. Mushtaq Ahmad Khan, Talib H. Rizvi, Ch. Amir Hussain, Raja Zulqarnain and Syed Muhammad Farhad Tirmazi for Appellants.

Raja Muhammad Afzal, Addl. Dy. Prosecutor General for NAB and Mian Muhammad Imran, Special Prosecutor for NAB.

Mir Muhammad Ghufran Khurshid Imtiazi for the Complainant.

Date of hearing: 6th May, 2010.

P L D 2010 Lahore 371

Before Waqar Hassan Mir, J

MUHAMMAD NADEEM---Petitioner

Versus

GOVERNMENT OF PUNJAB through Home Secretary and another---Respondents

Writ Petitions Nos.9230 and 9864 of 2010, decided on 17th May, 2010.

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----Ss. 3, 23, 24, 25 & 26---Constitution of Pakistan (1973), Art.199---Constitutional petition---Petitioner had challenged the order of arrest and detention of his brother for a period of 30 days which was passed by District Co-ordination Officer, in exercise of powers conferred under S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960---Petitioner asserted that law (relevant sections of West Pakistan Maintenance of Public Order Ordinance, 1960) being contrary to the constitutional provisions cast heavy duty on the issuing and arresting authority of being satisfied from such material before it to the effect that the person was acting in a manner which was prejudicial to the public safety or the maintenance of the public order; that simple registration of false, fictitious, imaginary cases within a month time at one Police Station of the respective district could not be a good ground for issuance of detention order---Petitioner further contended that the intention of the legislature was that the authority issuing the detention order should apply its mind to the facts and material placed before it, forming basis for the issuance of such order---Sections 23, 24 and 25 of the West Pakistan Maintenance of Public Order Ordinance, 1960 were not found in accordance with the touchstone of Fundamental Rights as postulated and guaranteed by the Constitution---Held, said provisions of West Pakistan Maintenance of Public Order Ordinance, 1960 although infringed the Fundamental Rights as guaranteed by the Constitution but the saving clause vide S.28 of the said Ordinance revealed parallel enactment of public safety and the order of different Provinces and States, which nevertheless showed that legislature wanted application of other laws in the presence of West Pakistan Maintenance of Public Order Ordinance, 1960, but even then one could revisit and refocus the provisions contained in the said Ordinance and could find that there were clutches placed upon the powers of the District Co-ordination Officers of not using unbridled powers---District Co-ordination Officer was to apply his mind that is, by way or word "satisfied" used in S.3(1) of the Ordinance which indicated that authority issuing detention order should apply its mind to fact forming basis of the same and until and unless there was something tangible in the detention order, the authority issuing the order could not be said to have applied its mind objectively and that his opinion was based on reasons---West Pakistan Maintenance of Public Order Ordinance, 1960 being in contravention to the fundamental rights as guaranteed by the Constitution of Pakistan, therefore, the Ordinance itself provided safeguard which were not being observed by the concerned authority for issuance of the detention orders---District Co-ordination Officer was not authorized to implement the law in his own way according to his whims and caprice and when one was to be suspected person only, then on considering the registration of previous cases or present cases, the detention order could not be passed---High Court, allowed constitutional petition and set aside and quashed the impugned detention orders.?

Liaquat Ali v. Government of Sindh through Secretary, Home Department and another PLD 1973 Kar. 78; Fakir Imdad Ali v. District Magistrate and 2 others PLD 1987 Kar. 530; Gulzar Ahmad v. District Magistrate and another 1988 PCr.LJ 1790; Muhammad Khalid v. District Magistrate, Jhelum and another NLR 1980 UC 434; Mst. Shazia Perveen v. District Magistrate, Okara PLD 1988 Lah. 611; Umer Din alias Umroo v. S.H.O., Bhai Pheru and 3 others 1990 PCr.LJ 948; Jalal alias Jala v. District Magistrate, Kasur and 2 others 1990 PCr.LJ 1529; Bashiran Bibi v. The District Magistrate, Kasure 1990 PCr.LJ 913; Ahmad Ali v. The State 1995 MLD 1748; Muhammad Ayaz Khan and 6 others v. The District Magistrate Batagram and another 1995 PCr.LJ 587; Masal Khan v. District Magistrate, Peshawar and 3 others PLD 1997 Pesh. 148; Muhammad Azim v. District Magistrate, Rahimyar Khan and another PLJ 1997 Lah. 1652; Nasrullah v. The District Magistrate R.Y.Khan and others 1997 UC 508; Muhammad Ishaq v. District Magistrate, Sheikhupura PLD 1978 Lah. 223; Shahbaz Afghan v. The District Magistrate and 2 others 1990 PCr.LJ 274 ; Muhammad Mushtaq v. District Magistrate, Sheikhupura and another 1997 MLD 1658 and Inayat Ullah v. District Magistrate/Deputy Commissioner, Bannu and another 1998 PCr.LJ 3 ref.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Word "suspected" used for the offender in S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960, was futuristic in nature---One was to be put not only on the caution but on the guard as well, to protect a subject against the detention order.

(c) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Basis of detention orders---Scope---Post commission of offence proceedings i.e. commission of crime, registration of F.I.R. and challan etc. could not be futuristically considered as one of the basis for the issuance of detention orders.?

(d) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Persons involved in hoarding, misinformation, mischievous publication, processions, public meetings, for which they were suspected and not some cases having been got registered against them, were envisaged by the West Pakistan Maintenance of Public Order Ordinance, 1960 to be taken into consideration for timely detention and then release, but if suspicion persisted then comes involvement of the Board for the purpose of future detention.?

(e) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Preventive detention---Scope and requirements---Parameters.

An order of preventive detention has to satisfy the following requirements:

(i)?? The court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention.

(ii)? that satisfaction should be established with regard to such of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid.

(iii) That initial burden lies on the detaining authority to show the legality of the preventive detention, and

(iv) That the detaining authority must place the whole material upon which the order of detention is based, before the court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the court to decide.

In addition to the above requirements, the court has to be further satisfied, in cases falling within the preventive detention nature, that the order of detention was made by the authority, prescribed in the law relating to preventive detention; that each of requirements of the law, relating to such preventive detention should be strictly adhered to and complied with; that "satisfaction" in fact existed with regard to the necessity of preventive detention of the person; that the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then "as soon as may be", that the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the person to make representation against his detention to the authority prescribed by law; that the grounds of detention, that is, they are not irrelevant to the aim and object of the law and that the detention should not be for extraneous considerations or for purposes which may be attacked on the ground of malice. The court can also see whether the satisfaction of the detaining authority about the existence of the requisite condition is a "satisfaction really and truly" existing in the mind of detaining Authority or "one merely professed by the detaining Authority". The order of detention which is really passed for an ulterior purpose and not because the detaining Authority is really satisfied that it is necessary to detain the intended person with a view to preventing him from acting prejudicially to certain objects will be void.?

?(f) Punjab Local Government Ordinance (XIII of 2001)---

----S. 29(e)---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.26---Provisions of S.29(e) of the Punjab Local Government Ordinance, 2001 was subject to S.26 of the West Pakistan Maintenance of Public Order Ordinance, 1960.?

S.M. Nazim for Petitioner.

Allah Bakhsh Gondal for Petitioner (in Writ Petition No.9864 of 2010).

Arshad Qayyum, Asstt. A.-G.

Khizar Hayat Chattha, Law Officer, office of the District Coordination Officer, Nankana Sahib.

P L D 2010 Lahore 389

Before Sh. Ahmad Farooq, J

MAJID KHAN through Special Attorney and 2 others---Petitioners

Versus

Mst. NASEEM BIBI and 9 others---Respondents

Writ Petition No.10453 of 2010, decided on 17th June, 2010.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 5, 8, 9 & 15---Punjab Rented Premises Ordinance (XXI of 2007), S.8---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant---Mother of petitioners had rented out the premises in 1994 to the predecessor-in-interest of respondents---After expiry of tenancy period, respondents remained in possession as tenants and tenancy was not brought in conformity with the Punjab Rented Premises Ordinance, 2007---Petitioner filed ejectment petition before Special Judge (Rent) who directed the petitioner to deposit fine equivalent to ten per cent of annual value of the rented premises---Petitioners contended that the impugned order had been passed in disregard of section 8 of the Punjab Rented Premises Act, 2009 which provided a period of two years to an existing landlord and tenant to bring the tenancy in conformity with the Punjab Rented Premises Act, 2009---Petitioners contended that provisions of section 9 of the Punjab Rented Premises Act, 2009 could not be applied to the tenancies which existed before the promulgation of the Punjab Rented Premises Ordinance, 2007 and the Punjab Rented Premises Act, 2009 before the expiry of two years period provided for bringing such tenancies in conformity with the Punjab Rented Premises Act, 2009---Validity---Conjunctive reading of Ss. 8 and 9 of the Punjab Rented Premises Act, 2009 made it clear that the initial two years of the promulgation of the Punjab Rented Premises Ordinance, 2007 and the Punjab Rented Premises Act, 2009, penal provisions of section 9 of the Punjab Rented Premises Act, 2009 could not be applied on existing tenancies---Punjab Rented Premises Ordinance, 2007 remained in the field for two years beginning from 16th November, 2007 and was repealed by the promulgation of the Punjab Rented Premises Act, 2009 on 17th November, 2009---Section 8 of the (repealed) Ordinance was retained in verbatim by the Punjab Rented Premises Act, 2009 which meant that the legislature intended to provide the grace period of two more years to existing tenancies so that such tenancies could be brought in conformity with the Punjab Rented Premises Act, 2009 before said grace period ended on 16th November, 2011---Section 8 of the Punjab Rented Premises Act, 2009 provided a benefit/concession to the existing tenancies; such beneficial legislation had to be construed liberally---Case of the petitioners was within purview of section 8 of the Punjab Rented Premises Act, 2009 so they could not be ordered to deposit 10 per cent of the annual rent value of premises in dispute by the Special Judge (Rent) prior to the expiry of the period of two years w. e. f. 7-11-2009---Section 9 of the Punjab Rented Premises Act, 2009 could not be applied to the tenancies existing prior to promulgation of the said Act in contravention of S.8 thereof---Impugned order passed by the Special Judge (Rent), being in contravention of S.8 of the Punjab Rented Premises Act, 2009, was declared to be illegal and set aside---Constitutional petition was allowed accordingly.

Abdul Rehman v. Inspector General of Police, Punjab, Lahore and 2 others PLD 1995 SC 546 fol.

Asim Qureshi, Chief Editor, Haftroza Roshan, Gujranwala v. Farooq Ahmed Khan Leghari, President of Islamic Republic of Pakistan and another PLD 1999 Lah.76 rel.

Anwaar Hussain and Mehr Muhammad Iqbal for Petitioners.

Jawad Hassan, Addl. A.-G.

P L D 2010 Lahore 394

Before Ijaz Ahmad Chaudhry, J

SAMI UL HAQ KHILJI---Petitioner

Versus

ALI RAZA RIZVI and 2 others---Respondents

Criminal Revision No.571 of 2009, heard on 24th November, 2009.

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

---Ss. 3, 5 & Preamble---Criminal Procedure Code (V of 1898), Ss.265-K, 435 & 561-A---Quashing of proceedings---Illegal dispossession---Scope---Dispute among co-sharers---Civil dispute---Land grabbers-Proof-Report of Station House Officer---Complainant alleged that accused had illegally dispossessed him from property in question---Accused filed application under S.265-K, Cr.P.C. for his acquittal on the ground that no offence had been committed by him, which application was dismissed by Trial Court---Validity---Report of Station House Officer contained documentary evidence stating that accused was occupying portion of property in question lawfully against payment of consideration---When dispute was amongst co-owners, provisions of Illegal Dispossession Act, 2005 was not applicable---Preamble of Illegal Dispossession Act, 2005, provided that it was specific to the act of property grabbers---Though complainant claimed that accused persons were land grabbers but failed to give any specific instance of their involvement in such activities and also had not placed on record any documentary evidence in support of his such claim---Matter was a private dispute between the parties and both the parties were co-sharers in the property which was not exclusively owned by complainant who was owning a very small share as compared to other co-owners---Claim of accused was that complainant had received a sum of Rs.25,00,000 through cheques and also in cash which was almost equivalent to the value of his share in property in dispute and his name was yet to be incorporated as co-owner in record held by various government departments---Dispute which was civil in nature was converted into criminal offence by complainant with mala fide intention in order to pressurize accused for grabbing further amount in spite of the fact that complainant had already received a reasonable amount from accused party---High Court, in exercise of revisional jurisdiction accepted application under 5.265-K, Cr.P.C. filed by accused and acquitted him of the charge---High Court quashed proceedings pending before Trial Court in connection with private complaint filed by complainant under S.3 illegal Dispossession Act, 2005---Revision was allowed accordingly.

1987 CLC 211; 2009 SCMR 1066; PLD 2007 SC 423 and 2009 PCr.LJ 578 ref.

2007 PCr.LJ 1280; PLD 2007 Pesh. 123; 2007 PCr.LJ 891; 2007 PCr.LJ 1347; 2008 PCr.LJ 1169; 2007 MLD 1034; PLD 2007 Pesh. 179; Gul Ahmed and 3 other's case 2000 SCMR 122 and 2007 PCr.LJ 1920 rel.

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

----S. 3 & Preamble---Illegal dispossession---Pre-conditions---Provision of Illegal Dispossession Act, 2005, is only applicable to person who had taken possession was not having title thereto; secondly that he has taken possession by use of force; thirdly that he had taken over the property without due process of law and fourthly that such person or persons belonged to group of land grabbers---Private complaint can only be entertained if there is prima facie material against nominated accused---Civil dispute cannot be allowed to be converted into criminal offence by incriminating one or more co-owners as the same would be misuse of provisions of Illegal Dispossession 'Act, 2005, and the provision of S.3 is applicable only to land grabbers---Civil disputes or dispute amongst co-owners, the civil Court is the competent forum to resolve the issue after recoding of evidence.

2007 PCr.LJ 1280; Gul Ahmed and 3 other's case 2000 SCMR 122 and 2007 PCr.LJ 1920 rel.

Shaukat Umar Pirzada for Petitioner.

Qazi Misbah ul Hassan for Respondent No.1.

Date of hearing: 24th November, 2009.

P L D 2010 Lahore 404

Before Asad Munir, J

DEWAN PETROLEUM (PVT.) and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.3708 of 2009, decided on 14th July, 2010.

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

---Art. 199---Rules of Business, (Federal) 1973, R.14(2)(3)---Constitutional jurisdiction--Scope---Contractual matter---Promissory estoppel---Applicability---Principles---Petitioner entered into a Petroleum Concession Agreement with the respondent/Government of Pakistan---After discovery of gas by the petitioner, respondent executed a development and commercial lease in favour of the petitioner and nominated Sui Northern Gas Pipelines Limited as purchaser of gas from petitioner company---Dispute arose over fixation of well-head price resulting from different interpretations of the relevant article of the Petroleum Concession Agreement---Parties, by mutual consent, referred the issue to the Attorney General for Pakistan who supported the version of petitioner company---Petitioner contended that the controversy was resolved by the opinion of the Attorney-General which was binding on the Government/respondent which refused to fix the price of gas---Petitioner further contended that the reference having been proposed by respondent (Government) itself, opinion of the Attorney General was binding on the Government/respondent on account of promissory estoppel---Respondent contended that constitutional petition was not maintainable as numerous remedies were available to the petitioner viz. arbitration, suit for specific performance that petitioner was not an `aggrieved party'; writ of mandamus could not be issued in the absence of any lapse on the part of any public functionary and that opinion of the Attorney General was not binding on the Government as the same was not the opinion of an expert of petroleum industry---Validity--Rules 4(2)(3) of the Federal Rules of Business, 1973 attached primacy to the Attorney General's opinion which could only be overruled by the Prime Minister or the Cabinet---Record showed that the Prime Minister had not overruled the opinion of the Attorney General---Dispute of gas price was, admittedly, referred to the Attorney General by the Prime Minister with promise and understanding given to the petitioner company that the opinion/advice of the Attorney General would be binding on both the parties which agreed to seek the opinion of Attorney General as a mode or means to settle the dispute---Opinion of the Attorney General given in pursuance of mutual agreement, therefore, qualified to be regarded as an amicable settlement in the Petroleum Concession Agreement which did not prescribe any specific means to settle the disputes---Attorney General's opinion was binding on the Government on account of promissory estoppel---Whenever a person had acted on representation on promise made by the Government, he could not resile from such promise---Remedies of arbitration and suit for specific performance could be sought by the petitioner if the dispute pertained to the interpretation of the. relevant articles of the Petroleum Concession Agreement---Dispute/grievance, in fact, arose out of Federal Government's refusal to abide by the opinion of the Attorney General---Grievance though pertained to contractual matter, yet the same arose out of Federal Government's failure to follow the opinion of the Attorney General---Dispute did not involve determination of questions of fact of a contractual matter, therefore, constitutional jurisdiction could be exercised even in contractual matters where no controversial questions of fact required detailed inquiry were involved---Opinion of the Attorney-General was held to be binding on the government which was directed to fix the well-head price of gas in the light of Attorney General's opinion which amounted to settlement contemplated under the Petroleum Concession Agreement---Constitutional petition was allowed.

Messrs Airport Support Services v. The Airport Manager Quaid­-e-Azam International Airport Karachi and others 1998 SCMR 2268 and Hazara (Hill Tract) Improvement trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 fol.

(b) Rules of Business (Federal), 1973---

----R. 14(2)(3)---Rule 14(2)(3), Rules of Business, 1973 attached primacy to the opinion of Attorney General which could only be overruled by the Prime Minister or the Cabinet.

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

----Art. 199---Constitutional jurisdiction---Scope---Contractual matter---Constitutional jurisdiction could be exercised where no controversial questions of fact required detailed inquiry.

Messrs Airport Support Services v. The Airport Manager Quaid­-e-Azam International Airport Karachi and others 1998 SCMR 2268 ref.

Waseem Sajjad, Sami Zafar and Malik Qamar Afzal for Petitioners.

Yousaf Khosa for Respondents Nos. 1 and 2.

Tariq Aziz for Respondent No.3.

Date of hearing: 4th May, 2010.

P L D 2010 Lahore 413

Before Nasir Saeed Sheikh and Mian Shahid Iqbal, JJ

Rao DIL JAN KHAN---Appellant

Versus

Dr. MUHAMMAD YOUNIS and another---Respondents

Regular First Appeal No.180 of 2008, heard on 26th May, 2010.

(a) Defamation Ordinance (LVI of 2002)---

----Ss. 3, 4, S & 9---Defamatory suit---Plaintiff claimed Rs.20,00,000 as damages alleging that the defendant had published false news item in the newspaper damaging his reputation and professional performance---Trial Court decreed the suit awarding Rs.500,000 as damages directing the defendant to publish apology for and contradiction of the false news within fifteen days, failing which plaintiff would be entitled to remaining Rs. 15,00,000 of the amount claimed---Defendant contended that publication of the apology had dissolved his liability to pay Rs.500,000 as damages awarded by the Trial Court---Validity---Defendant's contention that the publication of apology had entitled him to the defence provided by S.5(e) of the Defamation Ordinance, 2002 was not maintainable because the defendant published apology only after the judgment had been passed by the Trial Court, so the same could not be regarded as a proper apology offered to be tendered. and published voluntarily---Defendant published apology to save him from payment of the hefty amount of Rs. 15,00,000 awarded as portion of damages---Apology tendered in pursuance of judgment of the court to avoid payment of alternative damages could not be termed a proper apology as envisaged in S.5(e) of the Defamation Ordinance, 2002---Plaintiff's case for damages was proved beyond shadow of doubt---Defendant could not produce any evidence to prove the veracity of allegations levelled against the plaintiff in the news items---Publication of news items constituted defamation, appeal therefore, was dismissed.

(b) Defamation Ordinance (LVI of 2002)---

----S. 5(e)---`Proper apology'---Validity---In order to set up the defence of proper apology under S.5(e) of the Defamation Ordinance, 2002, offer to tender and publish apology must be voluntary---Apology tendered and published under court order/judgment in order to avoid payment of damages could not be termed a proper apology as envisaged in S.5(e) of the Defamation Ordinance, 2002.

Ch. Anwar ul Haq Pannun for Appellant.

Sultan Mahmood Dar for Respondent No.1.

Date of hearing: 26th May, 2010.

P L D 2010 Lahore 419

Before Mamoon Rashid Sheikh, J

ABDUL SATTAR---Petitioner

Versus

STATION HOUSE OFFICER and another---Respondents

Writ Petition No.4074 of 2010, decided on 6th April, 2010.

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

----Ss. 22-A, 22-B & 200---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Alternate remedy---Filing of private complaint---Dispute of civil nature---Grievance of petitioner was that police did not register a case of forgery against respondents and application under sections 22-A and 22-B Cr. P. C. was dismissed by Ex-officio Justice of Peace---Contention of respondents was that dispute between the parties was civil in nature and petitioner had not exhausted alternate remedy by way of filing private complaint before Court of competent jurisdiction, in respect of his allegations---Validity---Order passed by Ex-officio Justice of Peace did not suffer from any illegality or material irregularity---Petitioner had remedy by way of private complaint in respect of his allegations---Petitioner might avail of the alternate remedy provided to him under the statutory law, which was adequate in nature---High Court declined to interfere in the order passed by Ex-officio Justice of Peace---Petition was dismissed in circumstances.

PLD 2005 Lah. 470; 2006 SCMR 1192; 2003 SCMR 1185; 1993 SCMR 550; PLD 2000 SC 18 and PLD 2009 Kar. 65 ref.

PLD 2007 SC 539 rel.

(b) Administration of Justice---

----Every case is to be decided on its own peculiar facts and circumstances.

Rai Ashraf and others v. Muhammad Saleem Bhatti and others Civil Petition No.1398-L/2009 rel.

Ghulam Farid Sanotra for Petitioner.

Kalim Ilyas, A.A.-G. with Muhammad Irfan, S.H.O. and Munir Ahmed S.-I., P.S. Model Town, Gujranwala.

P L D 2010 Lahore 422

Before Sardar Tariq Masood, J

KHIZAR HAYAT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KABIRWALA and 2 others---Respondents

Writ Petition No.1802 of 2010, decided on 8th March, 2010.

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Qanun-e-Shahadat (10 of 1984), Arts.117, 118, 119 & 128---Constitutional jurisdiction of High Court---Scope---Suit for recovery of maintenance allowance for minor son and dowry articles---Trial Court decreed the suit fixing maintenance at Rs.2000 per month and awarding Rs.30, 000 as alternative price of dowry articles---Defendant's appeal was dismissed by the Appellate Court---Defendant contended that the Appellate Court did not issue direction for conducting DNA Test to determine the legitimacy of the minor and that the courts below allowed plaintiff to enter and rely on documents which were not attached at the time of initiation of suit---Validity---Defendant's admissions regarding his knowledge of the minor's birth and entry of his name in defendant's Shajrah Nasab by Halqa Patwari led to the conclusion that his denial of legitimacy of his son was a ploy meant to avoid maintenance---Defendant admitted having divorced the plaintiff but failed to disprove the birth of minor one year before divorce---Birth during marriage was conclusive proof of legitimacy under Art.I28 of the Qanun-e-Shahadat, 1984---Objection to admissibility of documents produced by plaintiff was not tenable as the plaintiff produced the copy of birth certificate of the minor only after defendant refused to acknowledge the minor as his son---Even otherwise, birth certificate was a public document to which presumption of truth was attached, therefore, no exception could be taken to the admissibility of the same---Direction could not be issued for conducting the DNA Test as a matter of routine in cases where father refused to acknowledge his child born during lawful wedlock because under Art.128 of the Qanun-­e-Shahadat, 1984, a child born during continuance of a valid marriage or within two years of its dissolution, if mother remained unmarried during that period, was conclusive proof that he was legitimate child of that man, unless the man denied the same---Even otherwise, burden of proof under Arts.117, 118 and 119 of the Qanun-e-Shahadat, 1984 was on the defendant---Birth of the minor one year before divorce indicated that he was born during subsistence of marriage, presumption could safely be drawn that he was legitimate child of the defendant---In view of the undesirable practice of denying legitimacy of one's own child in order to avoid maintenance or exclude the child form inheritance, issuance of direction for DNA Test was not proper---Conditions were not suitable in Pakistan for application of DNA Test owing to lack of skills and facilities required for DNA Test---Any mistake or malpractice committed in the course of DNA Test was tantamount to stigmatize the child for the rest of his life---Possibility of error in the results of DNA Test could not be ruled out, therefore, attending circumstance of the case had to be taken into consideration---Point of time at which father denied paternity was a relevant factor, so considerable delay in raising the plea of illegitimacy was not permissible---Defendant denied paternity after more than eleven years of the birth of minor son and failed to produce any cogent evidence to rule out possibility of his cohabitation with the plaintiff---Concurrent findings of courts below could not be assailed in constitutional jurisdiction unless subordinate courts had exceeded jurisdiction, acted without jurisdiction or such findings were not based on any evidence---Findings of fact recorded by a court of competent jurisdiction could not be challenged through constitutional petition merely on the ground that the same evidence could be viewed differently---Courts below did not commit any illegality, material irregularity, misreading or non-reading of evidence---Constitutional petition was dismissed in circumstance.

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

----Art. 199---Constitutional petition---Scope---Findings of fact--Findings of fact recorded by a court of competent jurisdiction could not be challenged through constitutional petition merely on the ground that the evidence could be viewed differently.

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

----Art. 128---Proof of birth during marriage---Child born during continuance of a valid marriage between his mother and any man or within two years of its dissolution, if mother remained unmarried during that period, was conclusive proof that he was legitimate child of that man, unless the man denied the same.

Bashir and others v. Illam Din and others 1988 SCMR 8 fol.

Aftab Ahmad v. Judge Family Court and others 2009 MLD 962 rel.

Mian Qayyum Nawaz Sahoo, Advocate.

P L D 2010 Lahore 428

Before Waqar Hassan Mir, J

HAMMAD ABBASI---Petitioner

Versus

SUPERINTENDENT, CENTRAL ADYALA JAIL, RAWALPINDI---Respondent

Writ Petition No.426 of 2010, heard on 15th June, 2010.

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

---Art. 25(2)---Equality of citizens---"Discrimination"---Meaning---Word "discrimination" appearing in Article 25(2) of the Constitution means making a distinction or difference between things, a distinction or difference between things, a distinction, a difference, a distinguishing mark or characteristic, the power of observing differences accurately or of making exact distinctions, discernment---Discrimination, thus, involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context.

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

----S. 401---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a), 7(d), 21-1 21-F---Penal Code (XLV of 1860), Ss. 302/149 &148---Constitution of Pakistan (1973), Arts.9, 25 & 199---Acts of terrorism, aid and abetment, qatl-e-amd, rioting with deadly weapons---Constitutional petition---Remissions, grant of---Accused having been convicted and sentenced under the Anti-Terrorism Act, 1997, had been refused all kinds of remissions by Jail Authorities vide S.21-F of the said Act---Article 25 of the Constitution had provided that all the citizens living in Pakistan were equal before law and entitled to equal protection of law, i.e. all persons subjected to law should be treated of similar nature and alike under all circumstances and conditions, both in privileges conferred and in the liabilities imposed; it must be amongst equals---Equality had to be between persons placed in the same set of circumstances---Similarly, there should be one set of rules for every convict under any law and that the forum of trial and the procedure may be different and the punishments under same laws may be more stringent as compared to the other enactments, but after conviction the convict should be governed under the Prison Rules and not under the law pertaining to conviction---Petitioner, in the present case, had been convicted and sentenced by the Anti-Terrorism Court and was not being granted special and ordinary remissions under the Jail Manual---Purpose of remissions was to reform the prisoner that it might be incentive to reform himself with the purpose to get earlier release, which would be a good gesture towards prisoners and society---Denial of remissions to the convicts under Anti-Terrorism Act, 1997, and allowing the same to those convicted under the Anti-Corruption Laws by the Provincial Government, would be discriminatory; besides once the benefit of S.382-B, Cr.P.C. was granted to a convict, then how the benefit of remissions could be withheld to that convict---Refusal of remission to such convict would tantamount to deprive him of his liberty within the contemplation of Article 9 of the Constitution, which provides that "No person shall be deprived of life or liberty save in accordance with law"---Section 21-F of the Anti Terrorism Act, 1997, was consequently declared as ultra vires of the Constitution and liable to be struck down and Jail Authorities were directed to grant all the remissions to the petitioner, which had been denied to him per S.21-F of the Anti Terrorism Act, 1997---Constitutional petition was allowed accordingly.

Shah Hussain v. The State PLD 2009 SC 460; Adbul Malik and others. v. The State PLD 2006 SC 365; Saleem Raza and others v. The State PLD 2007 Kar. 139 and Abdul Rashid v. Government of Punjab and others 2006 MLD 1683 ref.

Muhammad Ilyas Siddiqui for Petitioner.

Shahid Mehmood Abbasi, A.A.-G. and Nadeem Akhtar Bhatti, A.A.-G. for Respondent.

Date of hearing: 15th June, 2010.

P L D 2010 Lahore 437

Before Syed Mansoor Ali Shah, J

Rana KHADIM HUSSAIN---Petitioner

Versus

SHAHNAZ BANOO and another---Respondents

Civil Revision No.1277 of 2007, decided on 14th June, 2010.

Arbitration Act (X of 1940)---

----S. 2(a)(b)---Arbitration',panchayat' and 'mediation'-Distinc­tion-Decision of Panchayat in absence of written arbitration agreement neither could be considered arbitration nor would amount to an award having binding force---Principles.

A Panchayat literally means a gathering of five, though today the number holds no significance. It is a term that has been used through the ages for the traditional village assemblies. The leaders, referred to as Panches, are not elected or chosen in any formal way, but are men, who, being respected by the village or by the parties, are asked to assemble to help resolve the problem. It is a voluntary committee that varies in size depending on the gravity of the offence or the importance of the parties involved. There are no formal rules or format. It is a group of friends who will sit and talk-out the problems at hand.

The consent of both parties is a necessary pre-condition for calling a meeting of a Panchayat. If the other side is unwilling then a Panchayat cannot be initiated. There is no fixed formal proceeding or procedure for the meeting of the Panchayat. According to the given situation and circumstances, the nature of the Panchayat and the procedure change. Procedures of the Panchayats are differentiated on the basis of the purpose for which they are held, e.g. some Panchayat would decide some types of conflict; others may deliberate on the common stand towards matters concerning the whole group of community. After both sides have had ample time and have talked out their grievances the Panches carry out consultations and work out a compromise. While announcing their decision they seek agreement of both the parties. Some minor adjustments might again be made at the request of one or the other party. One of the important aspects of the proceedings is to let the people take out their grievances and make their gellee shikway (complaints to each other). The decisions of the Panchayats are seldom a surprise, as they can already be guessed from private discussions among the people. Panchayat decisions are not abrupt but a gradual development in which their meeting could be seen as the last step of the process. If a compromise is arrived at and is accepted by both parties, they are made to stand up to embrace each other and shake hands. Embracing and shaking of hands is a symbol of ending the conflict.

Panchayat has a consensual dispute resolution process and the effort is to make the parties arrive at a compromise. This process appears to be broadly similar to the concept of mediation. Mediation is a flexible process conducted confidentially in which a neutral person actually assists parties in working towards a negotiated agreement of a dispute or difference with the parties in ultimate control of the decision to settle the terms of resolution.

The distinction between the mediation' andarbitration' is that the term "mediation" connotes the act of a third party relating to the settling of a dispute between two contending parties. Whereas arbitration is governed by the arbitration agreement, wherein arbitrator is nominated by the parties. Arbitral award made in conclusion of the arbitration proceedings is binding on the parties to the arbitration. Whereas settlement arrived at the end of mediation does not have such binding effect on the parties. Arbitration means settling of a dispute by an arbitrator. Where arbitrators cannot agree they may appoint an umpire, there is no umpire system in mediation. The decision of arbitrator is known as an "award", whereas the decision of a mediator is known as a settlement. The procedure on arbitration is based on the ordinary rule i.e. relevant Arbitration law and the procedure laid down in the arbitration agreement. Applicability of any such rule is minimal in case of mediation. An arbitral award is treated as a "decree" and can be enforced legally.

Panchayat is at best a variant of mediation and is not in the nature of arbitration proceedings.

When there is no written arbitration agreement, then the decision of Panchayat does not amount to an award.

Decision of the Panchayat cannot be considered to be arbitration.

Baratilal Baijnath v. Bindabai AIR 1963 Mad. Par. 122 (at 123); Belli Gowder v. Joghi Gowder, AIR 1951 Mad. 683 (at 684); Firm Narain Das v. Bhagwan Das AIR 1951 All. 860 (at 863); Muhammad Akram and others v. Ch. Muhammad Salim PLD 1964 (W.P.) Lah. 490; Muhammad Saleem v. Muhammad Akram PLD 1971 SC 516 and Maj. (Retd.) Mian Badshah v. Major (Retd.) Bahadur Shah 1994 SCMR 384 ref.

Conflict and Compromise Justice in an Indian Village, New York: University Press of America (1985); Justice in Practice, Legal Ethnography of a Pakistani Punjabi Village by Muhammad Azam Chaudhary, Oxford University Press, 1999, pp. 92-101; CEDR Mediator Handbook, 4th Edn. 2004, p.26; Arbitration and Conciliation Act, 1996 with Alternative Means of Settlement of Disputes, Central Law Publication 107, Darbhanga Colony, All. 2006 by Dr. SC Tripathi; Messrs Tribal Friends Co. v. Province of Balochistan 2002 SCMR 1903; Dar Okaz Printing and Publishing Limited Liability Company v. Printing Corporation of Pakistan Private Limited PLD 2003 SC 808; Messrs Ahmed Constructions through Sole Proprietor v. Messrs Neptune Textile Mills and another PLD 1990 Kar. 216; Mst. Shamim Akhtar v. Najma Baqai and 3 others 1977 SCMR 409; M.P.A. Inc. Houston, U.S.A. and another v. Federation of Pakistan and 2 others PLD 1979 Kar. 453; Messrs Aj-Bag Corporation v. Pakistan through the Secretary, Ministry of Defence, Islamabad and 3 others 1973 SCMR 98; Naveed Ishtiaque and another v. S. S. Associates (Pvt.) Ltd. through Chief Executive 2007 YLR 505; Yar Muhammad Shah and 2 others v. Government of Sindh, Karachi through the Secretary, Auqaf Department and 4 others 1986 CLC 1666 and Hassan Ali and Co. v. Ploy Cotton S.A. and others 1996 CLC 1812 fol.

Ch. A.D. Kahloon for Petitioner.

Nemo for Respondents.

Faisal Naqvi as Amicus Curiae.

Dates of hearing: 10th and 31st March, 2010.

P L D 2010 Lahore 443

Before Muhammad Yawar Ali, J

Messrs AMEER KHAN & CO.---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Local Government, Lahore---Respondent

Writ Petitions Nos.14964, 15583, 15244, 15837 and 15304 of 2010, heard on 16th July, 2010.

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

----Art. 199---Constitutional petition---Maintainability---Contractual dispute---Principle---Routine contractual disputes between private parties are not to be scrutinized by High Court while exercising its extra ordinary constitutional jurisdiction under Art. 199 of the Constitution---Exception to such rule is that High Court has jurisdiction to examine a contract concluded by public functionaries which do not entail any factual inquiry---Such contract is open to judicial review, as the same has to be just, fair, transparent and reasonable.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

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

----S. 39---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Judicial review, power of---Bar of proceedings---Scope---Bar of proceedings as envisaged under Arbitration Act, 1940, does not take away High Court's jurisdiction of judicial review in matters emanating from a contract concluded between private individuals and State functionaries.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 rel.

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

----Art. 199---Constitutional petition---Alternate and efficacious remedy---Principle---Non-availing of remedy of statutory appeal---Validity---If High Court comes to the conclusion that appeal which has been provided in statute is not an efficacious remedy, Constitutional petition cannot be dismissed in circumstances.

Nagina Silk Mill, Lyallpur v. The Income Tax Officer, A-Ward Lyallpur and (2) The Income Tax Appellate Tribunal Pakistan and Nagina Silk Mill, Lyallpur v. The Income Tax Officer, A-Ward Lyallpur PLD 1963 SC 322; Lt.-Col Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Pakistan through the Secretary Ministry of Finance, Government of Pakistan PLD 1961 SC 119; Syed Ali Abbas and others v. Vishan Singh and others PLD 1967 SC 294; The Murree Brewery Co; Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 and Collector of Customs, Customs House, Lahore and 3 others v. Messrs S.M. Ahmad and Company (Pvt) Limited Islamabad 1999 SCMR 138 rel.

(d) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 4 & 127---Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, R. 3---Local government, functioning of---Principle---All local governments are to function within the provincial frame work and adhere to federal and provincial laws---Local government cannot impede or prejudice the executive exercise of government---Local/district governments are bound by all policy decision taken by provincial government---Local government may collect provincial taxes within the local area as the government may direct and deposit the same in relevant government account.

(e) Administration of justice---

----Instructions---Past practice---Scope---Any instructions issued by public functionaries or past practice would not be a bar on law taking its own course.

Ikram Bus Service and others v. Board of Revenue, West Pakistan/The Regional Transport Authority Peshawar Region and Ittehad Transport Service Company Ltd PLD 1963 SC 564; Malik Muhammad Majeed v. Government of Pakistan PLD 2002 Lah. 290 and Commissioner of Income Tax and Wealth Tax, Sargodah Zone, Sargodha v. Messrs Irshad Anwar and Company 2002 PTD 750 rel.

(f) Natural Justice, principles of ---

---No one can be condemned unheard.

(g) Punjab Local Government Ordinance (XIII of 2001)---

----Ss. 4 & 127---Punjab Local Government (Auctioning of Collection Rights) Rules, 2003, Rr. 3 & 15---Constitution of Pakistan (1973) Art.199---Constitutional petition---Collection of tax---Private parties---Petitioner was successful bidder for collection of transfer of immovable property tax-L-Grievance of petitioner was that authorities had restrained him from collection of tax in question---Validity---Auction of contract to a private contractor for collection of tax on transfer of immovable property was prohibited under proviso to Rule 3 of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---No contract for collection rights of any taxes, fees, rates, Bess and other levies of local government which could be raised against a specific person could be awarded to contractor---Collection of tax which could be raised against specific person and as such its collection rights could not be awarded to any contractor under any circumstances---Order passed by authorities was valid and High Court declined to take any exception to the same--Petition was dismissed in circumstances.

Khawaja Saeed uz Zafar for Petitioner.

Syed Nayyer Abbas Rizvi, A.A.G., Punjab and Ch. Abrar Ahmed Asstt. Director Legal Local Government for Respondents.

Date of hearing: 16th July, 2010.

P L D 2010 Lahore 452

Before Ijaz-ul-Ahsan, J

Messrs FABNUS CONSTRUCTION (PVT.) LTD. through Chief Executive/Director---Petitioner

Versus

IFTIKHAR AHMAD and 4 others---Respondents

Civil Revision No.758 of 2008, decided on 10th June, 2010.

(a) Equity---

----Provisions of law, bypassing of---Principle---In absence of any specific provision, Court cannot bypass the provisions of statute on the touchstone of equity---Statutory provision must be given effect to in its letter and spirit.

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

----S. 17---Limitation Act (IX of 1908), Art. 158---Award making rule of court--Filing of objections---Limitation---Extension of time---Trial Court, powers of---Copy of award was delivered to respondent on 24-7-2007 and they entered appearance in Trial Court on 12-12-2007---Trial Court declined to make award rule of the Court on the basis of objections which were filed by respondent beyond the period of thirty days---Validity---Notice of filing of award was duly served on respondents, who were to file objections against the award till 11-1-2008, which was not done---Objections were filed on 29-1-2008, which were barred by time and no effort was made to explain the delay---No application for condonation of delay was filed, therefore, Trial Court had no power or jurisdiction to extend time for filing of objections---Findings of Trial Court that period of limitation for filing of objections would start running from the date that award was de-sealed, had no legal basis and was erroneous---Respondents had knowledge and notice of award since 24-7-2007, which was substantiated by the fact that they filed their objections on 29-1-2008, which was much before the award was de-sealed---Objections filed by respondents against the award were filed beyond the period of limitation prescribed by Art. 158 of Limitation Act, 1908---Delay could not have been condoned by Trial Court of its own motion and on equitable grounds---High Court in exercise of revisional jurisdiction, set aside the order passed by Trial Court as the same was unlawful and without jurisdiction---Objections filed by respondents were rejected as the same were filed beyond the period of limitation---High Court directed the Trial Court to proceed with making award rule of the Court---Revision was allowed accordingly.

Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others 1992 SCMR 718; Bashir Ahmad Khan v. Qaisar Ali Khan PLD 1973 SC 507; 1998 SCMR 2268; 1988 SCMR 2419; 2006 MLD 996; 2004 CLC 1090; Minoo Hoshang Kapadia, Karachi v. Arnaz Minoor Kapadia, Karachi PLD 2008 Kar. 271; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086; Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs PLD 2005 SC 311; Province of Punjab through Secretary to Government of the Punjab Communication and Works Department, Lahore and 2 others v. Messrs Usman and Sons. through Managing Director and others 2002 MLD 414; Sh. Din Mohammad v. Jan Mohammad and another PLD 1971 Quetta 30; Col. (Retd.) Muhammad Aslam v. Haji Muhammad Shafi and another (PLD 1993 Lahore 11; Superintending Engineer, Communication and Works, Highway Circle, Kohat v. Mian Faiz Muhammad and Co. Akora Khattak PLD 1996 SC 797; Province of Punjab through Secretary to Government of Punjab, Communication and Works Department v. Awan Engineering Enterprises 2006 YLR 881; Airports Development Agency Ltd v. Messrs. M.Y. Corporation and others PLD 2001 Kar. 158; Dr. Abdul Waris v. Javed Hanif and others 1983 SCMR 716; Fakir Muhammad Behlim v. Exxon Chemicals Pak. Ltd 1991 MLD 1438 and Pakistan through General Manager Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800 ref.

M. Maqbool Sadiq for Petitioner.

Muhammad Rafiq Shad for Respondents.

P L D 2010 Lahore 463

Before Syed Mansoor Ali Shah, J

WAJID ALI---Petitioner

Versus

RENT REGISTRAR/SPECIAL JUDGE RENT, LAHORE and another---Respondents

Writ Petition No.8993 of 2010, decided on 14th June, 2010.

Punjab Rented Premises Act (VII of 2009)---

----S.5---Constitution of Pakistan (1973), Arts 4, 10-A & 199---Constitutional petition---Right of fair trial---Registration of tenancy agreement---Absence of tenant---Effect---Grievance of tenant was that proposed tenancy agreement was registered in his absence by Rent Registrar and terms mentioned in tenancy agreement were not those which were settled between the parties---Validity---Application under S.S of Punjab Rented Premises Act, 2009, could only be initiated if there was an executed tenancy agreement---Such aspect of the matter was over-looked by Rent Registrar while registering agreement in question---Section 5(2) of Punjab Rented Premises Act, 2009 provided that landlord would present the tenancy agreement before Rent Registrar but it did not mean that entire process of registration of tenancy agreement was to be completed at the back of tenant through an ex parte proceedings---Registration of tenancy agreement was to create obligation on tenant and, therefore, tenant should have been put on notice and heard before any such registration could have taken place---Provision of Art. 10-A of the Constitution had equipped the tenant with a right to fair trial and due process---Civil rights and obligations could not be determined without fair trial and due process---Failure to issue notice to tenant and to proceed for registration of rent deed in absence of tenant was violative of Arts. 4 and 10-A of the Constitution---Fundamental right of fair trial and due process was to be read into every statute---Order passed by Rent Registrar for registration of tenancy agreement was without lawful authority and the same was set aside---Petition was allowed accordingly.

Azmatullah Choudhry for Petitioner.

Ch. Muhammad Iqbal for Respondents.

Date of hearing: 14th June, 2010.

P L D 2010 Lahore 466

Before Nasir Saeed Sheikh and Mamoon Rashid Sheikh, JJ

Messrs PIL COMPANY (PVT.) LTD. through Chief Executive/Director-Appellant

Versus

ADDITIONAL DISTRICT AND SESSIONS JDUGE, LAHROE and another---Respondents

Regular First Appeal No.26 of 2001, decided on 30th June, 2010.

Civil Procedure Code (V of 1908)---

----O. IX, R.13 & O. XXXVII, Rr. 1, 2---Ex parte decree, setting aside of---Limitation---Conditional leave to defend---Non-compliance of condition---Trial Court granted leave to defend the suit, subject to furnishing of bank guarantee but defendant failed to comply with the condition and remained absent, resultantly ex parte decree was passed against him---Application for setting aside ex parte decree was filed beyond the period of thirty days, which application was dismissed by Trial Court being barred by limitation---Validity---Application of defendant for setting aside the decree under O. IX, R. 13 C.P.C. being time barred, order passed by Trial Court did not suffer from illegality or irregularity---High Court, in exercise of appellate jurisdiction, declined to interfere in the order passed by Trial Court---Appeal was dismissed in circumstances.

Khawar Ikram Bhatti for Appellant.

Nemo for Respondent.

P L D 2010 Lahore 468

Before Muhammad Farrukh Irfan Khan, J

ABDUL RASHEED BHATTI---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and 6 others---Respondents

Writ Petition No.5576 of 2010, decided on 1st July, 2010.

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

----Part II, Chapter 1 [Arts.8 to 28]---Fundamental rights---Object, scope and purpose---Constitution of Pakistan, 1973, lays down a very broad concept of liberty of an individual which demands a very high level of respect and observance of such rights from the State and its functionaries---In addition to the rights of an individual to enter into a valid contract, join a profession of choice and to worship according to the dictates of his/her own religion; a firm commitment to his/her liberty has also been emphasized by guaranteeing freedom from bodily restraint and from illegal prosecution---Purpose of such guarantees is to enable an ordinary citizen to live a more meaningful and fulfilling life in pursuit of goals which may result in the progress of country a happiness, peace and tranquillity of citizen.

Sh. Liaqaut Hussain and others v. Federation of Pakistan PLD 1999 SC 504; Abdullah Baloch v. Federation of Pakistan through Defence Ministry, Secretary Islamabad and 5 others PLD 2006 Kara 584; Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Ismaeel v. The State 2010 SCMR 27 and Muhammad Sharif v. The State PLD 2009 SC 709 rel.

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

----Arts. 4, 9, 10, 15 & 199---Constitutional jurisdiction of High Court---Scope---Liberty of citizens---Guarantees---Liberty of every citizen is to be protected and guaranteed under Arts. 4, 9,10 and 15 of the Constitution---State has to jealously safeguard liberty of every citizen wherever he may be---Constitution provides safeguard against violation of fundamental rights of every citizen to life and liberty from illegal and mala fide acts of omission or commission of any governmental authority or person---Any action without sufficient cause depriving or restricting liberty of a citizen is not envisaged by the Constitution of the country and any such action taken by government or any of its functionary is not immune from scrutiny of High Court in exercise of its power under Art. 199 of the Constitution.

(c) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3(1)---Constitution of Pakistan (1973), Art. 10---Arrest and detention---Pre-conditions---Carte blanche is not given under section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, to Provincial Government to use it against curtailing liberty of ordinary citizens, anti-social elements, political rivals, petty thieves and ordinary criminals etc. without proceedings to apply due process of law or to act in accordance with law---Use of section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, is restrictive in nature and its application is subject to requirements laid down in Art. 10 of the Constitution---Provisions of law become operative when government is satisfied---To prevent any person from acting in a manner prejudicial; to public safety or maintenance of public order.

(d) Interpretation of statutes---

----Explanation to statutory provisions---Scope---Explanation to a statutory provision is clever device used by legislation to facilitate proper interpretation of the provision, so as to remove any possible confusion and misunderstanding---Explanation does not enlarge the scope of original provisions of statute that it is supposed to explain.

(e) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3, Explanations I & II---Pubic order and public safety---Scope---Public order and public safety is restricted to the conditions stated in Explanation I and II of section 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, and cannot be expanded to any other situation/scenario.

(f) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Detention order---High Court, in exercise of powers of judicial review under Art. 199 of the Constitution can examine validity of detention order.

Mir Abdul Baqi Baluch v. the Government of Pakistan through the Cabinet Secretary Rawalpindi and others PLD 1968 SC 313 rel.

(g) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3(1)---Constitution of Pakistan (1973), Arts. 12 (1)(b) & 199---Constitutional petition---Detention---Criminal activities---Registration of criminal cases---Material reports forming basis of passing of detention order. against petitioner showed that certain criminal cases were registered against hint and he was involved in criminal activities---Out of seven criminal cases, petitioner had been granted bail in two cases registered at different police stations---Effect---Petitioner's criminal activity in the present case was already subject-matter of various criminal cases and on the same allegations his detention was not justified in law, as the same would amount to vexing the petitioner twice---Use of S.3 (1) of West Pakistan Maintenance of Public Order Ordinance, 1960, against a person against whom some criminal proceedings were pending was violative of Art. 12 (1) (b) of the Constitution---Authorities failed to justify as to how petitioner was acting in a manner prejudicial to integrity, security or defence of Pakistan, or public order or maintenance of supplies or services---Liberty of citizens could not be curtailed merely on presumptions---High Court in exercise of constitutional jurisdiction declared detention' order to have been passed without lawful authority and of no legal effect---Petition was allowed accordingly.

Muhammad Khalid v. District Magistrate Jehlum NLR 1980 UC 434; Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.LJ 913; Muhammad Mushtaq v. District Magistrate, Sheikhupura and another 1997 MLD 1658; Mrs. Majeeda Fatima v. District Magistrate and Deputy Commissioner, District Central Karachi and 3 others PLD 1990 Kar. 470 and Umer Din alias Umroo v. S.H.O. Bhai Pheru 1990 PCr.LJ 948 rel.

Malik Muhammad Ahmad Khan for Petitioner.

Shahid Mubeen, Addl. A.-G. along with Mazhar Ranjah, Inspector for Respondents.

Date of hearing: 29th March, 2010.

P L D 2010 Lahore 484

Before Mamoon Rashid Sheikh, J

ABDUL SATTAR---Petitioner

Versus

JUDGE FAMILY COURT, TOBA TEK SINGH and 2 others---Respondents

Writ Petition No. 16053 of 2010, decided on 21st July, 2010.

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

----S.5---Oaths Act (X of 1873), S.10---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Special oath---Effect---Case between the parties was decided by Family Court on the basis of special oath on the Hod Qur'an administered to respondent---Plea raised by petitioner was that the courts below did not appreciate petitioner's offer to respondent for faking the special oath---Validity---Once an offer was made by one party and accepted by the other then the party making the offer could not resile from the same---Offer of party to a suit whereby it undertook to be bound by the statement made on oath by the other party on being accepted by the other party was in the nature of binding agreement---Judgment and decree passed by Family Court and confirmed by Lower Appellate Court did not suffer from any illegality or material irregularity or the judgments and decrees had been passed by exercise of excess of jurisdiction or that they were perverse in nature---High Court declined to interfere in concurrent judgments and decrees passed by two courts below---Constitutional Petition was dismissed in circumstances.

Umar Farooq v. Mehnaz Iftikhar and 2 others 2006 MLD 555 and Muhammad Mazhar v. Arshad Mehmood PLD 2005 Lah. 304 ref.

Muhammad Zaheer Butt for Petitioner.

P L D 2010 Lahore 487

Before Ijaz ul Ahsan, J

HAMID GHANI---Petitioner

Versus

MUHAMMAD BASIT SIDDIQUI and another---Respondents

Civil Revision No. 190 of 2010, decided on 5th August, 2010.

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

----O. VII, R. 11---Rejection of plaint---Principles---In order to exercise jurisdiction under O. V11, R. 11, C.P.C., every averment made in plaint has to be accepted as correct and defence taken in written statement cannot be looked into while considering application for rejection of plaint.

Mst. Shabeona Parveen v. Messrs Defence Officers, Housing Society Authority, Karachi 1993 CLC 2523; Hakim Bashir Ahmad (Represented by Legal Heirs) v. The Government of Sindh through Deputy Commissioner, Hyderabad and 2 others 1984 CLC 3061 and Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459 rel.

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

----S. 115, O. VII, R.11 & O. XXXVII, Rr.1, 2---Rejection of plaint---Absence of cause of action---Subsequent events---Effect---Defendant issued cheques in favour of plaintiff and the cheques were dishonoured on the basis of which the suit had been filed---Defendant sought rejection of plaint on the basis of agreements arrived at between the parties during the pendency of the suit---Validity---From the contents of the suit, a cause of action was disclosed in favour of plaintiff---Effect of subsequent events and disclosure of certain facts including execution of agreements, the circumstances and purpose for which the agreements were executed would be subject-matter of examination by Trial Court in the light of evidence produced before it---Trial Court, after recording of evidence of both parties would also be competent to determine the effect of the agreements on the suit filed by plaintiff---In view of the emergence of subsequent agreements, the cause of action in favour of plaintiff did not cease to exist and the suit under the provisions of O.XXXVII, C.P.C. was not liable to be dismissed and was sustainable---Order passed by Trial Court did not suffer from any illegality or material irregularity---Revision was dismissed in circumstances.

Fatima Moeen v. Additional District Judge, Sheikhupura and 22 others 1992 SCMR 1199; Mst. Perveen Akhtar v. Sh. Muhammad Jameel and another 1999 MLD 1786; Mst. Karim Bibi and others v.. Zubair and others 1993 SCMR 2039; Miss Gul-e-Rana v. Muhammad Mansoor Khan and 4 others 2000 CLC 1673; Egypt Air v. Sarfraz Ahmad Tarar 2003 CLC 1425; Faiz Ahmad v. Ghulam Ali 2000 AC 739; Jewan and 7 others v. Federation of Pakistan through Secretary Revenue, Islamabad and 2 others 1994 SCMR 826; Kamal-ud-Din v. Province of Punjab and others 1977 MLD 21; Principal, Government Higher Secondary School, Oghi v. Mir Afzal and 2 others 1995 CLC 525 and Sharjeel Younus v. Salahuddin Mirza 2008 YLR 1523 ref.

Abdul Rehman v. Sher Zaman and another 2004 CLC 1340 and Abdul Zahid v. Mir Muhammad and 10 others 1999 CLC 246 distinguished.

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

----O. XXXVII---Recovery of money-Summary procedure---Scope---Special summary procedure provided in O. XXXVII, C.P.C. envisages a special mechanism for trial of suits based upon negotiable instruments---Once leave to appear and defend the suit has been granted, same is converted into a regular civil suit and is to be tried accordingly.

Azar Lateef Khan for Petitioner.

Sardar Tariq Mehmood for Respondents.

P L D 2010 Lahore 498

Before Khawaja Muhammad Sharif, C.J. and Waqar Hassan Mir, J

THE STATE---Petitioner

Versus

Mst. FAZEELAT BIBI---Respondent

Criminal Appeal No. 1263 of 2008, decided on 18th August, 2010.

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

----Ss. 9(c), 15, 47 & 48---Criminal Procedure Code (V of 1898), Ss.435 & 439---Constitution of Pakistan (1973), Art. 199---Possession of narcotics---Appeal for enhancement of sentence---Competence---Accused was convicted and sentenced to two years and eleven months' R.I. on the basis of confessional statement made by accused and complainant had filed appeal under S.48 of Control of Narcotic Substances Act, 1997 read with Ss.435 & 439, Cr.P.C. for enhancement of sentence---Contention of accused was that appeal was not maintainable as under the law State was not competent to file an appeal for enhancement of sentence; as no provision, expressly and exactly existed with regard to the enhancement of the sentence; that S.48 of Control of Narcotic Substances Act, 1997 had provided only appeal against the order of a Special Court and it was not clear as to whether appeal was against the conviction, acquittal or enhancement of sentence---Validity---Right of appeal was a creation of statute and it was granted in one place and denied in the other; it could not be read into one where it was not provided and unless a right of appeal was clearly and expressly given by the State it would not exist nor was there any scope for inferring such right by implication---There could be cases and circumstances which were not covered by the express provisions of law---Neither any provision covering such cases existed in the Code of Criminal Procedure. nor in the special law enacted for a specific purpose and it could not be said that courts had no power to do justice or to redress wrong merely because no express provision of law could be found to meet the requirements of a case---Every Court, in absence of express provisions of law for that purpose, be deemed to possess as inherent in its very constitution all such powers as were necessary to do the right and to undo a wrong in the course of administration of justice---In spite of there being ouster of power under Ss.435 & 439, Cr.P.C. revisional powers of High Court could not be taken away---By invoking the powers under Art. 199 of the Constitution, High Court could judicially review and set the proceedings in right direction---Though appeal was not maintainable, but as the appellant could invoke the constitutional jurisdiction of High Court, appeal was converted into constitutional petition.

(b) Words and phrases-

-----"Appeal" defined.

(c) Words and phrases---

----"Appeal by right", defined and explained.

(d) Words and phrases---

----"Omnibus", defined and explained.

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

----S. 47---Possession of narcotics---Application of Code of Criminal Procedure, 1898---Scope---Criminal Procedure Code, 1898 would apply to the trials and appeals before the Special Court---Legislature having used two words "trials and appeals", had specifically ousted the revisional jurisdiction of High Court; and whether or not it could be construed so, the Cr.P.C. would only apply to trials and appeals---`Special Court' as defined in Control of Narcotic Substances Act, 1997 did not include High Court---Section 47 of Control of Narcotic Substances Act, 1997, was not attracted to the appeal placed before the High Court.

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

----S. 73---Saving of Provincial and special laws---Section 73 of Control of Narcotic Substances Act, 1997, was a saving clause of Provincially and Federally promulgated special laws and would give simultaneous application of the other laws of the same kind e.g. Prohibition (Enforcement of Hadd) Order and Customs Laws.

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

----S. 74---Application of other laws---Section 74 of Control of Narcotic Substances Act, 1997 gave protection as to punishment against other laws and the punishment provided under Control of Narcotic Substances Act, 1997 and proviso to S.74 thereof nullified the effect of `superdari' provisions contained in Criminal Procedure Code, 1898.

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

----S. 76---Overriding other laws---Section 76 envisaged "Act to override other laws" i.e. a riding clause and gave effect to statute in terms of special laws having priority over the other general law.

(i) Words and phrases---

----"Adversary system "---Connotation explained.

(j) Interpretation of statutes---

----"Special enactment" and "general law"---Comparison---Special enactment could not be equated with a general law on the subject which did not deal with a particular subject as embraced in its folds by a special law under its own subjective, regularly and procedural provisions---Special statutes inherently by its provisions was a departure from and contrast to a general law containing provisions relating to such subject for which a special statute was made operative---Very objective of enforcing a special law was to bypass the provisions of general law; and it was on account of such express legislative intent that general law had always leaned in favour of special law, except to the impermissible extent under the provisions of such statute; and save to the extent of applicability of remedial or beneficial provisions of general law and not inconsistent to provisions of special law---Law making was the function of legislature and interpretation of laws was the function of the courts---If legislature wanted to promulgate special law setting up a forum for appeal and not giving it power of revision, it could do so, provided such intention was manifestly expressed barring such power---When the legislature specifically provided express bar, then it was to be assumed that legislature had done so purposely and with full awareness.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---Inherent jurisdiction of the High Court under S.561-A, Cr.P.C., was neither specifically nor impliedly barred---Same was available to pass such orders which could be necessary to give effect to any order under Criminal Procedure Code, 1898 or to prevent the abuse of process of any court or otherwise to secure the ends of justice in appropriate case of hardship---Provision of S. 561-A, Cr.P.C. could not be used to override the express provisions of law to offer just another remedy where a remedy already existed or to circumvent the normal course of law because the jurisdiction under S.561-A, Cr.P.C. was an extraordinary one preserved only for extraordinary situations, which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine, otherwise it could amount to defeating the legislative intent.

(l) Maxim---

----"Quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest": when the law gives a person anything, it gives him that, without which it cannot exist; whenever anything was required to be done by law; and it was found impossible to do that thing, unless something not authorized in express term be also done, then that something else will be supplied by necessary intendment.

A.D. Naseem for Appellant.

Hammad Akbar Wallana, Mian Muzaffar Ahmad, Amicus Curiae and Malik Abdul Aziz Awan, Assistant Advocate-General for the State.

Date of hearing: 2nd August, 2010.

PLD 2010 Lahore 510

Before Syed Mansoor Ali Shah, J

ARSHAD WAHEED---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.10809 of 2008, decided on 24th June, 2010.

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

----Art. 199---Constitutional petition---Maintainability---Constitutional petition is not maintainable on the basis of apprehensions.

Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others PLD 2004 SC 583; National Steel Rolling Mills and others v. Province of West Pakistan 1968 SCMR 317(2), Messrs Nawaz Enterprises through Sole Proprietor and another v. Habib Bank Ltd. and 5 others 2007 CLD 952 and Liaqat Ali v. City Nazim and others 2003 MLD 1635 ref.

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

----Art. 199---Constitutional petition---Maintainability---Joint Venture Agreement between petitioner and Provincial Government---Notice inviting the petitioner to a meeting with the Government---Contention of the petitioner was that Government had decided to terminate the Joint Venture Agreement and the proposed meeting was just a sham---Validity---Subject matter of the constitutional petition had emanated from a contract and the enforcement of the same did not confer legal character, so as to invoke the constitutional jurisdiction of High Court---Constitutional petition, held, was misconceived and was, therefore, not maintainable.

Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678; Messrs Airport Support Services v. The Airport Manager Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Messrs Ranma Pipe and General Mills (Pvt.) Limited v. Messrs Sui Northern Gas Pipe Lines (Pvt.) and others 2004 SCMR 1274; Brig. Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271; Malik Asad Ali v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and 2 others 1998 SCMR 130; Dr. Muhammad Munir-ul-Haq and others v. Dr. Muhammad Latif Chaudhry and others 1992 SCMR 2135; Dr. Ashiq Muhammad and others v. Govt. of N.W.F.P.,, and others 2002 PLC (C.S.) 144; Bayindir Insaat v. Pakistan through Ministry of Communications and 3 others PLD 2001 Lah. 426; Network Television Marketing Ltd. v. Government of Pakistan and another 2001 CLC 681; Mst. Rukhsana Yasmeen v. Muhammad Iqbal Mirza 2001 YLR 2759; Lahore Cantonment Cooperative Housing Society Limited Lahore Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068 ref.

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

----Art. 199---Power of High Court to proceed further where constitutional petition is not maintainable---Principles.

Non-maintainability of the constitutional petition on merits does not oust the jurisdiction of High Court to address other violations of public law, which have come to fore during the course of arguments on the petition and after the perusal of the record. Stark violations in the disposal and transfer of public property and heartless breach of public trust by the public functionaries (public trustees) cannot be overlooked. High Court is under oath to preserve, protect and defend the Constitution and in all circumstances do right to all manner of people without fear and favour. For the Court to dismiss the petition on the ground of maintainability alone would not only result in failure of justice, it would also make the Court and its constitutional jurisdiction hostage to technicalities, which cannot be allowed. Once grave violation of law and transparency in the disposal/transfer of public property comes before High Court, it transforms the lis into public interest litigation conferring inquisitorial jurisdiction on the High Court. No constitutional court can shy away from fully discharging this responsibility. It is useful here to revisit Article 199(1)(a)(ii) of the Constitution, which provides that on an application of the aggrieved person, the court can make an order "declaring that any act done or proceedings taken within the territorial jurisdiction of the Court have been done or taken without lawful authority and is of no legal effect". Again under Article 199(1)(c) High Court can "make an order giving such directions to any person" within territorial jurisdiction of the Court for enforcement of fundamental rights conferred under the Constitution. These are loud reminders of the jurisdictional expanse enjoyed by the constitutional court. High Court is, therefore, at all times equipped with the jurisdiction to probe into any public wrong affecting public at large, when the same has come before it through a petition. It does not matter if the said wrong has been specifically agitated or has coincidentally surfaced during the proceedings. This jurisdiction should not be confused with suo motu jurisdiction exercised by the Supreme Court of Pakistan under Article 184 of the Constitution, as in the present case, jurisdiction of High Court has been invoked through a petition placed before the Court by an aggrieved party. High Court, therefore, proceeded further to assess if the Joint Venture Agreement entered into between the Provincial Government and private company passed the test of law and transparency.

(d) Punjab Mineral Development Corporation Act (XXXIII of 1975)---

----Preamble---Role and scope of powers of Punjab Mineral Development Corporation.

(e) Punjab Mining Concession Rules, 2002---

----Powers of Government (Mines and Mineral Department)---Scope and extent.

(f) Government---

----Governance---Concept.

The government in itself has no "private" interest of its own. The government exists for the sake of individuals. The government does not exist for its "own" sake. Those who represent the government have no " self " interest that must be protected. They must act to achieve the collective interest. Indeed, there is a serious concern---a concern that history has repeatedly validated---that representatives of the government will develop their own interests and use the tremendous power granted them for purposes that did not reflect that collective good. The duty of loyalty seeks to prevent that. The duty of loyalty seeks to guarantee that the government takes care of the public and not itself; the general duty of loyalty seeks to guarantee that the government takes care of the public and not itself.

The Judge in a Democracy by Aharon Barak (pp.220-221), Princeton University Press, 2006 ref.

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

----Arts. 25, 18 & I99---Privatization Commission Ordinance (LII of 2000), Preamble---Privatization (Modes and Procedure) Rules, 2001---Privatization Commission (Hiring of Valuers) Regulations, 2001---Public Procurement Regulatory Authority Ordinance (XXII of 2002), Preamble---Public Procurement Rules, 2004---Constitutional petition--Joint Venture Agreement between Provincial Government and a private company for exploiting Iron ore etc.---Agreement, in the present case, with the private company was for the benefit of the few and not in public interest---Public functionaries were custodians of public property; they must protect and safeguard public property like a lioness guards her cubs---Even a slight lapse on behalf of the public functionaries in the stewardship of such sacred trust and public confidence, called for strictest accountability in the larger interest of justice and institutional building---Disposal or transfer of public property without public participation was abuse of public trust and violative of Arts 25 and 18 of the Constitution---Joint Venture Agreements, in circumstances, was declared to be against law, public policy,' national interest, public transparency and proper exercise of discretion---Said agreement was set aside as being void ab initio---High Court set out guidelines to be adhered to by Government, semi Government and autonomous public institutions for the disposal or transfer of public property---High Court, directed that the Chairman, NAB, to hold a detailed inquiry in the matter regarding the award of Agreement to private company---Chairman, NAB will submit his inquiry report along with the actions taken before High Court within six months from the receipt of the present order---Advocate-General, Punjab will ensure that copy of the present judgment is circulated amongst public institutions in Punjab as a guideline in order to ensure proper disposal of public property---Office of High Court was directed to dispatch a copy of the judgment to Chairman, NAB and place the report of Chairman, NAB before High Court through separate file on the judicial side on 14-2-2011-High Court further observed that Government will ensure that Punjab Mineral Development Corporation effectively performs the lease and licence regarding the iron ore reserves or else Government shall take appropriate remedial action under the Rules so that this immense natural resource is put to best use in the public interest and for the benefit of the people of Pakistan.

The disposal or transfer of public property without public participation is abuse of public trust. Public Property sold or transferred behind closed doors by public functionaries to some select few undermines the venerated role of trusteeship. Good governance is fundamentally pillared on trust and confidence of the people in the government, public institutions and more importantly in the public functionaries at the helm of the affairs. If this public trust is haemorrhaged, the entire edifice of public administration loses its credibility, which weakens governments and discredits democracy.

Public functionaries being trustee should stand as pillars against abuse of law and process.

Public property cannot be transferred without open procedure of public advertisement, public tender and public auction, unless law provided otherwise.

Disposal of public property without reaching out to the public is a breach of public trust and is therefore facially and ex facie discriminatory. By giving preference to a select few amounts to treating equals unequally. This offends fundamental right' of equality under Article 25 of the Constitution.

Such closed and opaque process adopted for the sale or disposal of public property limits public access to new business prospects and restricts economic activity in the hands of a select few. This goes against the grain of fair competition and fundamental right guaranteed under Article 18 of the Constitution. Right of a person (public) to enter a lawful business is impaired if he is deprived of the opportunity to participate.

High Court set out guidelines to be adhered to by government, semi-Government and autonomous public institutions for the disposal or transfer of public property.' In Pakistan the closest legislation has come to providing for disposal of public property is under the rubric of Privatization Commission Ordinance, 2000. The Privatization (Modes and Procedure) Rules, 2001 read with Privatization Commission (Hiring of Valuers) Regulations, 2001 provides a fairly comprehensive and elaborate checklist that is essential to discharge the public trust reposed in public institutions. Further, there is a detailed law relating to public procurement in the country namely; The Public Procurement Rules, 2004 framed under the Public Procurement Regulatory Authority Ordinance, 2002. The principles of public procurement can also act as useful guideline when public property is to be disposed of or transferred. Some of the salient principles/guidelines that can be culled out of the above laws for the disposal.(which includes sale, lease, licence, etc.) of public property are as follows:

(a) Disposal Planning. -Advanced planning for disposal of public properties by public institutions based on a well reasoned cost benefit analysis. Any such planning will be guided and structured solely to achieve public and institutional interest;

(b) Due Diligence.--Disposal Planning must be based on legal, technical and financial due diligence of the public property being disposed of;

(c) Independent Valuation.--To assess fair and independent valuation of the public property before it is put to sale;

(d) Public Advertisement.--Disposal of public property shall be widely advertised to get maximum publicity (also be advertised on the website of the public institution concerned);

(e) Pre-qualification.--Of prospective bidders prior to floating the tenders keeping in view the institutional need and interest.

(f) Open Competitive bidding.--

Joint Venture Agreement entered between the Provincial Government and a private company was against law, public policy, national interest, public transparency and proper exercise of discretion. Said agreement was set aside by High Court as being void ab anitio.

Said agreement was for the benefit of the few and not in the public interest. Public functionaries are custodians of public property; they must protect and safeguard public property like a lioness guards her cubs. Therefore, even a slight lapse on behalf of the public functionaries in the stewardship of this sacred trust and public confidence, calls for strictest of accountability in the larger interest of justice and institutional building.

High Court directed the Chairman, NAB, to hold a detailed inquiry in the matter regarding the award of agreement to private company. Chairman, NAB will submit his Inquiry Report along with the actions taken before High Court within six months from the receipt of the present judgment.

Advocate General, Punjab will ensure that copy of the present judgment is circulated amongst public institutions in Punjab as a guideline in order to ensure proper disposal of public property.

Office of High Court was directed to dispatch a copy of the present judgment to Chairman, NAB and place the Report of Chairman, NAB before High Court through separate file on the judicial side on 14-2-2011.

High Court further observed that Government will ensure that Punjab Mineral Development Corporation effectively performs the lease and licence regarding the `iron ore reserves' or else Government shall take appropriate remedial action under the Rules so that this immense natural resource (iron ore) is put to best use in the public interest and for the benefit of the people of Pakistan.

The Judge in a Democracy by Aharon Barak (pp.220-221), Princeton University Press, 2006; Shri Sachidanand Pandey and another v.. The State of West Bengal and others AIR 1987 SC 1109 at p.1133; Haji T.M. Hassan Rawther v. Kerala Financial Corporation AIR 1988 SC 157; Fertilizer Corporation's case AIR 1981 SC 344 at p.350; Ram and Shyam Company v. State of Haryana 1985(3) SCC 267; Malik Atta Muhammad and another v. Government of Punjab through Secretary, Local Government and Rural Development Lahore and others 2007 SCMR 178; Mirza Muhammad Arif and others v. Chief Engineer and others PLD 2009 Lah. 489; Muhammad Irshad and another v. Tehsil Municipal Administration through Tehsil Nazim Lodhran and 3 others 2006 CLC 1902; Mubashir Iqbal v. Secretary, Excise and Taxation, Government of Punjab, Lahore and 5 others PLD 2005 Lah. 728; Sardar Sultan Ahmed Khan v. Government of Punjab through Project Director, Department of Agriculture Punjab, Lahore and 4 others 2001 MLD 1013; Petrosin Products Pakistan (Pvt.) Limited v. Federation of Pakistan through Secretary, Privatization Commission, Ministry of Finance, Government of Pakistan Islamabad and 5 others 2001 CLC 820; Muhammad Shafique Khan v. Secretary to the Government of Punjab Local Government and Rural Department, Lahore and 2 others 1996 CLC 2045; Administrator, Municipal Committee, Sahiwal v. Member Colonies, Board of Revenue, Punjab, Lahore and 2 others 2007 CLC 1858; Messrs Noor Shah Filling Station (Regd.) through Manager (Administration) v. Auqaf Department through Secretary/Chief Administrator Auqaf Punjab and 4 others 2009 CLC 1148; Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others PLD 1997 SC 342; Shaukat Ali v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 3 others 1995 MLD 123; Syeda Shahida Tasleem v. The Province of Punjab and others PLD 1995 Lah 110; Ali Raza v. Chairman, Punjab Cooperative Board for Liquidation, Lahore 2010 YLR 356; Maqsood Khan and others v. Province of Sindh and others 2007 YLR 28; Aggarwal and Modi Enterprises Pvt. Ltd. and another v. New Delhi Municipal Council AIR 2007 SC 3131; Chenchu Rami Reddy and another v. The Government of Andhra Pradesh and others AIR 1986 SC 1158; State of Haryana and others v. Jage Rain and others AIR 1983 SC 1207; Messrs Kasturi Lal Lakshmi Reddy and others v. The State of Jammu and Kashmir and another AIR 1980 SC 1992; Ram and Shyam Company, v. State of Haryana and others AIR 1985 SC 1147; Ramana Dayaram Shetty v. The International Airport Authority of India and others AIR 1979 SC 1628; Shri Sachidanand Pandey and another v. The State of West Bengal and others AIR 1987 SC 1109; State of U.P. v. Shiv Charan Sharma and others AIR 1981 SC 1722; Fertilizer Corporation v. Union of India AIR 1981 SC 344; Human Right's cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759; Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Messrs Shams and Brothers v. Government of Pakistan and others 2007 CLD 125; Sheri-CBE and others v. Lahore Development Authority and others 2006 SCMR 1202; Muhammad Afzal v. Shahzad Asghar Dar and others 2003 SCMR 280; Messrs Ittehad Cargo Service and 2 others v. Messrs Sycd Tasneem Hussain Naqvi and others PLD 2001 SC 116; Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283; Talk to Civil Officers at Government House, Peshawar) Jinnah Speeches and Statement 1947-1948--OXFORD; The Judge in a Democracy by Aharon Barak (Page 24), Princeton University Press, 2006; The future of freedom: illiberal democracy at home and abroad/Fareed Zakaria (1st Edition p.17) W.W. Norton & Company Ltd.; Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; Ardeshir. Cowajee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Iqbal Hussain v. Province of Sindh through Secretary Housing and Town Planning, Karachi and others 2008 SCMR 105 and Bangalore Medical Trust v. B.S. Muddappa and others AIR 1991 SC 1902 ref.

(h) Democracy---

----Concept.

It is essential for the public functionaries to understand the importance and meaning" of a democratic welfare State. "What is democracy? ...It rests on two bases. The first is the sovereignty of the people. This sovereignty is exercised in free elections, held on regular basis, in which the people choose their representatives, who in turn represent their views. This aspect of democracy is manifested in majority rule and in the centrality of the legislative body through which the people's representatives act. This is the formal aspect of democracy. It is of central importance, since without it the regime is not democratic...The second aspect of democracy is reflected in the rule of values (other than the value of majority rule). that characterize democracy. The most important of these values are separation of powers, the rule of law, judicial independence, human rights, and basic principles that reflect yet other values (such as morality and justice), social objectives (such as the public peace and security), and appropriate ways of behaviour (reasonableness good faith). This aspect of democracy is the rule of democratic values. This is a substantive aspect of democracy. It too is of central importance. Without it, the regime is not democratic.

For people in the West, democracy means "liberal democracy": a political system marked not only by free and fair elections but also by the rule of law, a separation of powers, and the protection of basic liberties of speech, assembly; religion, and property. But this bundle of freedoms---what might be termed "constitutional liberalism" -- has nothing intrinsically to do with democracy and the two have not always gone together, even in the West. After all, Adolf Hitler became Chancellor of Germany via free elections. Over the last half-century in the West, democracy and liberty have merged. But today the two strands of liberal democracy, interwoven in the Western political fabric, are coming apart across the globe. Democracy is flourishing: liberty is not."

Real democracy cannot take ground in Pakistan, unless liberty and freedom of the citizens is safeguarded and respected while accountability of public institutions is strictly enforced.

Ch. Amir Rehman for Petitioner.

Khawaja Muhammad Haris, Advocate-General, Punjab, assisted by Muhammad Zubair Khalid, Additional Advocate-General, Shan Gul and Khawaja Salman Mahmood, Assistant Advocate Generals, Rao Manzar Hayat, Ex-Managing Director, Punjab Mineral Development Corporation.

Dates of hearing: 22nd, 28th April, 3rd, 23rd and 24th June, 2010.

P L D 2010 Lahore 546

Before Syed Mansoor Ali Shah, J

IMRAN HUSSAIN---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA and 4 others---Respondents

Writ Petition No.6210 of 2010, decided on 15th July, 2010.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---State owned companies are amenable to constitutional jurisdiction under Art.199 of the Constitution.

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 fol.

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

----Arts. 4, 18 & 25---Public sector company---Master and Servant, principle of---Applicability---Scope---Mode and manner of recruitment followed by a public sector company---Objection regarding application of the principle of "master and servant" in the matter was misconceived as matter in question was not the terms and conditions of service'---In the present case, it had been agitated that the Recruitment Policy had been violated; that in spite of public advertisement, sham interviews had been conducted without any common and prefixed objective criteria to transparently judge and evaluate the candidacy of the applicants; and that the process adopted by the public sector company and its Selection Board was blatantly devoid of due process and deprived the applicants of their right to lawful employment and livelihood and discriminately ousted the petitioners from the recruitment process in violation of Arts.4, 18 & 25 of the Constitution---Held, objection regarding application of principle ofmaster and servant', was misplaced and without force.

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

----Art. 199---Constitutional petition---Maintainability---Civil service---Recruitment---No objective criteria was framed for the purposes of conducting interviews for recruitment---Constitutional petition in circumstances, was maintainable.

(d) Discretion---

----Administrative discretion has to be structured, reasoned, rational, logical and objective---Principles.

Administrative discretion has to be structured, reasoned, rational, logical and objective. One of the ways to arrive at such a structured exercise of discretion is to fashion it on a well-thought-out, carefully deliberated objective standard. This helps test various faculties of the interviewee especially those, which the institution concerned requires. The standard can, therefore, cover experience, alertness, initiative, general aptitude, behaviour, knowledge, dependability, etc. which forms a uniform yardstick, gauge, scale or criteria for the exercise of discretion. Discretion without a uniform yardstick or a formula is a loose jumble of haphazard human subjectivity, which is inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and painfully illogical. The administrative compulsion and wisdom to structure discretion (in the present case by providing a well-thought out objective criterion/test or a score card) is to remove human subjectivity from exercise of discretion.

On an institutional level, structuring the discretion is to protect the institution and the public from the vice of arbitrariness. It is to filter whims, vagaries, caprice, surmises and volatility attached to human behaviour, translated into human dissection. These vices are a breeding ground for corruption, nepotism and favourtism. These vices are like termites and if permitted to exist, weaken the foundations of democratic public institution.

Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion. Structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open finding, open reasons, open precedents and fair informal procedure. Somehow, in the context of Pakistan, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at time.

Constitutionally, unlimited and unchecked exercise of discretion is inherently discriminatory. It has no internal check to ensure uniformity and objective application of mind across the board. It, therefore, extends unequal treatment to equals. Absence of an objective criterion in exercise of discretion especially in a case where thousand of candidates had applied is therefore, discriminatory and hence violative of Article 25 of the Constitution.

Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Chairman, Regional. Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 ref.

(e) Civil service---

----Recruitment of employees---Good governance and institutional building---Requirements.

Good governance and institutional building require that the requirements, demands and needs of the institution are tailored into the objective criteria/test so that the best suited human resource is selected for the post. The proposed criteria can sub-divide total marks into areas like; experience, skill, aptitude, educational background, intellect, extra-curricular, personality, ethics, etc. so the interviewers have a prefixed format to apply their mind on and disallow unchecked subjectivity from clogging them the minds.

The Letter issued by Managing Director of a public sector company changing the Recruitment Policy at the behest of Minister besides offending fundamental right reflects of poor and reckless governance.

(f) Civil service---

----Recruitment of employees---Appointment process solely based on interview---Demerits.

B. Ramakichenin Alias Balagandhi v. Union of India and others 2008 (1) SCC 362; Madhya Pardesh Public Service Commission v. Navnit Kumar Potdar and another AIR 1995 SC 77; Ajay Hasia and others v. Khalid Mujib Sehravardi and others and others AIR 1981 SC 487 and Ashok Kumar Yadav and others v. State of Hayyana and others AIR 1987 SC 454 ref.

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

----Arts. 4, 18, 25 & 199---Civil service---Public sector company---Recruitment of employees---Career and future prospects of employment and livelihood of the applicants for appointment was subjected to an unstructured, unchecked, unguided and unfettered exercise of discretion---Such process put the fragile career of the applicants hostage to corruption, political opportunism and nepotism resulting in constitutional breach of Articles 4 and 18 of the Constitution---Letter issued by Managing Director of the public sector company changing the Recruitment Policy at the behest of Minister, besides offending fundamental rights, reflected of poor and reckless governance--Impugned recruitment and appointment of candidates was declared to be unconstitutional, illegal, without lawful authority and therefore set aside--High Court directed that all the said posts shall be deemed to be vacant and filled again in terms of present judgment and the Recruitment Policy unless the same was lawfully amended or modified---Public Sector Companies, in the present case, had played fraud with the legitimate expectations of hundreds of people who innocently applied desiring a decent lawful employment, however, instead of carrying out transparent recruitment process and giving meaningful employment, these institutions failed to perform their public duty and had abused the public trust reposed in them by the people of Pakistan---Such situation called for strict accountability of the public functionaries involved in the process including the Board Members of the companies who seemed to have taken no note of such large-scale breach of trust--High Court, therefore, directed the Chairman WAPDA to inquire into these unlawful appointments and to identify the real beneficiaries of unlawful recruitment process--Chairman, WAPDA shall also hear and incorporate the views of the candidates who were rejected as well as the ones whose appointment had been set aside through the present judgment---Such report shall be placed before High Court within five months from the date of present judgment.

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

----Arts. 4 & 199---Due process of law---Civil Service---Recruitment of employees---Administrative discretion---Scope---Article 4 of the Constitution provides for due process of law and mandates that everyone is to be treated in accordance with law---Administrative discretion which is structurally unfettered and unchecked cannot be said to have been exercised in accordance with law and therefore fails to pass the test of "due process" under Art. 4 of the Constitution---Walk-in-interviews, in the present case, were devoid of any objective criteria, therefore, violative of "due process" and fundamental rights of the applicants---Such interviews were declared to be ab initio unconstitutional and unlawful creating no right whatsoever in the successful candidates.

(i) Company---

----Public sector company is not only to look after the interest of its shareholders alone but has a wider responsibility as it acts as a trustee for the people of Pakistan---Higher standard of governance stricter fiduciary duty and an institutional collegiality in decision making process is an expected operational benchmark of a public sector company---Principles.

A public sector company is not only to look after the interest of its shareholders alone but has a wider responsibility as it acts as a trustee for the people of Pakistan. Higher standard of governance, stricter fiduciary duty and an institutional collegiality in decision making process is an expected operational benchmark of a public sector company. The trusteeship of the members of the Board of Directors of such company create a sacred obligation to ensure that company is run and managed through the Board, which is an independent and an autonomous body constituted to safeguard the interest of the public and of company and at all times to firewall against political or bureaucratic opportunism. A Minister under the Rules of Business is to provide the macro policy and fashion the vision of the Department according to the political agenda of the Government in power. It is not the role or the business of the Minister to interfere with the operational working of autonomous body like a public sector company. In the present case, the Minister could have stressed the urgency to employ manpower in various companies but could not have gone further to suggest and direct the temporary modification of the Recruitment Policy unless the company after due deliberation at the Board level and after giving reasons felt that such a modification is required in the larger interest of the company and in public interest. Government and its autonomous institutions are spread out in layers, every tier having its own independent role and scope of operations and there is no room for dictation or pressure. Unless the structure of governance laid out in the Rules of Business read with the constitutional principles, is protected, the system of public administration will come crashing down, replacing public interest with personal avarice and greed. This cannot be permitted.

Public sector companies shall take collective decision in their Board Meetings, giving reasons as required under section 24-A of the General Clauses Act, 1897, a Board Resolution through circulation, if there is urgency. Only in grave emergency, which has no room for delay, the Chief Executive Officer may act singly in the welfare of the company and in public interest, supported by written reasons for its urgency and the same must be ratified by the Board of Directors within the shortest possible time. Board of Directors must also give reasons for allowing the Chief Executive Officer to take such a decision and must give reasons for its ratification.

Public sector company is an independent public company with its autonomous Board of Directors. Decisions of Managing Director or the Board of Directors of the company are required to be placed before Board of Directors of the company in order to take a decision. The autonomy of the company and the independence of the Board of Directors is merely fictional if directions issued, by individuals namely: Managing .Director (without seeking the approval of the Board of Directors) are carried through by the management without having received the blessing of its Board of Directors.

Public, Institutions .(company) can only contribute to national interest and welfare of the people if they are run as an institution and in the public interest without any fear or favour. If the Board Members are bypassed and are simply used to ratify orders passed single handedly behind closed doors and without any plausible reasons, the future of public institutions is bleak. In order to ensure independence, autonomy, national interest and interest of the institution, the members of the governing bodies will have to vigilantly and actively play their roles. To be on the Board of a public sector company is to perform a public duty in the public interest of the people of Pakistan. This role has to be performed with full responsibility, vigilance, courage, wisdom and for no other reasons.

Public institutions can prosper and progress and materially serve the people of Pakistan only if the public functionaries incharge of running these institutions fearlessly guard their powers and remain undeterred by extraneous pressure and influence.

Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285 distinguished.

Ameer Abdullah Khan Niazi for Petitioner.

Nasim Kashmiri, Dy. Attorney-General, Muhammad Ilyas Khan Aurangzeb Mirza, Shahid Karim, Kh. Ahmad Tariq Raheem, Shahzad Shaukat, Muhammad Munir Khan, Mian Abdul Qaddus, Sarfraz Ahmad Cheema and Alia Ijaz for Respondents.

Muhammad Arshad Javed, Ch. Ahmad Saif Ullah Khathana, Muhammad Arif Pervaiz Butt, Azhar Igbal and Zia Shahid for Appointees.

Tanveer Safdar Cheema, Chief Executive FESCO. Ch. Muhammad Ashraf, Director (HR) FESCO, Shabbir Ahmad, Senior Manager L&W PEPCO.

Dates of hearing: 29th April, 8th 12th, 13th and 15th July, 2010.

P L D 2010 Lahore 583

Before Syed Mansoor Ali Shah, J

MUHAMMAD JAMEEL---Petitioner

Versus

AMIR YAR and 6 others---Respondents

Writ Petition No. 17634 of 2010, heard on 20th August, 2010.

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

----Art. 199---Constitutional petition---Jurisdiction at the principal seat of Lahore High Court---Scope---Judgment under challenge was of Election Tribunal, which had been passed in Lahore---Dominant object of filing the petition had arisen in Lahore, hence the principal seat of the Court had the jurisdiction to hear the matter.

Nawabzada Iftikhar Ahmed v. Chief Election Commissioner Islamabad and others Civil Petition No.287 of 2008 ref.

LPG Association of Pakistan v. Federation of Pakistan 2009 CLD 1498; Sandalbar Interprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Mst. Parveen Akhtar v. Director, F.I.A, Lahore and 5 others PLD 1996 Lah. 328; Syed Ahmed Ali Rizvi and another v. The State PLD 1995 SC 500 and Hudabiya Engineering (Pvt.) Ltd. v. Pakistan through Secretary Interior and 6 others 1997 MLD 2086 rel.

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

----Art. 62(1)(f)---Qualifications for membership of Parliament---Letter from Controller of Examinations of a University declaring the degree of elected member of Parliament as bogus and said letter had not been challenged by the member---Letter from the University still held the field and was sufficient to tarnish the high standards laid down in Art.62(1)(f) of the Constitution.

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

----Art.92---Presumption as to genuineness of documents kept under law---Scope---Official record of three Universities spreaded over three different Provinces in the country carried presumption of correctness under Art.92, Qanun-e-Shahadat, 1984 and unless the same was dislodged by convincing evidence by a court of competent jurisdiction such documents held the field.

Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others 2004 SCMR 1602; Tanvir Ashraf v. Ch. Riasat Ali and 5 others 2004 YLR 659; Mureed Hussain v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 2 others 2005 YLR 1556 and Ahmad Ashraf v. University of the Punjab, Lahore and 2 others 1996 MLD 1064 rel.

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

----Art. 62(1)(f)---Specific Relief Act (I of 1877), S.42---Scope and nature of Art.62(1)(f) of the Constitution---Words sagacious',righteous' honest' andameen'---Meanings---Declaration provided under Art 62(1)(f) of the Constitution can be sought by the opposing candidate or an aggrieved voter from the constituency and can invariably be granted by the Election Tribunal or the constitutional courts while hearing a matter arising out of election laws---'Court of law'---Scope---No such declaration can be sought from civil court under S.42, Specific Relief Act, 1877---Member of National Assembly, in the present case, in his nomination papers submitted for the National Elections, 2002 declared his educational qualification to be B.Com. but the nomination papers submitted for the National Elections, 2008, he declared the educational qualification to be B.A. (B.Com. was not mentioned) while the latest nomination papers for the Bye-Elections, 2010 he described the qualification to be Educated', conveniently ignoring both B.Com. and B.A. degrees---Conduct of the Member in giving different educational qualification in different nomination papers showed intentional non-disclosure of his educational qualification without any plausible reason---Mention of the wordeducated' instead of the degree allegedly obtained by him cast a dark cloud of suspicion on the sense of fairness and honesty of the Member---Resignation of the Member a day before the hearing before the Supreme Court was no less than a confession of repentance---Court can draw negative inference of the conduct of the person in such circumstances---Irrefutable evidence placed before the Election Tribunal and before the High Court did not cut a picture of the person who could be called righteous, honest or ameen by any stretch of imagination.

Article 62(1)(f) of the Constitution is not self-executory, however, it can be set in motion if the court of law has convincing evidence before it.

Article 62(1)(f) provides qualification for membership to the National Assembly. Article 62(1)(f), (Pest 18th Amendment) means that a candidate will be considered to be sagacious, righteous, non-profligate, honest and ameen unless there is a declaration to the contrary by a court of law. "Court of law" can be any court or tribunal which decides a lis or the rights of the parties. Court is defined as "a government body consisting of one or more judges who sit to adjudicate dispute and administer justice. "Court of law" means "broadly, any judicial tribunal that administers the laws of a state or nation.", High Court is also a "Court of law" for the purposes of Article 62(1)(f) of the Constitution and can therefore issue a declaration whether the person is sagacious, righteous, non-profligate, honest and ameen.

Another aspect of the matter is that the nature of declaration sought under this Article i.e., declaring a person to be or not to be sagacious, honest, ameen, etc. cannot be obtained under section 42 of the Specific Relief Act, 1877.

It, therefore, appears that only the Election Tribunal or the constitutional courts can grant such a declaration and therefore the nature of this constitutional declaration appears to be different from the ordinary declaration sought under, the Specific Relief Act, 1877.

The next question is who should or can seek such a declaration? It is but obvious that the opposing candidate or an aggrieved voter from the constituency may want to seek such a declaration. Under the election laws (Representation of the People Act, 1976 in particular), the opposing candidate has the remedy of approaching the Election Tribunal if the nomination papers of the other candidate are accepted. Subsequently, he can also challenge the decision of the Election Tribunal before High Court in writ jurisdiction (like in the instant case) or file a writ of quo warranto or an election petition after the elections. It would be odd that once the nomination papers of a candidate are accepted, the opposing candidate or an aggrieved voter files a civil suit seeking a declaration that the candidate in question is not honest or ameen. In any case, no such declaration can be sought. Therefore, declaration provided in Article 62(1)(f) can invariably be granted by the Election Tribunal or the constitutional courts while hearing a matter arising out of election laws.

The change brought about by the 18th Amendment in Article 62(1)(f) of the Constitution is not restrictive for the courts of law, as there are the courts that have to grant such a declaration and as reasoned above it is ordinarily the constitutional courts that will have to make such a declaration on the basis of the evidence before them.

The declaration envisaged under Article 62(1)(f), therefore, has a special constitutional significance. It is to ensure that only sagacious, righteous, honest and ameen enter the two Houses of the Parliament. The role of the courts is that of a GATE KEEPER. The constitutional test provided in Article 62(1)(f) has to be applied meticulously and punctiliously. Heavy responsibility lies on the courts who act as trustees on behalf of the people of Pakistan to ensure that no candidate, short of the standards prescribed in the Constitution be allowed to enter the sacred Houses of the Parliament. Any cheat slipping through the test would amount to abuse of trust reposed by the people of Pakistan in the courts besides resulting in lowering the majesty, dignity and honour of the Houses of the Parliament.

The constitutional courts need not wait for any declaration to be placed before them (by and large assumed to be procured from the lower courts). There is no stopping them from making such a declaration if there is evidence before them.

The words "sagacious.... ameen" have to be understood in the general parlance. Sagacious means "showing good judgment and understanding. Righteous means "morally right and good. Honest means "always telling the truth, and never stealing or cheating...Not hiding the truth about something. Ameen means honest. The meanings given above are broad and wide enough to detect and catch even the smallest of taint or blemish appearing on or attached with the name of the aspiring candidate. Framers of the Constitution have intentionally kept these qualifications wide and simple in order to ensure that the best of the best make it to these sacred Houses, which in turn would guarantee progress and development of the nation.

In the present case, the irrefutable evidence placed before the Election Tribunal and before High Court does not cut a picture of a man who can be called righteous, honest or ameen by any stretch of the imagination.

Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736; Sajid Mehdi v. Nazir Ahmed and others PLD 2010 Lah. 312; Black's Law Dictionary 8th Edn.; Alavi Sons Ltd. v. The Government of East Pakistan and others PLD 1968 Kar. 222; Messrs Ghee Corporation of Pakistan (Pvt.) Ltd v. Messrs Ashraf and Sons through its Proprietor 1995 MLD 390; Abdur Rehman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978 Lah. 113; Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and 2 others PLD 1961 SC 531 and Oxford Advanced Learner's Dictionary 7th Edn. rel.

Aftab Ahmed Bajwa for Petitioner.

Malik Ijaz Hussain Gorcha, Muhammad Ashraf Khan, Deputy Attorney-General and Shahid Sarwar, Law Officer, Election Commission of Pakistan for Respondents.

Date of hearing: 20th August, 2010.

2010 P L D Lahore 605

Before Syed Mansoor Ali Shah and Muhammad Yawar Ali, JJ

ATTA ULLAH KHAN MALIK---Appellant

Versus

FEDERATION OF GOVERNMENT OF PAKISTAN through President of Pakistan

and 3 others-Respondents

Intra-Court Appeal. No. 105 of 2010 in Writ Petition No.3151 of 2010, decided on 10th June, 2010.

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

----Art. 199---Public interest litigation---Maintainability---Scope---Held, in matters pertaining to public interest litigation the rule of "standing" or "locus standi" or "aggrieved person" has received a liberal interpretation and any person/citizen having "sufficient interest" (in the context of large public interest) can maintain a petition as an "aggrieved person" under Art.199 of the Constitution subject to satisfying other requirements of the said Article.

Muhammad Tariq and Abbasi and others v. Defence Housing Authority and others 2007 CLC 1358; Muhammad Yar v. Muhammad Tariq 2007 YLR 2430; Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Javed Ibrhaim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Khurram Khan, Advocate v. Government of Punjab through Chief Secretary and 6 others PLD 2009 Lah. 22; Ardeshir Cowasjee and 11 others v. Sindh Province and others 2004 CLC 1353; Ardeshire Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Mushtaq Ali v. Government of Sindh through Chief Secretary, Sindh, New Sindh Secretariat Karachi and 11 others PLD 1998 Kar. 416; Democratic Workers' Union C.B.A. v. State Bank of Pakistan and others 2002 PLC (CS) 614; State v. M.D. WASA and others 2000 CLC 471; Province of Punjab through Collector Faisalabad and 8 others v. Muhammad Yaqoob 1992 CLC 2065; Ardeshir Cowasjee and others v. K.B.C.A. and others 2001 YLR 2403; Maulana Abdul Haq Baloch and 2 others v. Government of Balochistan through Secretary Industries and Mineral Development, Quetta and 6 others PLD 2007 Quetta 118 ref.

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

----Art. 199---Public interest litigation---Significance--- "Aggrieved person" and "sufficient interest"---Scope---Duty of public functionaries---Public interest litigation is a judicial tool to help resurrect or jump start public institutions on the road to healthy democratic values and traditions---Unless substantive democracy takes root in public administration and institutions flourish with democratic maturity, court dockets will continue to be filled with public interest litigation, however, courts will continue to redress grievance, with the hope that public institutions will soon come of age---Any citizen or person (part of the public) has "sufficient Interest" and is, therefore, an aggrieved person under Art.199 of the Constitution, if public property is being acquired, held, used, or disposed of by public functionaries in violation of the law---Public functionaries as trustees of the people, cannot have any personal interest in any public property, therefore if there is any abuse of trust or violation of law, it qualifies any member of the general public as an "aggrieved person" with the right to invoke the constitutional jurisdiction of High Court, subject to fulfilling other requirements of Art.199 of the Constitution---Principles---Public functionaries are supposed to understand the importance and meaning of democratic welfare State---Concept of democracy elaborated.

The Judge in a Democracy by Aharon Barak P.24, Princeton University Press, 2006; Ronald Dowrkin, A. Bill of Rights for Britain 35-36 (1990); Vriend v. Alberta [1998] 1 S.C.R. 493, 566 (Can.); and Arundhati Roy in Listening to Grasshoppers ref.

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

----Art. 199---Public interest litigation---Maintainability---Scope---Test.

The real test in public Interest litigation is the subject-matter of the petition or the abuse of public trust complained of. Once the court assesses that breach of trust and violation of law by a public institution has taken place, the court must immediately proceed further to rectify the breach, the identity or antecedents of the petitioner pale into insignificance. If, on the other hand, the court finds the petition to be without merit, camouflaged to foster personal disputes, such petition is to be thrown out. Public interest litigation should not be allowed to be "Publicity Interest Litigation" or "Private Interest Litigation" or "Politics Interest Litigation". However, if the court is convinced that violation of law has taken place pertaining to public property or public interest, it should matter less who brought the complaint before the court. Locus standi in such matters stands diluted carrying only cosmetic significance. This is also so because, public Interest litigation converts adversarial nature of the proceedings into inquisitorial proceedings. The court, as guardian of public interest investigates to decipher the truth. This unique remedy is the hallmark of a welfare democratic state, which rests on the principles of social and economic justice enshrined in the Constitution.

Ashok Kumar Pandey v. State of West Bengal and others AIR 2004 SC 280 and Constitution of the Republic of South Africa, 1996, Section 38 ref.

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

----Arts.199 & 19-A---Public Interest litigation--Article 19-A of the Constitution empowers the civil society of Pakistan to seek information from public institutions and hold them answerable and therefore enthuses fresh life into public Interest litigation---Rule of standing/locus standi to maintain a petition under public interest litigation, was not applicable---Principles.

Right to information is another corrective tool, which allows public access to the working and decision making of the public authorities. It opens the working of public administration to public scrutiny. This necessitates transparent and structured exercise of discretion by the public functionaries. Article 19-A of the Constitution empowers the civil society of Pakistan to seek information from public institutions and hold them answerable. Article 19-A, therefore, enthuses fresh life into public interest litigation.

The rules of standing/locus standi have a close connection and nexus with the rule of law. Closing the doors of the court on a petitioner who warns of a public institution's unlawful action means giving that public body a free hand to act without fear of judicial review.

Inland Revenue Commissioner, National Federation of Self-Employed and Small Business Ltd. [1982] A.C. 617 at p.644 ref.

(e) Government---

----Concept.

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

----Arts. 199, 25 & 18---Public Interest litigation---Open public auction of plots of government (Railways) land, in the present case, were publically advertised, however, later on, in response to several public complaints and vigilance reports against the said auction, authorities cancelled all such auctions and bid money was refunded to the bidders---After a lull of two years, without any public tendering or public auction same plots were leased out to respondent through backdoor, for agricultural purposes, vide letter mentioning therein the respondent as highest bidder (even though admittedly no public auction for the lease of plots took place) and thereafter authorities entered into an agreement for the licensing of government land for agricultural purposes and nurseries with the respondent---Competent authority, subsequently, converted the agricultural lease of respondent into a commercial lease and was communicated to the respondent accordingly---Functionary of the department appearing in the court failed to show any rules or regulations of the department that permitted to grant lease in question without a public tender or public auction---Held, once the open auction of the plots was cancelled, automatically all the bids thereunder also stood cancelled---Contention of the authorities that the bid given by him was the highest bid ever received by the authorities was misconceived and flawed for without public tendering and without inviting competitive bidding it could not be ascertained that the bid given by the respondent was the highest---Public functionaries in the department had the temerity and audacity to misrepresent the facts and lie on the face of record; in spite of the auction to have been cancelled in the year 2005, the subject (caption) used in all the correspondence initiated after two years of the cancellation of open auction had been intentionally referred to as "open public auction etc."; even though no auction took place for the lease of land for agricultural use and no reason or justification given for converting the said lease into commercial lease bestowing the same benefits on respondent which were denied to him in the year 2005, due to public complaints, when the open commercial auction was cancelled---Deliberate efforts were made to ensure that the record was packaged to show that the agricultural lease and the conversion to commercial lease was under the lawful banner of "open public auction" and the respondent was the "highest bidder"---Such false labelling was not only incorrect as no public tender or public auction took place it also amounted to fabricating and manufacturing fake public record in order to transfer public property to their favourite i.e., respondent at the disadvantage of the Government---Conversion of agricultural lease into a commercial lease demonstrated the machination and corruption of the public functionaries who went all-out to defraud their own institution (Pakistan Railways)---Public property held by public authorities was held in trust---Public Functionaries (civil servants or officers of any public authority) were the trustees of the said property on behalf of people of Pakistan---No public officer, how high up he might be in a public institution, had the right, authority or power to sell, lease or transfer even a single inch of public property unless it was strictly in accordance with law and met the public standard of open public tender and open public auction---Disposal or transfer of public property without public participation was abuse of public trust---Public property sold or transferred behind closed doors by public functionaries to some selected few undermined such venerated trusteeship---Good governance was fundamentally pillared on trust and confidence of the people in the government, public institutions and more importantly in the public functionaries at the helm of the affairs---If such public trust was haemorrhaged, the entire edifice of public administration would lose its credibility, which would weaken government and discredit democracy---Disposal of public property without reaching out to the public was a breach of public trust and was facially discriminatory---By giving preference to a selected few from the general public, equals were treated unequally, offending Art.25 of the Constitution---Such closed and opaque process adopted for the sale or disposal of public property limited the public access to new business prospects and restricted economic activity to the selected few which went against the grain of fair competition and fundamental right guaranteed under Art.18 of the Constitution---Right of a person (public) to enter a lawful business was impaired if he was not informed of such an opportunity or his access to such an opportunity was kept behind closed doors---Public functionaries were custodians of public property; they must protect and safeguard public property like a lioness guarding her cubs---Even a slightest lapse on behalf of public functionaries in the stewardship of such sacred trust and public confidence called strictest of accountability in the larger interest of justice and institutional building---Entire process of grant of lease to respondent for agricultural basis and then conversion of the same into commercial basis; the unlawful use of the teem "open public auction" in all public correspondence, just to mask under the table transaction with a stamp of legitimacy and transparency and the violation of the policy letter of the department established beyond doubt that the agreements in favour of respondent were tainted, colourable, based on mala fide, misrepresentation, fraud and against public policy---Said agreements, were patently against the Constitution, public interest, public policy besides being collusive and were void ab initio---Department was directed to immediately take possession of the plots (land) in question from the respondent---High Court, in circumstances, set out guidelines to be adhered to by government, semi government and autonomous public institutions for the disposal or transfer of public property---High Court observed that public functionaries and respondent who had initiated and assisted in execution of the lease agreements in question could not go home without accountability as it was important to note that transparency-power-accountability-High Court further directed that Chairman, Pakistan Railways to hold a detailed inquiry against the public functionaries of the department associated with the case as well as grant a hearing to the respondent and file his report with the High Court in six months along with the actions taken---Said report would be placed before the High Court on the judicial side as a "report case" on 14-2-2011 when a responsible officer of Pakistan Railways would be present---Department (Pakistan Railways), in future, was free to deal with the plots (land) in question in accordance with law and process set out in the present judgment---Respondent would not be allowed to participate in any auction of Pakistan Railways unless and until he stood exonerated in the inquiry to be conducted by the Chairman Pakistan Railways.

The Judge in a Democracy by Aharon Barak P.220, Princeton University Press, 2006; Human Rights Cases No. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759; Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Arshad Mehmood and others v. Government of Punjab through Secretary Transport Civil Secretariat Lahore and others PLD 2005 SC 193; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and 4 others 1999 SCMR 2883; Iqbal Hussain v. Province of Sindh through Secretary Housing and Town Planning Karachi and others 2008 SCMR 105; Banglore Medical Trust v. B.S. Muddappa and others AIR 1991 SC 1902; Messrs Airport Support Services v. The Airport Manager, Quaid-e- Azam International. Airport, Karachi and others 1998 SCMR 2268; Messrs Shams and Brothers v. Government of Pakistan and others 2007 CLD 125; Sheri-CBE and others v. Lahore Development Authority and others 2006 SCMR 1202; Muhammad Afzal v. Shahzad Asghar Dar and others 2003 SCMR 280; Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 and Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283 ref.

Mian Javaid Iqbal Arain for Appellant.

Aamir Rehman, Deputy Attorney-General, Abbas Mirza, for Respondent No.2.

Muhammad Raza Qureshi for Respondent No.4.

Muhammad Saeed Khawar, Director (Property and Land) Pakistan Railways Lahore and Muhammad Arif, Joint Director for Respondents.

Dates of hearing: 8th March, 6th April, 3rd, 25th, 26th May, 1st, 2nd, 3rd and 10th June of 2010.

P L D 2010 Lahore 625

Before Sh. Ahmad Farooq, J

Ch. MUNEER AHMAD and others---Petitioners

Versus

Malik NAWAB SHER and others---Respondents

Writ Petition No.73737 of 2010, heard on 10th August, 2010.

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

----Arts. 199(1)(b)(ii)---Writ of quo warranto---Object and scope---Writ of quo warranto is to inquire from a person the authority of law under which he purports to hold public office, and it is primarily inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved, but also that while a person is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others, who may be entitled to that office---Writ of quo warranto can be moved by any person who even may not be an aggrieved party, to challenge the unauthorized occupation of a public office.

Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97; Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others 2000 SCMR 1720 and Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 ref.

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

----Arts. 199(1)(b)(ii), 63(2) & 225---Conduct of General Elections Order (7 of 2002), Art.8-A---Representation of the People Act (LXXXV of 1976), S.99---Writ of quo warranto---Constitutional jurisdiction---Efficacious alternative remedy---Jurisdiction of High Court would not be barred where respondent was disqualified from being elected while filing nomination papers---Bar of jurisdiction contained in Article 225 of the Constitution would not attract where a person having some interest furnishes information to the High Court and challenges the very holding of public office on the ground that the Member was disqualified to hold such public office---Even otherwise a writ of quo warranto is not barred by alternative efficacious remedy, where the challenge to the holding of the office is thrown on the basis of a continuing disqualification and not only in respect of a disqualification which existed at the time of election---Election petition as provided in Art.225 of the Constitution, or a reference under Art.63(2) thereof and invoking the jurisdiction of High Court under Art.199(1)(b)(ii) of the Constitution are two distinct and independent remedies for enforcing independent rights, because latter seeks to determine the entitlement to hold office and not the validity of the election on the disqualification is still continuing even after the election.

Naqeeb Ullah Khan v. Malik Imran Khan and 6 others PLD 2006 Pesh. 21 ref.

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

----Art. 199(1)(b)(ii)---Writ of quo warranto---Limitation or laches---Question of limitation or laches does not apply in cases of quo warranto, as courts cannot allow to perpetuate the usurper to continue in, a public office---Unlawful holding of a public office is a continuing wrong, which can be called in question by any party at any time---Furthermore, a constitutional petition cannot be dismissed on the ground of laches without examining dictates of justice in claim of each party, in addition to examination of law and jurisdictional point involved in the petition.

Fazlul Qauder Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486; Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan and another PLD 1991 Lah. 420 and Muhammad Siddique, Advocate v. Farhat Ali Khan and another PLD 1994 Lah.183 ref.

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

----Arts. 199(1)(b)(ii), 62(f), 63(i), 238, 239 & 264---General Clauses Act (X of 1897), S.6-A---Conduct of General Elections Order (7 of 2002), Art.8-A---Representation of the People Act (LXXXV of 1976), S.99---Constitutional petition---Writ of quo warranto---Petitioners, registered voters of the concerned constituency, had challenged the holding of the office of Member, National Assembly of Pakistan from their constituency by the respondent---Petitioners had failed to prove that the respondent did not possess the requisite educational qualification as required by Article 8-A of the Conduct of General Elections Order, 2002---Petitioners also could not establish that the respondent was not an honest person as envisaged in Article 62(f) of the Constitution read with S.99 of the Representation of the People Act, 1976---However, respondent had been proved to have been convicted and dismissed from his service on the ground of misconduct, vide order dated 19-4-1977---But dismissal of respondent from service of Pakistan on the ground of misconduct after a period of five years was no longer a disqualification for being a member of Majlis-e-Shoora (Parliament) according to Art.63(i) of the Constitution after the Constitutional (Eighteenth) Amendment Act, 2010---Provisions of S.99, of the Representation of the People Act, 1976, although were not amended, but the same could not override the amended Art. 63(i) of the Constitution, which as it stood today did not provide for disqualification of a person from being a Member of the Parliament, if a period of five years had elapsed since his dismissal---Admittedly, a period of five years had elapsed since the dismissal of respondent from his service and, therefore, he did not suffer from any disqualification to hold the office of MNA on the date of issuance of the writ of quo warranto---Disqualification to hold a public office must exist both at the time of the filing of the constitutional petition and at the time/date of its decision---Existence of similar disqualification in S.99 of the Representation of the People Act, 1976, could not be pressed into service, as the constitutional provision would override any other provision in a statute---Writ of quo warranto had to be issued subject to the provisions of the Constitution itself and not under any other statutory law---Constitutional petition was dismissed accordingly.

Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736; Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823; Mst. Ghulam Sakina v. Member (J), Board of Revenue, Hyderabad and 4 others PLD 2004 Kar. 389; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Malik Saleh Muhammad Gunjial v. Kamran Elahi Bandial and others 2008 SCMR 1; Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369; Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab, through Secretary, Housing and Physical Planning and 2 others 2000 SCMR 1720; Khan Bar v. Chief Election Commission Islamabad and others PLD 2010 SC 817; Naqeeb Ullah Khan v. Malik Imran Khan and 6 others PLD 2006 Pesh. 21; Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52; Faqir Abdul Majeed Khan v. District Returning Officer and others 2006 SCMR 1713; Mushtaq and 3 others v. The State PLD 2008 SC 1; Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252; Manzoor Ali and 39 others v. United Bank, Limited through President 2005 SCMR 1785; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Hakim Ali Zardari v. The State and another PLD 1998 SC 1; Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and others PLD 1985 SC 376; State of Assam v. Ranga Muhammad and others AIR 1967 SC 903; In the matter of `K' a Judicial Officer AIR 2001 SC 972; Dr. Muhammad Iqbal and others v. Haji Muhammad Akram PLD 1991 Lah. 8; Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and 3 others 2007 CLC 1113; Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Makhdoom Ghulam Ali Shah v. Election Commission of Pakistan, Islamabad through Secretary' and 4 others 2008 CLC 738. Fateh Muhammad Khan and others v. The Deputy Claims Commissioner, Rawalpindi and others 1987 SCMR' 692(f); Anaytullah Dr: Imran Liaqat Hussain v. Election Commission of Pakistan, Islamabad and another PLD 2005 SC 52; Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 others PLD 1965 (W.P.) Kai. 625; Dr. Mujahid Ali Mansoori and others v. University of Punjab and others 2005 PLC (C.S.) 694; M.A: Jabbar and 3 others v. Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad and 5 others 1999 .PLC (C.S.) 686; Sardar Asseff Ahmad All v. Muhammad Khan Junejo and others PLD 1986 Lah. 310; Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Mian Shahbaz Sharif v. Choudhary Altaf Hussain, Governor of Punjab and others PLD 1995 Lah. 541;. Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 635; Pakistan Tabocco Board and another v. Tahir Raza and others 2007 SCMR 97; Fazlul Qauder Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486; Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan and another PLD 1991 Lah. 420 and Muhammad Siddique, Advocate v. Farhat Ali Khan and another PLD 1994 Lah.183 ref.

(e) Interpretation of statutes---

----Provisions enshrined in the Constitution shall prevail notwithstanding anything contained in an enactment or a piece of subordinate legislation under the Constitution.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 635 ref.

Farooq Amjad Mir, Malik Noor Muhammad Awan and Muhammad Riaz for Petitioners.

Khaiid Ranjha, Atir Mahmood, and Muhammad Nawaz Waseer for Respondent No. 1.

Syed Tanveer Ahmed Hashmi, Deputy Attorney-General for Respondents Nos. 4 to 7.

Date of hearing: 10th August, 2010.

P L D 2010 Lahore 649

Before Mamoon Rashid Sheikh, J

IRSHAD BEGUM---Petitioner

Versus

MUHAMMAD RAFIQUE---Respondent

Civil Revision No.394-D of 2002, decided on 7th October, 2010.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.17---Civil Procedure Code (V of 1908), O. VI---Pre-emption suit---Pleadings---Requirements---Date, time and place of the performance of Talb-i-Muwathibat were "conspicuous" by their "absence" in the plaint; as a consequence the plaint did not fulfil the requirements of law.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 fol.

Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Alaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75; Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Muhammad Daud v. Mst. Surriya Iqbal and another PLD 2000 Pesh. 54; Mst. Majidan Khanum v. District Judge, Vehari 1984 CLC 3270; Blacks Law Dictionary; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Muhammad Iqbal v. Ali Sher 2008 SCMR 1682; Muhammad Amin and 4 others v. Paira 2010 MLD 261 and Mst. Bashiran Begum v. Nazar Hussain and another, PLD 2008 SC 559 ref.

(b) Pleadings---

----Party cannot lead evidence beyond its pleadings and in case such evidence is led, the same is not to be read, nor a party can be allowed to improve its case through evidence if the case has not been set up in the pleading.

Muhammad Iqbal v. Ali Sher 2008 SCMR 1682 rel.

(c) Revision---

----Revisional jurisdiction partakes of appellate jurisdiction---Principles.

Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 fol.

Afrasiab Khan and Imran Hassain for Petitioner.

Kazim Hussain Kazmi for Respondent.

Date of hearing: 7th October, 2010.

P L D 2010 Lahore 654

Before Syed Mansoor Ali Shah, J

HOME DEPARTMENT, GOVERNMENT OF PUNJAB through Secretary and others---Appellants

Versus

Mian IRSHAD HUSSAIN---Respondent

F.A.O. No.254 of 2009, heard on 25th August, 2010.

(a) West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VII of 1956)---

----S. 6(1)(e) & (2)---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.5-A---Constitution of Pakistan (1973), Arts. 9, 18, 23 & 24---Award of compensation---Enhancement-Periodical increase---Enhancement of compensation/ rent is permissible in order to arrive at a fair amount of compensation which is synchronized with the prevalent market rate---Such periodical increase in compensation shall continue on the principle of fairness and equity which also finds support form Arts.9,18, 23 & 24 of the Constitution---Section 5-A, West Pakistan Urban Rent Restriction Ordinance, 1959 is not available as of right to the person claiming enhancement of compensation under West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 and can best be used as a guideline for the Arbitrator while assessing the market rate on the periodical increase and each case will turn on its own facts---Principles.

Province of Punjab v. Amin Jan Naeem and 4 others PLD 1994 SC 141 and Government of the. Punjab through Secretary, Education, Lahore v. Shahida Begum 1994 SCMR 1488 fol.

(b) West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VII of 1956)---

----S. 6(1)(e) & (2)---West Pakistan Requisitioning of Immovable Properties (Temporary Powers) Rules, 1962, R.17---Enhancement of compensation---Grant of arrears of compensation---Role of Arbitrator---Scope---Arbitrator cannot grant retrospective compensation as the same is against the scheme of West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956---Role of Arbitrator is only to determine the amount of compensation or the enhancement thereof and not to grant arrears of compensation which is a matter which falls within the plenary jurisdiction of the Civil Court--Principles.

The Arbitrator can only enhance compensation when such an application is moved before the Arbitrator. Rule 17 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Rules, 1962 clearly spells out the limited role of the Arbitrator which is to hold inquiry and determine through an award the compensation due to the owner. Arbitrator could re-assess the current fair compensation on the market rate at the time when the application is filed. The Arbitrator can also fix the percentage of periodical increase in future for the convenience of the owner. The said percentage of periodical increase is subject to the re-assessment, if the owner is of the view, later in time, that the said percentage of increase is not commensurate with the market rate. However, the scheme of the Act do not permit for retrospective enhancement of compensation. Arbitrator, therefore, cannot grant retrospective compensation as it is against the scheme of the Act.

Role of the Arbitrator as mentioned above is only to determine the amount of compensation or the enhancement thereof and not to grant arrears of compensation which is a matter which falls within the plenary jurisdiction of the Civil Court. Order granting arrears for the previous years is without any lawful Authority.

Province of Punjab v. Amin Jan Naeem and 4 others PLD 1994 SC 141 and Government of the Punjab through Secretary, Education, Lahore v. Shahida Begum 1994 SCMR 1488 fol.

(c) West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VII of 1956)---

----Ss. 6(1)(e) & (2) & 7---Limitation Act (IX of 1908), Art.110---Recovery of arrears---Limitation---Recovery of arrears is subject to the law of limitation i.e. Art.110 of the Limitation Act, 1908.

(d) West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VII of 1956)---

----Ss. 6(1)(e) & (2)---Limitation Act (IX of 1908), Art.110---Award of compensation, its enhancement and grant of arrears---Prerogative of Arbitrator appointed under West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956---Scope and extent---Where the Arbitrator had failed to assess the market rate of compensation/rent and had unlawfully enhanced compensation of the previous years, as well as granted arrears of compensation, said award of the Arbitrator was set aside by the High Court in first appeal and remanded the matter to the Arbitrator (District Judge) who after verifying his authority to act as an Arbitrator under the Act shall decide the application for enhancement of compensation/rent---Enhancement could only be prospective strictly in accordance with market rate prevalent in the area---Arbitrator, if so authorized, will also assess the rate of periodical increase of said compensation/rent on annual basis so that the other party is not burdened with the task of approaching the Arbitrator time and again---Concerned party for recovery of rent, can approach the court of plenary jurisdiction if so advised and any such recovery will be subject to Art.110, Limitation Act, 1908.

Province of Punjab v. Amin Jan Naeem and 4 others PLD 1994 SC 141 and Government of the Punjab through Secretary, Education, Lahore v. Shahida Begum 1994 SCMR 1488 fol.

Ashfaq-ur-Rehman v. Chaudhri Muhammad Afzal PLD 1968 SC 230; Abdul Majeed v. Wazir Begum and 5 others 19.96 SCMR 1681; Sher Zaman v. Home Department and others PLD 1996 Lah. 37; Province of the Punjab v. Amin Jan Naeem and 4 others PLD 1994 SC 141; Sher Zaman v. Home Department and others PLD 1996 Lah. 37; Government of the Punjab through Secretary, Education, Lahore v. Shahida Begum 1994 SCMR 1488 ref.

Muhammad Zubair Khalid, Addl. A.G. for Appellants.

Mian Usman Ali Special Attorney for Respondent.

Date of hearing: 25th August, 2010.

P L D 2010 Lahore 666

Before Syed Mansoor Ali Shah, J

BANK OF PUNJAB---Petitioner

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others---Respondents

Writ Petitions Nos.4736, 4734, 4735, 4737 to 4744 and 4810 of 2010, decided on 1st June, 2010.

(a) Industrial Relations Ordinance (XCI of 2002)---

----Ss. 45(4) & 47---Industrial Relations Act (IV of 2008), Ss.53(4), 86 & 87(2)(b)---Industrial Relations Ordinance (XXIII of 1969), S.30(4)---High Court (Lahore) Rules and Orders, Vol. V, Chap. 1, Part-A, Rr.9 & 9-A---Limitation Act (IX of 1908), Ss. 5 & 12---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appeal to High Court against order of Labour Court filed within time---Return of appeal by Office of High Court for removing objections within three days-Re-filing of appeal after six months and expiry of period of limitation prescribed under S. 47 of Industrial Relations Ordinance, 2002 along with application under S. 5 of Limitation Act, 1908 for condonation of delay---Objection by Office of High Court that appeal was time-barred---Transfer of appeal from High Court to Labour Appellate Tribunal under S. 86 of Industrial Relations Ordinance, 2008 after its promulgation---Acceptance of appeal by Labour Appellate Tribunal after overruling objection of limitation on grounds that objections raised by Office of High Court were unwarranted as objection regarding court fee was not applicable to labour cases under S.34. of Industrial Relations Ordinance, 1969, S. 45 of Industrial Relations Ordinance, 2002 and S. 53(4) of Industrial Relations Act, 2008---Validity----Return of appeal by Office of High Court would mean that its filing was invalid, thus, appeal could not be considered to have been instituted for purposes of limitation---Time specified by Office of High Court for removing objection would not stop limitation from running---Period from date of raising of objection by Office of High Court till re-filing of appeal would not be excluded under Limitation Act, 1908---Appellant had option to challenge such objections before High Court but he did do not so at relevant time---Provisions of S.34 of Industrial Relations Ordinance, 1969, S.45 of Industrial Relations Ordinance, 2002 and S. 53(4) Industrial Relations Act, 2008 provided that court fee would not be applicable in a Labour Court and did not extend to a labour appeal before High Court under S. 47 of Industrial Relations Ordinance, 2002 or Appellate Tribunal---Appeal filed before High Court and then transferred to Appellate Tribunal was time-barred---Appellant in such application had not shown any plausible reason for condonation of delay of each and every day---Appellant was not entitled to condonation of delay---High Court set aside impugned judgment and dismissed appeal as time barred.?

Naheed Ahmed v. Asif Riaz and 3 others PLD 1996 Lah. 702; Ghulam Hussain and 3 others v. Bahadar and others PLD 1954 Lah. 361; Protein and Fats International (Pvt.) Limited through Chief Executive and 2 others v. Capital Assets Leasing Corporation Limited through Manager 2005 CLD 857; Muhammad Idrees v. Abdul Rehman and another 2001 YLR 2294; Mehr Ghulam Dastgir Khan Lak v. Hayat and 2 others. 2000 CLC 781; Elahi Bakhsh and 8 others v. Ahmed Bakhsh and 2 others 1999 YLR 777; Lahore Development Authority v. Muhammad Rashid 1997 SCMR 1224 and Mst. Sabiran Bi v. Ahmed Khan and another 2000 SCMR 847 ref.

Dr. Jehanzaib Rahim v. Dr. Shaukat Pervez, Dr. Hamida Rahim and others PLD 2007 SC 560; Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development Lahore and another 2006 SCMR 783; S.A. Jameel v. Secretary to the Government of the Punjab, Cooperative Department and others 2005 SCMR 126 and Sheikh Muhammad Saleem v. Faiz Ahmed PLD 2003 SC 628 rel.

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

----Vol. V, Chap. 1, Part-A Rr. 9 & 9-A---Constitution of Pakistan (1973), Art. 202---Limitation Act (IX of 1908), Ss. 5 & 12---Filing of appeal/case in High Court---Return of appeal/case by Deputy Registrar (Judicial) for making up deficiency within specified time and its re-filing by party after removing objection---Effect---Such return would mean that filing of case was invalid and case could not be considered to have been instituted for purposes of limitation---Time specified by Deputy Registrar for removing objection would not stop limitation from running---Period from date of raising of objection by Deputy Registrar till re-filing of case would not be excluded under Limitation Act, 1908---If during process of removing objections raised by office of High Court, irrespective of time specified by Office, appeal or case became time-barred, only remedy available to party would be to file application under S. 5 of Limitation Act, 1908 for condonation of delay, which would be taken up on its, own merits by Court while hearing main case---Party could challenge such objections before High Court, whose decision thereon would be final---After raising objections by Office, if party failed to receive back his case from Office within 7 days of notice displayed on Notice Board, then his case as objection case would be put up before court, and if objection was overruled, then Court would take up question of limitation and pass appropriate orders thereon---Principles.?

Mst. Sabiran Bi v. Ahmed Khan and another 2000 SCMR 847 rel.

Sardar Ahmad Jamal Sukhera for Petitioner.

Sardar Faiz Rasool Khan for Respondent No.2.

Date of hearing: 27th May and 1st June, 2010.

P L D 2010 Lahore 681

Before Syed Mansoor Ali Shah, J

ROMANA ZAHID---Petitioner

Versus

CHAIRMAN, ARBITRATION COUNCIL/NAZIM UNION COUNCIL and another---Respondents

Writ Petition No.11682 of 2009, heard on 2nd June, 2010.

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

----Ss. 7 & 9---Qanun-e-Shahadat (10 of 1984), Art. 79---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Talaq salasa sent to wife along with notice to Chairman, Arbitration Council from abroad not attested by Pakistan Embassy---Appearance of husband's attorney in arbitration proceedings on basis of Special Power of Attorney attested by Pakistan Embassy in such country---Issuance of Certificate of Talaq by Chairman on basis of such unverified Talaq salasa---Validity---Provision of S. 7 of Muslim Family Laws Ordinance, 1961 being mandatory for having provided penalty for its contravention, pronouncement of talaq could be in any form, but its notice to the Chairman must be in writing and copy thereof must be supplied to wife---Muslim Family Laws Ordinance, 1961 had not excluded application of Qanun-e-Shahadat, 1984 to notice under S. 7(1) of the Ordinance---Such notice had to comply with requirements of Art. 79 of Qanun-e-Shahadat, 1984---Chairman even after expiry of 90 days had not received notice of talaq duly verified by Pakistan Embassy---Such Special Power-of-Attorney containing factum of divorce authorizing attorney to appear in arbitration proceedings initiated on basis of such notice neither would constitute notice under S. 7(1) of the Ordinance nor could improve such invalid notice---Talaq without notice under S. 7(1) of the Ordinance would be defective---Impugned Certificate had no legal effect---High Court set aside impugned Certificate while observing that husband could issue fresh notice in writing under S.7(1) of the Ordinance with copy to wife, and that the Chairman after duly verifying such notice could proceed further.

Lal Din and 2 others v. Mst. Zeenat Bibi and 4 others 1987 CLC 587; Mst. Fahmida Bibi v. Mukhtar Ahmad and another PLD 1972 Lah. 694; Mst. Maqbool Jan v. Arshad Hassan and another PLD 1975 Lah. 147; Syed Musa Raza Rizvi through Special Attorney v. Mst. Syeda Farkhanda Jabeen Rizvi and another 2006 CLC 1544; Mst. Naseem Akhtar v. Syed Shafqat Ahmed and another 1997 MLD 11; Abdul Aziz v. Rezia Khatoon 1969 DLC 586; Mehnaz Mehboob v. Ishtiaq ur Rashid and another 2006 YLR 335; Muhammad Ali v. Ahmad Yar, 2006 YLR 2515; Batool Tahir through Nominee/Representative /Special Attorney Mustejab Zehra v. Province of Sindh through Secretary Local Government Sindh and 3 others PLD 2005 Kar. 358; Allah Dad v. Mukhtar and another 1992 SCMR 1273; Muhammad Zairaf v. Mst. Safia Bibi and 3 others 200 MLD 1900; Shoukat Ali v. The State 2004 SD 190; Ch. Muhammad Javed v. The Chairman, Union Committee (Arbitration Council), Lahore Cantt. and another 1999 YLR 2399; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66; Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29; Federation of Pakistan v. Mst. Tahira Begum and others 1994 .SCMR 1740; Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 8C 51; Abdul Mannan v. Safuran Nessa 1970 -SCMR 845; Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi 1984 SCMR 583; Malik Javid Ali and another v. Abdul Kadir and another 1987 SCMR 518; Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 and Mst. Kaniz Fatima v. Wali Muhammad and another PLD 1989 Lah. 490 ref.

Abdul Mannan v. Safuran Nessa 1970 SCMR 845; Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi 1984 SCMR 583; Malik, Javid Ali and another v. Abdul Kadir and another 1987 SCMR 518; Ayyaz Aslam v. Chairman Arbitration Council and others 1990 ALD 702; Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901; Abbas Khan and 3 others v. Mst. Satbherai and 2 others 1993 CLC 2181; Muhammad Siddique v. Mst. Noor Jahan and another 1994 CLC 1674; Federation of Pakistan v. Mst. Tahira Begum and others 1994 SCMR 1740; Mst. Janat Bibi v. Mst. Bhagan and others 1995 MLD 110; Ahmad Nadeem v. Chairman, Arbitration Council and others 1991 MLD 1198; Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir PLD 1995 Lah. 187; Muhammad Tayyab v. Chairman/Arbitration Council, Ward No.83 and Samanabad, Lahore and others KLR 2000 Civil Cases 391 rel.

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

----S. 7(1)---Qanun-e-Shahadat (10 of 1984), Art. 79---Talaq, notice of---Essential requirements---Pronouncement of talaq could be in any form, but its notice to Chairman must be in writing and copy thereof must be supplied to wife---Such notice, if sent from abroad, must comply with requirements of Art. 79 of Qanun-e-Shahadat, 1984 as application thereof to such notice had not been excluded by Muslim Family Laws Ordinance, 1961---Talaq without such notice would be defective.

Federation of Pakistan v. Mst. Tahira Begum and others 1994 SCMR 1740; Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC 51; Abdul Mannan v. Safuran Nessa 1970 SCMR 845; Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi 1984 SCMR 583; Malik Javid Ali and another v. Abdul Kadir and another 1987 SCMR 518; Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 and Mst. Kaniz Fatima v. Wall Muhammad and another PLD 1989 Lah. 490 ref.

Abdul Mannan v. Safuran Nessa 1970 SCMR 845; Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi 1984 SCMR 583; Malik Javid Ali and another v. Abdul Kadir and another 1987 SCMR 518; Ayyaz Aslam v. Chairman Arbitration Council and others 1990 ALD 702; Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901; Abbas Khan and 3 others v. Mst. Satbherai and 2 others 1993 CLC 2181; Muhammad Siddique v. Mst. Noor Jahan and another 1994 CLC 1674), Federation of Pakistan v. Mst. Tahira Begum and others 1994 SCMR 1740; Mst. Janat Bibi v. Mst. Bhagan and others 1995 MLD 110; Ahmad Nadeem v. Chairman, Arbitration Council and others 1991. MLD 1198; Dr. Qambar Murtaza Bokhari v. Mst. Zainab Bashir PLD 1995 Lah, 187 and Muhammad Tayyab v. Chairman/Arbitration Council, Ward No.83, Samanabad, Lahore and others KLR 2000 Civil Cases 391 rel.

Mirza Aamer Baig for Petitioner.

Sardar Muhammad Ramzan for Respondents.

Date of hearing: 2nd June, 2010.

P L D 2010 Lahore 692

Before Ijaz Ahmad, Chaudhry, J

RAFI AHMED and another---Petitioners

Versus

SPECIAL JUDGE, CENTRAL, LAHORE and another---Respondents

Criminal Miscellaneous Petition No.7-Q of 2010, decided on 15th July, 2010.

(a) Emigration Ordinance (XVIII of 1979)---

----Ss. 17, 22 & 24(3)(6)---Criminal Procedure Code (V of 1898), Ss.561-A & 4(1)(h)---Federal Investigation Agency Act (VIII of 1974), S.3---Unlawful migration, receiving money, etc. for providing foreign payment---Quashment of proceedings---Meanings of complaint' as defined in S.4(1)(h), Cr.P.C. and as mentioned in S.24(6), Emigratin Ordinance, 1979 were not the same---Accused persons contended that the Special Judge was not empowered to take cognizance of the cases against them on a report by Police or Federal Investigation Agency under S.173, Cr.P.C. as the said report did not constitutecomplaint' as defined under S.4(1)(h), Cr.P.C. read with S.24(6) of the Emigration Ordinance, 1979, therefore proceeding before the Special Judge would amount to abuse of process of court---Validity---Word complaint' was expressly restricted to Criminal Procedure Code, 1898 only and was not applicable to other laws---Subsection (3) of S.24 of the Emigration Ordinance, 1979 empowered Special Court to take cognizance of the offences punishable under the Emigration Ordinance, 1979 notwithstanding anything contained in Criminal Procedure Code, 1898---Complaint' as defined in S.4(1)(h), Cr. P. C. referred to a complaint' before a Magistrate whereas a Magistrate was not competent to take cognizance of offences under the Emigration Ordinance, 1979 which, empowered a Special Judge to try criminal cases---Emigration Ordinance, 1979, being a special law wordcomplaint' covered a report in writing of Police Officer or complaint made by any other officer or a citizen---Meanings of the word complaint' in S.24(6) of the Emigration Ordinance, 1979 were different from the one given to the said word in S.4(1)(h), Cr.P.C.---Definition ofcomplaint' in S.4(1)(h), Cr.P.C. could not be adopted in operation of the Emigration Ordinance, 1979---Federal Investigation Agency was specifically authorized to record F.I.R. and investigate the offences under Ss.17 and 22 of the Emigration Ordinance, 1979 and submit the findings to the Special Judge who was competent to take cognizance of the offences on the complaint/report of Federal Investigation Agency---Petition was dismissed in circumstances. ?

(b) Emigration Ordinance (XVIII of 1979)---

----Ss.17, 22 & 24(3)(6)---Criminal Procedure Code (V of 1898), S.4(1)(h)-'Complaint'---Meaning and application-'Complaint' as defined in S.4(1)(h), Cr.P.C. referred to a complaint to a Magistrate--Definition of complaint' in S.4(1)(h), Cr.P.C. could not be adopted for operation of the Emigration Ordinance, 1979---Wordcomplaint' as defined in Cr.P.C. was expressly restricted to the Cr.P.C. only and was not applicable to other laws.?

(c) Emigration Ordinance (XVIII of 1979)---

----S. 24(3)---Scope of S.24(3), Emigration Ordinance, 1979---Section 24(3) of the Emigration Ordinance, 1979 empowered a special court to take cognizance of the offences punishable under the Ordinance notwithstanding anything contained in the Criminal Procedure Code, 1898.?

(d) Emigration Ordinance (XVIII of 1979)---

----S. 24(6)---Meanings of the word `complaint' in S.24(6) of the Emigration Ordinance, 1979 were different from the one given to the word in S.4(1)(h), Cr. P.C.?

Mrs. Surayya Farman v. The State 1998 PCr.LJ 958; Moinuddin v. The State 1986 PCr.LJ 1158; Irshad v. The State 1987 PCr.LJ 2131; Manzoor Ahmad Akhtar v. The Special Judge, Central, Lahore and another PLD 1995 Lah. 1 and Saleh Muhammad and another v. The State 1981 PCr.LJ 179 ref.

Ajab Khan and another v. The State 1981 SCMR 876 fol.

Mehram Ali Bali for Petitioners.

Karamat Ali Awan, Standing Counsel for Respondents.

Date of hearing: 15th July, 2010.

P L D 2010 Lahore 697

Before Muhammad Khalid Mehmood Khan, J

MUNIR AHMAD BHATTI---Petitioner

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF INTERIOR through Secretary and others---Respondents

Writ Petitions Nos.6003 and 6004 of 2010, decided on 29th July, 2010.

(a) Banker and Customer---

---Disputes between the customer and the Bank, settlement of---Statutory law covering all the disputes between the customer and the Bank, both Civil and Criminal, surveyed.

(b) Exit from Pakistan (Control) Ordinance (XL VI of 1981)---

---S. 2---Power to prohibit exit from Pakistan---"Public interest"---True spirit of the words "public interest" used in S.2 of the Exit front Pakistan (Control) Ordinance, 1981, expounded.

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

----S. 2---State Bank of Pakistan Circular No.BSD(RU-51)/47/ECL/17913/2001, dated 7-12-2001---State Bank of Pakistan Circular No.BSD(RU-51)ECL/47/20162/2000, dated 5-12-2000---Constitution of Pakistan (1973), Art.199---Constitutional petition---Respondent-Bank through State Bank of Pakistan had succeeded to place the name of the petitioner in Exit Control List---Validity---Direction of State Bank of Pakistan to Banks, one of the parties to contract, to declare the customer defaulter and put his name on ECL was discriminatory---On a simple request of the lending Bank, not backed by any Court order, State Bank of Pakistan had no authority to forward the said request to the Federal Government for placing the name of the Customer on ECL---Likewise, Federal Government had also to apply its own mind before taking any action against the customer of the Bank---Guidelines and circulars issued by State Bank of Pakistan, specially Circular Nos.BSD (RU-51)/47/ECL/ 17913/2001, dated 7-12-2001 and BSD(RU-51)ECL/47/20162/2000, dated 5-12-2000, were subject to the orders of the competent Court of law---Perusal of the said two Notifications showed that State Bank of Pakistan had wrongly authorized the Banks to themselves decide that the Customer was a defaulter without hearing him---Intention of the framer of the instructions/circulars that in his assessment the agreement between the customer and the Bank had no legal value and that the Bank was always right, was not the intention of any law and he had not realized that Pakistan was a democratic country where the Constitution was supreme and every one had to act in accordance with law---Framer of the said Notifications had failed to consider that Bank could also commit illegality---For redressing the grievance of customer against the Bank of more than Rs.100 Million, State Bank of Pakistan had not framed any law, nor had issued any circular for placing the names of Bank share-holders, Directors or Chief Executive on ECL--State Bank could not treat the customer as a defaulter unless the matter was decided by the competent Court---Even the Parliament could not frame any law against the fundamental rights of the citizen of Pakistan---Circulars and Notifications issued by the State Bank of Pakistan referred to above or any circular with reference to declaration as defaulter of customer of Bank without any adjudication by a competent Court of law, was a colourful legislation and was bad in law---Federal Government before passing any adverse order against a customer of Bank was also duty bound under the law to apply its independent mind and assess the material and that too in the `public interest' before placing his name on ECL--Parawise comments of Federation had shown that they had simply acted on the instructions of State Bank of Pakistan---If the lender Bank or the State Bank had considered it necessary that the Customer should be restrained from travelling abroad, they had to approach the court where the matter was pending disposal for obtaining appropriate orders---Lender Bank or State Bank of Pakistan had no authority to send the name of any customer against whom the Bank had any allegation of fraud without adjudication by the Court, to Federal Government to place his name on ECL---Impugned order had been passed on the letter of State Bank of Pakistan and the lender Bank without any application of mind by the Federal Government, the remedy of review, therefore, was illusory and not the proper remedy---Circulars referred to above and the impugned order were against the fundamental rights of the petitioner and the same were declared without lawful authority and of no legal effect in circumstances---Constitutional petition was accepted accordingly.

Shahid Ikram Siddiqui for Petitioner.

Rehan Nawaz for Respondent No.2.

Ahmad Nadeem Kashmiri, Dy. Attorney-General.

Nadeem Saeed for Respondent No.3.

P L D 2010 Lahore 707

Before Asad Munir and Rauf Ahmad Sheikh, JJ

Messrs MARATHON CONSTRUCTION COMPANY (PVT.) LTD.---Petitioner

Versus

OIL AND GAS DEVELOPMENT COMPANY LTD. and others---Respondents

Civil Revision No.631 of 2010, heard on 21st July, 2010.

(a) Stamp Act (II of 1899)---

----Sched. I, Art.12 [as amended by Punjab Finance Act (XIX of 2004)]---Arbitration Act (X of 1940), Ss.20(4) & 23---Award---Stamp duty---Exemption, benefit of---Every award is subject to payment of stamp duty if it is made on a reference otherwise than by an order of court in the course of a suit---Any award pursuant to a reference made by an order of the court in the course of a suit is exempt from payment of stamp duty---Benefit of exemption from payment of stamp duty is available only when reference is made by an order of Court passed in the course of a suit---Such order can be passed by court under S.23 of Arbitration Act, 1940, during pendency of a suit, if the parties to the suit agree and apply to court for reference of their dispute to arbitration---Besides, an order of reference passed under section 20(4) of Arbitration Act, 1940, is also deemed to have been passed in the course of a suit as application under S.20 of Arbitration Act, 1940, is recognized as a suit.

(b) Stamp Act (11 of 189Y)---

----S. 2(6), Sched. I, Art.12 [as amended by Punjab Finance Act (XIX of 2004)]---Award---Affixing of stamp duty---Expression "when such instrument was executed" in S.2(6), Stamp Act, 1899---Scope---Trial Court made award rule of the court and directed the petitioner to pay penalty and stamp duty on the award at the rate of 3% ad valorem---Contention of petitioner was that no stamp duty was payable on the award as the award had arisen out of a contract executed and performed in Islamabad and payment under the contract was made---Validity---Expression "when such instrument was executed" as mentioned in section 2(6) of Stamp Act, 1899, clearly implied that an instrument was to be stamped according to the time and place where it was executed---Award was made at Lahore, where Art.12 of Sched.I of Stamp Act, 1899, had imposed a stamp duty of 2% ad valorem unlike the rest of the country where a maximum stamp duty of Rs.50 only was to be fixed on the award, regardless of the value of subject-matter---Award was subject to payment of stamp duty but at the rate of Rs.2% ad valorem instead of 3% ad valorem---As the award was made in Lahore, the stamp duty was payable in the treasury of District Collector Lahore and no penalty was payable on award---Revision was disposed of accordingly.

PLD 2002 SC 310 and Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618 distinguished.

Muhammad Shahid Paracha for Petitioner.

Syed Tanvir Haider and Khalil-ur-Rehman Abbasi for Respondents.

Date of hearing: 21st July, 2010.

P L D 2010 Peshawar 1

Before Ejaz Afzal Khan, C J., and Mazhar Alam Khan Mian Khel, J

Messrs SHAAN INTERNATIONAL INDUSTRIES, PESHAWAR through Proprietor---Petitioner

Versus

ASSISTANT COLLECTOR (RECOVERY) REGIONAL TAX OFFICE, PESHAWRA and 3 others---Respondents

Writ Petition No.3085 of 2009, decided on 9th December, 2009.

Interpretation of statutes---

----Change in law and forum by virtue of repeal or, amendment---Effect---Change in law and forum by virtue of repeal or amendment, could not take away right of appeal and powers of forum granted by previous law, if such right or forum existed at the time of the commencement of lis.

Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985 SC 376 and Sona and another v. The State and others PLD 1970 SC 264 ref.

Isaac Ali Qazi for Petitioner.

Nemo for Respondents.

Date of hearing: 9th December, 2009.

P L D 2010 Peshawar 2

Before Ejaz Afzal Khan, C J. and Mazhar Alam Khan Mian Khel, J

ZAHID ULLAH---Petitioner

Versus

N.-W.F.P. PUBLIC SERVICE COMMISSION through Chairman, Peshawar and.2 others---Respondents

Writ Petition No.3077 of 2009, decided on 8th December, 2009.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Competitive examination by Provincial Public Service Commission---Schedule of the compulsory subjects had revealed that subject of General Knowledge had been shown as one subject despite being divided in three papers---Similarly subjects of Political Science, Physics or Chemistry etc., had been shown as one subject in the Schedule of optional subjects despite being divided in two papers---Petitioner had contended that marks, in circumstances were to be reckoned on the basis of his aggregate and that since passing marks in compulsory as well as optional subjects in all other examinations were reckoned on the basis of aggregate, he could not be dealt with on different yardstick; and that the provisions in the syllabus being discriminatory and violative of equality clause, could not be maintained---Validity---Once it was not disputed that General Knowledge was one subject and so was Political Science, Physics or Chemistry etc., the passing marks were to be reckoned on the basis of aggregate as was done in the examination of the Federal Public Service Commission for Civil Superior Science---Provision in the syllabus providing a different yardstick for reckoning the passing marks would be clearly discriminatory and violative of the constitutional provisions ensuring equality before the law---Lack of uniformity was an unmistakable indication of tyranny---Held, that the petitioner passing compulsory and optional subjects in aggregation, could not be refused viva voce test; and that the provision requiring passing marks in each paper of the subject being discriminatory and violative of the equality clause, could not be sustained---Public Service Commission Authorities were directed to bring about uniformity in the mode and manner of marking in the examination.

Petitioner in person.

Qaiser Rashid, A.A.-G. for Respondents.

Date of hearing: 8th December, 2009.

P L D 2010 Peshawar 7

Before Ejaz Afzal Khan, C.J. and Abdul Aziz Kundi, J

HAZRAT BAZ---Petitioner

Versus

POLITICAL AGENT/DISTRICT MAGISTRATE KHYBER AGENCY and 2 others---Respondents

Writ Petition No.1946 of 2009, decided on 15th December, 2009.

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

---Ss. 9, 46 & 48---Constitution of Pakistan (1973), Art.199---Constitutional petition---Possession of narcotic---Appreciation of evidence---Establishment of Special Court---Trial of accused in the Tribal Areas by the Political Agent---Contention of counsel for the petitioner/accused was that where the court was not established and notified in accordance with the provisions of S.46 of the Control of Narcotic Substances Act, 1997 in the Tribal Areas, the petitioner could not be tried by the Political Agent; and that entire proceedings and subsequent orders passed by the next higher fora in the hierarchy being against law and statute were liable to be struck down---Counsel appearing on behalf of the Political Agent, on the other hand had contended that once Control of Narcotic Substances Act, 1997 was extended to the Federally Administered Tribal Areas vide notification dated 16-11-1998, the Political Agent had the powers to try the petitioner/accused---No doubt Control of Narcotic Substances Act, 1997 had been extended to the Tribal Areas, similar powers of Sessions Judge had also been conferred on the Political Agent by virtue of notification, but a Virgil" not constituted under Frontier Crimes Regulation, 1911 could not be treated as a court established in accordance with the requirements of S.46 of the Control of Narcotic Substances Act, 1997 in the light of overall scheme of said Act---In the first instance, it required establishment of Special Courts and then appointment of a Sessions Judge or an Additional Sessions Judge as a Judge Special Court after consultation with the Chief Justice of the High Court---Courts thus established and the Special Judge appointed was to try accused in the cases registered under Control of Narcotic Substances Act, 1997---If the trial terminated in conviction or acquittal, an appeal thereagainst would be to the High Court and would be heard by a Bench of not less than two Judges, when seen in the light of S.48 of the Control of Narcotic Substances Act, 1997---Held, Political Agent was not competent to try accused; and that the next higher fora in the hierarchy were not competent to hear appeal or revision---Impugned conviction and sentence awarded to accused was set aside and accused was directed to be released on bail---Federal Government was directed by High Court to take necessary measures for the establishment of a Special Court in the area in accordance with the provisions of the Control of Narcotic Substances Act, 1997.

Nasruminullah for Petitioner.

Iqbal Ahmad Durrani, Iqbal Muhammad, D.A.-G. for Respondent No.3.

Ishtiaq Ibrahim A.A.-G. for Respondent No.2.

Date of hearing: 15th December, 2009.

P L D 2010 Peshawar 10

Before Dost Muhammad Khan and Abdul Aziz Kundi, JJ

WAQAR AHMAD---Petitioner

Versus

NOMINA AKHTAR and 3 others---Respondents

Writ Petition No.2888 of 2009, decided on 21st January, 2010.

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

----S. 5, Sched. & S. 14---Constitution of Pakistan (1973), Arts.199 & 35---Constitutional petition---Suit for recovery of dower amount and maintenance allowance---Legitimacy of child---Determination of---Suit for recovery of dower amount as well as maintenance allowance for "Iddat" period of plaintiff and maintenance of male child having concurrently been decreed by the Family Court and Appellate Court, defendant had filed constitutional petition against said concurrent judgments and decrees of the courts below---Parties were married as was evident from the "Nikah Nama" and that fact was admitted by the parties---Defendant, however, disowned the child born during existence of marriage and declared said child as illegitimate; alleging that he was born premature i.e. six months after marriage---Excepting the ultrasound test report, which too was not proved at the trial, defendant had led no evidence of any legal worth to be relied upon, despite having ample opportunity---Under Islamic Law, the legitimacy of a child would be presumed if he was born within the period of 180 days i.e. six months and the maximum period so fixed was two years---No child, in circumstances, could be stigmatized as illegitimate, simply for the reason that he was delivered premature i.e. in six months or with unusual delay of two years---Under Art.35 of the Constitution it was ordained that the State would protect the marriage, the family, the mother and the child---Intention and object of the framers of the Constitution, while inserting Art.35 was to protect the child from all types of hostile forces, so that it was ensured that he was brought up in a conducive and favourable social environments; and more particularly to become a viable citizen with honour and grace---Judiciary being the essential constitutional organ of the State, it was required to place meaningful interpretation on the said provision of the Constitution, so that the We, the liberty and dignity of the child was preserved and was fully guaranteed---Any child who was stigmatized, declaring him as illegitimate without legal proof, would be the worst degree of injustice to him as in that case the rest of life he had to spend almost in hell---If procreation of illegitimate children was a nasty social evil, declaring a legitimate child as illegitimate was the worst type of social evil which mischief must be suppressed by the court of law---Held, child was legitimate one and courts below had rightly held that defendant was bound to maintain the child under the law---Impugned judgments and decrees were maintained,, in circumstances.

?

Mst. Hameeda Begum's case PLD 1975 SC 624; Bashir and other's case PLD 1988 SC 8; Shah Nawaz and another's case PLD 1976 SC 767; Muhammad Riaz's case 1997 MLD'142; Mst. Ghularn Fatima's case 1987 MLD 172 and Muhammad Arshad's case PLD 2008 Lah. 302 ref.

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

----Art. 128---Legitimacy of child---Islamic, legal and medical presumption with regard to legitimacy of child born after six calendar months or 180 days of marriage, elucidated.?

Sidney H Weddy and Mr. Hubbard (Reference) BMJ, Vol.-II, 1988, 878 and 1076 ref.

Muhammad Siddique Haider Qureshi for Petitioner.

Respondent No.1 in person.

P L D 2010 Peshawar 19

Before Abdul Aziz Kundi, J

NASEER KHAN---Petitioner

Versus

SAID QADEEM and another---Respondents

Criminal Revision No.144 of 2009, decided on 15th February, 2010.

Criminal Procedure Code (V of 1898)---

----S. 512---Penal Code (XLV of 1860), Ss.302/324---Qatl-i-amd---Recording of evidence in absence of accused---Scope and application of S.512, Cr. P.C.---Refusal to transfer statements of witnesses examined in absence of absconding accused in proceedings---Accused who went into hiding, was proceeded against under S.512, Cr.P.C. and evidence of prosecution witnesses was recorded in his absence---Accused who remained fugitive was arrested after long period of about eight years, whereafter his trial commenced---During the course of trial two witnesses who were examined in absence of accused having gone abroad for earning their livelihood---Application for transfer of statement of said witnesses recorded in proceedings under S.512, Cr.P.C. to the Trial Court having been rejected by the Trial Court---Validity---Accused, no doubt had an inalienable right to cross-examine the witnesses deposing against him, but S.512, Cr.P.C. was an exception to the said rule catering for special situation enumerated therein---Section 512, Cr.P.C. was aimed to preserve evidence for eventuality detailed therein and present case was the one amongst the said eventualities---Two witnesses had gone abroad; nothing was on record that they were in any manner related to the complainant party---Case being fully covered by S.512, Cr.P.C., Trial Court was not justified to decline request of prosecution both in law and facts--Impugned order passed by the Trial Court was set aside and High Court ordered that statements of said two witnesses recorded in proceedings under S.512, Cr.P.C. be transferred to the file of trial against accused, in accordance with law.

Mawas Khan v. The State and another PLD 2004 SC 330 and Mumtaz v. Moin and another 2006 PCr.LJ 1436 rel.

Khawaja Muhammad Khan Gara for Petitioner.

Sahibzada Asadullah and Muhammad Javaid Yousafzai for Respondents.

Naveed Akhtar, A.A.-G. for the State.

Date of hearing: 8th February, 2010.

P L D 2010 Peshawar 23

Before Miftah-ud-Din Khan, J

SABIR SULTAN and 55 others---Appellants

Versus

GHULAM MURTAZA and 6 others---Respondents

F.A.O. No.7 of 2007, decided on 26th March, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R.2 & O.XLIII, R.1(j)---Transfer of Property Act (IV of 1882), S.52---Suit for recovery of amount---Execution proceedings---Application for attachment and auction of property of judgment-­debtor---Objection to---Principle of lis pendens---Applicability---Decree-­holder in a summary suit for recovery of amount, obtained decree against judgment-debtor---Decree-holder applied for execution of decree and sought attachment and auction of property of judgment­-debtor---Appellants, who claimed that property in the name of the judgment-debtor had already been decreed in their favour, filed objection petition and prayed for cancellation of auction as judgment-debtor was left with no right or interest in the property to be auctioned---Appellants had further contended that Executing Court was not justified to auction the property owned by the appellants---During pendency of suit filed by the appellants challenging revenue entries, one of the respondents transferred said property to the other respondent and said respondent again transferred the property to judgment­-debtor---Suit filed by the appellants finally was decreed in their favour---Original vendor was left with no right in suit property, subsequent vendees including the judgment-debtor had stepped into the shoes of said original vendor who got no right in respect of the property---Transfer which was made during pendency of suit filed by the appellants without leave and permission, was hit by principle of lis pendens as envisaged by S.52 of the Transfer of Property Act, 1882---Executing Court was not justified to conduct auction proceedings in respect of property decreed in favour of the appellants by the civil Court---Impugned order was set aside, objection petition of the appellants was accepted and auction proceedings in respect of property in dispute, were cancelled.

Bashir Ahmad Khan for Appellants.

M. Ayub for Respondents.

Date of hearing; 19th March, 2010.

P L D 2010 Peshawar 26

Before Mian Fasih-ul-Mulk, J

Major (R.) AKBAR JAN---Appellant

Versus

COLLECTOR, LAND ACQUISITION, SUI NORTHERN GAS PIPELINE (LTD.), PESHAWAR and 2 others---Respondents

R.F.A. No.38 of 2007, decided on 22nd March, 2010.

Land Acquisition Act (I of 1894)---

----Ss. 4, 12, 18, 34 & 54---Acquisition of land-....Determination of compensation---Objection petition---Enhancement of amount of compensation---Entitlement to receive interest on the enhanced amount of compensation---Execution application---Words `amount of compensation' in S.18, Land Acquisition Act, 1894---Connotation---Land of appellant was acquired along with others vide award---Compensation amount was enhanced on objection petition by the appellants---Appellant filed execution application and enhanced amount was paid to him, however his prayer for interest on enhanced amount was turned down---Validity---Under the Land Acquisition Act, 1894, it was obligatory to pay interest from the date of taking possession of subject acquired land till its payment, besides payment of compensation amount---For the purpose of Land Acquisition Act, 1894, payment of interest would have to be treated as part of the compensation admissible to a person entitled to compensation---Words "amount of compensation" as occurring in S.18 of the Land Acquisition Act, 1894, would have to be given a wider meaning and would include the amount payable in consideration for compulsory acquisition or by way of interest---Court was to see as to whether the appellant/owner of acquired land had been compensated as provided by law---Whatever was admissible to a person as interest under the Land Acquisition Act, 1894 was the amount of compensation---Executing Court, in circumstances, was not justified by not allowing the benefit to the appellant on due representation---Impugned order was set aside and appellant was held entitled to payment of interest on the enhanced amount of compensation from the date of possession, till its payment as admissible under the law.

1997 SCMR 1692 and Muhammad Sarwar Khan and others 1998 SCMR 2197 ref.

Q. Ghulam Rauf for Appellant.

Malik Mahmood Akhtar for Respondents.

Date of hearing; 22nd March, 2010.

P L D 2010 Peshawar 30

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

NOOR MUHAMMAD--.Appellant

Versus

MUKAMEEN SHAH---Respondent

R.F.A. No.11 of 2006, decided on 10th February, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.2---Suit for recovery of amount---Claim of the plaintiff was that through an agreement arrived at between the parties, plaintiff paid suit amount to the defendant for a joint business, but defendant did not start business and instead utilized said amount for his personal use---Defendant having failed to pay back suit amount, plaintiff had filed suit to recover said amount along with amount of damages---Agreement deed available on record had been signed by-both the parties and marginal witnesses---According to said marginal witnesses amount was paid by the plaintiff to defendant in their presence---In cross-examination nothing had been brought out by the defendant---Plaintiff, in circumstances, had succeeded to prove his case on the strength of agreement deed---No proof was brought out by the defendant that the marginal witnesses though related were interested and inimical towards him---Unless that factum was proved, evidence on record could not be brushed aside---Defendant who denied execution of said agreement was required to apply to the Trial Court for comparison of his signatures thereon through handwriting expert, but he had failed to avail that opportunity---Even otherwise, the courts were competent to compare the signatures and it was not necessary to examine the signature through handwriting expert and that was also not the requirement of law---Cogent evidence had been produced by the plaintiff in the court to prove agreement deed-All requirements of law had been fulfilled and it was proved that plaintiff had advanced the suit amount to the defendant---Scribe of the document who merely wrote a deed would not become a necessary witness, if the document executed between the parties was proved through testimony of marginal witnesses---Defendant had failed to point out any illegality or non-reading of evidence requiring interference---Appeal against judgment of the Trial Court whereby suit filed by the plaintiff was decreed, was dismissed, in circumstances.

Saleemullah Khan Ranazai for Appellant.

Gohar Zaman Khan Kundi for Respondent.

Date of hearing: 10th February, 2010.

P L D 2010 Peshawar 34

Before Ejaz Afzal Khan, C. J. and Mazhar Alam Khan Miankhel, J

PAKISTAN TELEVISION CORPQRATION LIMITED---Appellant

Versus

Messrs INTERCONSTRUCT (PVT.) LIMITED through Managing Director, Peshawar

and 2 others---Respondents

R.F.A. No.170 of 2008, decided on 25th February, 2010.

Arbitration Act (X of 1940)---

----Ss. 14(2), 20, 33 & 39---Making award rule of the court---Principles---Objection petition filed by the appellant was turned down mainly on the ground of limitation and non-compliance of S.33 of Arbitration Act, 1940---Record had revealed that no directions under S.33 of Arbitration Act, 1940 regarding deposit of amount or furnishing of security, were given to the appellant as the amount was lying with the bank---Further award itself was not evaluated by the court and the court also failed to discuss the findings reached at in the award by the arbitrator---Tentative, shallow and cursory glance of assaying the award was not permissible under the law---Court had to minutely discuss each and every aspect embodied in the award, whether evidence so recorded by the arbitrator had properly been appreciated and discussed by him in accordance with law; whether the award was ' in accordance with the terms of reference or not etc.---Court was not supposed to put stamp of verification by simply making the same rule of the court---Court had to evaluate the evidence recorded by the arbitrator, it had to consider the findings arrived at by the arbitrator and was not supposed to act mechanically just like a forwarding agency---While evaluating an award the role of a court should be of an active dissenter rather than passive consenter---Trial Court, in the present case, had failed to exercise its jurisdiction in accordance with law---Judgment and decree of the Trial Court were set aside by High Court with the observations that the objections of the appellant would be deemed to be pending before the Trial Court and the court would be required to decide the same on merits and also pass an appropriate order.

The Chairman, Railway Board, Lahore and 2 others v. Hafiz Abdul Qayyum PLD 1984 Pesh. 285; Messrs Shafi Corporation Ltd. Karachi v. Government of Pakistan through Director General of Defence Purchase PLD 1981 Kar. 730; Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816; Province of Punjab through "Secretary to Government of the Punjab, Communication and Works Department, Lahore and 2 others v. Messrs Usman and Sons through Managing Director and others 2002 MLD 414; Abdul Ghani and 4 others v. Mst. Saida Naim Hussain 1984 SCMR 597; Hari Chand v. Lachhman Das and others AIR (35) 1948 East Punjab P.11 and Government of N.-W.F.P. v. Shahin Shah and others 2009 MLD 1418 rel.

Azhar Maqbool Shah for Appellant.

Barrister Gohar Ali and Nazirullah Qazi for Respondents.

Date of hearing: 25th February, 2010.

P L D 2010 Peshawar 38

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

MUMTAZ ALI KHAN and 2 others---Petitioners

Versus

GUL SHERABAT KHAN and 3 others---Respondents

Writ Petition No.62 of 2006, decided on 13th January, 2010.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c)(i), 13(2), (3)(c)(ii) & 15---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenant on ground of default in payment of rent and bona fide personal need---Question of title---Jurisdiction of Rent Controller---Scope---Tenants had denied relationship of landlord and tenant between the parties---Both Rent Controller and Appellate Court rejected ejectment petition concurrently, holding that relationship of landlord and tenant did not exist between the parties---Findings of the Rent Controller that respondent had become co-owner in the disputed shop and he could not be ejected, unless partition took place; was not within jurisdiction of Rent Controller---Said finding of Rent Controller was conflicting with the plea taken by tenant in his written reply and in the evidence recorded---Tenant had admitted his tenancy under the landlords and also payment of rent---Tenant in the statement before the court had also admitted that he obtained the shop on rent, in that way the Rent Controller had confused the tenancy of tenant and the title of alleged co-owner in the case, which was not allowed---Both impugned judgments of the courts below being not in accordance with relevant law, were set aside and case was remanded to the Rent Controller for decision afresh after hearing arguments of the counsel for the parties.

Gohar Zaman Khan Kundi for Petitioners.

Anwarul Haq for Respondents.

Date of hearing: 13th January, 2010.

P L D 2010 Peshawar 41

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

DARWAISH KHAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.59 of 2006, decided on 18th March, 2010.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Delay of three hours and fifteen minutes, which otherwise was properly explained, was not fatal to the prosecution case and it depended on the circumstances of each case---Eye-witnesses had stated in their testimony that the motive of the incident was over playing of tape recorder by accused on high speed which was objected to by the deceased which annoyed them and committed the offence---Even if motive was not proved, conviction could be recorded on capital charge, provided that the case was proved by prosecution---Motiveless cases would not go unpunished---Where there was ocular evidence, the motive would become of no vital importance---Generally, the sufficiency or otherwise of motive was not sine qua non for commission of offence---In the present case reliable ocular testimony was on the record which was sufficient to prove the guilt of accused and motive need not be proved---Report of Forensic Science Laboratory provided that the empties were fired from two different .7.62 MM bore rifles which was sufficient and fully corroborated the ocular evidence---Counsel for accused had objected that articles were sent to Chemical Examiner with sufficient delay which had made the report doubtful---Objection was repelled because the opinion of Examiner could not be treated as fatal in the absence of objection regarding the same having been tampered with or manipulated---Forensic Science Laboratory's report clearly indicated the use of two different weapons---Delay in sending the articles to the Laboratory was also not damaging to the prosecution case---Non-mentioning of bath room, in the F.I.R. was not fatal to the prosecution case, because otherwise the place of occurrence i.e. roof of the room had been mentioned in the F.I.R. as well as in the statement of eye-witnesses---Complainant who had given ocular evidence, though was brother of the deceased, but nothing had been brought out from him to establish any mala fide on his part or to show that he was interested in the conviction of accused---Ocular testimony furnished by the complainant was not impeached even in lengthy cross-examination by accused; and same was also corroborated by medical evidence as well as recovery of empties coupled with laboratory report---Accused though remained absconder for about 7 years, but such abscondence which was a weak evidence by itself, could not be made basis of conviction; however it could be taken into consideration, if otherwise their guilt was proved, particularly keeping in view the unimpeachable evidence---Defence had failed to point out any reasonable ground for interference in the impugned conviction of accused---Appeal by accused against conviction was dismissed.

1996 SCMR 1962; PLD 1992 SC 211; 2004 PCr.LJ 1984; PLD 2001 SC 222; PLD 2001 SC 107; Muhammad Iqbal v. Muhammad Tahir and others PLD 1985 SC 361 and Sikdandar and 2 others v. The State PLD 1981 SC 477 ref.

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

----S. 302---Qatl-e-amd---Appreciation of evidence---Quality and not quantity of evidence was required---If prosecution felt satisfied that case could be proved by a single witness then it was not necessary to produce any more evidence---Where a witness otherwise was trustworthy, independent, having no motive against accused, his testimony was to be believed, even if he had close relation with the deceased, because relation 'was no ground to discard his evidence---Even interested witness, if his testimony was free from doubt and supported by independent corroboration could be believed---Main test of an eye-witness to be believed was his conduct which must be free from animus and ill-will.

2004 PCr.LJ 1984 and 1998 PCr.LJ 247 ref.

Saleemullah Khan Ranazai for Appellant.

Shahid Saleem Khan for the State.

Anwarul Haq for the Complainant.

Date of hearing: 18th March, 2010.

P L D 2010 Peshawar 48

Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ

Molvi MUHAMMAD YAQOOB and others---Appellants

Versus

HANIF-UR-REHMAN and another---Respondents

Criminal Appeal No.85 of 2006, heard on 18th February, 2010.

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

----Ss. 302/324/34---Qatl-i-amd and attempt to commit qatl-i-amd---Appreciation of evidence---Occurrence had taken place on busy road and the report was lodged promptly within twenty minutes leaving no room for consultation and deliberation on the part of complainant---Promptly lodged report/F. I. R. was itself a corroborative piece of evidence---No previous blood feud enmity existed between the parties---Prosecution witnesses had alleged the motive to be the dispute over a shop and said motive was proved to the hilt and it was supportive circumstance in favour of prosecution---Complainant, though was the brother of the deceased, but he had no previous blood feud enmity with accused---Testimony put forth by said witness was creditworthy, because the defence had failed to point out any ill-will on his part---Witness was subject to lengthy cross-examination by the defence, but no dent was found in his statement nor any discrepancy was pointed out in the deposition---Witness was natural witness of the occurrence and credibility was attached to his veracity---Mere relationship of said witness with the deceased, in absence of established hostility, would not discard his testimony---Statement of injured witness had fully supported the version advanced by the complainant---Said witness was neither a close relative of deceased nor inimical towards accused; injury on his body suggested his presence on the spot beyond reasonable doubt and his deposition, in circumstances, carried weight as natural and trustworthy witness---All the eye-witnesses had given a consistent statement corroborating each other with no contradiction---Medical evidence was also not defective-Site-plan prepared by the Investigating Officer in presence of eye-witness, had clearly supported the ocular account---Ballistic Expert's report in respect of five empties picked up by the Investigating Officer was positive commensurating with four pistols by four accused---Said piece of circumstantial evidence had supported the ocular account put forth by the prosecution witnesses---Trial Court had very well appreciated the evidence of prosecution witnesses coupled with other material on record and had correctly found the accused responsible for murder of deceased and causing injuries to prosecution witness---Sentences awarded to accused, did not warrant interference---Appeal against conviction was dismissed, in circumstances.

PLD 1987 SC 136; 2007 SCMR 1535; Noor Muhammad v. The State 2005 SCMR 1958; 2005 PCr.LJ 988; 2008 SCJ 170 and PLD 2004 SC 663 ref.

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

---Ss. 302/324/34---Qatl-i-amd and attempt to commit qatl-i-amd---Petition for enhancement of sentence---Appreciation of evidence---No role for inflicting particular injury to the deceased or injured prosecution witness had been attributed to the particular accused; nor accused had previous blood feud enmity with complainant party; and the occurrence merely culminated due to civil litigation between the parties---Said factum would be considered as a mitigating circumstance---Petition for enhancement of sentence of accused, was dismissed, in circumstances.

Khawaja Muhammad Khan Gara for Appellant.

Sanaullah Khan Shamim Gandapur, D.A.-G. for the State.

Sultan Shehryar Khan Marwat for the Complainant/Respondent.

Date of hearing: 18th February, 2010.

P L D 2010 Peshawar 54

Before Liaqat Ali Shah, J

ASAD ZAMAN---Petitioner

Versus

MUHAMMAD SAREER and 2 others---Respondents

Criminal Miscellaneous No.182 of 2009, decided on 19th February, 2010.

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

----Ss. 156, 157, 169, 173 & 561-A---Penal Code (XLV of 1860), Ss.324/337-F(v)/427/34---Attempt to qatl-e-amd---Investigation of case---Petition against putting names of accused in column No.2---Powers of Investigating Officer--Investigating Officer, after completion of investigation, placed the names of respondents/accused in column No.2---Petitioner/complainant had prayed that direction could be issued for placing the names of accused' persons in column No.3; and that placing of the names of accused in column No.2 be declared against the norms of legal and natural justice---Validity---Investigating Officer could not act as a court and it was not his function to release a person under S.169, Cr.P.C., when there was material for and against, but that would in no way affect his powers to prepare a final report and give his opinion about the culpability or otherwise of accused and then to place him in column No.2 or 3---Even the Magistrate could not agree for discharging accused released under S.169, Cr.P.C. and he was competent to make such orders as he would think fit---Investigating Officer had the sole prerogative to put the name of an accused person in column No.2 or in column No.3, subject of course as a result of his investigation which could not be undone by any judicial forum; or for that matter by superior officer of his department or by the public prosecutor; or Inspector Legal etc. neither under Cr.P.C., North-West Frontier Province Prosecution Service Act, 2005 nor under Police Order, 2002---Such act of Investigating Officer could be un-done, if before submission of challan to the court of competent jurisdiction, the case was re-investigated in accordance with law; and as a result of such re-investigation by any other officer the earlier final report was dissented to and it was found that the names of accused were placed in column NV'o.2 should be placed in column No.3---Investigating Officer was duty bound to bring the real culprits to books; he was not supposed to follow the version of complainant blindly; he was supposed to probe into the plea of accused as well, for which no application was required---Whenever during the course of investigation a plea was taken by accused about his innocence, the Police Officer had no option, but to investigate and probe into his plea without interference, even by his own highups---Even otherwise too, if it would come on record that the F.I.R. did not depict the true account he was bound to bring on record such fact as well.

2009 PCr.LJ 1344; PLD 2008 Pesh. 63; 2006 SCMR 373; 1993 SCMR 197; 1984 SCMR 429; Shahnaz Begum v. The Hon'ble Judges of Sindh and Bhalochistan and another PLD 1971 SC 677; Yaqoob Khan v. State 1971 PCr.LJ 266; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Khawaja Nazir Ahmad AIR 1945 PC 18 and Habib v. The State 1983 SCMR 370 ref.

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

----Ss. 156 & 173---Investigation---Opinion of Police Officer---Opinion of Police Officer was not so much relevant nor had any influence upon the court---Magistrate while taking cognizance, had to form his own opinion on the basis of material/evidence placed before him in the shape of complete challan---Magistrate was competent to try accused placed in column No.2 or to send them for trial---Magistrate/court would take cognizance of the offence and not qua accused---Court could summon any person, after taking cognizance, whether shown in column No.2 or even if not shown in the challan, but if the court was of the opinion that he had nexus with the offence---Investigating Officer had not been left unchecked.

S. Mehmood Shah for Petitioner.

Jalaluddin Akbar Azam for Respondents Nos. 1 and 2.

Fazalur Rehman Khan, A.A.-G. for the State.

Date of hearing: 19th February, 2010.

P L D 2010 Peshawar 65

Before Abdul Aziz Kundi, J

AKHTAR ALI---Petitioner

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Revision No.362 of 2009, decided on 15th March, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Making of Talbs---Plaintiff who claimed superior right of pre-emption being "Shafi Jar" and "Shafi Khaleet" had stated that he gained knowledge of sale in question on 4-12-1997 at 0.200 P.M. in his Hujra' through witness and pronounced his intention to pre-empt said sale and had made Talb-i-Muwathibat---Said witness in his cross-examination had stated that he gained knowledge of sale on 18-11-1997---Such statement of a very important witness produced by the plaintiff; in circumstances had made it clear without leaving any thing to be doubted that it was on 18-11-1997 and not on 4-12-1997 when plaintiff got knowledge of the sale---Claim of plaintiff making ofTalb-i-Muwathibat' immediately on gaining knowledge; fell to the ground, in circumstances---Further the plaintiff was required to make Talb--i-Ishhad' within two weeks of his makingTalb-i-Muwathibat', but he. made said talb on 8-12-1997 on which date he claimed to have made the said talb, which in no case fell within two weeks of 18-11-1997---Trial Court while decreeing suit of plaintiff; read out the examination-in-chief of witness, but had totally omitted from consideration his cross-examination---Similarly, Appellate Court though being the last court of facts, neither appraised the evidence, nor recorded finding---Such an approach and disposal by Senior Judicial Officer, besides being violative of law governing disposal of first appeal, could hardly be termed to be judicial disposal---Since the plaintiff had not performed the first two Talbs/Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law, which was sine qua non for maintaining a suit for pre-emption, his right of pre-emption was extinguished---Impugned judgments and decrees of both courts below being based on misreading, non-reading of evidence, being illegal, were set aside and suit filed by the plaintiff was dismissed.

Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977 ref.

Muhammad Fahim Wali for Petitioner.

Syed Khurshid Ali for Respondents.

Date of hearing; 15th March, 2010.

P L D 2010 Peshawar 73

Before Mian Fasih-ul-Mulk, J

MUHAMMAD KARIM and others---Petitioners

Versus

ZULJALAL and another---Respondents

Civil Revision No.969 of 2007, decided on 23rd April, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

---Ss. 6, 13, 14 & 15---Suit for pre-emption---Making of Talb through agent---Superior right of pre-emption---Waiver---Trial Court dismissed suit of the plaintiff mainly on the grounds of non-performance of Talbs in accordance with law, having no superior right of contiguity and waiver of pre-emption right---Appellate Court upheld the judgment and decree of the Trial Court on the ground that Talb-e-Muwathibat could not be made legally through an agent---Performance of Talb-e-Muwathibat was a pure question of fact which in the case was not only alleged in the plaint, but the plaintiff had examined sufficient evidence in that behalf---Under S.14 of North-West Frontier Province Pre-emption Act, 1987, where a person was unable to make demands under S.13 of the Act, his guardian or agent could make the required demands on his behalf---Record had shown that plaintiff was aged 100 years who had appointed his son as his special attorney---Intention of the plaintiff was clear and unambiguous to authorize his agent to do all requisite acts for performance of demands of pre-emption as he was unable to perform those acts being an aged person---Demand in the case, in circumstances, was legal and Appellate Court was not justified to dismiss suit on that ground---Regarding superior right of pre-emption of the plaintiff, it was evident from Shajra Khistiwar that suit property consisted of two Khasra Numbers whereas one Khasra number was `Ghair Mumkin Rasta' which was adjacent to the property of vender, vendee and the plaintiff/pre-emptor---Plaintiff, in circumstances, had proved contiguity with the suit property through evidence---As the right of pre-emption would accrue after the completion of sale, same was not lost because before the completion of sale, property was offered to the pre-emptor and he refused to buy---Findings recorded by Trial Court on all those grounds were devoid of any force as same were based on misreading of evidence---Appellate Court below was also not justified in law by holding that Talb-e-Muwathibat could not be made legally through agent---Concurrent judgments and decrees of both the courts below were set aside and suit for pre-emption was decreed in favour of the plaintiff and against the defendants.

2004 CLC 359; 1992 MLD 2536; 2000 CLC 1654; 1991 CLC 209; PLD 2007 SC 26; PLD 2003 SC 315; 2010 SCMR 5; 2007 SCMR 870; 2003 MLD 625; 2009 YLR 90; 2004 YLR 202 and 2000 CLC 1654 ref.

(b) Interpretation of documents---

----General rules of construction of documents and deeds which the Court can call in aid to discover the intention of the author enumerated.

Following are general rules of construction of documents and deeds, which the court could call in aid to discover the intention of the author can be categorized as under:

(i) In the first instance, the intention of the parties is to be collected from the document itself and not by the court presuming an intention-If the words in a document were express and clear, effect must be given to them and any extraneous inquiry into what was intended by the parties, was ruled out. The real question in such a case was not what the parties intended or meant, but what is the legal effect of the words which they used. If however, there is ambiguity is in the language employed, then it was permissible to look to the surrounding circumstances to determine what was intended;

(ii) To find the intention of parties expressed by the words used in a document, the document must be read as a whole. The words of each clause must be so interpreted as to bring them into harmony with the other provisions of the document, if that interpretation did no violence to the meaning of which they were susceptible. Effect must, as for possible, be given to every word and every clause;

(iii) If there be two methods admissible for the construction of document, one which will give effect to all the clauses therein, will be preferred and the construction which will render one or more at the clauses nugatory would invariably be avoided.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of fact would not be interfered with in revisional jurisdiction, provided such findings did not suffer from controversial defect, illegality or material irregularity---Concurrent findings were not sacrosanct and if some material irregularity, non-reading, misreading was found in the findings of the courts below, High Court could interfere in the matter and revision was competent.

PLD 2007 SC 609 and 2007 SCMR 1714 ref.

Mian Fazli Amin for Petitioners.

Altaf Ahmad for Respondents.

Date of hearing: 20th April, 2010.

P L D 2010 Peshawar 80

Before Zia-ur-Rehman Khan, J

Haji AURANGZEB KHAN---Petitioner

Versus

HABIB KHAN---Respondent

Civil Revision No.161 of 2008, decided on 10th May, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss. 6, 13, 15 & 31---Suit for pre-emption---Superior right of pre­emption---Limitation---Making of Talbs---Waiver and estoppel---Suit for pre-emption filed by the plaintiff was concurrently dismissed by the courts below on the grounds of waiver, estoppel, limitation, non-possessing superior right of pre-emption and non-absence of legal formalities of Talbs---Sale-deed in respect of sale in question which was registered on 7-12-2000, was attested on 13-12-2000 and suit filed on 17-3-2001, was well in time---Regarding plea of waiver and estoppel raised by the defendant, it was fact that neither plaintiff had any role towards the materialization of the sale between the vendors and the vendee nor he was present at the time of measurement of suit property, nor he had any knowledge about the same---Courts below, in circumstances, were not justified to apply the principles of waiver and estoppel against the plaintiff, while non-suiting him---Impugned findings of courts below in that respect, were not sustainable, in circumstances---Area in question consisted of 4 Khasra Numbers and out of said four Khasras, one was forming part of Khata in which the plaintiff was recorded as owner---With regard to the remaining Khasra Numbers, the plaintiff had made his endeavours to prove that same lay adjacent to his other Khasra Numbers and all of those were irrigated from one and the same water channel---All said Khasra Numbers and water channels were duly mentioned in the Aks Shajara Kishtwar---Ownership column had shown that water channels were recorded as Shamilat Deh and in the column of cultivation "Maqbooza Malikan "---Appellate Court was required to have ascertained as to whether, what concern the Government had got with those Khasra Numbers; and as to whether the plaintiff was a co-sharer in Shamilat Deh as a member of the proprietary body---High Court without recording findings on the remaining issues; as to whether the plaintiff had observed the formalities of Talbs, whether his evidence in that respect was discrepant in nature, let it open to the Trial Court to record its findings afresh on that material issues about the observation of said legal formalities---Impugned judgments and decrees were set aside and the matter was remanded to the Trial Court to ascertain the fact whether the water channel which irrigated the disputed property and that the plaintiffs were Government property, and if not so, whether the plaintiff was owner in Shamilat Deh as a member of the proprietary body---Trial Court was also directed to give detailed findings on the question of Talbs, improvement and cause of action.

Maulana Noorul Haq v. Ibrahim Khalil 2000 SCMR 1305; Nazo Khan v. Karam Hussain 2000 SCMR 1053; Sikandar and others v. Sher Baz PLJ 2008 SC 131; Ubaidur Rehman v. Mohmand 1999 SCMR 201; Muhammad Ans and others v. Akbar Ali and others 2005 YLR 376 and PLD 2004 SC 493 rel.

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

----Art. 77---Proving notice through secondary evidence---Any document which in itself was a notice, same need not be proved through secondary evidence.

Hameedullah Khan and others v. Mst. Zeenat Khatoon 2008 SCMR 1444 rel.

Abdul Sattar Khan for Petitioner.

Gul Rehman Mohmand for Respondent.

Date of hearing: 19th April, 2010.

P L D 2010 Peshawar 88

Before Attaullah Khan, J

ASIF NOMAN---Petitioner

Versus

GUL SHADI KHAN KHATTAK and another---Respondents

Criminal Revision No.55 of 2009, decided on 26th April, 2010.

West Pakistan Control of Goondas Ordinance (XXXV of 1959)---

----Preamble, Ss. 5, 13, 14 & 19---Criminal Procedure Code (V of 1898), Ss.112 & 561-A---Binding a person for keeping good behaviour---Object and purpose of West Pakistan Control of Goondas Ordinance, 1959---Declaration of a person as goonda---Requirements---Allegation against the petitioner was that he was running a gambling den---Complaint was filed against the petitioner under Ss.13/14 of West Pakistan Control of Goondas Ordinance, 1959 and Judicial Magistrate without fulfilling the requisite formalities served the petitioner with a notice under S.112, Cr.P.C. and without explaining its legal position took signature of the petitioner thereon when he was in police custody---Section 5 of West Pakistan Control of Goondas Ordinance, 1959 provided that complaint would briefly contain all the details of time and place of such practice and statements of relevant general reputation of the person---Petitioner had been condemned unheard--Impugned order had been purportedly passed under Ss.13 & 14 of West Pakistan Control of Goondas Ordinance, 1959 according to which the petitioner should have been heard before passing the impugned order---Object of West Pakistan Control of Goondas Ordinance, 1959, was not to harass people and use it as an instrument of operation against the person for ulterior motive and main aim of the Ordinance was to control disorderly people and take action against them who were known to be goondas---Nothing was available on record to show that petitioner was known goonda---Court was required to satisfy itself before adjudging a person to be goonda after recording evidence---In case of no evidence, there could be no satisfaction of the court for declaring a person as goonda---No such evidence was found on record----No opportunity had been afforded to petitioner before declaring him as goonda---Impugned order being patently illegal, was set aside.

Mian Muhammad Ayub v. State PLD 1982 Pesh. 130 ref.

Ghulam Muhammad Sappal for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 26th April, 2010.

P L D 2010 Peshawar 91

Before Muhammad Safdar Khan Sikandari, J

HUSSAIN BAKHSH and 5 others---Petitioners

Versus

Mst. BASHIRAN through General Attorney---Respondent

Civil Revision No.25 of 2008, decided on 14th May, 2010.

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

----Ss. 122 & 123---Mutation on basis of gift deed---Validity--Respondent who was the owner in legacy of her late father along with other legal heirs of deceased including the petitioner her brother, had alleged that petitioner (brother) had transferred the disputed landed property in his name through gift mutation and that when fraudulent mutation of gift was challenged in the civil court, then the onus of probandi would lie upon the beneficiary of the deed/transaction to prove its genuineness as well as three well known ingredients of gift; i.e. declaration of gift, acceptance of the offer of said gift and delivery of possession according to law---In the present case no evidence was on the record to indicate about the fulfilment of said three essential ingredients---Mutation in question also did not bear the thumb impression of the respondent who was a pardanashin lady as donor nor Roznamcha anywhere mentioned the delivery of possession of suit land in favour of the petitioner---Neither tamleek in question had been attested nor the lady had thumb impressed the document nor she appeared before the attesting officer personally---Fraud, in circumstances, was committed as a result of which the alleged mutation of gift was attested on the basis of collusion of petitioner with Revenue Officials---Impugned judgment and decree of Appellate Court, did not suffer from any irregularity or infirmity or jurisdictional error, nor same was the result of misreading or non-reading of evidence---Same being based on cogent reasons, did not call for any interference by High Court in revisional jurisdiction---Petition was dismissed, in circumstances.

2008 YLR 129;2006 YLR 1836; 1995 SCMR 284 and Shabbir Anwar v. Sheikh Tariq Mehmood and others 2002 CLC 1102 ref.

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

----Art. 100---Presumption as to thirty years old document-Presumption of truth was not attached to thirty years old document, because the court must consider the evidence and apply presumption where evidence in proof of document was reliable, but it was a matter of great care and caution in those cases where the valuable rights of parties were involved in the property---Presumption of execution of such document was permissible and not imperative even, if the document be a thirty years old and was produced from proper custody.

2007 SCMR 497 rel.

Muhammad Ayaz Khan Qasueria and Muhammad Waheed Anjum for Petitioner.

Muhammad Younis Taheem for Respondents.

Date of hearing: 19th April, 2010.

P L D 2010 Peshawar 96

Before Attaullah Khan, J

BAIDULLAII JAN and another---Appellants

Versus

AURANG ZEB and others---Respondents

Civil Revision No.94 of 2004, decided on 14th May, 2010.

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

----Ss. 60 & 52---Suit for redemption of mortgaged property---Lis pendens, principle of---Application---Claire of the plaintiff was that they along with pro forma defendants were the owners of the suit land and defendants were mortgagees on the basis of mutation attested in the year 1926---Trial Court dismissed the suit and appeal filed against judgment and decree of the Trial Court, had also been dismissed by the Appellate Court---Validity---Suit land was mortgaged prior to year 1878, while suit for redemption was lodged in the year 1986, after about a century---Suit property which was mortgaged in 1878, was in continuous possession of mortgagees in said capacity till date--Mortgagees, in circumstances, would be deemed to be owners by prescription---Alleged purchase of some portion of suit land by some defendants, was made in the year 1991 vide mutation, whereas suit for redemption was instituted in the year 1986---Such purchase was made during pendency of the suit and under S.52 of Transfer of Property Act, 1882, such purchase was hit by principle of 'lis pendens' and would be of no effect---Both courts below had correctly appreciated the oral as well as documentary evidence---Plaintiffs had failed to prove any non-reading and mis-reading or miscarriage of justice to justify interference.

1991 SCMR 2063 and 1998 CLC 128 ref.

Rustam Khan Kundi for Appellants.

Khuda Bakhsh Baloch for Respondents.

Date of hearing: 23rd April, 2010.

P L D 2010 Peshawar 99

Before Imtiaz Ali, J

PESHAWAR DEVELOPMENT AUTHORITY and others---Petitioners

Versus

AWAL KHAN---Respondent

Civil Revision No.471 of 2010, decided on 24th May, 2010.

(a) North-West Frontier Province Public Property (Removal of Encroachments) Act (V of 1977)---

----Ss. 3, 11, 13 & 17---North-West Frontier Province Public Property (Removal of Encroachments) Rules, 1981, Rr.3 & 4---Specific Relief Act (I of 1877), Ss.42 & 55---Civil Procedure Code (V of 1908), O. VII, R.11---Cancellation of lease---Suit for declaration and mandatory injunction---Rejection of plaint---Plaintiff, who was lessee of a restaurant, owned by Authority, for a period of 15 years, his lease was cancelled---Authority filed application for rejection of plaint under O. VII. R.11, C.P.C. on the ground that suit property was a public property and lease in favour of the plaintiff having been cancelled, he was an unauthorized occupant of suit property---Authority had also asserted that jurisdiction of civil court was barred under S.11 of North-West Frontier Province Public Property (Removal of Encroachments) Act, 1977---Said application had concurrently been dismissed by the Trial Court and Appellate Court---Validity---Section 3 of North-West Frontier Province Public Property (Removal of Encroachments) Act. 1977 had authorized Authority to direct an unauthorized occupant to vacate the public property and to remove the structure, if any, raised by said occupant on public property---Suit property, no doubt, was a public property; and it was also admitted fact that lease of suit property granted to the plaintiff had been cancelled, however, nothing was on record to show fulfilment of Second condition contained in S.3 of the Act i.e. the machinery provided under said Act had been set in motion for removal of encroachment and eviction of unauthorized occupant--Impugned order, whereby lease of the plaintiff was cancelled, neither contained the ingredient of S.3 of North-West Frontier Province Public Property (Removal of Encroachments) Act, 1977, nor could be termed as having been issued by Authorities mentioned in said section--Neither any proceedings having been initiated nor any order had been passed under the relevant provisions of North-West Frontier Province Public Property (Removal of Encroachments) Act, 1977, bar contained in S.11 of the Act could not be pressed into service---Judgments of two courts below being based on proper appreciation of, record and application of relevant law on the subject, did not call for interference by the High Court in its revisional jurisdiction.

1990 MLD 815 and PLD 1988 Pesh. 159 ref.

(b) North-West Frontier Province Public Property (Removal of Encroachments) Act (V of 1977)---

----Preamble, Ss.2, 3 & 11---Purpose and object of North-West Frontier Province Public Property (Removal of Encroachments) Act, 1977---Act was a special law empowering the Authorities constituted thereunder with extraordinary powers for removal of encroachment; and eviction of unauthorized occupants from public property in a speedy and effective manner---Preamble of the Act had clearly laid down that the purpose behind enactment of such special law was to provide for measures for removal of encroachment from public property and for matters ancillary thereto---Provisions of special law seeking to oust the ordinary jurisdiction of courts were to be construed strictly with a pronounced leaning against ouster.

Aamir Javed for Petitioners.

Salahuddin Khan for Respondent.

Date of hearing: 24th May, 2010.

P L D 2010 Peshawar 105

Before Muhammad Safdar Khan Sikandri, J

Mst. IQBAL BIBI---Petitioner

Versus

Mst. MARYAM BIBI and 5 others---Respondents

Civil Revisions Nos.533 of 2008 and 7 of 2009, decided on 25th May, 2010.

Partition Act (IV of 1983)---

----S.9---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.---Suit for partition---Suit for partition of house of deceased father of the plaintiff---Divorced wife of deceased filed application for impleading her as party in the suit---Said application had concurrently been dismissed by the Trial Court and Appellate Court---Validity--Claim of the divorced wife of deceased was that she was the owner to the extent of 1/2 share in the suit house which was the legacy of her late husband; and that she was necessary party in the lis pending in the court between the parties---Lady who had obtained Khula' from her husband had claimed that fact of Khula' would never deprive her from her right as she had not specifically abandoned her share in the suit house---Contention of counsel for the plaintiff was that the lady had waived her rights of 1/2 share in the suit house at the time she got the decree for dissolution of marriage on the basis of Khula' and that she could not claim the same---Principle of Khula' was interpreted in the light of the dictates of Holy Qur'an and Sunnah to the extent and effect that when married parties disagreed and were apprehensive that they could not observe the bonds prescribed by Divine Law, woman could release herself from the marital tie by giving up some property in consideration of Khula' by the husband---In the present case, deed through which half of the share of the suit house was given to the lady, had not been rescinded on the day on which the Khula' was obtained by her from her husband---Order of the Family Court had also not specifically mentioned as to what were those privileges which were bestowed upon the lady by her husband and as to how much were to be taken back in the exchange of the Khula'---Petitioner, in circumstances was still the owner to the extent of 1/2 share on behalf of her late husband; and it would yet to be determined by the Trial Court as to whether she was entitled to the half of her share in the legacy of her late husband or otherwise---Lady should be impleaded as party in the lis pending between other legal heirs of the deceased---Judgments and orders of the courts below were set aside, application of the petitioner for her impleading as party to the suit was allowed and she should be entered as defendant in the suit.?

PLD 2003 Pesh. 146; 2004 CLC 1932; PLD 2003 Pesh. 169 and PLD 1969 SC 97 ref.

Abdullah Khan Gandapur for Petitioner.

Jamal Abdul Nasir Awan for Respondents.

P L D 2010 Peshawar 110

Before Mazhar Alam Khan and Yahya Afridi, JJ

AFZAL MOTORS PRIVATE LIMITED through Managing Director---Petitioner

Versus

HIGHER EDUCATION ARCHIVES AND LIBRARIES DEPARTMENT through Secretary Higher Education and 7 others---Respondents

Writ Petition No.679 of 2010, decided on 8th April, 2010.

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

----Art.199---Constitutional petition relating to contractual matters---Maintainability---Pre-conditions stated.

Issue relating to contract can be agitated in constitutional jurisdiction. However, the condition precedent for such a judicial review, is where the impugned order or an action or in-action is based on mala fide, against the principles of transparency and it does not have any contentious contested question of fact determinable from the record of the case.

(b) North-West Frontier Province Procurement of Goods, Works and Services Rules, 2003---

----R.29---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Tendering, evaluation of tenders or award of contract in violation of North-West Frontier Province Procurement of Goods, Works and Services Rules, 2003---Such violation could be validly agitated in constitutional jurisdiction.

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

----Art. 199---Constitutional petition-Maintainability---Constitutional petition containing allegation of mala fide---Proof---Mala fide must be alleged against a named person and shown from record without recording of evidence, otherwise such petition would become non-­maintainable---Principles.

In regard to alleged mala fide; the petitioner has to firstly allege the mala fide against an individual, who has to be clearly named in the petition. Secondly, he has to, from the record, show clearly without there being any need to record evidence that the individual has committed the alleged mala fide. Alleging mala fide is a double edged weapon. It can very easily throw the petition out of the relm of maintainability, as proving mala fide is difficult. In case the mala fide cannot be proved from the record, then the need for recording of evidence comes in and in such eventuality the petition cannot proceed in constitutional jurisdiction. The matter would then have to be resolved and adjudicated by an ordinary civil court of competent jurisdiction.

(d) North-West Frontier Province Procurement of Goods, Works and Services Rules, 2003--

----R. 29---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bids invited for supply of buses---Committee constituted to assess market price and after sale service of bidders-- Technical evaluation of engine of buses offered by bidders through Engineering University---Rejection of petitioner's lowest bid by Tender Accepting Authority on basis of reports submitted by such Committee and Engineering University and awarding contract to respondent for supply of buses---Petitioner's plea that reasons in writing for rejection of his bid had not been conveyed to him---Validity---Authority after reviewing such reports had given valid reasons for rejecting lowest bid of petitioner and accepting bid of respondent---Authority had complied with principles of natural justice---Petitioner had not filed counter affidavit rebutting reports of technical experts, thus, could not dispute correctness thereof---Petitioner, if wanted to challenge such reports, would be required to produce evidence---High Court 'dismissed constitutional petition in limine.

Ittehad Cargo Service's case PLD 2001 SC 116; Airport Service's case 1998 SCMR 2268; Pak Steel Mill's case 2007 SCMR 190; Mian Fazal Din's case PLD 1969 SC 223; Preston Product's case 2001 CLC 1412 and Arshad's case 2000 SCMR 1557 ref.

(e) North-West. Frontier Province Procurement of Goods, Works and Services Rules, 2003---

----R. 29(2)---Requirement of giving reasons in writing while rejecting lowest bid---Scope---Such requirement postulated assertions of principles of natural justice, which must be duly complied with.

Qazi Jawed Ihsanullah Qureshi, for Petitioner.

Isaac Ali Qazi and Fazlur Rehman Khan, A.A.-G. for Respondents.

Date of hearing: 8th April, 2010.

P L D 2010 Quetta 1

Before Qazi Faez Isa, C.J.

ABBAS and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Quashment No.28 of 2009, decided on 2nd September, 2009.

Criminal Procedure Code (V of 1898)---

---Ss. 561-A & 345---Penal Code (XLV of 1860), Ss.392 & 337-F---Compromise not allowed by Courts below---Validity---Accused were charged under S.392 and 337-F, P.P.C.---Complainant had forgiven the accused---Compromise deed had been rejected by the Courts below on the ground that S.392, P.P.C. was not compoundable---Trial Court as well as the Sessions Court had failed to consider that S.337-F, P.P.C. was compoundable with the permission of the Court as stipulated in S.345(2), Cr. P. C. ---Forgiveness was one of the best gifts one could give oneself---Islam mandates justice and punishment of - wrong doers, but it strongly emphasizes forgiveness, kindness and love to restore good relations---Impugned judgments to the extent of S.337-F, P.P.C. were improper and irregular---Complainant had forgiven the accused---Accused present in Court were also repentant and sought forgiveness in the name of Al-Mighty Allah---Compromise effected between the parties was accepted to the extent of the offence under S.337-F, P.P.C. and the accused were acquitted of that charge---Petition was partly, accepted---High Court observed that if an application for withdrawal of case under S.392, P.P.C. was submitted, State was expected to consider the same promptly.

Muhammad Rawab v. The State 2004 SCMR 1170; Ghulam Farid v. The State PLD 2006 SC 53; Muhammad Akhtar v. The State PLD 2007 SC 447; An-Nisa 4-106; 110 and Al-Baqarah 2:37; Ash-Shura 42:43; Ash-Shura 42:37 & 40 and Al-Imran 3:134 ref.

Abdul Khalid Kibdani Muhammad Aslam Chishti, S.A.M. Quadri and Mir Aurangzaib appeared as Amicus Curiae.

Zahoor Ahmed Shahwani Prosecutor-General for the State.

Date of hearing: 2nd September, 2009.

P L D 2010 Quetta 4

Before Ahmed Khan Lashari, J

CHAIRMAN, EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN, LAHORE and another---Petitioners

Versus

PRESIDENT OF QUETTA HINDU PUNCHAYAT MASJID ROAD, QUETTA and another---Respondents

Civil Miscellaneous Applications Nos.220 and 221 of 2009 in Civil Revision No.176 of 2005, decided on 20th July, 2009.

Civil Procedure Code (V of 1908)---

----S.115---Limitation Act (IX of 1908), Art. 181---Application for restoration of revision petition dismissed for non-prosecution-Revision petition was dismissed on 23-5-2008, while application for its restoration was filed on 4-3-2009---Plea of applicant's counsel was that due to sudden illness of his brother, he had to leave for place `L", where his brother died on 23-5-2009; and that such application could be filed within three years under Art. 181 of Limitation Act, 1908---Validity---Person seeking condonation of delay had not only to explain delay of each and every day to the satisfaction of Court, but had to establish that delay had been caused due to reason beyond his control---When delay in filing application was due to mere negligence and careless of applicant, who failed to pursue his case with due diligence, then he would not be entitled to any indulgence by Court---Applicant's counsel had failed to explain period from 24-5-2008 to 4-3-2009 for non-approaching Court or non-appearance of applicant in the matter---Applicant and his counsel had slept over and filed application with delay of more than nine months without disclosing reasons beyond their control---Application was dismissed in circumstances.

2004 SCMR 387 and PLD 1995 Lah. 15 rel.

1971 SCMR 740; PLD 1997 Pesh. 55 and 2004 SCMR 400 distinguished.

Kamran Murtaza and Abid Mehmood for Petitioners.

Sundar Dass for Respondent No.1.

P L D 2010 Quetta 7

Before Qazi Faez Isa, C. J.

AURANGZAIB SHAH alias AURANG SHAH and others---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.33 of 2009 and Criminal Appeals Nos.16 and 17 of 2008, decided on 11th August, 2009.

Penal Code (XLV of 1860)---

----Ss. 395 & 71---West Pakistan Arms Ordinance (XX of 1965), S.13-E---Criminal Procedure Code (V of 1898), S.35---Sentence---Validity---Sentences awarded to two accused under S.395 P.P.C. and S.13-E of the West Pakistan Arms Ordinance, 1965, if allowed to run consecutively, as directed by Trial Court, would exceed the maximum punishment permissible under S.13-E of the West Pakistan Arms Ordinance, 1965, which would be in violation of the provisions of Ss. 35, Cr. P. C. and 71 P. P. C---Said sentences were consequently ordered by High Court to run concurrently---Sentence awarded to third accused although did not exceed the maximum prescribed punishment, yet the same had presented an anomalous situation, as he would serve a longer sentence than the other two accused if his sentences were permitted to run consecutively---Same benefit, therefore, was also extended to the said accused and sentences awarded to him by Trial Court were also directed to run concurrently---Appeals were disposed of accordingly.

Muhammad Hanif and others v. The State and others 2001 SCMR 84; Khan Zaman and, others v. The State 1987 SCMR 1382; Javaid Shaikh v. The State 1985 SCMR 153; Juma Khan and another v. The State 1986 SCMR 1573; Muhammad Ittafaq v. The State 1986 SCMR 1627; Abdul Ghafoor v. The State 2007 YLR 700; Ahmed Jan v. The District and Sessions Judge and another PLD 1994 Quetta 1; Shah Hussain v. The State (Jail Petition No.56 of 2005); Abdul Hamid v. The State 1990 PCr.LJ 568 and Muhammad Asif v. The State PLD 2003 Lah. 512 ref.

Amanullah Kanrani for Appellant (in Criminal Jail Appeal No.33 of 2009).

Syed Pervaiz Zahoor for the State (in Criminal Jail Appeal No.33 of 2009).

Amanullah Kanrani and Sheikh Ghulam Ahmed for Appellant (in Criminal Appeal No.16 of 2008).

Syed Pervaiz Zahoor for the State (in Criminal Appeal No.16 of 2008).

Sheikh Ghulam Ahmed and Amanullah Kanrani for Appellant (in Criminal Appeal No.17 of 2008).

Syed Pervaiz Zahoor for the State (in Criminal Appeal No.17 of 2008).

Date of hearing: 11th August, 2009.

P L D 2010 Quetta 16

Before Mehta Kailash Nath Kohli and Ahmed Khan Lashari, JJ

ABDUL REHMAN---Petitioner

Versus

PROVINCIAL TRANSPORT AUTHORITY, BALOCHISTAN through Chairman and 3 others---Respondents

Constitutional Petition No. 619 of 2003, decided on 30th October, 2009.

(a) West Pakistan Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 44, 45 & 46---West Pakistan Motor Vehicles Rules, 1969, Rr.57-A & 57-B---Constitution of Pakistan (1973), Arts.18. & 199---Constitutional petition---Grant of route permit for plying bus from Pishin to Rod Mullazai via Khanozai, grant of---Cancellation of such permit for being unclassified on appeal of respondent plying buses from Muslim Bagh to Pishin via Khanozai---Validity---No penal consequences had been provided for absence of classification of route under Ss.44 & 45 of West Pakistan Motor Vehicles Ordinance, 1965---Classification had to be made in order to determine maximum age of vehicles to be plied on a route---Non-classification of route by competent authority or Highway authorities or Communication & Works Department would not make its permit non-issuable---Term "route" had abstract from one terminus to other terminus---Respondent was plying bus on different route, and was not permit holder/competitor of same route, thus, could not challenge route permit granted to petitioner---Not fair to deprive a particular part of people from use of public transport on pretext that same was a classified route---High Court restored route permit issued to petitioner and order of cancellation of route permit was declared to be without lawful authority and of no legal effect and directed competent authority to take measures for declaring such route as classified.

AIR (36) 1946 PC 137 rel.

(b) West Pakistan Motor Vehicles Rules, 1969---

----Rr. 57-A & 57-B---Term "route"---Meaning---"Route" has abstract of one terminus to other terminus.

AIR (36) 1946 PC 137 rel.

Naeem Akhtar Afghan for Petitioner.

Amanullah Tareen Asstt. A.G. for Respondents Nos. 1 to 3.

Syed Ayaz Zahoor for Respondent No.4.

Date of hearing: 17th October, 2006.

P L D 2010 Quetta 21

Before Qazi Faez Isa, C J

GHULAM HUSSAIN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, DERA ALLAH YAR and 2 others---Respondents

Criminal Revision No.(S)22 of 2009, decided on 11th September, 2009.

Balochistan Prevention of Gambling Ordinance (X of 1978)---

----Ss. 6 & 8---Constitution of Pakistan (1973) Art.14---Appreciation of evidence---While conducting raid on the house of accused neither Magistrate had inquired into the matter nor was he present when the residence of accused was entered into---Police had no authority to by itself take cognizance of the case under the Balochistan Prevention of Gambling Ordinance, 1978, and its role was only to render assistance to the Magistrate while conducting a raid---Provisions of section 8 of the said Ordinance, thus, had been clearly violated---Privacy of home could be violated only in certain exceptional circumstances and to do so strict compliance of the applicable law had to be made---Article 14 of the Constitution had also, guaranteed the fundamental right of privacy of home---Almighty Allah had himself bestowed such right upon human beings, which had been specifically mentioned in the Holy Quran and in the teachings of Prophet Muhammad, peace and blessings be upon him---Raid having been conducted on the house of the accused in violation of the mandatory provisions of section 8 of the aforesaid Ordinance, any step subsequently taken and any material gathered at the time of raid, was of no consequence and the same could not be relied upon---Accused was acquitted in circumstances.

An-Nour, 24:27-28; Al-Hujuraat, 49:12; Abu Da'ud Book 41, Number 5155; Abu Da'ud, Book 8, Numbers 5167 and 1480 ref.

Amanullah Kanrani for Petitioner.

Abdul Rahim Mengal, Asstt. A.-G. for the State.

Date of hearing: 11th September, 2009.

P L D 2010 Quetta 24

Before Jamal Khan Mandokhail and Muhammad Noor Maskanzai, JJ

Haji MUHAMMAD AFZAL and others---Petitioners

Versus

SECRETARY FOREST DEPARTMENT, GOVERNMENT OF BALOCHISTAN, QUETTA and others---Respondents

Constitutional Petitions Nos.366 of 1997, 776 of 2000 and 313 of 2006; heard on 21st October, 2009.

Forest Act (XVI of 1927)---

----S. 39 & Second Schedule---Central Laws (Statute Reforms) Ordinance (XXI of 1960), S.3---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy of duty in imported timber---Petitioners were aggrieved of levy/charge of tax on imported timber by forest department on the ground that they had already paid customs duty at the time of its import---Plea raised by petitioners was that forest department could not recover any duty as Forest Act, 1927 had not been adopted by Balochistan Government---Validity---Held, in view of the amendments made under Central Laws (Statute Reforms) Ordinance, 1960, Forest Act, 1927, was extended to the whole of Pakistan, meaning thereby that Forest Act, 1927, was applicable in the Province of Balochistan---Provincial Government, under S.39 of Forest Act, 1927, could levy duty in manner as it was declared by notification in official Gazette on all timbers or forest produce---Provincial Government could collect taxes and duties on imported timber, therefore, forest department had acted strictly in accordance with law and no illegality was committed while collecting taxes from petitioners---Forest department had the authority to collect taxes, therefore, High Court directed the petitioners to release amount as well as profit/interest thereon in favour of forest department, which had been deposited in bank---Petition was dismissed in circumstances.

Syed Ayaz Zahoor and Obaidullah Qureshi for Petitioner (in C.P.No.366 of 1997).

Rauf Atta, Standing Counsel and Naseer Ahmed Bangulzai, Asstt. A.-G. along with Haji Muhammad Azam, Law Officer Customs for Respondents (in C.P.No.366 of 1997).

Syed Ayaz Zahoor and Obaidullah Qureshi for Petitioner (in C.P.No.776 of 2000).

Rauf Atta, Standing Counsel and Naseer Ahmed Bangulzai, Asstt. A.-G. along with Haji Muhammad Azam, Law Officer Customs for Respondents (in C.P.No.776 of 2000).

Syed Ayaz Zahoor and Obaidullah Qureshi for Petitioner (in C.P.No.313 of 2006).

Rauf Atta, Standing Counsel and Narer Ahmed Bangulzai, Asstt. A.-G. along with Haji Muhammad Azam, Law Officer Customs for Respondents (in C.P.No.313 of 2006)

Date of hearing: 21st October, 2009.

P L D 2010 Quetta 30

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

MUHAMMAD AZAM alias ASLAM---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.265 of 2009 in Criminal Jail Appeal No.93 of 2004, decided on 10th December, 2009.

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

----S. 345---Compounding of offence---Muslim and a non-Muslim and even non-Muslims inter se can compound the offence---Section 345, Cr. P. C. which regulates compounding of offence, does not provide for any competence or otherwise of a person who wants to enter into a compromise, and it also does not restrict a Muslim or a non-Muslim from entering into such compromise---Qualification for entertaining an application for compromise is only the compoundability of the offence and nothing more.

2001 PCr.LJ 318 ref.

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

----S. 345---Penal Code (XLV of 1860), S.302(b)---Qatl-i-amd---compromise between a Muslim and non-Muslims---Accused was a Muslim and legal .heirs of the deceased were non-Muslims, who had appeared in the Court with their identity cards and affidavits and confirmed the compromise executed by them with the accused---Provincial Minister for Human Rights and Minorities had issued a certificate to the effect that the said legal heirs were the only heirs of the deceased, which fact was further confirmed by a non-Muslim advocate, present in Court---Compromise effected between the parties was accepted in circumstances and the accused was acquitted accordingly.

2001 PCr.LJ 318 ref.

Mujeeb Ahmad Hashmi and Rauf Hashmi for Applicant.

Zahoor Ahmed Shahwani Prosecutor General.

Mst. Reshi widow of Bajan Dass and Kanwar Chand son of Bajan Dass, deceased are present.

P L D 2010 Quetta 33

Before Muhammad Noor Meskanzai, J

MUHAMMAD ANWAR---Appellant

Versus

ABDUL HAMEED and others---Respondents

F.A.Os. Nos.52, 53, 54 and 55 of 2006, decided on 17th November, 2009.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment proceedings---Interested witnesses, evidence of---Effect---Rent Controller relied upon the evidence of witnesses who were party in eviction applications and were trying to take benefit of their own statements by appearing as witnesses in the proceedings---Validity---Statements of such witnesses were inadmissible against landlord.

PLD 1991 SC 645 rel.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Bona fide personal need of landlord---Proof---Choice of landlord---Scope---Landlord who had shifted to foreign country sought ejectment of tenants on the ground of personal need---Ejectment application filed by landlord was dismissed by Rent Controller---Validity---Mere presumption of `well settlement' in foreign country could neither be a ground for depriving of landlord to enjoy his ancestral property not even availability of certain other property could be made ground for disentitling him of relief or doubting his bona fide---It was idiosyncrasy, sweet-will and prerogative of owner to chose and propose which one of the properties, he preferred to live in, therefore, such issue was wrongly decided---High Court set aside the findings of Rent Controller and held that landlord required the premises for bona fide personal use and occupation of landlord, who was entitled to have his property---Statement of landlord was sufficient to prove issue regarding bona fide personal need of premises by landlord---High Court set aside the order passed by Rent Controller and allowed ejectment application filed by landlord---Appeal was allowed in circumstances.

PLD 1969 Lah. 12 and PLD 1973 SC 218 ref. 2003 CLC 1221 rel.

PLD 1973 Quetta 28; PLD 1993 Quetta 84 and 1990 SCMR 1221 distinguished.

Sunder Dass for Appellant (in F.A.O. No.52 of 2006).

Farrukh Malik and Ejaz Sawati for Respondent (in F. A.O. No.52 of 2006).

Sunder Dass for Appellant (in F.A.O. No.53 of 2006).

Farrukh Malik Respondent (in F.A.O. No.53 of 2006).

Sunder Dass for Appellant (in F.A.O. No.54 of 2006).

Farrukh Malik for Respondent (in F.A.O. No.54 of 2006).

Sunder Dass for Appellant (in F.A.O. No.55 of 2006).

Ejaz Sawati for Respondent (in F.A.O. No.55 of 2006).

Date of hearing: 29th October, 2009.

P L D 2010 Quetta 48

Before Qazi Faez Isa, C J and Syeda Tahira Safdar, J

NOROZ KHAN---Petitioner

Versus

SELECTION COMMITTEE through Chairman and others---Respondents

Constitutional Petition No.86 of 2009, decided on 24th December, 2009.

Bolan Medical College Quetta Prospectus (2008-2009)---

----Para. 32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Educational institutions---Admission on reserved seat---Special case---Candidate was holding two domicile certificates and failed to get one cancelled two years before applying for admission, therefore, he was not allowed admission in Medical College on reserved seat---Plea raised by' candidate was that he got one certificate cancelled before applying for admission---Validity---Even if candidate had got one certificate cancelled, it would not entitle him to apply on reserved seats of a particular district, as requirement of college in that regard was three fold; firstly the local certificate of one district should have been cancelled, at least two years before applying; secondly candidate was required to so inform Selection Committee at the time of admission; and thirdly exercise of discretion by Committee was by way of special case and not as of right---As the stipulated two years period had not expired and Selection Committee was not informed about the candidate holding two certificates, the exception by way of "special case" provided in paragraph 32 of Bolan Medical College Quetta Prospectus, 2008-2009, was not attracted---Selection Committee committed no illegality in rejecting candidature of the candidate on reserved seat of district Gwadar---High Court declined to interfere in the decision made by Selection Committee---Petition was dismissed in circumstances.

Kishwar Rehman v. Government of Balochistan PLD 2001 Quetta 78 ref.

Muhammad Aslam Chishti for Petitioner.

Ghulam Mustafa Buzdar for Respondent No.3.

Rauf Atta for Respondent No.4.

Nasrullah Achakzai, Addl. A.-G. for the State.

P L D 2010 Quetta 52

Before Qazi Faez Isa C. J. and Syeda Tahira Safdar, J

SOORAT KHAN---Petitioner

Versus

ANTI-TERRORISM COURT, SIBI and 7 others---Respondents

Constitutional Petition No.46 of 2009, decided on 23rd December, 2009.

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

----S. 6---Terrorism---Meaning---"Terrorism" means the use or threat of "action" where the "action" falls within the meaning of sub-section (2) of S.6 of the Anti-Terrorism Act, 1997, and creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevents them from coming out and carrying on their lawful trade and daily business, and disrupts civil life.

Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.

(b) Interpretation of statutes---

----Court cannot pick and choose one or two sentences or a few words for academic purpose and scholarly interpretation by ignoring the objects and reasons for the promulgation of the Act and its preamble.

Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.

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

----Ss. 6 & 32---Explosive Substances Act (XI of 1908), Ss.3/4/5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Jurisdiction---Complainant had no enmity with any person, nor had he nominated any individual in the promptly lodged F.I.R.---Explosive device was allegedly used in order to force the employees of Chamalung Security Force constituted by the Government, to give up their employment and dissuade others from joining the said Force---Son of the complainant had allegedly been killed in the incident by stepping on a mine---Case thus fell within the definition of "terrorism" as contained in S.6 of the Anti-Terrorism Act, 1997, and was triable by the Special Judge, Anti-Terrorism Court---Criminal Procedure Code, 1898, being not applicable to Anti-Terrorism Act, 1997, by virtue of S.32 thereof, reference of Trial Court to Schedule II of the Criminal Procedure Code, 1898, in the impugned order, was misplaced---Order of the Trial Court having the powers of Anti-Terrorism Court directing the transfer of the case to the ordinary Court of competent jurisdiction was, consequently, set aside with direction to Trial Court to proceed with the trial itself in accordance with law---Constitutional petition was accepted accordingly.

Muhammad Mushtaq v. Muhammad Ashiq PLD 2002 SC 841; Bashir Ahmed v. Muhammad Siddique PLD 2009 SC 11; Muhammad Yaqoob v. State 2009 SCMR 527; Zia Ulalh v. Special Judge 2002 SCMR 1225 and Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.

Muhammad Qahir Shah for Petitioner.

Nasarullah Khan Achakzai Addl. A.G. for Respondents.

Imran ul Haq Khan for Respondents 3 to 7.

Date of hearing: 3rd December, 2009.

P L D 2010 Quetta 58

Before Jamal Khan Mandokhail, J

KHALO and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 96 and 104 of 2009, decided on 12th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 399, 400 & 401---Making preparation to commit dacoity---Ingredients---Appreciation of evidence---Benefit of doubt---To constitute an offence under S.399, P.P.C., intention and preparation were the basic ingredients on the basis of which one could be charged---On perusal of statements of witnesses, none of them had stated a single word showing their personal knowledge about the intention of accused person or preparation for commission of the offence---Evidence had also indicated that no overt act had been shown on the part of accused persons so as to prove their intention---Prosecution witnesses had simply relied upon the spy information---Information simpliciter, would not constitute any offence, unless and until necessary ingredients of S.399, P.P.C. stood proved---Prosecution had failed to prove the intention and knowledge of accused person for committing the alleged offence---Law did not restrict movement of any body nor any time had been prescribed for such movement---In the present case, in all probabilities the prosecution story was highly doubtful and from doubt arising out of the prosecution story, benefit of same should have been extended to accused which the Trial Court had failed, to do so---Said act of the Trial Court would amount to mis­-exercise of jurisdiction---Impugned judgment was set aside and accused were acquitted and released.

Ali Nawaz and others v. The State PLD 1996 Kar. 146; 2006 PCr.LJ 1795; 2007 MLD 1760 and 2007 YLR 646 rel.

Hayatullah Khan Kasi and Obaidullah Qureshi for Appellants.

Zahoor Ahmed Shahwani, P.G. for the State.

P L D 2010 Quetta 61

Before Qazi Faez Isa, C J and Syeda Tahira Safdar, J

Mst. GIRAN NAZ alias SHAGUFTA BIBI---Petitioner

Versus

THE STATE and 2 others---Respondents

Constitutional Petition No.97 of 2010, decided on 29th April, 2010.

Constitution of Pakistan (1973)---

----Arts. 4, 31, 35 & 199---Constitutional petition---Petitioners sought directions to Superintendent, Dar-ul-Aman to arrange their marriage and release female petitioner from Dar-ul-Aman thereafter---Court below did not permit petitioners to contract court marriage and set the pre-condition of settlement with the parents of the girl and her custody to them-Validity-Article 4 of the Constitution mandated that no person could be prevented from doing or be hindered in doing that which was not prohibited by law and that it was an inalienable right of every citizen to be treated in accordance with law---Law did not prevent an adult lady from marrying an adult man of her choice---Article 35 of the Constitution required the State to protect the institution of marriage---High Court ensured during hearing of the case that female petitioner was old enough to understand the ramifications of her decision, therefore, petitioners could not be prevented from marrying each other---Orders of courts below were set aside and Superintendent Dar-ul-Aman was directed to arrange the marriage of petitioners and allow the female to leave Dar-al-Aman---Petition was accepted.

Surah Ar-Rum (30) Verse 21; Surah Al-Baqara (2), Verse 187; Surah Ash-Shura (42), Verse 11; Surah Az-Zumar (39), Verse 6; Surah Al-Naba (78), Verse 8 and Surah An-Nahl (16), Verse 72 quoted.

Masoom Khan Kakar for Petitioners.

Nasrullah Achakzai, Addl. A.-G. for Respondents.

Date of hearing: 27th April, 2010.

P L D 2010 Quetta 65

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

ZAHID HUSSAIN---Appellant

Versus

Mst. NOOR JEHAN and 2 others---Respondents

Regular First Appeal No.15 of 2005, decided on 15th April, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.11, O.XIV, R.2 & O.XXXIX, Rr.1, 2---Rejection of plaint---Trial Court rejected the plaint while deciding application of plaintiff under O.XXXIX, Rr.1 & 2, C.P.C.-Plaintiff contended that Trial Court could not reject the plaint without recording evidence---Validity---Rejection of plaint on hearing fixed for decision on application under O.XXXIX, Rr.1 & 2, C.P.C. was illegal and unlawful---After framing of issues, Trial Court could decide the suit on questions of law under O.XIV, R.2, C.P.C. but in that case also, the court should have provided opportunity of hearing and proving the case to parties---Under O. VII, R.11, C. P. C. plaint could be rejected for non-disclosure of cause of action and not for non-accrual of cause of action as the latter required recording of evidence---Determination of accrual or non-accrual of cause of action and question of limitation required evidence therefore, rejection of plaint on those points without recording evidence was not legal or proper--Appeal was accepted, in circumstances and impugned order was set aside while case was remanded to Trial Court for decision afresh.

2008 YLR 1287 fol.

Ch. Mumtaz Yousaf for Appellant.

Dawood Kasi for Respondents Nos. 1 and 2.

P L D 2010 Quetta 67

Before Ghulam Mustafa Mengal, J

FATEH MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.324 of 2003, decided on 16th April, 2010.

Penal Code (XLV of 1860)---

----Ss. 420, 468 & 471---Customs Act (IV of 1969), S.156(89)---Criminal Procedure Code (V of 1898), S.550---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document and offence under Customs Act, 1969---Appreciation of evidence---Vehicle and its allegedly forged Registration Book was seized from the accused and a case was registered against him---No trustworthy evidence on record showed that the forged Registration Book was prepared by the accused to use the same as genuine knowingly---In order to make out a case of forgery, prosecution had to prove that the forged document was prepared and used with the knowledge and reason to believe that the document was forged, because, mere possession of a forged document was not an offence unless the same was used fraudulently---Prosecution had failed to prove its case---Accused was wrongly convicted by the Trial Court, which left no alternative except acquitting him of the charge---Appeal was allowed.

Obaidullah Quresh for Appellant.

Mumtaz Yousaf, Standing Counsel for the State.

Date of hearing: 14th December, 2009.

P L D 2010 Quetta 70

Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J

MUHAMMAD RASHID---Applicant

Versus

IRSHAD BEGUM and another---Respondents

Contempt Application No.16 of 2008, in C.P.No.128 of 2000, decided on 29th June, 2010.

Constitution of Pakistan (1973)---

----Arts. 199 & 204---Contempt of Court Ordinance (IV of 2003), Ss.3/5---Application for initiating contempt proceedings---Applicant had alleged that respondent who was divorced wife of deceased owner of property in dispute, in violation of judgment of High Court, passed in constitutional petition, had taken possession of one shop and one room of property of deceased, while she was not legal heir of deceased being divorced wife before death of deceased---Contempt application was resisted by the respondent contending that the applicant had no locus standi, nor any right or interest in the property in dispute nor he was the legal heir of the deceased owner-Counsellor the respondent had stated that respondent was an old lady of about seventy years of age and was looking after a mentally challenged son---Counsel for the respondent had further stated that, if any legal heir of deceased owner would approach the respondent, she would vacate the premises in dispute---Additional Advocate General also opposed contempt application on the ground that applicant had no locus standi; and that in respect of unclaimed properties the State was the owner thereof---Property in dispute had not been claimed by any one---Counsel for the respondent had undertaken on behalf of the respondent that she would not sell, transfer or alienate the property in dispute; and if any legal heirs of deceased owner would appear on the scene, she would hand over the property to them---In view of said undertaking no action of contempt could be initiated---Providing an abode to respondent who was an aged lady and her mentally challenged son, would promote social and economic well-being---Keen interest shown by the applicant in the property in dispute had not been explained---Contempt application was disposed of in the terms that respondent and her mentally challenged son was permitted to retain possession of premises in dispute till the arrival of any legal heir of deceased owner; that respondent and anyone claiming through or under her, would not sell, transfer or alienate said premises; and that if the respondent would vacate the premises, same would be taken over by the State.?

Nazeer Ahmed for Applicant

Abdul Wadood Khan for Respondents.

Nasrullah Achakzai, Addl. A.-G.

P L D 2010 Quetta 73

Before Qazi Faez Isa, C J

AHMED KARAM and 2 others---Petitioners

Versus

DIRECTOR OF EDUCATION (SCHOOLS), GOVERNMENT OF BALOCHISTAN and 2 others---Respondents

Constitutional Petition No.587 of 2008, decided on 24th June, 2010.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 1(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Withdrawal of suit---Subsequent order passed on the contempt application, allegedly filed on the ground that the earlier order of the High Court had been violated, could not create any fresh right in the petitioners or be made the basis of constitutional petition---Disability stipulated under O. XXIII, R.1(3), C. P. C. could not also he overcome in such a manner---Constitutional petition was dismissed.

Tahir Ali Baloch for Petitioners.

Abdul Aziz Khilji, Additional Advocate-General for Respondents.

P L D 2010 Supreme Court 1

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, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Husain, Rahmat Hussain Jafferi, Tariq Parvez and Ghulam Rabbani, JJ

Dr. MOBASHIR HASSAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 76 to 80 of 2007 and 59 of 2009 and Civil Appeal No.1094 of 2009, H.R.C. Nos. 14328-P to 14331-P and 15082-P of 2009, decided on 16th December, 2009.

(On appeal from the order dated 15.1.2009 passed by High Court of Sindh at Karachi in Const. P. No.355 of 2008)

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

----Art. 270AAA---Validity of Art.270AAA of the Constitution---Proclamation of Emergency of 3rd November, 2007, the Provisional Constitution Order, 2007, Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No.5 of 2007 having been declared to be unconstitutional, illegal and void ab initio, by Supreme Court in the case of Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 as a result. whereof Art.270AAA stood deleted from the Constitution.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 quoted.

(b) Administration of justice ---

----Court is not required to give decisions of cases in vacuum rather it has to consider facts as well giving a cause to a person to approach Court.

(c) National Reconciliation Ordinance (LX of 2007)---

----Preamble---Constitution of Pakistan (1973), Arts. 4, 8, 25, 62(f), 63(i)(p), 89, 100(3), 175, 227 & 184(3)---Constitutional petition under Art.184(3) of the Constitution before Supreme Court challenging the constitutionality of the National Reconciliation Ordinance, . 2007---Held, National Reconciliation Ordinance, 2007 had not been promulgated to provide reconciliation on national basis---Ordinance gave benefits to a class of people, whose identification was not difficult to ascertain namely accused persons, involved in criminal and corruption cases, during the period commencing from 1st January, 1986 to 12th October, 1999 which classification had created a divide amongst ordinary citizens of Pakistan and a class of alleged criminals who statedly had committed, crimes of murder, dacoity, rape looting/plundering of money/resources of the Nation---Promulgation of the Ordinance seemed to be against the national interest and its Preamble, was contrary to the substance embodied therein, thus violated various provisions of the Constitution---Supreme Court declared that Ordinance was an instrument void ab initio being ultra vires and violative of various constitutional provisions including Article Nos.4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution; as a consequence, all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, were also declared never to have existed in the eyes of law and resultantly of no legal effect---All cases in which the accused persons were either discharged or acquitted under Section 2 of the Ordinance or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, and any other such cases/proceedings which may not have been brought to the notice of Supreme Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position---All the concerned courts including the trial, the appellate and the revisional courts were ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the said provisions of the Ordinance---Federal Government, all the Provincial Governments and all relevant and competent authorities including the Prosecutor General of National Accountability Bureau, the Special Prosecutors in various Accountability Courts, the Prosecutors. General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders were directed to offer every possible assistance required by the competent courts in the said connection---All cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the Ordinance shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law---Any judgment, conviction or sentence recorded under section 31-A of the National Accountability Bureau Ordinance, 1999 shall hold the field subject to law and since the Ordinance stood declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof was also declared never to have legally accrued to any such person and consequently of no legal effect---In view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been shown to the Supreme Court under which the then Attorney General had been authorized to address communications to various authorities/courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for Mutual Legal Assistance or abandoning the status of a Civil Party in such proceedings abroad or which had culminated in the termination of proceedings before the competent fora in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, were unauthorized, unconstitutional and illegal acts of the then Attorney General---National Reconciliation Ordinance, 2007 having been declared void ab initio, therefore, any actions taken or suffered under the said law were also non est in law and since the communications addressed by the then Attorney General to various foreign fora/authorities/courts withdrawing the requests earlier made by the Government of Pakistan for Mutual Legal Assistance; surrendering the status of Civil Party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, having been declared to be unauthorized and illegal communications and consequently of no legal effect, therefore, the initial requests for Mutual Legal Assistance; securing the status of Civil Party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland were declared never to have been withdrawn---Federal Government and other concerned authorities were ordered to take immediate steps to seek revival of the said requests, claims and status---In view of the conduct of the then Attorney General for Pakistan in addressing unauthorized communications which had resulted in unlawful abandonment of claims of the Government of Pakistan, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland, the Federal Government and all other competent authorities were directed to proceed against the then Attorney General in accordance with law in the said connection---Supreme Court also placed on record its displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of the Chairman of the National Accountability Bureau; the Prosecutor General and of the Additional Prosecutor General of the Bureau, in the case---Supreme Court observed that it was not possible for the Supreme Court to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation and suggested that the Federal Government may make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the National Accountability Ordinance, 1999 as also in terms of the observations of Supreme Court made in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607); however, till such fresh appointments were so made, the present incumbents may continue to discharge their obligations strictly in accordance with law; they shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of Supreme Court which was being established---Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in the above noticed and other cases under the National Accountability Ordinance, 1999; likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising of the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in cases in which the accused persons had been acquitted or discharged under Section 2 of the National Reconciliation Ordinance, 2007---Secretary of the Law Division; Government of Pakistan, was directed to take immediate steps to increase the number of Accountability Courts to ensure expeditious disposal of cases.

Tikka Iqbal Muhammad Khan v. General Pervez Musharraf PLD2008 SC 178; Sindh High Court Bar Association v. Federation f of Pakistan PLD 2009 SC 879; Smt. Indira Nehru Gandhi v. Rai Narain AIR 1975 SC 2299; Facto Belarus Tractor Ltd. v. Government of Pakistan PLD 2005 SC 605 and Federation of Pakistan v. Aitzaz Ahasan PLD 1989 SC 61 ref.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Salman Akram Raja, Advocate Supreme Court Ejaz Muhammad Khan, Advocate on Record assisted by Abdul Mujeeb Pirzada, Senior Advocate Supreme Court, Afzal Siddiqui, Advocate Supreme Court, Mian Gul Hassan Aurangzeb, Advocate Supreme Court, Sikandar Bashir Mohmand, Advocate Supreme Court, Barrister Feroze Jamal Shah, Hameed Ahmeed, Mustafa Aftab Sherpao, Sameer Khosa, Umar Akram Chaudhry and Malik Ghulam Sabir, Advocates for Petitioners (in Const. P.76/2007).

Muhammad Ikram Ch. Advocate Supreme Court, G. N. Gohar, Advocate-on-Record for Petitioner (in Const. P.77/2007)

Dr. Farooq Hassan, Senior Advocate Supreme Court, Hashmat Ali Habib, Advocate Supreme Court and Ch. Muhammad Akram, Advocate on Record for Petitioner (in Const.P.78/07)

Ashtar Ausaf Ali, Advocate Supreme Court for Petitioner (In Const. P.79/07)

Tariq Asad, Advocate Supreme Court (in person) for Petitioner (in Const.P.80/07)

A.K. Dogar, Senior, Advocate Supreme Court for Petitioner (in Const. P.59/09)

Shahid Orakzai (in person) (In CMA 4842/09)

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court (in CA.1094/2009)

NEMO for Petitioners (in HR Cases)

Kamal Azfar, Senior Advocate Supreme Court assisted by K.K. Agha, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on Record for Respondents (in Const.P.76-77/07)

Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in, Const. P.78-80/07 & 59/09)

Danishwar Malik, PG., Abdul Baseer Qureshi, Addl: PG. , Dr. Asghar Rana, ADPG, Ch. Akhtar Ali, Advocate on Record and Naveed Ahsan, Chairman NAB for NAB.

Shah Khawar, Acting Attorney General for Pakistan assisted by Agha Tariq Mehmood Khan, DAG., Mr. Dil Muhammad Alizai, DAG. and Raja Aleem Abbassi, DAG (On Court Notice).

Dr. Salahuddin Mengal, AG for Government of Balochistan.

Zia-ur-Rehman, A.G., Mr. Zahid Yousaf, Addl. A.G. and Naveed Akhtar, A.A.G. for Government of N.-W.F.P.

M. Hanif Khattana, Addl: AG. and Ch. Khadim Hussain Qaiser, Addl: AG for Government Of Punjab.

Yousaf Leghari, AG. for Government of Sindh.

Malik Muhammad Qayyum, Senior Advocate Supreme Court former Attorney General for Pakistan (On Court Call).

Justice (R) M. Riaz Kiani, Secretary Law & Justice, Dr. Riaz Mehmood, Sr. Joint Secretary and Syed Nasir Ali Shah, Solicitor General (On Court Call).

M. Salman Faruqui, Principal Secretary to the President (On Court's Call).

Mian Allah Nawaz, Senior Advocate Supreme Court, Shaiq Usmani, Senior Advocate Supreme Court, M. Sardar Khan, Senior Advocate Supreme Court assisted by Idrees Ashraf, Advocate: Amici Curiae.

Dates of hearing : 7th, 10th & 14th, 16th December, 2009.

P L D 2010 Supreme Court 19

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Jawwad S. Khawaja, JJ

SIKANDAR HAYAT---Petitioner

Versus

HASINA SHEIKH Respondent

Civil Petition No.751 of 2008, decided on 12th June, 2009.

(On appeal from the judgment dated 21-4-208 passed by Lahore High Court Rawalpindi Bench, Rawalpindi in S.A.O. No.22 of 2005)

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 5-A [as inserted by, West Pakistan Urban Rent Restriction (Punjab Amendment) Act (III of 1991) & 13(1 to 4)---Ejectment petition---Scope and application of S.5-A, West Pakistan Urban Rent Restriction Ordinance, 1959---Non-residential premises---Ground of non-payment of rent by tenant' at statutorily increased rate---Plea of tenant that in absence of prior notice of demand of rent by landlord at statutorily increased rate, he could not be held to be a wilful defaulter in respect of non-payment of differential between agreed rent and statutorily increased rent---Validity---Section 5-A(4) of West Pakistan Urban Rent Restriction Ordinance, 1959 would be read with section 13(2)(1) thereof---Section 5-A of Ordinance being self-executory provision would come into operation without issuance of such prior notice of demand by landlord---Arrears of rent on becoming due as a result of automatic increase in rent by virtue of S. 5-A of the Ordinance, would be deemed to be rent due under S.13(2)(i) thereof, thus, its non-payment would make tenant liable to be evicted from demised premises---Principles.

Subsection (1) of section 5-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 provides that the rent of a non-residential premises shall stand automatically increased at the end of every three years of the tenancy by twenty-five per cent of the rent already being paid by the tenant. Under subsection (2) of section 5-A of the Ordinance, in the case of a tenancy existing for three years or more, the first statutory increase accrued on 1-7-1989. Under subsection (3), where the rent has already been increased by an amount less than twenty-five per cent of the total rent, the amount of such increase shall be deducted from the automatic increase and if the rent has already been increased by an amount equal to or more than the automatic increase, no automatic increase shall accrue until the expiry of three years from the date of such increase. Under subsection (4), the arrears becoming due as a result of the increase of rent under this section shall, unless paid earlier, be deemed to be rent due under clause (i) of subsection (2) of section 13, on the expiry of sixty days from the date of coming into force of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1990 (XIII of 1990).

?

A perusal of subsection (4) of section 5-A clearly shows that the arrears of rent becoming due as a result of the statutory increase shall be deemed to be rent due under section 13(2)(i) of the Ordinance. Thus, subsection (4) of section 5-A is to be read with section 13(2)(i) of the Ordinance. Section 13(2)(i) of the Ordinance provides that if the tenant has, not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable, the Rent Controller may make an order directing the tenant to put the landlord in possession of the building and if the Rent Controller is not so satisfied, he shall make an order rejecting the application. Under the former provision, the arrears becoming due as a result of the automatic increase of rent are treated as rent due under the latter provision. Thus, the arrears of rent accruing on account of automatic increase have been declared to be rent due envisaged in the latter provision. On the basis of the nexus thus created between the two provisions, the Court, on ascertaining the date of the agreement and automatic accrual of 25% increase after every three years on the rent agreed between the parties at the time of agreement, will proceed- to deal with the case in terms of section 13(2)(i) of the Ordinance.?

On an examination of the provisions of subsections (1) and (4) of section 5-A in juxtaposition with clause (i) of subsection (2) of section 13 of the Ordinance, the liability of the tenant to be evicted from the premises where he has not paid or tendered the rent due is clearly spelt out. Under subsection (4), the arrears becoming due as a result of the increase of rent under section 5-A are to be deemed to be rent due. Under section 13(2)(i) of the Ordinance, a period of grace has been prescribed for the payment of the rent by the tenant to discharge his obligation. Therefore, he must pay or tender the rent within fifteen days after the expiry of the time fixed in the agreement of tenancy, or in the absence of any such agreement within sixty days from the period for which the rent is payable. The failure of the tenant to discharge his obligation within the time so stipulated brings him within the ambit of the penal consequences envisaged in subsection (2) of section 13 and makes him liable to be rejected on the ground. In a nutshell, section. 5-A is a self-executory provision, which comes into operation without being prefaced by a prior notice of demand by the landlord.?

Section 5-A does provide for automatic increase of rent of the non-residential buildings at the end of every three years of tenancy by 25% of the rent already being paid by the tenant. By the language employed in the provision, rented lands and residential buildings are excluded from its purview. It is a recent statutory development, which is aimed at regulating the relationship between landlords and tenants as regards the increase of rent in unambiguous terms. It further seems that in enacting the provision, the legislature took into account the huge amount of litigation that would go into on the issue of increase of rent. In fact, whenever a landlord would demand increase in rent, the tenant would refuse it and the landlord would resort to litigation. The matter would be litigated for decades in several rounds of litigation. Therefore, section 5-A was enacted to regulate the increase e of rent of non-residential buildings and to bring about certainty in this aspect of the issue so as to relieve the landlords and tenants of their anxieties as to how much rent would be fixed after how much period.?

It is also noticeable that the tenancies and especially the tenancies of commercial premises are governed by written agreements. The automatic statutory increase of 25% with the passage of time having taken roots in the business communities, the lease agreements mostly contain a provision for increase of rent in the same or similar terms. Therefore, once an agreement makes a recital of the automatic statutory increase of 25% or an equivalent amount of percentage, it constitutes a sufficient notice and the landlord stands relieved of making any further demand in the shape of notice as the automatic increase would always be in the knowledge of the tenant. However, this does not mean that where a lease agreement does not incorporate a recital regarding automatic statutory increase of 25 %- or a same or similar amount or percentage, the tenancy is oral, the provision of section 5-A would not be 'attracted. Ignorance of law is no excuse. Therefore, even though a lease agreement does not incorporate such a recital, the automatic statutory increase remains binding upon the parties and the tenant is required to pay or tender the rent due of course including the automatic statutory increase of 25%. The only eventuality in which the statutory increase is not applicable is envisaged in subsection (6) where the landlord and tenant may agree to increase the rent by an agreement in writing executed before the Controller. Thus, after the insertion of section 5-A, where a tenancy if executed for a period of 10 years, the rent would keep on increasing by 25% after every three years and if the tenant does not pay the rent at the increased rent within fifteen days after the expiry of the time fixed in the agreement of tenancy with the landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable, the landlord would be well within his right to straightaway file application for his ejectment on the ground of default in payment of rent.?

Urban subsection (4), the arrears becoming due as a result of the automatic increase are deemed to be rent due under clause (i) of subsection (2) of section 13.?

The point of time at which rent becomes due is the expiry of 15 days after the date on which it is agreed to be paid. It may well be at the close of the period for which it is payable or even it be in advance, i.e. prior to the period for which it is payable. In all such cases, the law allows a grace period of 15 days. In the case of automatic increase, the rent becomes due as stated in subsection (4) of section 5-A.?

Whether issuance of notice is a condition precedent for filing ejectment application, where the tenant has not paid or tendered rent duly increased by 25% after every three years under section 5-A in terms of subsection (4) of section 5-A read with section 13(2)(i) of the Ordinance? The short answer is "it is not".?

The provisions of section 5-A of the Ordinance do not require the landlord to send an intimation of statutory increase to the rent. Thus, on the filing of ejectment application on the ground of default in payment of rent as statutorily increased, the Rent Controller would be fully justified to proceed in the matter in accordance with law;

?

The tenants, particularly of the non-residential premises litigate the matter with the sole object of prolonging their tenancies. They are never interested in early resolution of their controversies. Requirement of notice will be nothing but to provide the tenant with another tool to delay the payment of rent due and consequently the proceedings?

National Development Finance Corporation v. Naseem-ud-Din PLD 1997 SC 564; Ilyas Ali Abbasi v. Allah Rakhi 2001 SCMR 31; Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000 SCMR 207; Agfa Color Services (Pvt.) Ltd. v. Muhammad Asad 2006.SCMR 1537; Syed Azhar Imam Rizvi v. Mst. Saima Khatoon 1985 SCMR 24; Muhamamd Yousaf v. Mehraj-ud-Din 1986 SCMR 751; Muhammad Ibrahim v. Abdus Salam Bhatti PLD 1996 Lah. 308; Mumtaz Begum v. Wazir Begum PLD 1997 Lah. 99; Sh. Barkat Ali Cycle Works v. Waheed-ud-Din PLD 1998 Lah. 196 and Mian Shahid Iqbal v. Sheikh Tariq Mehmood C.P.No.650 of 2009 ref.

Ashfaq-ur-Rehman v. Muhammad Afzal PLD 1968 SC 230; Muhammad Hussain Patel v. Habib Wali Muhammad PLD 1981 SC 1; Badruddin v. Muhammad Yousuf 1994 SCMR 1900; Muhammad Yunus Malik v. Zahida Irshad 1980 SCMR 184; Pervez Akhtar v. Additional District Judge PLD 1990 SC 986; Asad Brothers v. Ibadat Yar Khan 1991 SCMR 986; Niaz Khalil v. Muhammad Shafiq 1995 SCMR .791; Ghulam Siddique v. Nasrullah 2001 SCMR 140; Rabnawaz v. Haji Muhammad Iqbal 1,003 SCMR 1476 and Raja Sohail Javed v. Raja Atiq-?ur-Rehman PLD 2008 SC 470 rel.

(b) Maxim:

----"Ignorantia legis neminem excusat"---Ignorance of law is no excuse.?

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioner.

Qazi Naeem Ahmed Qureshi, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Respondents.

Date of hearing: 12th June, 2009.

P L D 2010 Supreme Court 34

Present: Sardar Muhammad Raza Khan, Syed Zawwar Hussain Jaffery and Mahmood Akhtar Shahid Siddiqui, JJ

AURANGZEB KHAN---Petitioner

Versus

ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD through Secretary and others---Respondents

Civil Petition No.325 of 2008, decided on 4th June, 2009.

(On appeal from judgment of the High Court of Peshawar dated 4-3-2008 passed in Writ Petition No.213 of 2008).

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

----S. 7---Constitution of Pakistan (1973), Arts. 199 & 225---Provincial Assembly, election of---Constitutional petition before High Court after close of election process---Maintainability---Plea of petitioner that votes cast in his favour had been rejected by Returning Officer for not bearing signatures of concerned officer; and interested candidate had tampered record due to non-availability of electric supply in polling station and counting was conducted in the light of a lantern---Validity---Provisions of Art. 199 of the Constitution could be invoked to challenge any irregularity committed during process of election---Once election process was completed, then election could be challenged before Election Tribunal---Such questions of fact could not be attended to by High Court in exercise of 'constitutional jurisdiction---Election Tribunal already constituted had exclusive jurisdiction to decide such questions after recording of evidence---Constitutional petition was dismissed in circumstances.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 rel.

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

----Preamble----Constitution of Pakistan (1973), Arts. 199 & 225--Election dispute during process of election and. after close of election process, determination of----Constitutional petition before High Court---Maintainability---Principles stated.

While enacting Article 225 of the Constitution, the terminology used by the legislature is quite emphatic, clear and. unambiguous, not capable of any two interpretations. The very language thereof starts with negative, phraseology,' which most commonly is interpreted for ousting any possibility other than one given in the Article itself. This is how any law starting with negative phraseology is interpreted.

There is another phrase in this Article which gives double effect to the already negative phrase with which Article starts. It goes like "except by an election petition". The overall effect given in this Article is that no election shall be called in question otherwise than in the manner provided by law and before a forum provided by the Article. So it cannot be 'challenged except by an election petition presented to such Tribunal, and in such manner, as may be determined by the law (Act of Parliament).

It is well-known matter of common knowledge that the election laws, being an Act of Parliament, already existed in the country that contained provisions about the existence of Election Tribunal and, above all, the detailed provisions about the manner in which such petitions 'are to be filed. The manner and details thereof are quite different from and stringent than normal pleadings in a civil matter. Viewed in this background Article 225 of the Constitution, double phrased with negative phraseology and in unambiguous terms, ousts the jurisdiction of any forum other than the Election Tribunal, which too, can be so resorted to only in the manner prescribed by the law.

Once the election is over, it can be challenged only before the Election Tribunal. The provisions of Article 199 of the Constitution can be invoked to challenge any irregularity that is committed during the process of election, but once the election process is completed, it can only be challenged before the Election Tribunal.

Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 rel.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioner.

Tariq Mehmood Advocate Supreme Court for Respondents.

Date of hearing: 4th June, 2009.

P L D 2010 Supreme Court 38

Present: Javed Iqbal, Ch. Ejaz Yousaf and Sardar Muhammad Aslam, JJ

SHAHID ALI---Appellant

Versus

Mrs. AZIZ FATIMA and others---Respondents

Civil Appeal No.101 of 2000, decided on 31st July, 2009.

(On appeal from the Judgment dated 18-1-2000 in R.F.A. No.31 of 1997 passed by the Lahore High Court, Lahore).

(a) Partition Act (IV of 1893)---

----Ss. 2 & 7(b)---Civil Procedure Code (V of 1908), O.XX, R.18 & O.XXI, R. 66-Partition of property, suit for---Sale of property for being indivisible---Civil Procedure Code, 1908, applicability of----Scope---Court in such case had to follow procedure prescribed in C.P.C. in respect of sales of a property in execution of decree---Court as a rule must ask parties concerned to state estimated price of property likely to be fetched---While drawing publication for sale of property, Court must take into consideration all material facts necessary for a purchaser to know in forming his opinion regarding its valuation---Principles stated.

R. Ramaprasada Rao v. R. Subbara-maiah and others AIR 1958 Andh. Prad. 647; Baratam Satyanarayana v. Baratam Kantharao and others AIR 1989 Andh. Prad. 320; Badri Narain Prasad Choudhary and others v. Nil Ratan Sarkar AIR 1978 SC 845; Ghulam Abbas v. Zohra Bibi and others PLD 1972 SC 337; Mst. Asma Zafarul Hassan v. Messrs United Bank Ltd. and another 1981 SCMR 108; Mat. Ilahi Noor and others v. Muhammad Din PLD 1977 SC 634; Mirza Adam Khan v. Muhammad Sultan PLD 1975 SC 9; Ahmed Ali v. Noor Muhammad and others 1987 CLC 1575; Mst. Ralli and others v. Balla and others AIR 1916 Lah. 186; Muhammad Nizam-ud-Din v. Amin-ud-Din and others AIR 1922 Lah. 35; Krishna Mohan Kundu v. Nripendra Nath Nandi and others AIR 1933 Cal. 662; Messrs Bhasin Film Corporation `v. Messrs Shalimar Cinema and others AIR 1983 Delhi" 317; Rashad Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146; Janak Raj v. Gurdian Singh and another (AIR 1967 SC 608); Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485; Karim Bakhsh v. Qadir Bakhsh and others PLD 1950 Lah. 143; Afzal Maqsood Butt v. Banking Court No.2 Lahore PLD 2005 SC 470; Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Ltd. and another PLD 1993 Lah. 706; Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. and others 2003 CLD 1963; Messrs Ripple Jewellers (Pvt.) Ltd. v. First Woman Bank 2003 CLD 1318; Messrs Majid and sons v. National Bank of Pakistan 2004 CLD 1616; Mirza Munawar Baig v. Bank Alfalah Ltd. and others 2007 YLR 126; Mrs. Shahida Saleem and another v. Habib Credit and Exchange Bank Ltd.' and others 2001 CLC 126; Messrs Karishma Fashion Boutique v. Habib Bank Ltd. 2006 CLD 954; Rana Muhammad Naseeb Khan v. Zarai Tarukiyati Bank of Pakistan and others 2007 CLD 466; Abdul Haque and others v: Shaukat Ali and others 2003 SCMR 74; Mst. Ilahi Noor and others v. Muhammad Din PLD 1977 SC 634 and Mirza Adam Khan v. Muhammad Sultan PLD 1975 SC 9 ref.

Mian Muhammad Asif v. Mst. Farkhanda Anwar and others 2003 CLC 394 rel.

(b) Partition Act (IV of 1893)---

----S. 2---Civil Procedure Code (V of 1908), O.XX, R.18(2) & O.XXI, Rr.66, & 89---Partition of property, suit for---Publication of sale of property for being indivisible---Such publication not finding mention the reserve price of property,, relevant details qua title of property and nature of constructions e.g. number of rooms etc., to enable a buyer to ascertain its actual value---Non-issuance of notices by Court-Auctioneer to all share-holders for exercising their option to purchase the property---Confirmation of sale of property by Trial Court without adverting to an application made under S.47, C.P.C. by one share-holder objecting its sale for being at a lower price---Validity---Sale of property in a suit for partition could not be equated with other money decrees like auction of mortgaged property for recovery of loan amount---Parties in partition suit i.e. both decree holders and judgment-debtors being owners having interest in property might move for setting aside its sale in case price fetched in their estimation was inadequate---High Court set aside such sale and ordered for re-auction of property.?

(c) Partition Act (IV of 1893)---

----S. 2---Civil Procedure Code (V of 1908), O.XX, R.18(2) & O.XXI, R.89---Partition of property, suit for---Sale of property for being indivisible---Setting aside of sale on application of share holder of property---Purchaser's prayer for grant of 5% solatium on sale price deposited in Court---Validity---Sale had been set aside and re-auctioning of property had been ordered on basis of an application made under O.XXI, R.89, C.P.C., for which payment of 5% solatium was a condition precedent---Shareholders had not objected to payment of solatium in case of re-auctioning of property---Purchaser, held was entitled to 5% solatium on sale price of property in addition to refund of sale price deposited by him along with profit/interest, if any, accrued thereon.?

Gulzarin Kiani, Advocate Supreme Court for Appellant.

Najamul Hassan Kazmi, Advocate Supreme Court for Respondents Nos. 2-4.

Ch. Muhammad Akram, Advocate-on-Record for Respondents Nos. 5-7.

Date of hearing: 17th June, 2009.

PLD 2010 Supreme Court 47

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

SHAKEEL and 5 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.412 of 2002, decided on 17th September, 2009.

(On appeal from the judgment dated 13-5-2002 passed by Lahore High Court, Lahore in Criminal Appeal No.1989 of 2000 and M.R. No.4-T/2001)

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(4)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted for reappraisal of total evidence available on record for safe administration of justice.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10---Reappraisal of evidence---Solitary statement of prosecutrix---Scope---When various searching questions could not extract anything beneficial to accused, then there was no reason to disbelieve prosecutrix and conviction could be awarded on her solitary statement.

Shahzad alias Shaddu and others v. State 2002 SCMR 1009; Ramzan Ali v. State PLD 1967 SC 545; Ashraf v. Crown PLD 1956 FC 86; Ghulam Sarwar v. State PLD 1984 SC 218; Haji Ahmed v. State 1975 SCMR 69; Shahid Malik v. State 1984 SCMR 908; Ehsan Begum v. State PLD 1983 FSC 204 and M. Akram v. State PLD 1989 SC 742 rel.

(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 10(3) & 10 (4)---Reappraisal of evidence---Sentence, reduction in---Zina bil Jabr---Gang-rape---Proof---Solitary statement of prosecutrix---Making of video-tape and photographs---Character of prosecutrix---Effect---Five accused were convicted under S.10 (4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, on solitary statement of prosecutrix and all accused were awarded death penalty---Plea raised by accused was that since vagina of prosecutrix admitted two fingers easily hence being lady of easy virtue her statement should have been discarded---Validity---Even if it was admitted that prosecutrix was a girl of easy virtue, no blanket authority could be given to rape her by anyone who wished to do so---If statement of prosecutrix was considered trustworthy, no corroboration would be needed---Such need would only arise in the circumstances indicating possibility of her being consenting party to sexual intercourse, which was a rare phenomenon in case of Zina bil Jabr---In such-like cases corroboration of evidence could not be the direct evidence but it might be independent evidence of such character which could connect accused directly or indirectly with alleged offence---Statement of prosecutrix was corroborated by medical evidence, Chemical Examiner's report and recovery of naked photographs, video film and movie camera which was got recovered at the pointation of one accused---Naked photographs and video film were watched by Trial Court and such recovery of naked photographs and video film and medical evidence lent full corroboration to the statement of prosecutrix---Accused presuming prosecutrix being girl of easy virtue having committed sex with one accused would have no objection, which subsequently proved conjectural presumption and incident was reported to police which indicated that she was not consenting party---Naked photographs and in video all accused were not together meaning thereby that they had no common intention on all points---Supreme Court altered conviction under S.10 (3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced all accused to 25 years of imprisonment---Appeal was disposed of accordingly.

Muhammad Arshad alias Achhi v. State 1995 SCMR 1639; Abdul Khaliq v. State 1995 SCMR 1412; Ehsan Begum v. State PLD 1983 FSC 204; Habibullah v. State PLD 1983 FSC 251; Muhammad Zafar v. Zahoor PLD 1983 FSC 480; Sohail Iqbal v. State PLD 1983 FSC 514 and Mst. Nargas v. Rustam Ali 2001 PSC [Crl.] 568 ref.

Shahzad alias Shaddu and others v. State 2002 SCMR 1009; Ramzan Ali v. State PLD 1967 SC 545 and Ashraf v. Crown PLD 1956 FC 86 rel.

(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(3)---Reappraisal of evidence---Zina bil Jabr---Proof---Marks of violence---Effect---Medical evidence confirmed that sexual intercourse had taken place and marks of violence were not necessary to prove factum of Zina bil Jabr.

Ghulam Sarwar v. State PLD 1984 SC 218 and Haji Ahmed v. State 1975 SCMR 69 ref.

(e) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S.10 (4)---Reappraisal of evidence---Gang-rape---Investigation---Semen grouping, non-making of---No semen grouping was made and it was difficult to prove that by whom Zina-bil-Jabr was committed---Effect---Semen grouping was not essential in such like cases and at the best it could be considered as lapse on the part of investigating officer and prosecutrix could not be held responsible for the same.

Haji Ahmad v. State 1975 SCMR 69 and Shahid Malik v. State 1984 SCMR 908 rel.

(f) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(4)---Anti-Terrorism Act (XXVII of 1997), S.7---Supreme Court Rules, 1980, O. V, R.1 (19)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Gang-rape---Anti-Terrorism Court---Jurisdiction---Accused never raised objection pertaining to jurisdiction of Anti-Terrorism Court at opportune moment before Trial Court---Objection regarding jurisdiction was also not raised before High Court and even such point was never incorporated in criminal petition for leave to appeal preferred under Art. 185 (3) of the Constitution, nor argued at the time when leave was granted by Supreme Court---After lapse of six years application under O. V of R.1(1) of Supreme Court Rules, 1980, was moved to place on record appended chart of Anti-Terrorism Act, 1997---Effect---No prejudice was caused and every fair opportunity was afforded to accused except that trial was somewhat expeditious which could not be equated to that of prejudice.

1985 SCMR 1054 and PLD 1965 SC 179 rel.

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

----S.34---Common intention---Scope---To have some intention independently of each other is not to have common intention---Common intention requires a pre-arranged plan and there must be a prior meeting of minds---Inference of common intention should not be reached unless it is necessary inference deducible from circumstances of the case.

PLD 1956 SC (Ind.) 176; ILR (1945) 26 (Lah.) 267(PC) and PLD 2001 SC 378 rel.

Munir Ahmad Bhatti, Advocate Supreme Court for Appellants.

Mian Asif Mumtaz DPG for the State.

Dil Muhammad Alizai, DAG (on Court call).

Date of hearing: 28th April, 2009.

P L D 2010 Supreme Court 61\

Present: Khalil-ur-Rehman Ramday, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, Mian Shakirullah Jan, Javed Buttar, Tassaduq Hussain Jillani, Saiyed Saeed Ashhad, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Syed Jamshed Ali, Hamid Ali Mirza and Ghulam Rabbani, JJ

CHIEF JUSTICE OF PAKISTAN IFTIKHAR MUHAMMAD CHAUDHRY---Petitioner

Versus

PRESIDENT OF PAKISTAN through Secretary and others---Respondents

Constitutional Petitions Nos. 21, 7, 8, 10, 11, 12, 15, 16, 18, 19, 22, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 38 and 40 of 2007, C. Ms. Nos. 22 and 27 of 2007, decided on 3rd November, 2009.

\ Important.--Minority views of Faqir Muhammad Khokhar, M. Javed Buttar and Saiyed Saeed Ashhad, JJ (R), having not been received, same could not be reported---Editor.

Per Khalil-ur-Rehman Ramday, J; Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Syed Jamshed Ali, Hamid Ali Mirza and Ghulam Rabbani, JJ. Agreeing; Faqir Muhammad Khokhar, M. Javed Buttar and Saiyed Saeed Ashhad, JJ. Contra.---

(a) Constitution of Pakistan 1973)---

----Arts. 209, 211 & 184(3)---Judges (Compulsory Leave) Order [27 of 1970], Preamble---Constitutional petition under Art.184(3) of the Constitution filed by the Chief Justice of Pakistan impugning amongst others, the validity of the direction (generally known as a "Reference ") made by the President under Art.209(5) of the Constitution calling upon Supreme Judicial Council to inquire into the allegations of misconduct committed by the Chief Justice of Pakistan; the composition of the Supreme Judicial Council and its competence to inquire into the conduct of the Chief Justice of Pakistan; validity of the order denuding the Chief Justice of Pakistan of the powers conferred on him by the Constitution and the vires of the manner in which the Supreme Judicial Council was proceeding with the same---Held, Constitutional petition was unanimously declared to be maintainable by the Supreme Court---Direction (Reference) issued by the President under Art.209(5) of the Constitution was set aside by a majority of 10 to 3---Judges (Compulsory Leave) Order, 1970 and consequent validity of the order passed by the President directing that Chief Justice of Pakistan shall be on leave was unanimously declared to have been passed without lawful authority---Orders of the. President and that of Supreme Judicial Council restraining the Chief Justice of Pakistan from acting as a Judge of the Supreme Court and/or Chief Justice of Pakistan were unanimously set aside as being illegal---However, since according to the minority view on the question of validity of the direction (the Reference) in question and that the said Reference had been competently filed by the President, therefore, Supreme Court could pass a restraining order under Art.184(3) read with Art.187 of the Constitution---Appointment of the Acting Chief Justices of Pakistan in view of the annulment of the two restraining orders (by the President and the Supreme Judicial Council) and the compulsory leave order in respect of Chief Justice of Pakistan were unanimously declared to have been made without lawful authority---Such invalidity, however, shall not affect the ordinary working of the Supreme Court or the discharges of any other constitutional and/or legal obligations by the Acting Chief Justices of Pakistan during the period in question and such declaration was so made by applying the de fecto doctrine---By majority of 10 to 3, constitutional petition filed by the Chief Justice of Pakistan, was allowed as a result whereof the direction of the President (Reference) was set aside and as a further consequence thereof, Chief Justice of Pakistan/petitioner shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.?

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

---Arts. 209(5) & 184(3)---Constitutional petition under Art.184(3) of the Constitution filed by the Chief Justice of Pakistan impugning amongst others, the validity of the direction (generally known as a "Reference") made by the President under Art.209(5) of the Constitution calling upon Supreme Judicial Council to inquire into the allegations of misconduct committed by the Chief Justice of Pakistan; the composition of the Supreme Judicial Council and its competence to inquire into the conduct of the Chief Justice of Pakistan; validity of the order denuding the Chief Justice of Pakistan of the powers conferred on him by the Constitution and the vires of the manner in which the Supreme Judicial Council was proceeding with the same---Maintainability---Principles.

Case of the Chief Justice of Pakistan was that before he left the Army House/the President's Camp Office, where he had been summoned, he had been stripped off all vestiges of his office; that on his way home, he had been intercepted by an Army official and a Superintendent of Police who had forced him not to go to the Supreme Court; that when he was nearing his house at about 5:45 p.m., he saw barricades and pickets erected on the road leading to his residence; that on reaching his house, he saw that the national and the emblem flag flying there had been pulled down and he was shocked, though not surprised, that battalions of policemen and men of the AGENCIES' were swarming inside and outside his house; that his lady-wife, his two young daughters and two young sons stood huddled into one bedroom while the rest of the house had been taken over by the said men; that all his telephone lines and television cables had been disconnected and the mobile telephones and other devices had been jammed; that his domestic servants were whisked away by someAGENCY' officials and were allowed to return home only after 2/3 days; that till March 13, his daughters were not allowed to go to their school and college; that his seven years old son who suffered from physical handicaps and required constant medical attention, was deprived of the said facilities and that on March 13, when he had decided to walk down to the .Supreme Court building to appear before the Supreme Judicial Council as his cars had been lifted away, he was man-handled by police officials who even caught him from his hair and tried to bundle him into a vehicle which he refused to board on account of his security and safety concerns. He had added that on getting exposed to the world outside on the said March 13, he came to know that some members of his personal staff, including an Additional Registrar of the Supreme Court, who was an officer belonging to the District Management Group and was on deputation with the Supreme Court working also as a Personal Staff Officer of the Chief Justice of Pakistan, had also been taken away by the men of the `AGENCIES'; detained at some un-known place; interrogated and pressurized to give evidence against the Chief Justice of Pakistan. Said official, who was the only child of his parents and was the father of three small children including a few months' old son, was murdered in the early hours of the 14th of May, 2007 i.e. the day on which Supreme Court was to commence the hearing of present petition and according to his young widow, this was in fact a message for the Judges comprising the Bench.?

Chief Justice of Pakistan had been called for the meeting in question and the claims to the contrary, were pot true.?

Version of Chief Justice of Pakistan was more plausible and consequently believable and that the claim to the contrary was implausible and un-believable.?

Facts and circumstances leading to and attending the impugned exercise in question, were as follows:

(a) that it was the Chief Justice of Pakistan who had been SUMMONED to the Army House/the President's Camp Office for the 9th of March meeting where the President met him (the Chief Justice of Pakistan) in his Army uniform;

(b) that instead of the persons really concerned with the matter, like the Law Minister and the Attorney General etc., the ones present in the meeting were only the Chiefs of the Intelligence Agencies and Generals in uniform;

(c) that the Chief Justice of Pakistan was asked to abdicate his office which he declined to do;

(d) that the impugned Reference was then hurriedly put in place asking the concerned officials in the Presidency, the Prime Minister's Secretariat and the Law Ministry to remain available despite the said day being a Friday and thus a half working day and while all these matters were being organized and finalized, the Chief Justice of Pakistan was kept in captivity and "IN-COMMUNICADO" at the Army House /the President's Camp Office till his ouster was accomplished through making him dysfunctional and appointing an Acting Chief Justice of Pakistan;

(e) that some imperceptible hands then hastily engineered a meeting of the Supreme Judicial Council the same evening, even using some un?identifiable flying object to transport at least one Member thereof to ensure his participation in the said meeting;

(f) that the Supreme Judicial Council then passed a further order, without there being a request or a prayer for the purpose, and even without being empowered so to do and restrained the Chief Justice of Pakistan from performing his functions as the Chief Justice of Pakistan or even as a Judge;

(g) that to ensure that these designs were fully consummated, without any resistance, the Chief Justice of Pakistan was put under house-arrest and was, rendered IN-COMMUNICADO; and

(h) that in the rush to achieve the given target, no heed at all was paid by the Supreme Judicial Council to the objections raised by the Chief Justice of Pakistan about the alleged bias of at least three out of the five Members of the Supreme Judicial Council and .to his earnest and persistent demand that the proceedings of the Supreme Judicial Council be not held IN-CAMERA and that he be allowed an open and a public trial.?

For such a petition to be competent, what would, therefore, be required to be shown would be that it disclosed a breach of a Fundamental Right; sought repair of the said breach and the consequent enforcement of the said right and further and more importantly that the matter was not one which related only to an individual's private grievance but was one of public importance.?

The petitioner in the present case, was the holder of one of the top five constitutional offices in the country and alleged his, illegal confinement in the President's Camp Office for about five hours; complained of his subsequent detention, along with his wife and children, for about four days and having been so kept, in-communicado; claimed a gross violation not only of the privacy of his home at the hands of some unscrupulous aliens but also of a grave and un-speakable offence to his dignity and asserted also that all this had been done to him to maneuver his illegal removal from his office in gross violation of the Constitutional guarantees. Further alleged that his trial by a not legally composed forum comprising also of some members who had a serious bias against him and then the forum proceeding against him in a manner which could not be said to be fair, transparent, just and lawful, was offensive of the protection which the Constitution had guaranteed to him.

These grievances might at the initial glance appear only to be individualistic in nature and personal to the petitioner. But then, he is the Chief Justice of Pakistan; the head of the national judicature and thus a symbol of justice and of the independence of the country's judiciary. The allegedly contemptible exercise in question not having been directed only against the person of the petitioner but being allegedly a device to remove the Chief Justice of Pakistan from his office in a manner not permitted by the Constitution, demonstrated that the matter in question was no longer a mere private affair of an individual but was much more.?

The questions which would, therefore, emerge for determination, amongst others, would be as to what were the powers available with the executive qua the judiciary; whether a power could be conceded to the executive to suspend a Judge of a Superior Court or to restrain him from performing the judicial or even administrative obligations cast on him by the Constitution; could the President send such a Judge, leave alone the Chief Justice of the country, on forced leave; was the President's Order No.27 of 1970 not offensive of the Constitutional security guaranteed to the Judges of the Superior Courts and thus ultra-vires of the Constitution; was the Supreme Judicial Council a forum competent to try the Chief Justice of Pakistan; was free access to justice and a trial by a valid, independent and an un-biased forum in a fair and a transparent manner not a fundamental right guaranteed to the people; was the manner in which the Head of the national judiciary was sought to be removed from office, a proper, a lawful and a bona fide act on the part of the executive or was it not an act rooted in malice and for a collateral purposes; was the whole exercise in question not an offensive encroachment upon the Constitutional pledge about the independence of judiciary thus offending against the right of the people to ask for a judiciary which could guarantee quality justice for all.?

The critical indispensability of dispensation of justice in a society, be it between men and men or between the governors and the governed, could never be over-emphasized. The fact that it is justice and justice alone which could ensure peace, in a society and its consequent strength, security and solidarity, was one of the serious lessons taught to the civilization by its history. And history, be it ancient, biblical, medieval or contemporary, also tells us that societies sans justice had never been permitted to pollute this planet for very long and had either to reform themselves paying heavy costs usually in blood or had else been wiped off the face of this earth. The French, the Russian, the Chinese and more recently, the Iranian revolution are some such lessons. It is perhaps for this very reason that doing of justice is conceivably the most repeated Quranic Command after SALAAT' andZAKKAT'. And it is also for the same cause that `Right of Access to Justice' which is inconceivable in the absence of an independent and impartial judiciary, was by now a well-established and a universally accepted human right as would be evident, inter alia, from Article 10 of the Universal Declaration of Human Rights and from Article 14 of the United Nations Convention on Criminal and Political Rights and which right was now being secured by the people in different States by making requisite provisions in their respective Constitutions.?

The passionate desire and the consequent determination of the people of Pakistan to establish an independent judiciary to ensure justice and the resultant security, peace and prosperity for themselves, is manifested through the Objectives Resolution which is now a substantive part of the Constitution being Article 2-A thereof and Articles 4, 9, 14, 25, 175, 179 and some others stand incorporated in the Constitution towards the attainment of the same declared and sacred objective.

Article 9 of the Constitution guarantees protection of one's life. All the judges and jurists in different ages and from different jurisdictions have been one in saying that the word "LIFE" protected and assured by various Constitutions could never be understood to have been used in a limited or a restricted sense and therefore, did not mean just the vegetative and the animal life of a man or his mere existence from conception to death. This word had, in fact, to be understood in its widest and fullest context to include all such rights, amenities and facilities which were necessary and essential for the enjoyment of a free, proper, comfortable, clean and peaceful life. When confronted with concrete situations, it was held through various judgments from various countries that the right to live meant the right to live with dignity and honour and included rights such as the right to proper health-care, the right to proper food and nutrition, the right to proper clothing, the right to education, the right to shelter, the right to earn one's livelihood and even a right to a clean atmosphere and an un-polluted environment. And in some other cases, the nuisance created by municipal sewage, industrial affluents and the hazards caused by a magnetic field produced by high tension electricity wires, were found to be an interference with the enjoyment of one's right to life. In yet another case from Indian jurisdiction, even access to proper roads for people living in hilly areas was held to be an essential part of the right to life. In more than one cases from our own jurisdiction, it was also declared that since right to live in peace in a just and a fair environment was inherent in the right to life, therefore, the right of access to justice was a well recognized and an inviolable Fundamental Right enshrined in Article 9 of the Constitution and its denial, an infringement of the said right. As a necessary consequence, it was further held that since access to justice was inconceivable and would be a mere farce and a mirage in the absence of an independent judiciary guaranteeing impartial, fair and a just adjudicatory mechanism, therefore, the demand for a judiciary which was free of executive influence and pressures; was not manipulatable and which was not a subservient judiciary, was also an integral part and an indispensable ingredient of the said Fundamental Right of access to justice.?

Courts set up by the Constitution or under its authority have, been so established not just as a means of securing bread and butter for the members of the Bench or of the Bar but to provide justice to the people and the resultant peace in the society and it is thus they, who are the actual stake-holders and for whose benefit and welfare, the judicial system stands created. The judiciary was, therefore, an affair of the public; any offence to its independence would be an encroachment on the right of the people to access justice and finally that the security of service and of the tenure of the Judges was critical for the said independence.?

Access to justice was a Fundamental Right which the Constitution had guaranteed to the people; that the existence of an independent and vibrant judiciary was indispensable and crucial for the enjoyment of the said constitutional assurance and in the absence thereof, this right would be a mere illusion; that without security to the Judges of the Superior Courts vis-a-vis, inter alia, their service and the tenure thereof, the independence of judiciary would be a mere delusion and a chimera; that an allegedly illegal and unconstitutional interference with the tenure of office of the Head of the national judiciary would not be just an injury personal to the Chief Justice of Pakistan but would, in fact, be a serious assault on the said assured Fundamental Right of the public at large and thus of public importance. The blood-soaked, unprecedented agitation by the national Bar and by the people of Pakistan which commenced immediately after the 9th of March, 2007 and which, unfortunately, also witnessed the loss of at least sixty innocent human lives at different occasions in different cities of the country, leaves hardly any room for proof that the matter was one of public importance.?

Consequently, Supreme Court declared that constitutional petition by the Chief Justice of Pakistan and the twenty four connected petitions which had also been heard vis-a-vis their maintainability, satisfy all the conditions and requirements envisaged by Article 184(3) of the Constitution and were, therefore, competent. There was another reason for the maintainability of such a petition in such-like situations. It is not unknown that when disciplinary proceedings were taken even against a peon in the public service and even if such proceedings resulted in the most minor of all actions i.e. a censure, he had a right of appeal and in fact had remedies, up to Supreme Court. But here is a public servant who is the Head of the national Judicature and who stands blessed with constitutional guarantees about his service, when he is removed from his office either for misconduct or on account of his mental or physical incapacity, he is left high and dry and without a door that he could knock at for seeking justice for a Mr. Justice. Providing a remedy to any one who had suffered a wrong was one of the basic norms of justice.?

Since the law does not provide any remedy to a Superior Court Judge who is removed from office, therefore, Article 184(3) of the Constitution was the only mode, in appropriate cases of extraordinary nature of the present kind, through which such a Judge could seek redress of his grievances.

Registrar, Supreme Court of Pakistan v. Qazi Wali Muhammad 1997 SCMR 141; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Government of Baluchistan v. Aziz Ullah Memon PLD 1993 SC 341; Mahram Ali's case PLD 1998 SC 1445; Shahla Zia's case PLD 1994 SC 693; Munn v. Illinoins 1876 US 113; Francis Corgi v. Union Territory of Delhi AIR 1981 SC 746; Olga Tellis and others v. Bombay Municipal Corporation AIR 1986 SC 180 and State of Himachal Pardesh and another v. Umed Ram Sharma and others AIR 1986 SC 847 ref.

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

----Arts. 209(5)(6), 210, 211 & 184(3)--- Constitutional petition under Art.184(3) of the Constitution filed by the Chief Justice of Pakistan impugning amongst others, the validity of the direction (generally known as a "Reference") made by the President under Art.209(5) of the Constitution calling upon Supreme Judicial Council to inquire into the allegations of misconduct committed by the Chief Justice of Pakistan; the composition of the Supreme Judicial Council and its competence to inquire into the conduct of the Chief Justice of Pakistan; validity of the order denuding the Chief Justice of Pakistan of the powers conferred on him by the Constitution and the vires of the manner in which the Supreme Judicial Council was proceeding with the same---Jurisdiction of Supreme Court to deal with the matter in question despite the ouster clause contained in Art.211 of the Constitution---Scope and extent---Expression "proceedings" used in Art.211 of the Constitution---Connotation.

Although, what is relevant for the purpose are only the provisions of clauses (5) and (6) of Article 209 and the provisions of Article 211 of the Constitution but for a better understanding of the issue, it would be appropriate to notice the entire scheme envisaged by the Constitution for the removal of a Superior Court Judge who, on account of some mental or physical disability, was no longer capable of discharging his said obligations or who had mis-conducted himself and was no longer a desirable person to adorn the said high office.?

A perusal of Article 209 of the Constitution would reveal that clauses (1) to (4) thereof envisage the existence and the constitution of Supreme Judicial Council while the provisions of clauses (5) and (6) of the said Article 209 tell us of various steps of the exercise leading to the removal of a Superior Court Judge. As would appear from the said provisions, the action in question could be initiated by both i.e. by the President as also by the Supreme Judicial Council itself.?

The exercise in question prescribed by Article 209 of the Constitution consists of eight stages or steps starting with the receipt of the relevant information by the President and ending, either with the dropping of the proceedings against the concerned Judge, or his removal by the President, as the case may be.?

Out of the eight steps in the exercise in question, what is sought to be protected are the following three matters only, namely,:--

(i) proceedings before the Council;

(ii) report of the Supreme Judicial Council to the President, as a result of the said proceeding; and finally, (iii) the removal of the concerned Judge. Meaning thereby that the Constitution makes no attempt at all to keep the remaining matters out of the purview of the courts of law, namely;--

(a) receipt of information by the President, from any source, about the mental or physical disability of a Judge or about his being guilty of misconduct;

(b) collection of material in support of the said information;

(c) formation of opinion by the President about such a disability or misconduct of a Judge; and the consequent

(d) direction (generally called a Reference) by the President to the Council to inquire into the matter.?

The word PROCEEDINGS', does not stand alone or unqualified in the said provision but stands restricted and qualified by three other words i.e.BEFORE THE COUNCIL'. What had to be found out was not what was meant by the word `proceedings' but the meaning of the expression "PROCEEDINGS BEFORE THE COUNCIL".?

According to the English language dictionaries, the word PROCEEDINGS' means theACTS', the ACTIONS', theDEEDS', the STEPS' and theHAPPENINGS' while the word BEFORE' means 'IN FRONT OF' orIN THE PRESENCE OF'. And when translated into simpler language, easily comprehendible by all concerned, the expression, `THE PROCEEDINGS BEFORE ,THE COUNCIL', would mean, the acts, the actions, the deeds, the steps and all the happenings taking place in front of or in the presence of the Council. Therefore, the said expression would cover only those matters which take place before or in front of the Supreme Judicial Council and no other. Meaning thereby that any" event or business or any part of the exercise in question taking place elsewhere would not fall within the purview of the said expression e.g. receipt of relevant information by the President; collection of evidence relating thereto; formation of opinion by the President about making a Reference in the matter to the Supreme Judicial Council and the consequent direction to the said Council. The exercise envisaged by Article 209 is bi-foral i.e. certain things happening at the President's end and other things taking place before the Supreme Judicial Council. Every student of law is expected to know the principle which is too well established by now that no redundancy or surplusage could ever be attributed to a draftsman much less to the one drafting the Constitution. It may be clarified that the report of the Council to the President should not be confused as a matter happening before the said Council as the report required to be sent to the President was not something taking place before the Supreme Judicial Council but only a result of whatever, had transpired or had taken place before it. If the intention of the Constitution was to grant immunity to all the acts and proceedings "from the start to the end", then there was nothing stopping the Constitution-makers from saying in Article 211 simply that no proceedings under Article 209 would be called in question in any court, which was not done and what had instead been done was grant of protection to some only of the proceedings envisaged by the said Article 209.?

The word "PROCEEDINGS" is a comprehensive term and would ordinarily include every step towards the progress of a cause in a court or before a tribunal. But one has to remember that a narrow or a wider import could be given to the said word depending upon the nature and the scope of the enactment in which the same was used with particular reference to the language of the law in which it appeared. The purpose of construction or interpretation of statutory provisions was no doubt to ascertain the true intention of the Legislature, yet that intention had, of necessity, to be gathered from the words used by the Legislature, itself and that if the words were so clear and unmistakable that they could not be given any meaning other than that which they carried in their ordinary grammatical sense, then the said were the meanings to be attached to the said words. The word "PROCEEDINGS" used in Article 211 of the Constitution did not stand unqualified in the said provision but stood restricted by express words i.e. "BEFORE THE COUNCIL" and the said word, therefore, had to be given a restricted meaning in the context of the language used in the said provision.?

Having examined all aspects of the question, the Supreme Court declared as follows:

(a) that the expression "PROCEEDINGS BEFORE THE COUNCIL" as used in Article 211 of the Constitution would mean only those acts, actions, happenings or proceedings which actually took place in front of or in the presence of the Supreme Judicial Council and whatever happened not before the said Council, would not be covered by or included in the said expression;

(b) that what would, therefore, fall within the purview of the said Article 211 would be just the "PROCEEDINGS BEFORE THE COUNCIL" as above defined, the "REPORT OF THE COUNCIL" submitted to the President as a result of the said proceedings and finally the "REMOVAL OF A JUDGE BY THE PRESIDENT UNDER CLAUSE (6) OF ARTICLE 209" and no more;

(c) that other steps or matters mentioned in Article 209 of the Constitution i.e. the collection of information or material about the mental or physical incapacity of a Judge or about any act of misconduct committed by a Judge; the receipt of such an information by the President; formation of opinion by the President about the possible mental or physical incapability of a Judge or the possibility of a Judge having mis-conducted himself and the desirability or otherwise of making a direction to the Supreme Judicial Council to inquire into the same, are not covered by the said ouster clause contained in Article 211 of the Constitution, and, finally, (d) that the said matters not hit by the mischief of Article 211 and mentioned above, would be subject to examination, scrutiny and judicial review like any other executive or administrative act.?

No immunity attaches to the happenings and the actions prior to the matter reaching the Supreme Judicial Council and the said actions were, therefore, subject to scrutiny by Supreme Court like any other administrative act.?

A mere incorporation of such a provision in the Constitution or in any other law for that matter, did not by itself preclude a court from entering, the arena sought to be protected as the judicial power, being inherent in Supreme Court, it was not its privilege but in fact its obligation to examine such-like ouster clauses and then to determine the extent of the claimed immunity.?

Jan Muhammad and another v. Home Secretary, Government of West Pakistan and others PLD 1968 Lah. 1455; The State through Advocate General N.-W.F.P. Peshawar v. Naeemullah Khan 2001 SCMR 1461; Pakistan v. Ahmed Saeed Kirmani and others PLD 1958 SC 397; Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Wazir Laiq v. The State and others PLD 1987 SC 35; , Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC 132; Ganga Naiceen v. Sundaram Ayyar AIR 1956 Mad. 597; Muhammad Ismail Case PLD 1969 SC 241 and Zia-ur-Rehman's Case PLD 1973 SC 49 ref.

(d) Words and phrases---

----`Proceedings'---Connotation.?

Ganga Naiceen v. Sundaram Ayyar AIR 1956 Mad; 597; Muhammad Ismail's Case PLD 1969 SC 241 ref.

(e) Interpretation of statutes--

----Intention of legislature---Determination---Principles.?

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

----Arts. 211 & 184(3)---Ouster of jurisdiction clause in the Constitution---Interpretation---Scope---Mere incorporation of such a provision in the Constitution or in any other law for that matter, did not by itself preclude a court from entering the arena sought to be protected as the judicial power, being inherent in the Supreme Court, it was not its privilege but in fact its obligation to examine such-like ouster clauses and then to determine the extent of claimed immunity---No amount of immunity would ever be sufficient to protect acts which had been taken mala fide or which had been taken without jurisdiction or which were coram non judice---Supreme Court observed that court respected the ouster clauses wherever they occurred in the Constitution or in any other law, it was on account of the same respect that Supreme Court would interpret such-like clauses as not extending immunity to acts which were coram non judice or which were taken mala fide or the ones which had been done without jurisdiction---Principles.?

Zia-ur-Rehman's case PLD 1973 SC 49; Asma Jillani's case PLD 1972 SC 139; Saeed Ahmed Khan's case PLD 1974 SC 151; Malik Ghulam Mustafa Khar's case PLD 1989 SC 26; Pir Sabir Shah's case PLD 1994 SC 738; Sardar Farooq Ahmad Khan Leghari's case PLD 1999 SC 57; Zafar-ul-Ahsan's case PLD 1960 SC 113; .Abdul Rauf's case PLD 1965 SC 671; Jameel Asghari's case PLD 1965 SC 698 and Jamal Shah's case PLD 1966 SC 1 ref.

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

----Art. 209---Supreme Judicial Council---Status---Scope---Proceedings of Supreme Judicial Council---Nature---Held, Supreme Judicial Council is a forum created by the Constitution but the Constitution itself has refused to grant it the status of court---Findings of the Supreme Judicial Council and its report to the President are only "recommendatory in nature".

?

Mr. Justice Sheikh Shaukat Ali's case PLD 1971 SC 585; Tofazzal Hossain and others v. The Province of East Pakistan and others PLD 1961 Dacca 389; Khan Asfand Yar Wali's case PLD 2001 SC 607 and Malik Asad's case PLD 1998 SC 161 ref.

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

----Arts. 209, 199(5) & 184(3)---Supreme Judicial Council---Constitutional jurisdiction of High Court under Art.199(5) of the Constitution---Scope---Article 199(5) of the Constitution allowed issuance of writ, inter alia, to all courts and to tribunals of all kinds, it kept certain courts and tribunals outside the said purview and commanded that no writ could issue to the Supreme Court of Pakistan, to a High Court and to a court or a tribunal established under any law relating to the Armed Forces---Significant omission of the Supreme Judicial Council from such protected arena is more than revealing in the matter of determining the vulnerability of the Supreme Judicial Council to writ jurisdiction---Principles.?

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

----Art. 199(5)---Constitutional jurisdiction of High Court---Scope---Writ should not issue from one High Court to another High Court or from one Bench of a High Court to another Bench of the same High Court because that could seriously undermine and prejudice the smooth and harmonious working of the superior courts, but this should never be understood to mean that no writ could ever issue to a Judge in his personal capacity or where a Judge was working as Persona Designata---Principles.?

Abrar Hussain's case PLD 1976 SC 315 ref.

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

----Arts. 209, 211 & 184(3)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution vis-a-vis the Supreme Judicial Council---Scope---Supreme Judicial Council which comprises of the Chief Justice of Pakistan (except when the reference be against him) and two most senior Judges of Supreme Court and two most senior Chief Justices of the High Courts, is a forum entitled to the highest of respect---Supreme Judicial Council, however, cannot be conceded the status of a court---Ouster clause of Article 211 of the Constitution would not protect acts which were mala fide or coram non judice or were acts taken without jurisdiction---In situations of extraordinary nature, the Supreme Judicial Council would be amenable to the jurisdiction of Supreme Court under Article 184 of the Constitution---Principle of comity among Judges of the superior courts is only a rule of propriety and could never be considered an impediment in the way of providing justice to an aggrieved person.?

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

----Arts. 248 & 184(3)---Constitutional petition under Art.184(3) of the Constitution before the Supreme Court wherein President of Pakistan was impleaded as respondent---Maintainability---Objection raised to the maintainability of the petition was that the President of Pakistan had been impleaded in the said petition as one of the respondents which was offensive of the provisions of Art.248(1) of the Constitution---Validity--Averments made in the petition showed that mainstay of the case of the petitioner (Chief Justice of Pakistan) was that the entire exercise in question by the President of Pakistan had been commenced for collateral purposes and suffered from mala fides which was sought to be established, inter alia, through the Chief Justice of Pakistan being summoned by the President to the Army House/President's Camp Office; detention of Chief Justice of Pakistan at the said office for about five hours; the attempts made to secure the resignation of the Chief Justice of Pakistan under duress and through coercion; the alleged illegal detention of the lady wife and children of the Chief Justice of Pakistan in their house and the alleged unconstitutional removal of the Chief Justice of Pakistan from his office and the appointment of Acting Chief Justice of Pakistan---No exception could be taken to the impleadment of the President as a respondent in the petition which impleadment was in fact imperative.

H.B. Gill's case AIR 1948 PC 148; Ch. Zahur Ilahi's case PLD 1975 SC 383; Amanullah Khan's case PLD 1990 SC 1092 and Nawabzada Muhammad Umar Khan's case 1992 SCMR 2450 ref.

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

----Arts. 209(7) & 184(3)---Constitutional petition under Art.184(3) of the Constitution before the Supreme Court by the Chief Justice of Pakistan---Restraining a Judge from exercising his judicial power and from discharging the obligations cast on him by the Constitution---Effect---Even a temporary interference with the office of the Chief Justice or of a Judge, even when he had not been suspended but in fact appointed to another judicial office, amounted to his "removal from office"---No constitutional, the legal and the legislative frame-work of Pakistan recognize any inherent, ancillary or incidental powers with the competent authority to suspend or to restrain from working, Chief Justice of Pakistan whose tenure in office stood guaranteed by the Constitution---Chief Justice of Pakistan could not be suspended from office or could be restrained from exercising the judicial' powers appertaining to his office, in exercise of some alleged inherent, ancillary, implied or implicit powers. vesting in the President--Constitution does not allow any restraint on the exercise of judicial powers by a Judge or any restraint on him to act as a Judge during the pendency of the proceedings envisaged by Art.209 of the Constitution nor has the, Constitution authorized any subordinate legislation for the said purpose---Even a temporary disability cast on a Judge in the matter of discharging his constitutional and official obligations as such amounted to "removal" from office and was not permitted by the Constitution---Restraining order by the President, in the present case, was only a device to eliminate the Chief Justice of Pakistan from the scene to make way for the appointment of an Acting Chief Justice of Pakistan---Held, Constitution conferred no power on anyone, including the President, to suspend a Judge of a Superior Court leave alone the Chief Justice of Pakistan or to restrain him from acting as such---President could exercise only those powers which stood specifically conferred on him by the Constitution and that he was not possessed of any inherent, incidental, implicit or ancillary powers in the matter in question---Supreme Court declared that the order in question of the President was an order passed without jurisdiction; was offensive of the constitutional provisions guaranteeing security of office of the Chief Justice of Pakistan, its tenure and of the independence of judiciary and was thus ultra vires of the Constitution---Supreme Court further declared that in view of the facts and circumstances of the case, the said impugned order was an order passed for a collateral purpose i.e. elimination of the Chief Justice of Pakistan from the judicial scene and could not be sustained as a bona fide exercise of power---Securing of an order from the Supreme Judicial Council, in a rush, the same evening to the same effect demonstrated that even the President was conscious of the fact that his said order was not valid and was not sustainable in law---Order in question was set aside by Supreme Court as being un-constitutional, illegal, mala fide and of no legal effect---Such a mode employed to oust a Judge being an insult inflicted on the Constitution; was an offensive abuse of the same for a collateral purpose; was clearly mala fide and could not be sustained in law or permitted to be continued---Impugned direction/Reference by the President, was, therefore, quashed.?

Messrs East End Exports Karachi v. The Chief Controller or Imports and Exports, Rawalpindi and The Assistant Controller of Imports and Exports Karachi PLD 1965 SC 605; Muhammad Ghous v. The State of Andhra AIR 1957 SC 246 at 249; State of Orissa and others v. Shiva Parshad Das AIR 1985 SC 701 at 702; Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321; Al-Jahad Trust's case PLD 1996 SC 324; Ikhlaq Hussain's case PLD 1960 SC 226; Justice Sheikh Shaukat Ali's case PLD 1971 SC 585; Fazlul Qauder Chowdhry's case PLD 1963 SC 486; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Youngstown Sheet's case 343 US 579; Evan Rees and others v. Richard Alfred Crane 1994 (2) WLR 476; Sub-Committee of Judicial Accountability. v. Union of India and others AIR 1992 SC 320; Moti Ram's case AIR 1964 SC 600; Bornap v. United States 252 US 512 and Griner v. Thomas 104 SW 1058 ref.

Mian Muhammad Hayat's case PLD 1964 SC 321; Messrs East-End Exports, Karach's case PLD 1965 SC 605; The State of Orrisa's case AIR 1985 SC 701; Graham v. Cannon 574 P.2d 305 and McAllister v. United States 141 US 174 ref.

(m) Constitution of Pakistan (1973)---

----Arts. 209, 187 & 184(3)---Order of Supreme Judicial Council to the Chief Justice of Pakistan not to perform any functions as a Judge of the Supreme Court and/or as the Chief Justice of Pakistan---Validity---Held, Supreme Judicial Council was not possessed of any power to order a Judge, leave alone the Chief Justice of Pakistan, not to perform functions of his office---Such order of the Supreme Judicial Council being not a valid and a bona fide exercise of powers, could not be sustained and was set aside by the Supreme Court being illegal, without jurisdiction and of no legal effect---Principles.

In the present case, order against the Chief Justice of Pakistan had been passed without any request having been made by the Referring Authority i.e. the President or for that matter any other concerned or relevant quarter. In fact the Referring Authority was not even represented before the Supreme Judicial Council in the said meeting as the Law Secretary had entered appearance only to present the Reference while the Attorney General was just "IN ATTENDANCE". What had then prompted the Supreme Judicial Council to pass such a fateful order directing the holder of the highest judicial office in the country who also happened to be the head of the national judiciary, not to perform functions of his said office or even of a Judge of the Supreme Court, is known to none. It was an order passed without notice to the Chief Justice of Pakistan; was not just an interim order which was subject to notice but was a final and an absolute order which was to continue till as long as the proceedings before the Council lasted. Such, then being the manner in which such an unprecedented order had been passed, the same could not be sustained as a valid exercise of judicial or even the quasi-judicial powers. It was also strikingly noticeable from the said order that no reasons whatsoever had been offered for passing such a harsh order against the holder of such a high constitutional office. It is also strange that such an extraordinary and unusual order was being passed by such a high forum and not even the slightest mention had been made of any provision enabling and authorizing the said Council to pass the same. The Supreme Judicial Council was not a court and that it was only a domestic tribunal with rather limited jurisdiction to hold only an inquiry and that also on a Reference made by the President. It was merely a recommendatory body and was thus possessed only of those powers which stood specifically conferred on it by the Constitution which Constitution never blessed this body with any powers to restrain the Chief Justice of Pakistan or even a Judge from discharging his functions. Supreme Judicial Council, not being a court, did not enjoy any inherent powers like the Supreme Court did being the apex Court of the country or the powers that it possessed on the strength of Article 187 of the Constitution authorizing it to issue such directions, orders or decrees as may be necessary for doing complete justice. It did not even have the kind of powers which the High Courts possessed under section 561-A of the Code of Criminal Procedure or under section 151 of the Code of Civil Procedure. The only submission made in defence of the said order was that since the Supreme Judicial Council had the power to remove a Judge, therefore, the said power included the authority to suspend a Judge. The said submission proceeds on a factually incorrect foundation. It is fallacious to presume that the Supreme Judicial Council had any power to remove a Judge. The said Council was only a Recommendatory Body which could only submit its report to the President about its findings vis-a-vis the incapacity or the .misconduct of a Judge and no more. Since it had no power to remove a Judge, therefore, the assumption that it could have any power to restrain, a Judge from performing his functions, was grossly misplaced. The promulgation of the President's Order No.4 of 1958 and of President's Order No.27 of 1970 on two similar earlier occasions was also a fairly credible evidence of the fact that no such powers existed with the forum inquiring into the conduct or the capacity of a Judge and that was why necessity had been felt to make some legislative provision whereby a Judge under trial could be restrained from exercising his constitutional and judicial powers. It is, therefore, clear that the Supreme Judicial Council was not possessed of any power to order a Judge, leave alone the Chief Justice of Pakistan, not to perform functions of his office.?

In view of the enigmatic manner in which the meeting in question of the Supreme Judicial Council was convened and held; the undue haste exhibited by the Supreme Judicial Council in the matter; the unprecedented time at which the said Council had met with no explanation for the same; the unfathomable and the perplexing mode in which the presence and availability of the two Members of the Council from Karachi and Lahore had been secured; the issuance of the impugned order without any prayer, written or even oral; the absence of any reasons leading to the passing of the said order; the non-mentioning and in fact the non-existence of any powers enabling the Supreme Judicial Council to pass such an order, it could not be said that the order in question was a valid and a bona fide exercise of powers. The order in question passed by the Supreme Judicial Council could, therefore, not be sustained and was set aside being illegal, without jurisdiction and of no legal effect by Supreme Court.?

Justice Ikhlaq Hussain PLD 1960 SC (Pak.) 26 and Justice Sheikh Shaukat Ali's case PLD 1971 SC 585 ref.

(n) Judges (Compulsory Leave) Order [27 of 1970]---

----Preamble---Validation of Laws Act (LXIII of 1975), Preamble---Constitution of Pakistan (1973), Arts.211, 270 & 184(3)---Validation of certain laws---Bar of jurisdiction---Order of the President of Pakistan restraining the Chief Justice of Pakistan from acting as such---Validity---No amount of blanket wrapping of any administrative acts or legislative measures could ever render such-like acts and measures [Judges (Compulsory Leave) Order, 1970] as an absolute protected arena and they were always subject to review by the competent courts---Supreme Court declared that Judges (Compulsory Leave) Order, 1970 which gave unbridled powers to the executive to require a Judge to proceed on leave only because a reference had been made by the President calling upon the Supreme Judicial Council to enquire into the capacity or the conduct of such a Judge, was ultra vires of the Constitution---Order of the President of Pakistan commanding the Chief Justice of Pakistan to be on compulsory leave till submission of the report of the Supreme Judicial Council and the President's order thereon was set aside as being illegal and of no legal effect---Consequences---Principles.

A reading of the provisions of section 2 of the Validation of Laws Act of 1975 demonstrate that what has been granted to Judges (Compulsory Leave) Order P.O.No.27 of 1970 was only a procedural validation and not a substantive validation because the said provisions only declared that the said P.O.No.27 was a law which would be deemed to have been validly made by the competent authority. It is thus obvious that no immunity stands offered to the contents of the said President's Order which could thus always be subjected to scrutiny by the courts of law. No amount of blanket wrapping of any administrative acts or legislative measures could ever render such-like acts and measures as an absolute protected arena and they were always subject to review by the competent courts.?

Independence of judiciary was a basic and a salient feature of the Constitution; security of office of Judges and of its tenure was a sine qua non for the independence of judiciary; Articles 179 and 209(7) of the Constitution guaranteed the said security of office and security of tenure to the Judges; any step or measure which envisaged even for a short and a brief intervention with the tenure and office of a Judge amounted to his removal and was thus an unconstitutional interference with the said constitutional guarantees and finally any legislative instrument which sapped or eroded the independence of judiciary could not be sustained. In view of the said principles, the conclusion was irresistible that a legislative instrument which contemplated interference with a Judge's security of office and its tenure by sending him on compulsory leave was ultra vires of the Constitution. Supreme Court declared that ` Judges (Compulsory Leave) Order being President's Order No.27 of 1970 which gave unbridled powers to the executive to require a Judge to proceed on leave only because a reference had been made by the President calling upon the Supreme Judicial Council to enquire into the capacity or the conduct of such a Judge, was ultra vires of the Constitution. This being so, the order in question of the President commanding the Chief Justice of Pakistan to be on compulsory leave from 9th March, 2007 till submission of the report of the Supreme Judicial Council and the President's Order thereon, was set aside as being illegal and of no legal effect.?

The finding that the President's order of March 9, 2007 restraining the Chief Justice of Pakistan from acting as such was illegal and of no legal effect, meant that the office of the Chief Justice of Pakistan had not become vacant on the said date nor could the Chief Justice of Pakistan, for the said reason, be said to be absent and unable to perform the functions of his office. Therefore, no room existed for the appointment of an Acting Chief Justice of Pakistan under Article 180 of the Constitution. The said conclusion gets further emphasized on account of finding that even the order passed by the Supreme Judicial Council on the same day i.e. on March 9, 2009 and even the order dated 15 March, 2007 passed by the President asking the petitioner-Chief Justice of Pakistan to proceed on compulsory leave, were also illegal and of no legal effect. Supreme Court held and declared that the appointment of Mr. Justice Javed Iqbal as the Acting Chief Justice of Pakistan on 9-3-2007 was unconstitutional and of no legal effect and similar was the position of the appointment of Rana Bhagwandas, J. who was like-wise appointed as the Acting Chief Justice of Pakistan on his return from leave abroad.?

Malik Asad Ali's Case PLD 1998 SC 161; Mahmood Khan Achakzai's case PLD 1997 SC 426; Zafar Ali Shah's case PLD 2000 SC 869; Mehram Ali's case PLD 1998 SC 1445; Liaqat Hussain's case PLD 1999 SC 504; Asfand Yar Wali's case PLD 2001 SC 607 and Mohtarma Benazir Bhutto's case PLD 1998 SC 388 ref.

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

----Art. 189---Judgment of Supreme Court having been signed by all the thirteen Members of the Bench and, even in the absence of the supporting reasons, was a valid judgment.?

State v. Asif Adil and others 1997 SCMR 209 ref.

Per Muhammad Nawaz Abbasi, J. agreeing with Khalil-ur-Rehman Ramday, J.--

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

----Arts. 209, 211 & 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the validity of Presidential Reference under Art.209 of the Constitution against a Judge of superior court---Maintainability---Scope---In the normal circumstances a Reference under Art.209 of the Constitution against a Judge of superior court, may not be subject to the judicial scrutiny, by any court including the Supreme Court due to bar contained in Art.211 of the Constitution but if the Reference under Art.209 of the Constitution is made by the President for the motive and purpose beyond the spirit of Art.209 and is not in good faith, the same may not have the immunity from judicial review of superior courts and the Supreme Court may on the ground of mala fide examine the question relating to the validity of Reference in its original jurisdiction under Art.184(3) of the Constitution---Supreme Court, in exercise of the power of judicial review may examine the constitutionality of the acts of State authorities on any ground including mala fide use of power to protect the rights guaranteed by the Constitution---Principles.

Article 184 of the Constitution governs original and exclusive jurisdiction in respect of the controversies between two or more Provinces and between the Provinces and Federation. The grant of exclusive jurisdiction to the Supreme Court necessarily denies jurisdiction of such cases to any other court.

In determining the question of original jurisdiction under Article 184(3), Supreme Court looks at two factors, (a) the seriousness of the matter which is of public importance and (b) the sufficiency of alternate forum for enforcement of a fundamental right.

The concept of the original jurisdiction of the Supreme Court of Pakistan seems to 8e based on the provision of Section 204 of Government of India Act 1935, Article 156 of the Constitution of Islamic Republic of Pakistan, 1956, Article 57 of the Constitution of Islamic Republic of Pakistan, 1962 and parallel Article 131 in the Indian Constitution.?

Original jurisdiction of the Supreme Court under Article 184(3) of the Constitution was introduced for the first time in the Constitution of Pakistan 1973.

Sub-Article (1) of Article 184 of Constitution provides that Supreme Court has the exclusive jurisdiction to adjudicate upon a dispute on a question of law or fact between Federal Government and the Provincial Government or inter se the Provincial Governments and under sub-Article (2) the Supreme Court pronounce only a declaratory judgment. Whereas under sub-Article (3) the Supreme Court is empowered to make an order of the nature mentioned in Article 199 of the Constitution in a case in which a question relating to the enforcement of any, of the fundamental rights conferred by Chapter I of Part II of the Constitution of Pakistan is involved. The historical and comparative study of the provisions relating to original jurisdiction of the Supreme Court of Pakistan would show that there is distinction between the original jurisdiction and exclusive jurisdiction. The court is said to have exclusive jurisdiction when it has the power and authority to hear and adjudicate upon the matter with exclusion of any other court, tribunal or authority whereas original jurisdiction may not necessarily exclude the jurisdiction of other courts or a tribunal or an authority as is provided in sub-Article (3) of Article 184 of the Constitution.

The plain reading of Article 184(3) would sufficiently indicate that it is an open ended Article and Supreme Court under this sub-Article in a case in which the question relating to the enforcement of fundamental rights of any individual or of a group or of a class of persons is involved may take cognizance and interfere to adjudicate the matter. In this special jurisdiction under Article 184(3) of the Constitution the Supreme Court can take cognizance of any matter involving the question of public importance with reference to the enforcement of fundamental rights and if in the petition before it an infraction of any of fundamental right is shown, may pass an appropriate order with the liberal interpretation of provision of Article 184(3) of Constitution to carve and assert in the matter referred therein. The essential element for exercise of jurisdiction by the Supreme Court under Article 184(3) of the Constitution is that it must involve a question of public importance with reference to the enforcement of fundamental right and if the matter relating to the enforcement of fundamental right, is not of public importance the court may refuse to entertain the petition and exercise the jurisdiction.?

In the present case, in which the constitutionality and validity of the President's Reference under Article 209 of the Constitution against the Chief Justice of Pakistan (petitioner) has been questioned, both these elements are traceable on the record. This is correct that in the normal circumstances a reference under Article 209 of the Constitution against a Judge of superior court, may not be subject to the judicial scrutiny, by any court including the Supreme Court of Pakistan due to bar contained in Article 211 of the Constitution but if the reference under Article 209 of the Constitution is made by the President for the motive and purpose beyond the spirit of Article 209 and is not in good faith, the same may not have the immunity from judicial review of the superior courts and the Supreme Court of Pakistan may on the ground of mala fide examine the question relating to the validity of reference in its original jurisdiction under Article 184(3) of the Constitution.?

The detailed examination of the facts and circumstances in the background leading to the filing of the Reference would evidently show that the President for the personal interest and malice sent the Reference against the Chief Justice of Pakistan to the Supreme Judicial Council hurriedly in an extraordinary manner with predetermination to remove Mr. Justice Iftikhar Muhammad Chaudhary from the office of the Chief Justice of Pakistan. The manner in which reference was sent to Supreme Judicial Council and the order restraining the Chief Justice of Pakistan from discharging his function was passed by the President, the appointment of acting Chief Justice of Pakistan with the arrangement of calling the meeting of Supreme Judicial Council on the same day was a strong evidence of malice without any other proof. This is noticeable that pending inquiry into the allegations made in Reference, Supreme Judicial Council also in its first meeting passed a restraint order against the Chief Justice of Pakistan. The action of the President and his team to compel Chief Justice of Pakistan to tender resignation by detaining him in the President's Camp Office at Rawalpindi was unprecedented, which was naked infringement of the right of liberty of Chief Justice of Pakistan and thus the manner in which the Chief Justice of Pakistan was dealt was shocking to a common man which was a matter of great public importance relating to the enforcement of fundamental rights of not only of Chief Justice of Pakistan but also of public at large. Consequently the Supreme Court would have no hesitation to entertain the petition under Article 184(3) of the Constitution for examination of the matter in exercise of power of judicial review pending inquiry in the Reference before the Supreme Judicial Council. The action of the President and the manner in which the power was exercised under Article 209 of the Constitution was an evident proof of the mala fide, personal interest, and bias therefore in such circumstances the bar of jurisdiction contained in Article 211 of the Constitution would not stand in the way of the Supreme Court in invoking the jurisdiction under Article 184(3) of the Constitution and pass the appropriate orders.?

There can be no departure to the legal position that in normal circumstances the Supreme Court may not be justified to interfere in a Reference under Article 209 of the Constitution sent by President against a Judge of superior court to the Supreme Judicial Council or in the proceedings of the Supreme Judicial Council due to the bar of jurisdiction under Article 211 but this ouster clause in respect of the jurisdiction of the Supreme Court is not absolute and may not affect the power of judicial review of Supreme Court to examine the legality of mala fide action of the President in performance of his duty under Article 209 of the Constitution. The discharge of constitutional duty by the President in deviation to the spirit of the Constitution can be anvil to the Constitution and is challengeable on diverse grounds including mala fide and colourable exercise of the power in bad faith for ulterior motive. It is difficult to confer validity and immunity to the mala fide act or action of the President from judicial scrutiny in exercise of power of judicial review which is inherent in the superior courts. This is settled principle of law that constitutional protection and immunity of judicial review in performance of constitutional duty cannot be extended to the mala fide acts and actions, therefore distinction must be drawn between malice in fact and malice in law for the purpose of interpretation of the relevant provision of the Constitution or a statute so that an impression must not be created that such provision has been amended, altered or reconstituted which may make the same redundant. The Supreme Court has always been careful and conscious in interpreting the Constitution so as in a manner that it may not create chaos or conflict or make the provision ineffective or nullified.?

The Supreme Court being creature of the Constitution is empowered to examine the legislative competence to declare a statute or a legal document ultra vires the Constitution, or the action of the State authorities void if it is in conflict to the provision of Constitution, in exercise of its power of judicial review and has to enforce the Constitution as a paramount law but the scope of Judicial Review of the superior courts being confined to the enforcement of Constitution as supreme law for the purpose of determining the question relating to the legality of administrative action, the court will make harmonious interpretation of the provision of the Constitution to avoid any ambiguity.?

The Supreme Court is empowered to review an action taken by State authorities under the garb of constitutional immunity to determine the procedural fairness as to whether or not the rights of an individual in respect of his liberty, life or property has been impaired in an unfair manner or due process of law, therefore the review of an action against a specific individual in respect of his rights guaranteed under the Constitution for judicial assessment of its fairness is justified. Thus procedural review is limited as procedural process guarantees only fair decision which impairs the fundamental and substantive rights of a person. The court has also power to review the substance of such an action. The substantive review means the judicial determination of the compatibility of the substance of an action with the Constitution. The court is concerned with the constitutionality of action and thus judicial review other than the question involving procedural fairness is a substantive review but the court's power and ability to determine the constitutionality of executive action is always subject to the rule of judicial scrutiny. The Supreme Court has continuously been making independent determination of the legitimacy of an action of State authorities which affect the fundamental rights of individual under the Constitution. The Supreme Court in the cases in which the fundamental rights of the individual are impaired by using the strict scrutiny standard jealously guards and determines the question of legality and constitutionality of the action.?

The historical and comparative study of the case law and role of superior judiciary in Pakistan in protecting the constitutional rights in exercise of power of judicial review was indeed unique. The concept of judicial review has greater room if there are solid bases for exercise of power of judicial review but this power was never intended to overthrow the acts of State authorities, whenever Judges disagree with the constitutional acts and policy adopted by such acts. Therefore, the legitimate judicial review over the acts of executive authorities is always subject to the principle of strict judicial security and restraint.

The Supreme Court in exercise of the power of judicial review may examine the constitutionality of the acts of State authorities on any ground including mala fide use of power to protect the rights guaranteed by the Constitution.

There are different kinds of mala fides, i.e. personal malice and bias, mala fide in fact and mala fide in law. The action on the basis of personal malice or bias may contain the element of mala fide. The action taken in colourable exercise of power and misuse of law for an ulterior motive or extraneous consideration may be termed as malice in law and fact which is a mixed question of law and fact and is subject to proof either by way of direct or circumstantial evidence or on the basis of admitted facts. The personal malice can sufficiently be proved by the evidence brought on record whereas a presumption of mala fide of fact can be raised on the basis of circumstantial evidence. In the present case the personal malice and bias of the President against Chief Justice of Pakistan was floating on the surface of record as the circumstances leading to the action of the President and the manner in which the Reference was sent to Supreme Judicial Council would be sufficient to prove the malice of President without any further evidence and proof.?

Ordinarily the mala fide being a question of fact is to be proved through the evidence but the court may take into consideration the circumstances leading to the action and the motive behind it for determination of inferential question of mala fide.?

The seriousness and uniqueness of mala fide action by the Head of the State in performance of his constitutional duty is not to be readily or easily accomplished, therefore standard of proof of mala fide of constitutional authorities of State should be high such as clear and covenanting evidence which is defined as measure or degree of proof which may produce in the mind of trier of facts a firm belief or conviction as to the allegations sought to be established, it is intermediate i.e. more than a mere preponderance but not to the extent of certainty as is required beyond a reasonable doubt in criminal cases which does not mean clear and unequivocal. The standard of proof in ordinary civil cases may be insufficient to prove mala fide because of its seriousness but at the same time the standard of proof required in criminal cases beyond reasonable doubt is too high to prove mala fide, which test is used in criminal cases as the accused may be imprisoned and suffer loss of liberty. In view thereof the mala fide of fact in the normal circumstances is required to be established through the positive evidence and not merely on the basis of allegations but the personal malice of a person in official position can be examined in the context as to whether the action in official capacity was extraneous and for collateral purpose which was taken in bad faith or such an action was in good faith. The colourable exercise of power in transgression to the Constitution for personal reason and interest may be an act of mala fide which may exclude the element of bona fide. There can be no exception to the rule that mala fide may not be attributed to a provision of law, but colourable exercise of power under such provision with an ulterior motive and personal interest may bring the action within ambit of mala fide for the purpose of Judicial Review.?

In the facts and the circumstances of the present case, the action of the President was the result of personal malice which was not taken in good faith, rather it was motivated for collateral purposes which is sufficiently proved on record and in consequence thereto the Supreme Court of Pakistan in exercise of its power of Judicial Review could justifiably examine the matter in its original jurisdiction and quash the reference on the ground of mala fide.?

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 and Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(q) Interpretation of Constitution/Statutes---

----Malice---Malice in law' andmalice in fact'--Distinction must be drawn between malice in fact and malice in law for the purpose of interpretation of the relevant provision of the Constitution or a statute---Principles.?

(r) Constitution of Pakistan (1973)---

----Art. 209---Function and scope of the jurisdiction of Supreme Judicial Council.

The Supreme Judicial Council is an exclusive body constituted under Article 209 of the Constitution, which consists of the Chief Justice of Pakistan, two next most senior Judges of the Supreme Court and two most senior Chief Justices of High Courts. The Supreme Judicial Council if at any time is enquiring into capacity or conduct of a Judge who is member of the Council or a member of Council is unable to act due to any reason, in case such member is a Judge of the Supreme Court, the next Judge in seniority, and if he is a Chief Justice of the High Court, the Chief Justice of another High Court next in seniority, shall act as a member of the Council in his place. Article 260 of the Constitution provides that "the Chief Justice in relation to the Supreme Court or a High Court includes the Judge for the time being acting as Chief Justice of the Court and the Judge includes Chief Justice of the Court." In the light of sub-Article (3) of Article 209 read with Article 260 of the Constitution the debate with reference to sub-Article (2) of the Article 209 that in the absence of Chief Justice of Pakistan, the constitution and composition of Supreme Judicial Council may not be proper is of no significance.?

Sub-Article (5) of Article 209 provides that the President on an information received from Council or any other source, if is of the view that Judge of the Supreme Court or a High Court is incapable of properly discharging function of his office by reason of physical or mental incapability or is guilty of misconduct, shall direct Council to inquire into the matter and Supreme Judicial Council in consequence to the inquiry conducted in the matter, if submits report to the President with the opinion that Judge is unable of performing duties of his office or has been guilty of misconduct and he may be removed from his office, the President may remove the Judge from office. It is thus mandatory for the President that on receipt of information of the nature mentioned above against a Judge of the superior Court, to issue direction to Supreme Judicial Council for holding an inquiry into the matter and if the Supreme Judicial Council forms opinion as stated in clauses (a) and (b) of sub-Article (6) of Article 209 of the Constitution, the President may in his discretion remove the Judge. The expression shall' used in sub-Article (5) places duty on the President to issue direction to the Supreme Judicial Council for inquiry into the matter whereas the wordmay' used in sub-Article (6) indicates that the President may or may not remove the Judge. The Code of Conduct issued by the Supreme Judicial Council is to be observed by the Judges of superior courts and under sub-Article (7) of the Article 209 of the Constitution provides protection of tenor to the Judges of superior courts as no Judge can be removed from his office except in the manner provided in Article 209.?

The plain reading of Article 209 of the Constitution would show that it is complete code by itself providing the manner in which a Judge can be removed from his office on the ground of misconduct or if he is incapable of performing his duties due to mental or physical incapacity.?

The power and jurisdiction of the Supreme Judicial Council, a constitutional body, is not unlimited to pass any order in the manner as is the power of judicial review and jurisdiction of the Supreme Court rather its power is confined to the extent of matters falling within the purview of Article 209 and Article 210 of the Constitution and not beyond the scope of these Articles which do not as such authorize the President or Supreme Judicial Council to restrain a Judge from discharging his functions during the pendency of a Reference against him sent by the President to Supreme Judicial Council for inquiry in due process of law. The power of the Supreme Judicial Council under Article 209 is not unbridled rather the careful examination of Article 209 and Article 210 of the Constitution would lead to the conclusion that function of Supreme Judicial Council is only to hold an inquiry and submit report to the President and the President on the basis of report may remove the Judge.?

(s) Mala fide--

----Kinds of---Personal malice and bias, mala fide in fact and mala fide in law---Concepts.?

Per Ch. Ijaz Ahmed, J. agreeing with Khalil-ur-Rehman Ramday, J

(t) Constitutional/Political history of Pakistan.

?

Federation of Pakistan and others v. Maulvi Tamiz-ud-Din PLD 1955 FC 240; Yousaf Patel's case PLD 1955 SC 38; George Stration and others' case (1979) 21 Howells State Trial 1045; State v. Dosso and 3 others PLD 1958 SC 533; Asma Jillani's case PLD 1972 SC 139; Attorney-General of the Public v. Mutafa Ibrahim and others (1964 Cyprus Law Reports 195; Madzimbamuto v. Lardner Burke (1968) 3 AER 561; Begum Nusrat Bhutto's case PLD _1977 SC 657; Ghulam Mustafa Khar's case PLD 1989 SC 26; Kh. Ahmed Tariq Rahim's case PLD 1992 SC 646; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Mahmood Khan Achakzai's case PLD 1997 SC 425; Mohtrama Benazir Bhutto's case PLD 1998 SC 338; Wasim Sajjad's case PLD 2001 SC 233; Qazi Hussain Ahmad Amir Jamat-e-Islami's case PLD 2002 SC 853; Zafar Ali Shah's case PLD 2000 SC 869; Wukla Mahaz's case PLD 1998 SC 1236; PLD 2005 SC 719; Baba-a-Qaom Quaid-e-Azam by Prof. Hamid Ullah Shah Hashmi; Hangamon ki Duniya by Mushtaq Ahmed Wajid and Shahab Nama by Qudratullah Shahab ref.

(u) Interpretation of Constitution---

----Principles.?

S.M. Zafar on Understanding Statutes ref.

(v) Constitution of Pakistan (1973)---

----Arts. 209, 211 & 184(3)---Procedure for removal of a Judge of the Supreme Court or of a High Court as envisaged in Art.209 of the Constitution---Bar of Jurisdiction under Art. 211 of the Constitution---Effect--Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Constitutional authorities were bound to act in accordance with law as provided in Art.4 of the Constitution and obey the command of the Constitution in terms of Art.5(2) of the Constitution---Preliminary objection qua bar of jurisdiction under Art.211 of the Constitution had no force on the touchstone that to form opinion under Art.209 of the Constitution by the President/Prime Minister/Cabinet was an executive order which could be brought under judicial review---Principles.? ?

Union of India's case AIR 1974 SC 87; Shaukat Ali and others v. Government of Pakistan and others PLD 1997 SC 342; Manzoor Elahi's case PLD 1975 SC 66; Mrs. Anisa Rehman's case 1994 SCMR 2232; Utility Stores Corporation Ltd.'s case PLD 1987 SC 447; Breen's case (1971) All ER 1148; Wade Administrative Law 548 (VT ed). (1965) All ER 81; R v. Deputy Industrial Inquiries Commissioner, (1984) 3 All ER 201; Raipur Development Authority's case AIR 1990 SC 1426; Institute of Chartered Accountants of India's case AIR 1987 SC 71; Harnagar Sugar Mills' case AIR 1961 SC 1669; M.P. Industries' case AIR 1966 SC 671; Mukarji's case AIR 1990 SC 1984; Collector of Monghyr's case AIR 1975 SC 2226; Messrs Airport Support Services' case 1998 SCMR 2268; Aslam Warraich's case 1991 SCMR 2330; Muhammad Tariq Pirzada's case 1999 SCMR 2744; 1999 SCMR 2189; Nusrat Imtiaz's case, NLR 2000 Civil 54; Zahid Akthar's case PLD 1995 SC 530; Ghulam Mohy-ud-Din's case PLD 1964 SC 829; Syed Fayyaz Hussain Qadri's case PLD 1972 Lah. 316; Aman Ullah Khan's case PLD 1990 SC 1092; Sacm Labour Union's case (1946) 2 All ER 201; Ghulam Mustafa Khar's case PLD 1989 SC 26; Zia-ur-Rehman's case PLD 1973 SC 49; Saeed Ahmed Khan's case PLD 1974 SC 151; Yamin's case PLD 1981 SC 23; I.A. Sherwani's case 1991 SCMR 1041; Pir Sabir Ali Shah's case PLD 1994 SC 738; Zafar Ali Shah's case PLD 2000 SC 869; Wasim Sajjad's case PLD 2001 SC 233; Khan Asfandyar Wali's case PLD 2001 SC 607; Mr Justice Sh. Shaukat Ali's case PLD 1971 SC 585; Haji Saifullah Khan's case PLD 1989 SC 166; Sardar Farooq Ahmad Leghari's case PLD 1999 SC 57; Mian Manzoor Ahmad Wattoo's case PLD 1997 Lah. 38; Mian Nawaz Sharifs case PLD 1993 SC 473; Raja Ram Pal's case 2007 Vol. 3 SCC 184; Kilbourn's case 103 US 168; Mehmood Khan Achakzai's case PLD 1997 SC. 426; Wukla Mahaz's case PLD 1998 SC 1263; Pakistan Lawyers Forum's case PLD 2005 SC 719; Iqbal Haider's case 1998 SCMR 1949; Book "Sunahray Faislay", p.55 and Benazir's case PLD 1988 SC 416 ref.

(w) Constitution of Pakistan (1973)---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution before Supreme Court---Maintainability---Principles. ?

Pakistan Lawyers Forum's case PLD 2005 SC 719; Iqbal Haider's case 1998 SCMR 1949; Book "Sunahray Faislay", p.55 and Benazir's case PLD 1988 SC 416 ref.

(x) Constitution of Pakistan (1973)---

----Arts. 209(5) & 260---Only forum to inquire into the conduct of Judges of Superior Courts including the Chief Justice of Pakistan in terms of Art.209(5) of the Constitution is Supreme Judicial Council---Procedure and principles.?

Syed Zafar Ali Shah's case PLD 2000 SC 869; Mian, Muhammad Nawaz Sharif's case PLD 1973 SC 473; M. Jamal Com.'s case (PTCL 1989 FC 217 at 229) Sadhi Saran Shukla's case (1994) 2 SCC 434 at 445; Understanding Statutes by Mr. S.M. Zafar pp. 89-90; K.V. Muttu's case AIR 1997 SC 628; Punjab Cooperative Bank's case PLD 1964 SC 616; Malik Asad Ali's case PLD 1998 SC 161; Hakim Khan's case PLD 1992 SC 595; Saeed Ahmad Khan's case PLD 1974 SC 151; Reference by the President of Pakistan PLD 1957 SC (Pak) 219; Shahid Nabi Malik's case PLD 1997 SC 32; Syed Muhammad Alam's case PLD 1970 Lah. 6; Justice Ghulam Haider Lakhoo's case PLD 2000 SC 179; Khan Asfandaryar Wali's case PLD 2001 SC 607; Muhammad Ijaz ul Haq's case 2006 SCMR 989; Nasimul Haq Malik's case 1996 SCMR 1264; Union of India's case AIR 1992 SC 96; Insaf Main Musawwat at p.226; Al-Jahad Trust's case PLD 1996 SC 324; Muhammad Ismail's case PLD 1969 SC 241; AIR 1975 Dehli 66; AIR 1982 SC 149; 46 American Jurisprudence 2d, 142 para 18-19; 48A; Corpus Juris Secundum 614=615 para. 46; Meera Bux's case (2005) UKPC 12=(2005)4; LRC 281 at 298 H, Justice Shaukat Ali's case PLD 1971 SC 585; Kh. Muhammad Sharif's case PLD 1988 Lah. 725; Store Rolling Mills' case PLD 1974 Note 129 at p. 189; 1974 PTD 200; Haji Saifullah Khan's case PLD 1989 SC 166; Union of India's case GT 2006 (!) SC 457 and Judicial Review of Public Actions by Justice (R.) Fazal Karim ref.

(y) Constitution of Pakistan. (1973)---

----Art. 209(5) & 184(3)---Direction (Reference) issued by the President of Pakistan under Art.209(5) of the Constitution---Validity---Principles. ?

Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Ch. Pervaiz Elahi's case PLD 1993 Lah. 595; The Rangoon Development Trust's case AIR 1932 Rangoon 123; Mansab Ali's case PLD 1971 SC 124; Wattan Party's case PLD 2006 SC 697; Union of India's case AIR 1994 SC 1918; Mian Manzoor Wattoo's case PLD 1997 Lah. 39 at 83; Saeed Ahmad Khan's case PLD 1974 SC 151; Khalid Malik's case PLD 1991 Kar. 1; Haji Saifullah Khan's case PLD 1989 SC 166; George Mcerabux's case 2005 UK (PC) page 12; Union of India's case AIR 1992 SC 320 in paras. 61, 331, para. 5, 331 para. 7, 356 to 357 paras. 59, 60, 61 and 62 and 359 para 66); Charles Sawyer's case 343 US 579 at pages 582, 584, 586, 588, 632, 634, 644, 646, 649, 654; Sh. Liaquat Hussain's case PLD 1999 SC 504; Ghulam Mohy-ud-Din's case PLD 1964 SC 829; Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1947) 2 A.E.R. 680 and Muhammad Iqbal Khokharts case PLD 1991 SC 35 ref.

(z) Constitution of Pakistan (1973)---

----Arts. 209, 180 & 184(3)---Order of Supreme Judicial Council whereby Chief Justice of Pakistan was restrained to act as Chief Justice of Pakistan and as Judge of the Supreme Court on account of facts narrated in a Reference sent to the Supreme Judicial Council by the President was patently illegal having no constitutional or legal backing---Subsequent notification whereby the President under Art.180 of the Constitution had appointed Acting Chief Justice was also void--Principles.?

Rees's case (1994) Vol. 2 (PC) WLR 476, 477, 479, 481, 482, 484, 489, 490, 493, 494 ref.

(aa) Judges (Compulsory Leave) Order [27 of 1970]---

----Preamble---Validation of Laws Act (LXIII of 1975), Preamble---Constitution of Pakistan (1973), Arts.184(3) & 209---Vires of Judges (Compulsory Leave) Order, 1970---Mere reading the provisions of Judges (Compulsory Leave) Order, 1970 with the provisions of the Constitution clearly shows that it is not a valid piece of legislation as the same is in derogation of the mandatory provisions of the Constitution and clearly hit by the independent character of the organ of judiciary---Judges (Compulsory Leave) Order, 1970 is ultra vires the Art.209 of the Constitution---If provisions of both Art.209 of the Constitution and provisions of Judges (Compulsory Leave) Order, 1970 be read together then both are conflicting with each other---Judges (Compulsory Leave) Order, 1970 validated under the Validation of Laws Act, 1975 was violative of the provisions of the Constitution and fundamental rights and therefore, liable to be struck down---Principles.?

Asma Jillani's case PLD 1972 SC 139; Wattan Party's case PLD 2006 SC 697 and Al-Jahad Trust's case PLD 1996 SC 324 ref.

(bb) Bias---

----Judge of superior court is a Judge of conscience and he himself has to decide about his competency to hear a case.?

"Sunahary Faisalay", page 108, 109 ref.

(cc) Islamic jurisprudence---

----Administration of justice---Status of Qazi (Judge) is at very higher pedestal in Islam---Principles.?

I.A. Sherwani's case 1991 SCMR 1041; Islamic Law and Constitution by S. Abul Ala Maududi; Adab ul Qazi compiled by Mehmood Ahmed Ghazi; Urdu Daeera Mahaaraf-e-Islamia, under Danish Gah Punjab, Lahore and Islami Nizam-e-Adal ref.

Ch. Aitizaz Ahsan and Hamid Khan, Senior Advocates Supreme Court, M.S. Khattak, Advocate-on-Record, assisted by Barrister Gohar Ali Khan, Nadeem Ahmed and Shahid Saeed, Advocates for Petitioner (under special permission granted by this Court) (in C.P. No.21 of 2007)).

Makhdoom Ali Khan, Attorney General for Pakistan, Raja Abdul Ghafoor, Advocate-on-Record assisted by Khurram Hashmi and Umair Majeed Malik, Advocates (On Court's Notice) (under special permission granted by this Court (in C.P. No.21 of 2007)).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Raja Muhammad Ibrahim Satti, Advocate Supreme Court assisted by Waqar Rana, Advocate for Respondent No.1 (under special permission granted by this Court (in C.P. No.21 of 2007)).

Maqbool Ellahi Malik, Senior Advocate Supreme Court, Malik Muhammad Qayyum, Advocate Supreme Court and Shaukat Ali Mehr, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record assisted by M. Ahmed Qayyum Advocate for Respondent No.2 (under special permission granted by this Court (in. C.P. No.21 of 2007))

Syed Zafar Abbas Naqvi, Advocate Supreme Court for Respondent No.3 (in C.P. No.21 of 2007).

Nemo for Respondents Nos. 4 and 5 (in C.P. No.21 of 2007).

Aftab Iqbal Chaudhry, A.G., Punjab, Ch. Muhammad Hussain, Addl. A.-G. and Rao Muhammad Yousaf Khan, Advocate-on-Record for Respondent No.6 (in C.P. No.21 of 2007).

Petitioner in Person (in C.P. No.7 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1 (in C.P. No.7 of 2007).

Barrister Zafar Ullah Khan, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Petitioner (in C.P. No.8 of 2007).

Makhdoom Ali Khan, Attorney General for Pakistan and Raja Abdul Ghafoor, Advocate-on-Record (on Court's Notice) (in C.P. No.8 of 2007).

Sahibzada Ahmed Raza Kasuri, Senior Advocate Supreme Court, Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.P. No.8 of 2007).

Farooq Hassan, Abdul Rasheed Qureshi and Malik Shakeel-ur-Rehman, Advcoates Supreme Court for Petitioner (in C.P. No.10 of 2007).

Makhdoom Ali Khan, Attorney General for Pakistan and Raja Abdul Ghafoor, Advocate-on-Record (On Court's notice).

Malik Muhammad Qayyum, Shaukat Ali Mehr, Abdul Sattar Chughtai, Abdul Hameed Rana, Advocates Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1 (in C.P. No.10 of 2007).

Petitioner in person (in C.P. No.11 of 2007).

Nemo for Respondents (in C.P. No.11 of 2007).

Petitioner in person (in C.P. No.12 of 2007).

Nemo for Respondents (in C.P. No.12 of 2007).

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record assisted by Mohsin Kamal and Azid Nafees, Advocates for Petitioner (under special permission granted by this Court (in C.P. No.15 of 2007)).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1 (in C.P. No.15 of 2007)).

Engineer Jamil Ahmed Malik (in person) for Petitioner (in C.P. No.16 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1 (in C.P. No.16 of 2007).

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Arshad Ali Chaudhry, Advocate-on-Record assisted by Barrister Natalya Kamal and Ahmed Ahsan, Advocates for Petitioner (under special permission granted by this Court (in C.P. No.18 of 2007)).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1 (in C.P. No.18 of 2007).

Dr. Farooq Hassan, Senior Advocate Supreme Court, Malik Shakeel-ur-Rehman, Advocate Supreme Court and Ch. Arshad Ali, Advocate-on-Record for Petitioner (in C.P. No.19 of 2007).

Nemo for Respondents (in C.P. No.19 of 2007).

Petitioner in person (in C.P. No.22 of 2007).

Malik Muhammad Qayyum, Pervaiz Alamgir, and Mian Ehsan-?ul-Haq Sajid, Advocates Supreme Court and Ch. Akhtar Ali, Advocate?on-Record for Respondent No.1 (in C.P. No.22 of 2007).

Hamid Khan, Senior Advocate Supreme Court, Mirza Aziz Akbar Baig, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.23 of 2007).

Malik Muhammad Qayyum, M. Siddique Mirza, Khalid Mahmood Farooqi, Shabbir Lali Advocates Supreme Court, and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.2 (in C.P. No.23 of 2007).

Hamid Khan, Senior Advocate Supreme Court, Rasheed A. Rizvi, Shafqat Abbasi, Hafiz Abdul Rehman Ansari, Advocates Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.24 of 2007).

Ahmed Raza Kasuri, Senior Advocate Supreme Court, Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.2 (in C.P. No.24 of 2007).

Abdul Majeed Pirzada, Senior Advocate Supreme Court, Ms. Mehreen Anwar Raja, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.25 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court, Ch. Naseer Ahmed, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.2 (in C.P. No.25 of 2007).

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Arshad Ali Chaudhry, Advocate-on-Record assisted by Barrister M. Kamran Sheikh, Rahat Kaunian, Advocate for Petitioner (in C.P. No.27 of 2007) (under special permission granted by this Court)

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1 (in C.P. No.27 of 2007).

Syed Mansoor Ali Shah, Advocate Supreme Court, Yahya Arifdi, Athar Minallah, Advocates Supreme Court and M. S. Khattak, Advocate-on-Record for Appellants (in C.M. Appeal No.22 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent (in C.M. Appeal No.22 of 2007).

Appellant in Person (in C.M. Appeal No.27 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1 (in C.M. Appeal No.27 of 2007):

Arshad Ali Chaudhry, Advocate Supreme Court/Advocate-on-Record for Petitioner (in C.P. No.30 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.2 (in C.P. No.30 of 2007).

Rasheed A. Rizvi, Abrar Hassan, Advocates Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.31 of 2007)

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent (in C.P. No.31 of 2007).

Ahmed Awais, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.32 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent (in C.P. No.32 of 2007).

Fakhar-ud-Din G. Ibrahim, Senior Advocate Supreme Court, Tariq Mahmood, Advocate Supreme Court and M.S. Khattak, Advocate?-on-Record for Petitioner (in C.P. No.33 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, .Advocate-on-Record for Respondent (in C.P. No.33 of 2007).

Ch. Naseer Ahmed Bhutta, Advocate Supreme Court for Petitioner (in C.P. No.34 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent (in C.P. No.34 of 2007).

Arshad Ali Chaudhry, Advocate Supreme Court/Advocate-on-Record for Petitioner (in C.P. No.35 of 2007).

Malik Muhammad Qayyum, Advocate Supreme Court and Ch. Akhtar Ali; Advocate-on-Record for Respondent (in C.P. No.35 of 2007).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in C.P. No.38 of 2007).

Nemo for Respondent (in C.P. No.38 of 2007).

Habib-ul-Wahab-ul-Khairi, Advocate Supreme Court for Petitioner (in C.P. No.40 of 2007).

Nemo for Respondent (in C.P. No.40 of 2007).

Date of hearing: 15th to 17th, 21st to 25th, 28th to 31st May, 2007, 1st, 4th to 8th, 11th to 14th, 18th to 21st, 25th to 28th June, 2007, 2nd to 5th, 9th to 12th and 16th to 20th July, 2007.

P L D 2010 Supreme Court 265

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, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Parvez and Ghulam Rabbani, JJ

Dr. MOBASHIR HASSAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition Nos. 76 to 80 of 2007 & 59/2009, and Civil Appeal No.1094 of 2009.

(On appeal from the order dated 15-1-2009 passed by High Court of Sindh at Karachi in Const. P.No.355 of 2008) and H.R.C. Nos.14328-P to 14331-P & 15082-P of 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, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Parvez and Ghulam Rabbani, JJ agreeing---

(a) National Reconciliation Ordinance (LX of 2007)---

----Preamble---Constitution of Pakistan (1973), Arts.270AAA & 89---Validity of National Reconciliation Ordinance, 2007---Held, Supreme Court of Pakistan vide its judgment in Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879) had declared the Proclamation of Emergency, 2007, Provisional Constitution Order, 2007, Oath of Office (Judges) Order, 2007, Provisional Constitution (Amendment) Order, 2007 and the Constitution (Amendment) Order, 2007 to be unconstitutional, illegal and void ab initio, consequently all the Ordinances including National Reconciliation Ordinance, 2007 were shorn of the permanency, which was provided under Art.270AAA of the Constitution as validated in the case of Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178)---Supreme Court while adhering to the doctrine of constitutional trichotomy, referred National Reconciliation Ordinance, 2007 along with other Ordinances, to the Parliament for consideration to make them Act of the Parliament, or the Provincial Assemblies, as the case may be, with retrospective effect but National Reconciliation Ordinance, 2007 after having been brought on the floor of the National Assembly, was withdrawn---Necessary inference could be drawn that the National Assembly and the Senate (the Parliament), which were required to approve or otherwise the National Reconciliation Ordinance, 2007, and the same was sent along with other Ordinances to them, to make the same an Act of the Parliament, with retrospective effect, did not consider it to be a valid temporary legislation, being an Ordinance promulgated under Art.89 of the Constitution.

Facto Belarus Tractor Ltd. v. Government of Pakistan PLD 2005 SC 605; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Tikka Iqbal Muhammad Khan v. General Pervez Musharraf PLD 2008 SC 178 ref.

(b) Administration of justice---

----Legal proceedings are not undertaken by the courts merely for academic purposes unless there are admitted or proven facts to resolve the controversy.

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

----Preamble---Constitution envisages the trichotomy of powers amongst three organs of the State, namely the Legislature, Executive and the Judiciary---Legislature is assigned to task of law making, the executive to execute such laws and the judiciary to interpret the laws---None of the organs of the State can encroach upon the field of others.

The State v. Ziaur Rahman PLD 1973 SC 49; Federation of Pakistan N. Saeed Ahmad Khan PLD 1974 SC 151; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Sayed Zafar Ali Shah v. General Pervez Musharraf PLD 2000 SC 869; Nazar, Abbas Jaffri v. Secretary Government of the Punjab 2006 SCMR 606; Sindh High Court Bar Association's case PLD 2009 SC 879; Smt. Indra Nehru Ghandi v. Raj Narain AIR 1975 SC 2299 and Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789 ref.

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

----Arts. 184, 185 & 186---Duty is cast upon the Supreme Court that it should normally lean in favour of constitutionality of a statute and efforts should be made to save .the same instead of destroying it---Principle is that law should be saved rather than be destroyed and the court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments, unless ex facie, it is violative of a constitutional provision.

Abdul Aziz v. Province of West Pakistan PLD 1958 SC 499; Province of East Pakistan v. Siraj-ul-Haq Patwari PLD 1966 SC 854; Inam-ur-Rehman v. Federation of Pakistan 1992 SCMR 563; Sabir Shah v. Shad Muhammadi Khan PLD 1995 SC 66; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Tariq Nawaz v. Government of Pakistan 2000 SCMR 1956; Asif Islam v. Muhammad Asif PLD 2001 SC 499; Federation of Pakistan v. Muhammad Sadiq PLD 2007 SC 133 and Elahi Cotton Mills v. Federation of Pakistan PLD 1997 SC 582 ref.

(e) National Reconciliation Ordinance (LX of 2007)---

----Preamble---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the validity of National Reconciliation Ordinance, 2007---Held, National Reconciliation Ordinance, 2007 was promulgated as a result of deal between two individuals for their personal objectives and was designed to benefit certain class of individuals against whom cases were registered between 1-1-1986 to 12-10-1999 subject to the scheme laid down therein---Said Ordinance was not promulgated for achieving the object of national reconciliation as according to its substantive provision i.e. S.2, it was meant to extend benefit to the accused persons, against whom cases were registered between 1st January, 1986 to 12th October, 1999, subject to the scheme laid down therein---Likewise under S.7 of the said Ordinance cases against "holders of public office', involved in the offences, inside and outside the country, were deemed to have been withdrawn, including the proceedings, initiated under S.33, National Accountability Ordinance, 1999 outside the country, through request for mutual assistance and civil party to proceedings, by the Federal Government, before 12th October, 1999---Provisions of Ss.2 & 7 of the National Reconciliation Ordinance, 2007 had made it clear that the Ordinance had extended benefit only to the criminals, involved in the minor or heinous crimes and "holders of public office" involved in corruption and corrupt practices,' as such, National Reconciliation Ordinance, 2007 could not be considered to be a legislation for achieving the object of national reconciliation---National Reconciliation Ordinance, 2007, was not promulgated for "national reconciliation" but for achieving the objectives which absolutely had no nexus with the "national reconciliation "because the nation of Pakistan, as a whole, had not derived any benefit from the same---Contrary to it, it had been promulgated for achieving the individuals' reconciliation, according to admitted evidence on record.

Dawn Newspaper cutting dated 5th October, 2007; "Reconciliation: Islam, Democracy and the West" by Mohtarma Benazir Bhutto; "The Way of the World" by Ron Suskind; Jamat-e-Islami v. Federation of Pakistan PLD 2009 SC 549; Abdul Aziz v. Province of West Pakistan PLD 1958 SC 499; Province of East Pakistan v. Siraj-ul-Haq Patwari PLD 1966 SC 854; Inam-ur-Rehman v. Federation of Pakistan 1992 SCMR 563; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Tariq Nawaz v. Government of Pakistan 2000 SCMR 1956; Asif Islam v. Muhammad Asif PLD 2001 SC 499; Federation of Pakistan v. Muhammad Sadiq PLD 2007 SC 133; Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; "Constitution Making in Pakistan" from proceedings of the National Assembly; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Raja Muhammad Afzal v. Ch. Muhammad Iltaf Hussain 1986 SCMR 1736; 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; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2004 Lah. .130; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Watan Party v. Federation of Pakistan PLD 2006 SC 697 and Sindh High Court Bar Association's case PLD 2009 SC 879 ref.

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

----Art. 164---Taking notice of prevailing state of affairs having bearing on the issue involved in a case---Scope---Reports of the, relevant period from electronic and print media, could be taken into consideration---Non-denial of a solitary newspaper report, or even more reports may, not, in appropriate cases, form the basis of an opinion, one way or the other.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Raja Muhammad Afzal v. Ch. Muhammad Iltaf Hussain 1986 SCMR 1736; 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; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2004 Lah. 130; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Watan Party v. Federation of Pakistan PLD 2006 SC 697; Sindh High Court Bar Association's case PLD 2009 SC 879 and "Reconciliation: Islam, Democracy and the West" by Mohtarma Benazir Bhutto ref.

(g) Words and phrases---

---- "Reconciliation "---Connotation.

Black's Law Dictionary; Corpus Juris Secundum and Advanced Law Lexicon 2005 Ed. ref.

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

----Arts. 8 & 184(3)---Jurisdiction of Supreme Court to examine constitutionality of a law---Scope---Inconsistency or contravention of a law passed, or the existing law, shall be examined to the extent of violation of fundamental rights and such laws are not void for other purpose---Use of word "inconsistent" in Art.8(1) of the Constitution---Significance---Terms "void" and "void ab initio"---Definitions.

Sub-Article (1) of Article 8 of the Constitution uses the word `inconsistent' purposely, regarding any law which was promulgated in the past or is in existence presently. Whereas, sub-Article 2 of Article 8 of the Constitution debars the State not to make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. So, inconsistency or contravention of a law passed, or the existing law, shall be examined to the extent of violation of fundamental rights and such laws are not void for other purposes.

The word `void' may be used in what is variously referred to as its literal, absolute, primary, precise, strict, and strictly accurate sense, and in this sense it means absolutely null and incapable of confirmation or ratification;, of no effect and incapable of confirmation; of no force and effect; having no legal force or binding effect, having no legal or binding force; incapable of being enforced by law; of no legal force or effect whatever; that which has no force and effect; without legal efficacy, without vitality or legal effect; ineffectual; nugatory; unable in law to support the purpose for which it was intended.

"Term "void" signifies something absolutely null, incapable of ratification or confirmation and, thus, having no legal effect whatsoever". Similarly, the word `void ab initio' has been defined as "null from the beginning".

"The Acquiescence of UK Courts to Foreign Legislation in Particular the NRO" by Barrister Safiullah Ghouri; Comparative Constitutional Law by Hamid Khan and Muhammad Waqar Rana p.48; "Law of the Constitution" by A. V. Dicey; "Access to Justice" in Pakistan by Justice Fazal Karim; "Judicial Review of Public Actions"; Black's Law Dictionary, 7th Edn. (1999); Corpus Juris Secondum, Vol. 92 pp.1021 to 1022; Province of East Pakistan v. M.D. Mehdi Ali Khan PLD 1959 SC 387; Syed Abul Ala Maudoodi v. Government of West Pakistan PLD 1964 SC 673; Bhikaji Narain v. State of M.P. AIR 1955 SC 781; Haji Rehmdil v. Province of Balochistan 1999 SCMR 1060; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 at p.596; Benazir Bhutto's case PLD 1988 SC 416 at 485; Azizullah Memon's case PLD 1993 SC 341 at 354; Government of N.W.F.P. v. Muhammad Irshad PLD 1995 SC 281 at 296; Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781 at p.796; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 at 1313 & 1357; Wattan Party v. Federation of Pakistan PLD 2006 SC 597 at p.731 and Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642 at 671, 675, 676 ref.

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

---Art. 4---Scope---Article 4 of the Constitution commands that all the citizens without any discrimination shall be dealt with in accordance with law, so enforcement of the law leaves no room for creating any distinction between the citizens, except a particular class, on the basis of the intelligible differentia---"Intelligible differentia" means in the case of the law differentiating between two sets of the people or objects, all such differentiations should be easily understood as logical and lucid and it should not be artificial or contrived---Intelligible differentia distinguishes persons or things from the other persons or things, who have been left out.

Mabmood Khan Achakzai's case PLD 1997 SC 426 and Syed Zafar Ali Shah's case PLD 2000 SC 869 ref.

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

----Art.25---Equality of citizens---Reasonable classification---Principles. In order to make a classification reasonable, it should be based:--

(a) on an intelligible differentia which distinguishes persons or things that are-grouped together from those who have been left out;

(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.

Any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed.

Azizullah Memon's case PLD 1993 SC 341; Charanjit Lal v. Union of India AIR 1951 SC 41 and Shazia Batool v. Government of Balochistan 2007 SCMR 410 ref.

(k) National Reconciliation Ordinance (LX of 2007)---

----Preamble---Constitution of Pakistan (1973), Arts.2A, 4, 8, 25 & 184(3)---National Accountability Ordinance (XVIII of 1999), Ss.31-A & 33-F---Criminal Procedure Code (V of 1898), S.494---Constitutional petition under Art.184(3) of the Constitution challenging validity of National Reconciliation Ordinance, 2007---Held, benefit was extended by National Reconciliation Ordinance, 2007 to three categories of persons by amending, S.494, Cr.P.C. and by adding clause (aa), in S.31-A and inserting S.33-F in the National Accountability Ordinance, 1999---Such action initiated under the National Reconciliation Ordinance, 2007 was tantamount, in clear terms, to deny the independence of, judiciary, which is hallmark and also one of the salient features of the Constitution---By substituting the Court with the Review Board, mandatory procedure of law had been compromised and at the same time had also created discrimination with the accused who were facing trial prior to 1-1-1986 or had been charged for the offence after 12-10-1999---Classification amongst the accused persons, facing trial during the specific period 1-1-1986 to 12-10-1999 was based on arbitrariness and no reasons had been disclosed in the National Reconciliation Ordinance, 2007 for entering into so-called "reconciliation" with particular group of accused persons, except in the name of "national reconciliation" on the pretext that the cases were politically motivated against them---National Reconciliation Ordinance, 2007 to the extent of S.2, was arbitrary and irrational as the same had failed the test of reason to conclude in its favour that it is not a bad law---Similarly on the basis of intelligible differentia for reasonable classification, the differentiation had not been understood logically and it seemed that for specific purpose, an artificial grouping was made, causing injustice to the accused persons, who were placed in the same position and instead of achieving "national reconciliation", National Reconciliation Ordinance, 2007 had served the purpose of "individual reconciliation".

National Reconciliation Ordinance, 2007 has extended benefit to three categories of persons in the following manner:--

(1) By virtue of amendment of Section 494 Cr.P.C. the cases of accused persons, including the absconding accused, involved in criminal cases, for political reasons or through political victimization, initiated between 1st January, 1986 to 12th October, 1999 including those against whom, judgments have been pronounced by the Trial Court, were to be withdrawn.

(2) By adding clause (aa) in Section 31A of the National Accountability Ordinance, 1999, it is declared that an order and judgment passed by the court in absentia against an accused is void ab initio and shall not be acted upon.

(3) By inserting Section 33F in the National Accountability Ordinance, 1999, the proceedings under investigation or cases pending in any court including a High Court and the Supreme Court of Pakistan, initiated by or on a reference by the NAB, inside and outside Pakistan, including the proceedings initiated under section 33 by making requests for mutual assistance and civil party to proceedings, by the Federal Government, before the 12th day of October, 1999, against holders of public office stood withdrawn and terminated and suchholders of public office' shall also not be liable for any action in future as well under this Ordinance for acts having been done in good faith before the said date.

A cursory glance on amended section 494, Cr.P.C. leads to conclude that powers of the Court under section 494(1), Cr.P.0 were conferred upon the Review Board, to be constituted by the Federal Government and the Provincial Government, composition of which has been provided under 'subsection (4) of section 494, Cr.P.C. In simple words consent of the Court has been replaced with the recommendations of the Review Board i.e. an executive body, for all intent and purposes. The Review Board on whose recommendations, all the cases, in which judgment has not been pronounced by the Trial Court, are to be withdrawn from the prosecution, including the cases of absconding accused, who were found to be falsely involved for the political reasons or political 'victimization. Essentially, declaring a person absconder is the job of the Trial Court, after submission of challan and observing codal formalities under Sections 87 and 88, Cr.P.C. As far as involving a person falsely for political reasons or through political victimization, is concerned, it is a question which could only be examined by the Court of law, before whom challan has been submitted because once a challan is filed, the accused can be discharged or acquitted under Cr.P.C., if there is no evidence against the accused, as the case may hr, or by applying for quashment of the case under Section 561-A, Cr.P.C. or approaching the Revisional Court for terminating the proceedings, if the same are not founded on correct disclosure of information for involvement of the accused. However, as far as absconding accused is concerned, prima facie, he is considered to be fugitive from law. Therefore, without surrendering to the court, legally no concession, can be extended to him by the executive authority. Action initiated under the National Reconciliation Ordinance, 2007 in terms of above provision is tantamount, in clear terms, to deny the independence of judiciary, which is hallmark and also one of the salient features of the Constitution.

As far as independence of Judiciary is concerned its security has been provided by the Constitution itself in Article 2A of the Constitution.

A perusal of the material furnished by the Advocate General Sindh, reveals that Provincial Review Board constituted under the provision of amended section 494, Cr.P.C., examined criminal cases on 9th October 2007 and has drawn the conclusion on the same day that after having gone through the available record and bearing in mind the provisions contained in the amended section 494, Cr.P.C. the Board is of unanimous view that all the cases were falsely registered and for political reasons, therefore, it would be futile exercise to keep them pending particularly when most of the cases are very old and there is hardly any cogent evidence to connect the accused with the alleged offences, as none of them would result in conviction, if tried by the respective courts, as such, notwithstanding the fact that any one of the accused has been declared absconder, the Board recommended the Provincial Government that those cases may be withdrawn forthwith. Exact figure of such cases has not been brought on record but as per verbal statement of the Advocate General Sindh, there were more than three thousand cases which have been withdrawn, in which about eight thousand accused were involved. One fails to understand whether hundreds of cases can be decided within few hours, for the purpose of making recommendations by the Provincial Review Board. Therefore, inference would be that just to fulfil the formality, meeting of the Board was convened in order to get recommendations for the withdrawal of cases. The list so made available by the Advocate General Sindh indicates that the cases including the criminal cases, involving murder; attempt to murder, dacoity, kidnapping for ransom, robbery, gunrunning, theft, extortion, etc. have been recommended by the Board for withdrawal forthwith. After the amendment in P.P.C., in pursuance of judgment of Supreme Court in Federation of Pakistan v. Gul Hassan Khan (PLD 1989 SC 633), the cases pertaining to Qisas, Diyat, Arsh, etc. were not allowed to be compounded without the permission of the victim or the heirs of deceased and even if such permission is sought by entering into compromise, under Chapter XVI of the P.P.C., no withdrawal or compromise of such cases is permissible in non-compoundable cases. In the list, submitted by the Advocate General Sindh, there are cases, relating to offences, which are non-compoundable and even the court of law, before whom matter is sub judice, is not empowered to make recommendations for withdrawal of the same or allowed to enter into compromise. Admittedly, the victim or heirs of the deceased, in body-hurt cases, covered by Chapter XVI, P.P.C., had an inalienable right to be heard by a court of law, as sometimes permission is accorded by the court to compound the offence, subject to payment of Diyat, Daman, Arsh, etc., as the case may be. But by substituting the court with the Review Board, mandatory procedure of law has been compromised.

No assertion could be made by either of the parties about the punishment to an accused, whose case has been withdrawn despite likelihood of his getting punishment under Qisas or Ta'zir. The court, trying an accused for, a particular crime, based on a particular charge, prayed against him by the prosecution, has no reasons to enter into discussion whether on account of political victimization, be has been involved in the case or otherwise; because the court is required to decide the case on merits, in exercise of its jurisdiction, following the consistent principles of administration of justice in criminal cases that if no case is made out on merits, it is free to discharge or acquit the accused without waiting for conclusion of the trial.

The amendment in Section 494 Cr.P.C. has not only undermined the independence of judiciary by substituting the court, before whom the trial of an accused was pending, with the Review Board, but, at the same time, had also created discrimination with the accused, who were facing trial prior to 1st January, 1986 or had been charged for the offence after 12th October, 1999. The Preamble of the National Reconciliation Ordinance, 2007 coupled with any of its substantive part, had not disclosed the reasons, calling for so called `national reconciliation' in between this period, presuming that an accused, facing charge entailing major penalty of death, is not entitled for discharge, by means of extra judicial forum, or for the same treatment, if he has committed the crime after 13th October, 1999, and uptill now. Question arises as to whether there had been no political victimization after 12th October, 1999 uptill now, on account of which accused persons were involved falsely in the commission of the offence the answer of the same is except observing that specific dates were incorporated in the Ordinance for achieving specific object as well as the specific purpose.

Criminal justice is not a play thing and criminal Court is not a play-ground for politicking. Political fervour should not convert prosecution into persecution, nor political favour reward wrongdoer by withdrawal from prosecution. If political fortunes are allowed to be reflected in the processes of the court very soon the credibility of the rule of law will be lost. Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should appraise himself from the government and thereafter appraise the court the host of factors relevant to the question of withdrawal from the cases. But under no circumstances should he allow himself to become anyone's stooge.

Statute conferring the power of withdrawal on the Public Prosecutor prescribes no guidelines and indicates no controlling features, except that such a power can be exercised before the judgment is pronounced and is subject to "consent of the court". From such a general dispensation certain consequences necessarily follow. In the first place, the power conferred is of the widest amptitude but not so wide as to amount to a fiat or ipse dixit of the Public Prosecutor. Such a limitation necessarily follows the requirement of "consent of the court. Where Court's permission is sought or required, such a motion seeks the active exercise of the sound judicial discretion of the court. Judicial discretion of the court is required to be exercised according to reasonably well settled principles, which are capable of being formulated and applied as standards by higher courts when entertaining appeals against the manner in which they have been exercised. In this sense, therefore, "judicial" refers to the exercise of discretion in accordance with "objective" standards as opposed to subjective considerations of policy and expediency.

The classification amongst the accused persons, facing trial during the specific period i.e. 1st January 1986 to 12th October, 1999, is based on arbitrariness and no reasons have been disclosed in the National Reconciliation Ordinance, 2007 for entering into so called reconciliation' with particular group of accused persons, except in the name ofnational reconciliation' on the pretext that the cases were politically motivated against them. Therefore, the Ordinance to the extent of discussion on section 2, is arbitrary and irrational as it has failed the test of reason to conclude in its favour that it is not a bad law. Similarly on the basis of intelligible differentia for reasonable classification, the differentiation has not been understood logically and it seems that for specific purpose, an artificial grouping was made, causing injustice to the accused persons, who were placed in the same position and instead of achieving the `national reconciliation' the National Reconciliation Ordinance, 2007 had served the purpose of 'individual reconciliation.

Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633; Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Abdul Malik v. The State PLD 2006 SC 365; Rajender Kumar v. State AIR 1980 SC 1510; Saad Shibli's case PLD 1981 SC 617; Jamal Shah v. Election Commission PLD 1966 SC 1; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

Mehram Ali's case PLD 1998 SC 1445 and Gulzaman Kasi's case (Criminal Appeal No. 269 of 2003) distinguished.

(l) National Reconciliation Ordinance (LX of 2007)---

----S. 6---National Accountability Ordinance (XVIII of 1999), Ss. 31-A & 32---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the validity of National Reconciliation Ordinance, 2007----Conviction in absentia---Nature---Held, S.6 of the National Reconciliation Ordinance, 2007-was general in its nature and benefit of the same could be derived by a candidate for becoming the member of the Parliament, or a member of the Parliament, or by other ordinary person and it had not been made applicable for a specific period---If S.31-A, National Accountability Ordinance, 1999 being an amended provision continued to remain intact for all the times to come, conviction in absentia under S.31-A shall be void and for all practical purposes S.31-A shall be deemed to have been annulled---Offence falling within the mischief of S.31-A of the National Accountability Ordinance, 1999 was distinct offence, from the allegations made in the Reference, which was filed against an accused and if the convict had been acquitted in the Reference or the Reference had been withdrawn, even then the conviction under S.31-A of National Accountability Ordinance, 1999 remained operative and the convict had to avail remedy, for granting same set aside, by approaching the next higher judicial forum, as envisaged under S.32 of the National Accountability Ordinance, 1999---Conviction in absentia was a final. order, therefore, no other forum could declare such conviction as void, except a judicial forum, that too, by filing an appeal---In the present case, by amending a law, such conviction had been declared void, therefore, the amendment in S.31-A of the National Accountability Ordinance, 1999 by inserting clause (aa) by means of S.6, of the National Reconciliation Ordinance, 2007 was void being against the provisions of S.31-A read with S.32 of the National Accountability Ordinance, 1999, which provided remedy to the convict to file appeal---It was obligatory upon the convict to approach the court; first of all he should surrender to the order of his imprisonment meaning thereby that on surrendering before the court he should be taken into custody and court might order for his release in appeal and if such person was not taken into custody or not admitted to bail, then he will be deemed to be fugitive from law and would not be entitled to any relief.

Manzoor Qayyum v. The State PLD 2006 SC 343; The State v. Aftab Ahmed Khan Sherpao PLD 2005 SC 399 and The State v. Naseem-ur-Rehman 2004 SCMR 1943 ref.

Mehram Ali's case PLD 1998 SC 1445 and Gulzaman Kasi's case (Criminal Appeal No. 269 of 2003) distinguished.

(m) National Reconciliation Ordinance (LX of 2007)---

----S. 6---National Accountability Ordinance (XVIII of 1999), Ss.31-A & 32---Constitution of Pakistan (1973), Arts. 8, 63(1)(p), 89, 2A & 184(3)---Constitutional petition under Art.184(3) of the Constitution to challenge the validity of S.6 National Reconciliation Ordinance, 2007---Powers of Supreme Court under Art.184(3) of the Constitution to declare any law inconsistent with the fundamental rights or to examine constitutionality of such law, on the touchstone of any other provision of the Constitution---Scope---Conviction in absentia---Held, Legislature by means of an enactment cannot undo the effect of the judgment in which the person had been convicted for an offence and if he is "holder of public office", his such conviction is a disqualification to be elected as a member of the Parliament, or to be a member of the Parliament, under Art.63(1)(p) of the Constitution---National Reconciliation Ordinance,. 2007 has opened the door of the Parliament, for the persons, convicted in absentia, as the disqualification for a person to become a member of Parliament and- for a member of Parliament under Article 63(1)(p) of the Constitution has been removed by means of clause (aa) inserted in Section 31A of the National Accountability Ordinance, 1999, a person, who has been convicted under section 31A of the National Accountability Ordinance, 1999, in absentia, with a stigma of a convict, has been made qualified to enter into the Parliament, contrary to the constitutional provisions as well as law---No legislation is possible to grant relief in presence of the provisions of the Constitution being a parent law, to a person who intended to become the member of the Parliament, or is member of the Parliament as no legislation on any subject is permissible which is against the specific provision of the Constitution---In the present case, without any reasonable justification, both, the conviction and the sentence, have been declared void, by adding clause (aa) in S.31-A of the National Accountability Ordinance, 1999 which definitely is against the norms and the principles of justice---No other forum including the legislature is empowered to declare an order or judgment, whereby conviction has been awarded under S.31-A of the National Accountability Ordinance, 1999 to be void ab initio except in the civil cases pertaining to the tax matters---Intervention by the executive, contrary to the principles of Independence of Judiciary is unconstitutional---Amendment in S.31-A of the National Accountability Ordinance, 1999 by inserting clause (aa) in it by means of S.6 of the National Reconciliation Ordinance, 2007 is unconstitutional and void ab initio---Principles---Supreme Court, however, emphasized that observations made in this regard are not in derogation to the powers of the Parliament; there may indeed be cases in which Parliament may, by appropriate legislation, and by manifestation of appropriate intent and use of language, be competent to nullify the effect of a judgment in the given circumstances of the case---Present case, however, is not such a case, as an unspecified number of convictions, on differing facts and evidence, are sought to be set aside in one swipe---Such is going beyond legislative competence and Parliament itself wisely decided not to intervene to make permanent a temporary law (National Reconciliation Ordinance, 2007) by enacting as an Act of Parliament---Supreme Court further observed that the court, in the present case, is only endorsing the will of the elected representatives in following their intent.

Supreme Court, while hearing the petition under Article 184(3) of the Constitution, enjoys ample powers under Article 8 of the Constitution, to declare any law inconsistent with the fundamental rights conferred by the Constitution or to examine the constitutionality of such law, on the touchstone of any other provision of the Constitution. While exercising its constitutional powers, conferred upon Supreme Court under various provisions of the Constitution, including Articles 184, 185, 187(1) and 212(3), it also enjoys enormous' powers of judicial review. Besides, it is well settled by the time that the apex court had always been vested with inherent powers to regulate its own authority of judicial review.

Whether the legislature by means of an enactment can undo the effect of the judgment in which the person has been convicted for an offence and if he is `holder of public office', his such conviction is a disqualification to be elected as a member of the Parliament, or to be a member of the Parliament, under Article 63(1)(p) of the Constitution? In this behalf the simple answer would be that with reference to a person, who intended to become the member of the Parliament, or is a member of the Parliament, no legislation is possible to grant him relief in presence of the provisions of the Constitution, being a parent law. No legislation on any subject is permissible which is against the specific provision of the Constitution.

National Reconciliation Ordinance, 2007 has opened the door of the Parliament, for the persons, convicted in absentia, as the disqualification for a person to become a member of Parliament and for a member of Parliament under Article 63(1)(p) of the Constitution has been removed by means of clause (aa) inserted in Section 31A of the National Accountability Ordinance, 1999, a person, who has been convicted under Section 31A of the National Accountability Ordinance, 1999, in absentia, with a stigma of a convict, has been made qualified to enter into the Parliament, contrary to the constitutional provisions as well as law.

As far as nullifying the effect of a judgment by means of a legislation is concerned, there are certain limitations including the one i.e. by amending the law with retrospective effect, on the basis of which the order or judgment has been passed, thereby removing the basis of the decision.

The insertion of clause (aa) in Section 31A of the National Accountability Ordinance, 1999 is without lawful authority, as it has not amended the original Section 31A of the National Accountability Ordinance, 1999, which is still intact with all its consequences and effects. It is pertinent to mention here that the language used in an enactment must show the intention of the lawgiver that it would apply with retrospective effect and shall be deemed always to have been so inserted in the respective statute.

Since the basis of the judgment, in respect of conviction in absentia under section 31A of the National 'Accountability Ordinance, 1999, has not been removed, pointing out any defect in the same by the legislature, therefore, the legislature, by means of an enactment, could not give a judgment that conviction in absentia was void ab initio, rather for the purpose of declaring such judgments void ab initio, it was incumbent upon the legislature to have repealed Section 31A of the National Accountability Ordinance, 1999 because on the basis of the same the absconder accused were convicted. More so, to nullify the effect of a judgment, by means of a legislative enactment, courts have to examine the nature of each judgment separately and individually but, in the present case, omni bus type order has been passed, declaring all the judgments recorded under section 31A of the National Accountability Ordinance, 1999 as void ab initio, without pointing out any defect in the same. Under the civil, administration of justice, plethora of case law is available on the point that how an effect of a judgment can be nullified or neutralized, particularly the judgment in which, on the basis of existing laws, the courts have come to the conclusion that the tax was not recoverable but the government by issuing a legislation, with retrospective effect, has removed the defect in the law, thereby nullified the effect of the judgment, as a result whereof the government continued to effect the recovery of tax. This is in respect of the civil matters, but in the criminal administration of justice there are no such identical principles, applied in civil cases, on the point.

However, in respect of criminal cases, this issue has to be approached differently than the matters relating to civil disputes, payment of taxes, etc. The legislative authority, ordinarily is not required to enter into the domain of judiciary. Under the scheme of the, Constitution, the judiciary has an independent role, amongst three organs of the State.

The legislative authority has to perform those functions, which have been recognized by the Constitution. There is no such provision on the basis of which a judgment can be annulled, except in civil cases, that too, subject to following the principles laid down hereinabove. As far as matters relating to criminal administration of justice are concerned, where a judgment has been announced on the basis of law, the legislative authority cannot annul such judgment without pointing out any flaw in the law, which is the basis of such a judgment; as in the present case, no amendment has been made in the original text of Section 31A of the National Accountability Ordinance, 1999, therefore, it would lead to the conclusion that the judgment pronounced under the law, by a court of competent jurisdiction, is a judgment which has been pronounced legally, according to the mandate, conferred upon the court and such judgment or order cannot be annulled by means of an enactment. Upon feeling aggrieved by any judgment pronounced in the criminal administration of justice, the aggrieved person has been provided with the remedies to invoke the jurisdiction of the higher courts, within the hierarchy. Similarly, in the present case, if a person is aggrieved by an order of conviction/sentence recorded against him under Section 31A of the National Accountability Ordinance, 1999, he has remedy under section 32 of the National Accountability Ordinance, 1999 to file an appeal before the High Court.

If the legislative authority is not aggrieved, in any manner, by the judgment pronounced by the courts discharging its functions under section 31A of the National Accountability Ordinance, 1999, the said judgment could only be set aside, varied, suspended as per the procedure laid down in the National Accountability Ordinance, 1999 and not by enforcing or adopting legislative measures.

In the present case, without any reasonable justification, both, the conviction and the sentence, have been declared void, by adding clause (aa) in Section 31A of the National Accountability Ordinance, 1999, which definitely is against the norms and the principles of justice.

The legislature is competent to legislate but without encroaching upon the jurisdiction of the judiciary. If, it is presumed that the insertion of clause (aa) in section 31A of the National Accountability Ordinance, 1999, by means of section 6 of the National Reconciliation Ordinance, 2007, is constitutionally valid even then it would be tantamount to allow the legislature to pronounce a judicial verdict against an order or judgment of a competent court of law, declaring the same to be void ab initio. Therefore, following the doctrine of trichotomy of powers, the action of the legislative authority, whereby clause (aa) has been inserted in section 31A of the National Accountability Ordinance, 1999, by means of the National Reconciliation Ordinance, 2007, would be considered to be a step to substitute the judicial forum with an executive authority. Thus, it would not be sustainable being contrary to the principle of independence of judiciary, as mentioned in Article 2A of the Constitution, which provides that independence of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the courts, including the superior courts and such other courts as may be established by law. In the present case, except an appeal under section 32 of the National Accountability Ordinance, 1999 to the High Court of the Province, no other remedy is available to a convict against his conviction/sentence, to get it set aside.

Thus, no other forum including the legislature is empowered to declare an order or judgment, whereby conviction has been recorded under section 31A of the National Accountability Ordinance, 1999, to be void ab initio except in civil cases pertaining to the tax matters, etc., As far as Articles 2A and 175 of the Constitution are 'concerned, they furnish guarantee for securing the independence of judiciary.

Supreme Court, however, emphasized that the observations made above are not in derogation to the powers of the Parliament. There may indeed be cases in which Parliament may, by appropriate legislation, and by manifestation of appropriate intent and use of language, be competent to nullify the effect of a judgment in the given circumstances of the case. This, however, is not such a case as an unspecified number of convictions, on differing facts and evidence, are sought to be set aside in one swipe. This is going beyond legislative competence and Parliament itself wisely decided not to intervene to make permanent a temporary law (Ordinance) by enacting as an Act of Parliament. Supreme Court is only endorsing the will of the elected representatives in following their intent.

Article 203 of the Constitution is also another important provision of the Constitution which provides that each High Court shall supervise and control all courts subordinate to it.

The intervention by the executive, contrary to the principles of independence of judiciary is unconstitutional.

Amendment in section 31A of the National Accountability Ordinance, 1999 by inserting clause (aa) in it, by means of section 6 of the National Reconciliation Ordinance, 2007 is unconstitutional and void ab initio.

Wattan Party v. Federation of Pakistan PLD 2006 SC 697; Abdul Baqi v. Muhammad Akram PLD 2003 SC 163; Tofazzal Hossain v. Province of East Pakistan PLD 1963 SC 251; Tirath Ram Rajindra Nath v. State of U.P. AIR 1973 SC 405; Mamukanjan Cotton Factory v. Punjab Province PLD 1975 SC 50; Misrilal Jain v. State of Orissa AIR 1977 SC 1686; I.N. Saksena v. State of Madhya Pradesh AIR 1976 SC 2250; Fecto Belarus Tractor v. Government of Pakistan PLD 2005 SC 605; Treaties on the Constitutional Limitation by Thomas M. Cooley; Mahmood Khan Achakzai's case PLD 1997 SC 426; Mehram Ali's case PLD 1998 SC 1445; Liaquat Hussain's case PLD 1999 SC 504; Syed Zafar Shah's case PLD 2000 SC 869; Sindh High Court. Bar Association's case PLD 2009 SC 879; Abdul Kabir v. State PLD 1990 SC 823 and Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 ref.

(n) National Reconciliation Ordinance (LX of 2007)---

----S. 7---National Accountability Ordinance (XVIII of 1999), S.33F---Constitution of Pakistan (1973), Arts. 4, 8, 12, 13, 25, 45, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227, 184(3) & Fourth Schedule, Federal and Concurrent Lists Constitutional petition under Art.184(3) of the 'Constitution to challenge the validity of S.7 of National Reconciliation Ordinance, 2007 which inserted S.33-F in the National Accountability Ordinance, 1999 and provided a mechanism for withdrawal and termination of prolonged proceedings and cases of corruption and corrupt practices pending in any court, including High Court and the Supreme Court initiated prior to 12th October, 1999 which benefited classified categories of persons including "holders of public office-Newly inserted S.33-F of National Accountability Ordinance, 1999 seemed to be open ended, as on account of non obstante, clause, it directed that notwithstanding anything contained in the said Ordinance or any other law for the time being in force, proceedings under investigation or pending in any court, including a High Court and the Supreme Court, initiated by or on a Reference by the National Accountability Bureau, inside or outside Pakistan including proceedings continued under S.33 of the Ordinance, requests for mutual assistance and civil party to proceedings initiated by the Federal Government, before 12th October, 1999 against holders of public office, stood withdrawn and terminated with immediate effect and such "holders of public office" shall also not be liable to any action in future, as well, under this Ordinance for acts having done in good faith, before the said date---Held, corruption and corrupt practices, being a crime, if proved, against a holder of public office' took away his qualification to. contest the election because prima facie, he had breached the trust of electorate---Section 7, National Reconciliation Ordinance, 2007 had contravened Art.62W of the Constitution, if a person involved in corruption and corrupt practices had been finally adjudged to be so, then on the basis of such final judgment his candidature on the touchstone of Art.62(f) of the Constitution could be adjudged to the effect whether he was sagacious, righteous, non profligate, honest or Ameen---Article 62(f) of the Constitution had to be taken into consideration by the courts, while examining the case of a convict, involved in corruption and corrupt practices, who had attained the status of innocent person by means of a law which had washed away his conviction/sentence by withdrawal or termination of cases or proceedings, however, subject to furnishing strong evidence for establishing the allegations mentioned in Art. 62(f) of the Constitution---Withdrawal from the cases inside or outside the country as per S.33-F of National Accountability Ordinance, 1999 (as inserted by National Reconciliation Ordinance, 2007) would mean that theholders of public office' had been absolved from the charge of corruption and corrupt practices, therefore by adopting such procedure the legislative authority had transgressed its jurisdiction, because such powers were only available to the judiciary and the Constitution provided guarantee to secure the independence of the judiciary---Cases under S.33-F, National Accountability Ordinance, 1999 (as inserted by S.7 of National Reconciliation Ordinance, 2007) were also not covered under Art.45 of the Constitution---Criminal Courts including the Trial, Appellate and Re visional were empowered to acquit, set aside the conviction/sentence or quash the proceedings, but without adhering to this provision, the legislative authority, in its wisdom, has withdrawn or terminated the cases or proceedings, purportedly, in exercise of power,-not vested in it, consequently all the holders of public office' had not been dealt with in accordance with law, principle of which had been enshrined in Art.4 of the Constitution---Withdrawal or termination of cases or proceedings in the manner as it had been done by means of contents of S.33F of National Accountability Ordinance, 1999 (as inserted by S.7, National Reconciliation Ordinance, 2007) did not fall within the definition of pardon, amnesty; or commutation of sentence---Neither theholders of public office' had been pardoned nor amnesty had been given to them and similarly, their sentences had also not been commuted, therefore, on the basis of such legislative document i.e. the National Reconciliation Ordinance, 2007 which had no legal sanctity behind it, the benefit drawn by the holders of public office' was not sustainable---Binding judgment either of acquittal or conviction could only be withdrawn by the courts of law---Court'---Connotation---President of Pakistan who was under oath to protect the Constitution in all circumstances was not competent to promulgated an Ordinance in the name of national reconciliation, which was not permissible under any of the Legislative Lists i.e. Federal or Concurrent, as per Fourth Schedule of the Constitution, perusal whereof abundantly made it clear that no law in the nature of National Reconciliation Ordinance, 2007 could be promulgated which instead of eliminating exploitation etc. amongst citizens, as per Art.3 of the Constitution, tended to perpetuate corruption and corrupt practices---Neither the benefit of the National Reconciliation Ordinance, 2007 had been extended to the 'holders of public office' against whom cases were registered prior to 6th November, 1990 nor to those holders of public office' against whom cases had been registered after 12th October, 1999, although the cases were registered against such persons, even before and after their cut off dates---AR theholders of public office' against whom cases had been initiated before 6th November, 1990 and after 12th October, 1999, were also entitled for equal protection of law because they were similarly placed, therefore, on the basis of intelligible differentia, no distinction could be drawn between both the groups, as such, said classification within the class of holders of public office', was not based on an intelligible differentia, having no rational nexus to the object, sought to be achieved by the relevant classification under the National Reconciliation Ordinance, 2007, therefore, Ordinance being a discriminatory law deserved to be declared to be void ab initio---Section 33F of the National Accountability Ordinance, 1999 (as inserted by S.7, National Reconciliation Ordinance, 2007) provided thatholders of public office' shall also to be liable for any action in future as well for acts having been done in good faith before the said date, such immunity from future actions had also been provided contrary to the Constitution and the law---Neither the Constitution nor any other law permitted the legislative authority i.e. the President of Pakistan to promulgate such a law, which failed to stand test of Arts. 12 and 13 of the Constitution---President of Pakistan though had an authority under Art.89 of the Constitution to promulgate an Ordinance, but could not issue temporary legislation, which the Parliament was not empowered to do, President therefore, was not empowered to issue National Reconciliation Ordinance, 2007 as the subjects, covered by its Ss.2, 6 & 7 fell beyond the scope of Federal and Concurrent Lists of the Constitution---Principles.

Section 7 of the National Reconciliation Ordinance, 2007 further added section 33F in the National Accountability Ordinance, 1999, by means of which, following categories of the persons have benefited: --

(i) The persons, against whom investigation is pending but no trial has commenced; the investigation has come to an end.

(ii) The persons, against whom the trial is pending but no conviction/ acquittal has been recorded; the trial comes to an immediate end.

(iii) The persons, who have been convicted but have merely filed an appeal or some proceedings, against that conviction before the High Court or the Supreme Court and whether or not such conviction/sentence has been suspended, before the promulgation of the National Reconciliation Ordinance, 2007; everything stands terminated and withdrawn.

(iv) The persons, who have been acquitted and against their acquittal an appeal is pending; they also stand absolved.

(v) The persons, against whom, request for mutual legal assistance and civil party to proceedings, have been initiated by the Federal Government; that stand withdrawn or terminated.

(vi) `holders of public office', whose cases have been withdrawn or terminated, shall also not be liable to any action in future, as well, under the National Reconciliation Ordinance, 2007, for acts having been done in good faith before the cut off date.

Apparently, Section 33F of the National Accountability Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007 has provided a mechanism for withdrawal and termination of prolonged pending proceedings, initiated prior to 12th October, 1999.

Section 33-F of National Accountability Ordinance, 1999 as inserted by S.7, National Reconciliation Ordinance, 2007 seems to be open ended, as on account of non obstante clause, it directs that notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any court, including a High Court and the Supreme Court of Pakistan, initiated by or on a reference by the National Accountability Bureau, inside or outside Pakistan, including proceedings continued under section 33, requests for mutual assistance and civil party to proceedings, initiated by the Federal Government, before the 12th October, 1999, against holders of public office, stand withdrawn and terminated with immediate effect and such holders of public office' shall also not be liable to any action in future, as well, under this Ordinance, for acts having been done in good faith, before the said date. This is for the first time that in the newly inserted section 33F of the National Accountability Ordinance, 1999 by means of Section 7 of the National Reconciliation Ordinance, 2007, the connotationholders of public office' has been used. The definition of the `holders of public office' has been provided in Section 5(m) of the National Accountability Ordinance, 1999.

In fact, the promulgation of the National Accountability Ordinance, 1999 was claimed to have been expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases, involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto. [The underlined words have been added in the preamble vide Ordinance No.CXXXIII of 2002 dated 23rd November 2002]. Similarly, an emergent need was also found for the recovery of outstanding amounts from the persons, who have committed default in the repayment of amounts to Banks, Financial Institutions, Government agencies and other agencies. Likewise, it was also felt that there was a grave and urgent need for the recovery of State money and other assets from those persons who have misappropriated or removed such money or assets through corruption, corrupt practices and misuse of power or authority. Yet there was another important aspect of the Preamble, which was inserted vide Ordinance No. XXXV of 2001 dated 10th August 2001 which speaks that there is an increased international awareness that nations should co-operate in combating corruption and seek, obtain or give mutual legal assistance in matters concerning corruption and for matters connected, ancillary or incidental thereto.

The theme of the National Accountability Ordinance, 1999, as it is evident from its Preamble and substantive part, is to deal with the cases of corruption and corrupt practices, strictly to achieve the object spelt out in Preamble. The expression "corruption and corrupt practices" has been defined in Section 9 of the National Accountability Ordinance, 1999.

The provisions of the National Accountability Ordinance, 1999 as well as their interpretation, provide , high moral authority to the functionaries, to discharge their duties for curbing corruption and corrupt practices, to achieve the object namely, conviction and effecting the recovery of national wealth, even before the trial, keeping in view the solid mechanism provided under Section 25 of the National Accountability Ordinance, 1999. As far as its provisions, embedded in section 21, are concerned, it lays down procedure for international cooperation and request for mutual legal assistance.

Section 21, National Accountability Ordinance, 1999 indicates that on account of international cooperation, request for mutual legal assistance means, the NAB or any officer, authorized by the Federal Government, has been empowered to make a request to a Foreign State to do any or all things mentioned therein; to freeze assets by whatever processes are lawfully available in that State, to the extent to which the assets are believed, on reasonable grounds, to be situated in that State; and to transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds, realized from the disposal of such articles or assets. As far as, confiscation or realization of the national wealth, situated within the country, is concerned, there is no difficulty for the NAB to deal with it, in accordance with the procedure provided under the National Accountability Ordinance, 1999. However, for achieving the object to save the assets outside the country, allegedly belonging to the nation, a mechanism has been provided on the basis of international cooperation.

While making request to the Foreign States for mutual legal .assistance, no request for criminal proceedings in such a State can be demanded. However, courts of the said States may proceed independently for an action, which falls within the definition of their municipal laws, governing criminal actions. Pakistan is not the only country, which has demanded for such mutual legal assistance; there are so many other countries, on whose demand, subject to-determination, the wealth of the nation was reverted back to those States. In this behalf reference may be made to the case of Ferdinand Emmanuel Edralin Marcos, President of the Philippines.

On account of above proceedings against Marcos, the money/funds belonging to Philippine Government were returned by the Swiss Courts.

Similarly, there is another case, from Nigerian jurisdiction, wherein the Head of the State namely Sani Abacha, was found involved in corruption and corrupt practices and proceedings, against him, were initiated for return of his assets from Switzerland to Nigeria and from 1999 to 2009, approximately US$ 1.2 billion, had been returned to the Federal Republic of Nigeria.

Apart from above two cases, there is yet another case from UK jurisdiction i.e. High Court of Justice, Queen's Bench Division, in Re: The Queen on the Application of Corner House Research and Campaign Against Arms Trade v. The Director of The Serious Fraud Office and BAE Systems PLC [(2008) EWHC 714].

The international cooperation, for the purpose of prevention of corruption, has been considered in the comity of the nations, as their commitment to achieving the object, under the United Nation's Convention Against Corruption; 2005.

The Government of Pakistan is also signatory to the above UN Convention as it has been ratified by 'Pakistan on 31st August, 2007, regarding international cooperation in criminal matters in accordance with Articles 44 to 50 of the above noted UN Convention, according to which, where appropriate and consistent with their domestic legal system, the State Parties shall consider assisting each other in investigation or proceedings in civil and administrative matters, relating to corruption.

According to the scheme of the National Accountability Ordinance, 1999 Section 25 of the said Ordinance, 1999 provides that notwithstanding anything contained in Section 15-or in any other law, for the time being in force, where a holder of public office' or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains, acquired or made by him in the course, or as a consequence of any offence, under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount, due from such person, and its deposit with the NAB, discharge such person from all his liabilities in respect of the matter or transaction in issue. In this provision of law as well the wordwithdrawal' has not been used, which is akin to process of discharge or acquittal of an accused under the system of criminal administration of justice.

So far as withdrawal of a case is concerned, that is possible only with the consent of the court, as provided in section 494, Cr.P.C.

The words "termination of the proceedings, under investigation or pending in any court, including a High Court and the Supreme Court", are not recognized under any legal instrument, including the Constitution of Pakistan, Cr.P.C. or National Accountability Ordinance, 1999.

The President of Pakistan being an authority to issue temporary legislation can discharge his functions under Article 89 of the Constitution, subject to limitation provided therein but admittedly, 'no such legislation can be issued, which is against the fundamental rights or any of the provisions of the Constitution. It seems that without caring about the fundamental 'rights' of the non-beneficiaries of the National Reconciliation Ordinance, 2007, on 5th October, 2007, the then President had promulgated the National Reconciliation Ordinance, 2007. Record indicates that on. 5th October, 2007, when the summary was moved, the Cabinet in its meeting, held on the same day, had approved the draft of the National Reconciliation Ordinance, 2007, in pursuance whereof, the Prime Minister was requested to advise the then President to approve and sign the National Reconciliation Ordinance, 2007, as such on the same day i.e. 5th October 2007, the National Reconciliation Ordinance, 2007 was promulgated. It is also interesting to note that both the proceedings and the cases of corruption and corrupt practices, were being terminated or withdrawn in terms of Section 7 of the National Reconciliation Ordinance, 2007, whereby Section 33F has been added in the National Accountability Ordinance, 1999 regarding withdrawal and termination of prolonged pending proceedings initiated prior to 12th October, 1999. The object, disclosed in the summary for the Cabinet, for issuance of the National Reconciliation Ordinance, 2007 was that it was expedient to promote national reconciliation, foster mutual trust and confidence amongst `holders of public office' and to make the election process more transparent. Ultimately, on the same day, the Ordinance was promulgated when the election of General Pervez Musharraf as the President (in uniform) was scheduled to be held on the very next day i.e. 6th October 2007. At that time, a petition filed by Jamat-e-Islami (PLD 2009 SC 549), was pending and during the course of hearing, vide order dated 5th October, 2007, General Pervez Musharraf was allowed to contest the election conditionally.

Temporary legislation cannot be struck down, taking into consideration the mala fide or subjective consideration for the issuance of such legislation but simultaneously Supreme Court is empowered to examine the contents of the temporary legislation, if it is inconsistent with the fundamental rights, guaranteed by the Constitution or of any of the provisions of the Constitution has been violated.

The present case is singular and on its own. Court need not have to go into whether there 'was any objective basis for the satisfaction required by Article 89 of Constitution, nor into the issue whether such satisfaction is to be entirely subjective. Present case can be resolved simply on the ground that the Federal Government has not even defended the National Reconciliation Ordinance, 2007 and thus not even asserted that there was indeed any such satisfaction at all, subjective or objective. There should at least' have been an assertion, howsoever weak it may have been, for the court to undertake the exercise.

Firstly, the National Reconciliation Ordinance, 2007 as a whole and in particular, its sections 2, 6 & 7, are inconsistent with Article 25 of the Constitution, as it has created unreasonable classification, having no rational nexus with the object of the National Reconciliation Ordinance, 2007.

Besides above, the principle of equality (Musawat), as enshrined in Article 25 of the Constitution, has its origin in the Islamic teachings.

Corruption and corrupt practices, being a crime, if proved, against a `holder of public office' takes away his qualification to contest the election because, prima facie, he has breached the trust of his electorate. Therefore, by inserting Section 33F in the National Accountability Ordinance, 1999 by means of Section 7 of the National Reconciliation Ordinance, 2007, possibility of raising objection on the qualification of a person to be elected or chosen as a member of the Parliament has been negated for limited purpose', in view of Article 62(t) of the Constitution, a person having been convicted/sentenced by the court under the National Accountability Ordinance, 1999 shall stand absolved as the case has been withdrawn against him or the proceedings have been terminated, pending in any Court including -the High Court and Supreme Court, in appeal or whatever the case may be. Therefore, instead of following the command of Article 5 of the Constitution, Section 7 of the National Reconciliation Ordinance, 2007 has contravened Article 62(0 of the Constitution. It is true that Article 62(1) of the Constitution cannot be considered self-executory but if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgment, his candidature on the touchstone of Article 62(t) of the Constitution can be adjudged to the effect whether he is sagacious, righteous, non-profligate, honest or Ameen.

It is true that on an objection against a candidate, without any support of evidence, the provisions of Article 62 of the Constitution cannot be .pressed into service, because it is a provision of Constitution which is not self executory.

However, with reference to examining the vires of Section 7 of the National Reconciliation Ordinance, 2007, in pursuance of which section 33F has been inserted in the National Accountability Ordinance, 1999, with an approach that a holder of public, office', as per the mandate of law, has been absolved without following the legal course from the allegations of corruption or corrupt practices, which also keeps the element of trust in its fold, and washed him from all such like sins, then how he can be considered qualified to contest the election because conviction and sentence under section 9 of the National Accountability Ordinance, 1999 has not been set aside legally, and whether suchholder of public office', with a stigma upon him to be corrupt and involved in corrupt practices, can become a member of the Parliament, which is a sovereign body, representing the people of Pakistan. Article 62 (f) has to be taken into consideration by the courts, while examining the case of a convict, involved in corruption and corrupt practices, who has attained the status of innocent person by means of a law which has washed away his conviction/sentence by withdrawal or termination of cases or proceedings, however, subject to furnishing strong evidence for establishing the allegation mentioned in Article 62(f) of the Constitution.

Subject to exercise of powers, under S.25 of the National Accountability Ordinance, 1999 a case can be withdrawn on the basis of entering into plea bargain, with all consequences. So far as, withdrawal from the prosecution under section 31B of the National Accountability Ordinance, 1999, is concerned, that is also subject to consent of the court.

A person, who enters into plea-bargain as per the mandate of section 25 of the National Accountability Ordinance, 1999, would be disqualified to contest the election or to hold the public office. The language employed in section 33F of the National Accountability Ordinance, 1999, inserted by means of section 7 of the National Reconciliation Ordinance, 2007 does not indicate that the withdrawal had to take place, subject to any of the above provisions, either under section 25 or under Section 31B of the National Accountability Ordinance, 1999, with the consent of the court.

So far as withdrawal from the cases inside or outside the country, as per Section 33F of the National Accountability Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007, is concerned, it would mean that the `holders of public office' have been absolved from the charge of corruption and corrupt practices, therefore, by adopting such procedure, the legislative authority had transgressed its jurisdiction, because such powers are only available to the judiciary and the Constitution provides guarantee to secure the independence of the judiciary.

Perusal of section 33F of the National Accountability Ordinance, 1999, inserted through section 7 of the National Reconciliation Ordinance, 2007 further reveals that while using the expressions withdrawal' andtermination', it was not considered that in the cases of the offences, falling within the mischief of the National Accountability Ordinance, 1999, charged against the holders of public office', no such judicial powers can be given to the legislature to withdraw or terminate the cases or proceedings. As far as, the wordstermination of prolonged pending proceedings', are concerned, these are alien to the system of criminal administration of justice, prevailing in the country under Criminal Procedure Code, 1898 and the National Accountability Ordinance, 1999.

In the present case, in order to ascertain that as to how many persons have benefited from Section 33F of the National Accountability Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007, the NAB was asked by the Supreme Court to furnish the details of the same. Accordingly, after a great deal of difficulty, the list provided by the Chairman NAB, indicates that there are two categories of the beneficiaries i.e. `holders of public office'; whose cases were pending (a) inside Pakistan and (b) outside Pakistan, in which US$ 60 million are involved for which a request for mutual legal assistance and civil party to proceedings, has been made by the Federal Government. As far as the category (a) is concerned, Supreme Court, in exercise of its powers conferred under Article 187 read with Article 190 of the Constitution,' may direct the NAB or any executive authority to supply requisite information.

So far as Article 190 of the Constitution is concerned, it imposes a constitutional obligation upon all the executives and judicial authorities, throughout the country to act in aid of the Supreme Court but in implementing the judgment, in letter and spirit, regarding the cases outside the country, the court may feel handicapped. Therefore, it would be an obligation and the duty of the executive to ensure initiation of proceedings according to law.

As per the list provided by the NAB, regarding cases falling within category (b) in which a huge amount is involved, it was also pointed out that to get back this money, subject to determination, belonged to the people of Pakistan, an amount ranging between 660 million to 2 billion rupees was spent but despite Court's directions, the Chairman NAB could not furnish the exact figure. Supreme Court asked the Prosecutor General to furnish the details in respect of the amount involved in the cases outside the country, in pursuance of request for mutual legal assistance and civil party to proceedings, was made by the Federal Government.

In reply, the learned Prosecutor General NAB furnished the following details:--

"(a) The Magistrate after considering the material opined that, prima facie, case has been made out and sent it to the Attorney General for launching the proceeding and also passed the order for freezing of account.

(b) The accused filed appeal against the said order, which was also dismissed being based on vague grounds.

(c) Our lawyer informed that the Attorney General in Geneva had decided not to prosecute the accused further and the Court expressed its dissatisfaction over it.

(d) The Magistrate in, Geneva has passed an order for de-freezing of the money."

In respect of item (c) above, the Prosecutor General NAB admitted that in the proceedings, reference was made to a letter sent by the then Attorney General for Pakistan. Whereas, the then Attorney General for Pakistan, who appeared on Court's call, informed the Court that he had sent a letter to the Attorney General of Geneva, mentioning therein the relevant provisions of the National Reconciliation Ordinance, 2007, regarding withdrawal of cases. Similarly, Acting Attorney General for Pakistan appeared and stated that the request for mutual legal assistance and civil party to proceedings, was made by the Federal Government through the Attorney General, therefore, he would apprise the Court of the position of cases etc. According to him, so far as the amount lying in the Swiss Banks was concerned, 25 other individuals had also filed claims against it; however, a request was made by the former Attorney General for Pakistan for withdrawal of money but as per his knowledge that request was not acceded to by the Attorney General' Office of Switzerland as well as by the concerned Magistrate because their version was that they would deal with the case in accordance with their local laws. However, on 15th December 2009, the then Attorney General for Pakistan again appeared on Court's call; he read Section 7 of the National Reconciliation Ordinance, 2007 with reference to withdrawal of cases and informed the Court that Constitution Petition No. 265 of 2008 (Asif Ali Zardari v. Government of Pakistan) was filed before the High Court of Sindh, whereby directions were sought for the Federation and the NAB, both, that they should withdraw all the cases pending in Pakistan and specifically proceedings in Geneva and in London and all others under the provisions of the National Reconciliation Ordinance, 2007; the NAB authorities appeared before the Sindh High Court and made a statement that they would make efforts to withdraw the proceedings from all the courts in and outside Pakistan; the Court, vide order dated 4th March 2008, directed to do the needful within a period of two weeks; he further stated that in pursuance of said order and also under the instructions of the then President, he issued a letter dated 9th March 2008 to the Attorney General of Geneva regarding withdrawal of proceedings.

Despite repeated queries from the Supreme Court that as to how request for withdrawal of mutual assistance and civil party to proceedings, initiated by the Federal Government, were withdrawn, no satisfactory answer was given. The Chairman NAB, who should have assisted the Court diligently, was reluctant to do so for one or the other reason. Therefore, having left with no option, the Federal Secretary, Law and Justice Division, Government of Pakistan was called upon to appear and place on record copies of .the file, pertaining to the Swiss cases.

Likewise, Secretary General to the President also appeared on Court's call and informed that no such file existed in his office or at President's Camp Office.

As far as issuing a letter to Attorney General of Geneva dated 7th April, 2008 by the then Attorney General is concerned, it seems that he had done so in his personal capacity, against the Rules of Business, 1973. In this behalf it may be noted that under. Rule 14 of the Rules of Business, 1973, he was required to consult the Law, Justice and Human Rights Division on all legal questions, arising out of any case. Had he consulted the Law, Justice and Human Rights Division, he would have been advised not to send any letter in this regard because the Ministry of Law and Justice had already declined such request as was pointed out by the Secretary Law and Justice Division.

Under sub-Rule (2) of Rule 14 of the Rules of Business, 1973, no Division shall consult the Attorney General except through the Law, Justice and Human Rights Division and in accordance with the procedure laid down by that Division. Beside it, stand taken by the then Attorney General that he was asked by the then President of Pakistan to do so, does not seem to be correct because under Rule 5(11-A) of the Rules of Business, 1973, verbal orders given by a functionary of the Government should, as a matter of routine, be reduced to writing and submitted to the issuing authority; if time permits, the confirmation shall invariably be taken before initiating action; however, in an exigency, where action is required to be taken immediately or it is not possible to obtain written confirmation of the orders before initiating actions, functionary to whom the verbal orders are given shall take the action so required and at the first available opportunity, obtain the requisite confirmation while submitting to the issuing authority a report of the action taken by him. The statement of Secretary General to the President, reflects that no such file exists. The .then Attorney General for Pakistan has done so in violation of the Rules of Business, 1973, therefore, he is liable to account for his such action.

Section 21 of the National Accountability Ordinance, 1999 is a comprehensive provision of law, which spells out the nature of the request to a Foreign State for mutual legal assistance including; freezing of assets to the extent to which the assets are believed on reasonable ground to be situated in that State; confiscate articles and forfeit assets to the extent to which the articles or assets, as the case may be, are believed to be located in that State; transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds realized from the disposal of such articles or assets, etc. To curb the culture of corruption and corrupt practices globally it has become necessary to enact such law on the basis of which the objects noted hereinabove could be achieved.

On the one hand in pursuance of the National Reconciliation Ordinance, 2007, the cases against the holders of public office' either have been withdrawn or terminated, who should have been found guilty for the corruption or corrupt practices (under Section 9 of the National Accountability Ordinance, 1999) and sentenced to imprisonment as well as fine, and on the other hand, theholders of public office' who have been convicted and sentenced, and against their convictions, appeals pending either before the High Court or the Supreme Court, have been withdrawn. Similarly against those `holders of public office', who were, acquitted but against their acquittal proceedings were pending before the superior courts, have also been illegally provided clean-chit by withdrawal or termination of the proceedings, contrary to Constitution and the law, knowing well that Pakistan is signatory to the UN Convention Against Corruption. A perusal of UN Convention Against Corruption indicates that the State had responsibility to develop and implement or maintain effective, coordinated anti-corruption policies; to take measures to prevent money laundering; to take measures for freezing, seizure and confiscation of proceeds of crime, derived from offences established in accordance with the Convention, or the property the value of which corresponds to that of such proceeds, property, equipment. or other instrumentalities used in or destined for use in offences established in accordance with the Convention, etc.; State parties shall consider assisting each other in investigations of and proceedings in civil and administrative matters relating to corruption; as well as affording to one another the widest measure of mutual legal assistance in investigations, prosecutions, and judicial proceedings in relation to the offences covered by the Convention; prevention and detection of transfers of proceeds of crime. On the other hand, the promulgation of the National Reconciliation Ordinance, 2007, instead of preventing corruption and corrupt practices, has encouraged the same.

Article 45 of the Constitution confers power upon the President of Pakistan to the effect that the President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. The 'cases under section 33F of the National Accountability Ordinance, 1999, inserted through section 7 of the National Reconciliation Ordinance, 2007, are also not covered under Article 45 of the Constitution. The criminal Courts, including the Trial; Appellate and Revisional, are empowered to acquit, set aside the conviction/ sentence or quash the proceedings, but without adhering to this provision, the legislative authority, in its wisdom, has withdrawn or terminated the cases or proceedings, purportedly, in exercise of power, not vested in it. Consequently, all the `holders of public office' have not been dealt with in accordance with law, principle of which has been enshrined in Article 4 of the Constitution.

Binding judgment, either of acquittal or conviction, can only be withdrawn by the courts of law, therefore, the question for determination would be as to which forum is a Court' and which is not. The courts are only such organs of the State which follow legally prescribed scientific methodology as to procedure and evidence, in arriving at just and fair conclusions. As far as the definition ofCourt' is concerned the courts are only such organs of State which administer justice under guidance of procedural laws as to conduct of proceedings as well as evidence; since such methodology helps the court in administering justice, in accordance with law, therefore, all other bodies which have a free hand in the matter of deciding disputes are not courts.

Applying the above test on the provisions of Section 33F of the National Accountability Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007, relating to withdrawal or termination of cases or proceedings, inescapable conclusion would be that the legislative authority of the President had acted contrary to judicial norms by allowing withdrawal and termination of cases and proceedings. However, on the basis of judicial interaction by the court of law, having jurisdiction, appropriate orders can be passed.

Essentially withdrawal or termination of cases or proceedings in the manner as it has been done by means of contents of Section 33F of the National Accountability Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007, does not fall within the definition of pardon',amnesty' or `commutation of sentence'.

Admittedly, neither the holders of public office' have been pardoned nor amnesty has been given to them and similarly, their sentences have also not been commuted. Therefore, on the basis of such legislative document i.e. the National Reconciliation Ordinance, 2007, which has no legal sanctity behind it, the benefit drawn by theholders of public office' is not sustainable.

Article 5 of the Constitution in unambiguous terms provides that loyalty to the State is the basic duty of every citizen; and obedience to the Constitution and the law is the inviolable obligation of every citizen, wherever he may be and of every other person for the time being within Pakistan. Therefore, while promulgating the National Reconciliation Ordinance, 2007, the President has to conform to the norms and response to the voice of the Constitution, as per the mandate of Article 5 of the Constitution and any action on his part which negates the dictates of the Constitution including the fundamental rights shall be tantamount to promulgating a law which is neither acceptable by the nation or internationally, being not in line with the dictates of the Constitution. Therefore, the President who is under oath to protect the Constitution in all circumstances is not competent to promulgate an Ordinance in the name of national reconciliation, which is not permissible under any of the Legislative Lists i.e. Federal or Concurrent, as per Fourth Schedule of the Constitution, perusal whereof abundantly makes it clear that no law in the nature of the National Reconciliation Ordinance, 2007 can be promulgated which instead of eliminating exploitation etc. amongst the citizens, as per Article 3 of the Constitution, tends to perpetuate corruption and corrupt practices. It is the duty of every one to obey the Constitution.

It is the prerogative of the Parliament or Provincial Assembly to promulgate laws according to their respective spheres allocated to them, inter alia, taking into consideration the provisions of Article 227 of the Constitution, relating to promulgation of law according to Islamic provisions.

Principle of equality in Islam is an essential requisite of justice because when there is discrimination and partiality between the people, there is no justice. A Code of Allah demands absolute equality of rights between the people without any discrimination or favouritism between man and man, and man and woman, on any count. Therefore, without any fear of doubt, it can be held that Article 25 of the Constitution, namely, all citizens are equal before the law and are entitled to equal protection of law and there shall be no discrimination on the basis of sex alone, has its origin in Qur'anic Injunctions. Once it has been held that any law is void, insofar as, it is inconsistent with or in derogation of fundamental rights, therefore, it would also be against the injunctions of Islam and no such law shall be enacted which is repugnant to such Injunctions.

Thus the National Reconciliation Ordinance, 2007 has been promulgated not in consonance with Injunctions of Islam in terms of Article 227(1) of the Constitution, Supreme Court added a word of caution that since there is a tendency among some litigants to invoke such precepts of Islam as do not have universal acceptance even among the jurists and schools of Islamic Sharia, or who will invoke, on vague and unspecific grounds, recourse to the morality and conscience of the Constitution or to international conventions. These cannot be invoked as a matter of course, and certainly not to strike down formal legislation or executive action which is otherwise found to be within the scope of the Constitution and the law. The Constitution remains supreme and the primary reason for striking down the National Reconciliation Ordinance, 2007 has been its being ultra vires the express and stated provisions of the Constitution. The observations relating to the application of Article 227 and to the morality and conscience of the Constitution are only further supportive observations that can be construed as a reconfirmation of the essential and inherent invalidity in the light of the other express provisions contained in the Constitution. The Primary touchstones remain the other provisions of the Constitution specified in the judgment.

Different laws can be enacted for different sexes and age groups, but in the present case the basic question is as to the vires of the National Reconciliation Ordinance, 2007 on the ground of being violative of Article 25 of the Constitution as it has provided protection to a certain class of persons against the crimes committed during a certain period.

Newly inserted Section 33F of the National Accountability Ordinance, 1999, under Section 7 of the National Reconciliation Ordinance, 2007, has not only made classification between the general public and the holders of public office' but also amongst theholders of public office' on account of time period, as well, on the basis of which, benefit to a particular class i.e. the persons against whom the proceedings were initiated prior to 12th October, 1999, has been extended on the criteria that prolonged proceeding are pending against them. Prior to the National Accountability Ordinance, 1999, Ehtesab Act, 1997 was in field, which was repealed on the promulgation of the National Accountability Ordinance, 1999, as a result whereof, the proceedings initiated under the said Act, were protected by means of section 33 of the National Accountability Ordinance, 1999, which provides that any and all proceedings pending before the court under the Ehtesab Act, 1997 shall stand transferred to a court, as soon as it is constituted under this Ordinance, within the same Province, and it shall not be necessary to recall any witness or again to record any evidence, that may have been recorded. As far as Ehtesab Act is concerned, it was enacted on 31st May, 1997 and was made effective w.e.f. 6th November, 1990, so through the National Reconciliation Ordinance, 2007 benefit of withdrawal or termination of the cases or proceedings has been extended to persons whose cases are covered between the period from 6th November, 1990 and 12th October, 1999. Interestingly, neither the benefit of the National Reconciliation Ordinance, 2007 has been extended to the. holders of public office', against whom cases were registered prior to 6th November 1990 nor to thoseholders of public office' against whom cases have been registered after 12th October, 1999, although the cases were registered against such persons, even before and after these cut off dates. Thus for this reason as well, all the `holders of public office' against whom cases have been initiated before

6th November, 1990 and after 12th October 1999 are also entitled for equal protection of law because they are similarly placed. Therefore, on the basis of intelligible differentia, no distinction can be drawn between both the groups, as such the above sub-classification within the class of `holders of public office' is not based on an intelligible differentia, having no rational nexus to the object, sought to be achieved by the relevant classification under the National Reconciliation Ordinance, 2007 as such, it, being a discriminatory law, deserves to be declared void ab initio.

It is a universally accepted principle that Constitution of the country, may be written or otherwise, represents the voice of the people. The Constitution being a supreme law of the country provides for guarantee of peace, welfare and amity of the people, subject to their ' rights and obligations, against all forms of exploitation, socio-economic justice and principles of good governance, transformed in the principles of policy, to make the document as a living instrument, sufficient to cater for the present and future requirements of a nation. An instrument like the Constitution, to achieve the objects spelt out in the Preamble, has the support of 176 million people, meaning thereby that this instrument has on its back moral strength of the nation, therefore, it would be their earnest desire and wish that everyone must show loyalty .to the State and obedience to the Constitution and the law, as it has been envisaged under Article 5 of the Constitution. This object can be achieved if the moral or ethical values, the desires of the nation, have been transformed into a legally enforceable formulation. In the present case, the parliamentarians i.e. the representatives of the people of Pakistan; by their high moral conduct have already demonstrated, by not allowing the National Reconciliation Ordinance, 2007 to become the Act of the Parliament, as manifested from the proceedings of the National Assembly, as well as by' the act of the Federal and Provincial Governments of not defending and supporting it. Will of the people of Pakistan was not included in the promulgation of the National Reconciliation Ordinance, 2007 because despite availability of the National Assembly the same was not placed before it as the then legislative authority, being holder of highest office under the Constitution, is presumed to know that it is a legislation which is being promulgated against the conscience of the Parliamentarians representing the people of Pakistan and inconsistent with the constitutional provisions discussed hereinabove, including Article 63(1)(h) of the Constitution, which provides for disqualification of a person from being elected or chosen as, and from being, a member of the Parliament, if he has been convicted by a court of competent jurisdiction on a charge of corrupt practices, moral turpitude or misuse of power or authority under any law for the time being in force. The Constitution has its own conscience being a living document, therefore, any law which negates any of the constitutional provisions shall be considered to be inconsistent with it.

Any law which is not promulgated in accordance with the Constitution would be considered against its conscience.

An elector, while exercising his right of franchise, confers/places trust upon the representative, being chosen by him. If such representative betrays his trust by involving himself into corruption or the offence of moral turpitude, he disqualifies himself to continue as a member of the Parliament, according to the guidelines provided in Article 63(1)(h) of the Constitution. Plain reading of Article 63(1)(h) of the Constitution reveals that it introduces two types of situations; one disclosing disqualification qua a candidate to become a member of the Parliament and; second disqualification qua the elected member of the Parliament.

Section 33F(1) in the National Accountability Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007, giving it overriding effect, by using non obstante clause, has allowed the prolonged pending proceedings to be withdrawn with immediate effect.

The cases or proceedings have been withdrawn or terminated contrary to law, initiated before 12th October 1999, including pending trial proceedings, conviction/acquittal appeals, etc., inasmuch as the transfer of pending proceedings under Section 33 of the National Accountability Ordinance, 1999 have also been withdrawn or terminated. The manner in which Section 33F of the National Accountability Ordinance, 1999, has been couched, suggests that the holders of public office' involved in any proceedings, not only under the National Accountability Ordinance, 1999 but also in the cases under other laws i.e. Pakistan Penal Code, Anti-Terrorism Act, etc. have been withdrawn or terminated, considering theholders of public office' as a distinct class from the accused/convicts against whom similar proceedings are pending in any court, with immediate effect. How the Constitution, as per its conscience coupled with morality, can allow Supreme Court to maintain a law which is against all the norms of justice. Two things have become very significant; one is category of cases, initiated on a reference by the NAB inside or outside Pakistan and; second is that of the cases under any other law, for the time being in force covering all nature of crimes, heinous or minor. A holder of public office' when enters into Parliament, he enjoys moral authority as he has been elected by the constituents, enjoying their trust. But aholder of public office' whose case falls under disqualification prescribed in Article 63(1)(h) of the Constitution, which includes conviction by a court of competent jurisdiction, on the charge of corrupt practices under Section 9 of the National Accountability Ordinance, 1999, identifies persons, who are said to have committed the crime falling under this category. Second charge which falls under the definition of disqualification under Article 63(1)(h) of the Constitution is in respect of moral turpitude.

Third category relates to the cases of misuse of power or authority under any law for the time being in force. This category also squarely falls within the definition of corruption and corrupt practices as defined in Section 9 of the National Accountability Ordinance, 1999.

Thus question arises, whether a law which instead of eliminating, has encouraged the offence of corruption and moral turpitude, can at all not be enacted in exercise of powers under Article 89 of the Constitution; whether promulgation of such a law would not be against the morality and the conscience of the Constitution; whether the constituents, in exercise of their right of franchise, have not made out a case to strike down such a law, which is not only contrary to the constitutional provisions, discussed hereinabove, but also calls upon Supreme Court to strike down such law as they believe that on account of their high moral and ethical codes, it has become their enforceable legal formulations and lastly whether it is not against the conscience of the Constitution which prohibits enactment and promulgation of any law inconsistent with its provisions. Answer to all above questions is in affirmative and could not be else.

It is mentioned in section 33F of the National Accountability Ordinance, 1999 inserted by means of section 7 of the National Reconciliation Ordinance, 2007 that holders of public office' shall also not be liable for any action in future as well for acts having been done in good faith before the said date. This immunity from future actions has also been provided contrary to the Constitution and the law. There are two provisions in the Constitution i.e. Article 12, according to which protection to a person against retrospective punishment has been made permissible; and Article 13, which protects a person against double punishment and self-incrimination. Thus, operation of section 33F of the National Accountability Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007 seems to be in contravention to the mandate of Section 31B of the National Accountability Ordinance, 1999, which provides mechanism for withdrawal from the prosecution of, any accused person in the manner prescribed therein, but as far as the protection against double punishment is concerned, it would only be available to a person who has already been punished but criminal proceeding right from the date of commencement up to final judgment has been withdrawn or terminated, making such a person as innocent, as he was before initiation of such proceedings at investigation stage. So far as Article 13 of the Constitution is concerned, no case can be made out under this Article of the Constitution against double punishment or self incrimination. It seems that theholders of public office' have been saved from future action for the crimes committed by them as well as the crimes charged against them on the basis of reference filed by the NAB including corruption and corrupt practices. Neither the Constitution nor any other law permits the legislative authority i.e. the President to promulgate a law, which fails to stand the test of Articles 12 and 13 of the Constitution.

By promulgation of the National Reconciliation Ordinance, 2007, the holders of public office' have been saved from being charged of certain acts committed by them in good faith. Essentially, section 33F of the National Accountability Ordinance, 1999, inserted through section 7 of the National Reconciliation Ordinance, 2007, in generality, is dealing with the persons, facing criminal charges under any provision of law or the crime defined under the National Accountability Ordinance, 1999. As far as the last mentioned law is concerned, under it no exception has been created for the crimes committed under good faith except under some of the provisions of P.P.C. whereby protection has been given for committing an act in good faith. Section 52 of P.P.C. defines the expressiongood faith' as nothing is said to be done or believed ingood faith', which is done or believed without due care and attention'.

A public servant performing duty on behalf of State has been provided immunity in different statutes with reference to the nature of the crime etc. This expression has been used in Section 36 of the National Accountability Ordinance, 1999, which provides that no suit, prosecution, or any other proceedings shall lie against the Federal Government, Provincial Government, Chairman NAB, or any other member of the NAB or any person exercising any power or performing any function under this Ordinance or the Rules made under it for 4ny act or thing, which has been done in good faith or intended to be done under this Ordinance or the rules thereof. As far as the persons against whom proceedings or investigation are pending before the Court of law including a High Court or Supreme Court, cannot be said to have committed the crime, in good faith, either heinous or minor in nature, as well as relating to corruption or corrupt practices, inside and outside the country. The legislature while enacting a law has to adopt certain measures before extending immunity to the functionaries of the State but at least it can be said that an accused or convict cannot enjoy protection for offences, noted hereinabove, or for his deeds, in the garb of good faith.

Another important aspect of Section 7 of the National Reconciliation Ordinance, 2007 is that while inserting Section 33F in the National Accountability Ordinance, 1999, a mechanism has also been provided for withdrawal and termination of prolonged pending proceedings, initiated prior to 12th October, 1999'. One of the so-called reasons, prevailed upon the legislative authority to promulgate such provision on account ofprolonged pending proceedings initiated prior to 12th October, 1999'. It may be noted that in the Preamble of the National Reconciliation Ordinance, 2007, besides other things, the prolonged pending proceedings was never the consideration. It does not seem to be that on account of prolonged pending proceedings, initiated prior to 12th October 1999, the cases have been withdrawn as according to it, necessity to promulgate the National Reconciliation Ordinance, 2007 is "to promote national reconciliation, foster mutual trust and confidence amongst `holders of public office' and to remove the vestiges of political vendetta and victimization, to make the election process more transparent and to amend certain laws for that purpose and for matters connected therewith and ancillary thereto". Assuming that the conditions so mentioned therein for terminating the cases being prolonged pending proceedings is acceptable, then why the cases which have been finalized, resulting in the conviction or acquittal and proceedings in respect thereof were pending, have been withdrawn. Therefore, instead of withdrawing or terminating the proceedings, mechanism should have been followed for the disposal of cases by increasing manpower of investigating agencies and the number of courts etc.

Prolonged pending proceedings, in no way, can constitute a ground for the withdrawal or termination of the proceedings. More so, Article 37 of the Constitution casts a. duty upon the State to ensure inexpensive and expeditious justice, therefore, the government by 'invoking this provision can increase the number of courts and paralegal staff to ensure expeditious disposal of the cases of persons charged for various offences.

Court while interpreting different provisions of the Constitution has an authority to make an observation with an object that the State must realize its duty. As in the present case, the Supreme Court is empowered to pass appropriate orders, as it deemed fit under Article 187 of the Constitution as well as keeping in view the earlier precedents providing for monitoring of the cases pending in the courts and the increase in number of courts.

By means of Section 33F of the National Accountability Ordinance, 1999, inserted through Section 7 of the National Reconciliation Ordinance, 2007, cases or proceedings have been withdrawn or terminated, without spelling out the reasons, namely, as to whether an accused himself is responsible for causing the prolonged delay or the prosecution or the Courts have failed to decide the case expeditiously. After the promulgation of National Judicial Policy, 2009 by the National Judicial Policy Making Committee, despite strict monitoring of the proceedings of the court, it has been observed that the courts and the Investigating Agencies are taking all necessary steps to dispose of the cases expeditiously according to law but it is a hard fact that accused, for one or other reasons, known to them, attempt to protract the proceedings.

By means of Section 3 of the National Reconciliation Ordinance, 2007, amendment has been made in Section 39 of the Representation of the People Act, 1976.

Intention enshrined in Section 3, National Reconciliation Ordinance, 2007 cannot be doubted but it seems that this provision is cosmetic in its nature, comparing to sections 2, 6 and 7 of the National Reconciliation Ordinance, 2007. However, the benefit of the same cannot be drawn immediately by a candidate, who is always interested to get the certified copy of the result and such arrangement is already available in section 38 of the Representation of the People Act, 1976, which provides that the Presiding Officer shall give a certified copy of the statement of count and the ballot paper account to such of the candidates, their election agents or polling agents as may be present and obtain a receipt for such copy because as far as the consolidation of a result is concerned, it takes place subsequent to polling day, as per the schedule fixed by the Election Commission. If at all, the intention of the legislature was to ensure transparent election free from rigging of any kind, then emphasis should have been for the strict compliance of section 38(11) of the Representation of the People Act, 1976.

The National Reconciliation Ordinance, 2007 is not only discriminatory and inconsistent with fundamental rights, enshrined in Article 25 of the Constitution but also in conflict with other Articles of the Constitution such as Articles 62, 63 and 175, therefore, it is not a valid law rather it is a bad law. Article 5 of the Constitution postulates that it is inviolable obligation of every citizen to obey the Constitution and the law, whereas, Article 8(2) prohibits the State from making any law which takes away or abridges fundamental rights conferred by the Constitution; therefore, if a law does so, then it shall be void, as such, the National Reconciliation Ordinance, 2007, so promulgated, seems to be an intentional violation and disobedience of the constitutional provision, contained in Article 8 of the Constitution. Article 2A of the Constitution requires that the authority of Allah Almighty, conferred upon the chosen representatives of the people of Pakistan, is' to be exercised by them in accordance with the Constitution and within the limits prescribed by Allah Almighty. Various provisions of the National Reconciliation Ordinance, 2007 i.e. 2, 3, 4, 6 & 7, are not valid provisions as they are void for various reasons, including, being against the Injunctions of Islam, violative of the mandate of Article 175 of the Constitution, and repulsive to the provisions of Article 62 & 63 of the Constitution. The object of this law, for all intents and purposes, does not seem to be `reconciliation' but it paves the way and facilitates to those, charged with corruption and corrupt practices, plundering of national wealth and fraud, to come back, seize and occupy echelons of power again; its aim seems to be to legalize corruption and the crimes committed by those in power, in the past. Courts have been deprived, by virtue of this law, from their judicial functions by conferring powers to the administrative authority. He contended that the National Reconciliation Ordinance, 2007, besides being discriminatory, has also been applied discriminately.

Supreme Court has always favoured application of fundamental rights to ensure that there should not be any discrimination amongst citizens and the State shall not make any law which takes away or abridges the rights so conferred.

The President has an authority under Article 89 of the Constitution to promulgate an Ordinance, but cannot issue temporary legislation, which the Parliament is not empowered to do. A thorough perusal of the Federal and the Concurrent Lists of the Constitution persuades to hold that the President was not empowered to issue the National Reconciliation Ordinance, 2007 as the subjects covered by its Section 2, 6 and 7 fall beyond the scope of these lists. As far as its manifestations is concerned, it has already been done by the Parliament before whom the National Reconciliation Ordinance, 2007 was placed, but the same was withdrawn subsequently under Rule 139 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, as impliedly the National Assembly refrained itself from making it as an Act of Parliament. Inasmuch as, the actions taken from the date of its inception till the expiry of its constitutional life of 120 days under Article 89 of the Constitution from 5th October 2007 to 1st February 2008, benefits derived by some of the persons have not been protected, and the government (either Federal or Provincial) has also not insisted to allow retention of the benefits derived out of it to the accused persons during the said period. More so, none of the beneficiaries, who have drawn benefit during the said stipulated period from 5th October, 2007 to 31st July 2009, when vide judgment dated 31st July, 2009, all the Ordinances were declared to have been shorn of permanency, have not come forward to protect their benefits, although hearing of these petitions have been widely publicized in print and electronic media. Thus in view of theory of ultra vires, the National Reconciliation Ordinance, 2007 is void ab initio, therefore; the parties who have derived benefit shall not be entitled for the same from 5th October 2007 and all the cases withdrawn under sections 2, 6 & 7 of the National Reconciliation Ordinance, 2007 shall stand revived immediately. The courts seized with the matters shall proceed to decide the same, considering that the National Reconciliation Ordinance, 2007 was never promulgated.

While examining the vires of a statute the court is free to examine the same on the touchstone of different constitutional provisions.

Syed Zafar ali Shah's case PLD 2000 SC 869; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; State of Rajasthan's case AIR 1977 SC 1361; A.K. Roy v. Union of India AIR 1982 Sc. 710; Fauji Foundation's case PLD 1983 SC 457; Muhammad (p.b.u.h.) Encyclopedia of Seerah (Sunnah, Da'wah and Islam), 1st Edn. 1986, Vol.IV, pp.147-148; Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736; Mehram Ali's case PLD 1998 SC 1445; Liaquat Hussain's case PLD 1999 SC 504; Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84; Brandy v. Human Rights and Equal Opportunity Commission' 183 CLR 245; Rehman Khan v. Asadullah Khan PLD 1983 Quetta 52; Corpus Juris Secundum, Vol. 67; Black's Law Dictionary 7th Edn. (1999); Ch. Zahur Ilahi v. Zulfikar Ali Bhutto PLD 1975 SC 383; Azizullah Memon's case PLD 1993 SC 341; I. A. Sherwani's case 1991 SCMR 1041; R.S. Jhamandas' case PLD 1966 SC 229; Benazir Bhutto's case PLD 1988 SC 416; D.S.Nakara's case AIR 1983 SC 130; Black's Law Dictionary, 6th Edn.; Webster Dictionary; Law Lexicon by P.Remnatha Aiyar Vol. III, 3rd Edn.; (2005); Corpus Juris Secundum, Vol. 1, 8th Edn. Industrial Development Bank of Pakistan v. Saadi Asamatullah 1999 SCMR 2874; Fazal Ullah Siddiqui v. State 2006 SCMR 1334; Sabir Shah's case PLD 1995 SC 66; Government of N.-W.F.P. v. Muhammad Irshad PLD 1995 SC 281; Sindh High Court Bar Association's case PLD 2009 SC 879; Cooley's Constitutional Limitation; Fazlul Quader Chowdhry v. Muhammad Abdul Haque PLD 1963 SC 486 and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

(o) National Reconciliation Ordinance (LX of 2007)---

----Ss. 2, 6, 7 & Preamble---Constitution of Pakistan (1973), Arts. 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the vires of National Reconciliation Ordinance, 2007---While examining the vires of a statute the court was free to examine the same on the touchstone of different constitutional provisions---Supreme Court, on examination of vires of National Reconciliation Ordinance, 2007, on the touchstone of various Articles of the Constitution declared that the National Reconciliation Ordinance, 2007 as a whole, particularly its Ss. 2, 6 and 7 were void ab initio being ultra vires and violative of Arts. 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175 and 227 of the Constitution, therefore, it shall be deemed non est from the day of its promulgation i.e. 5th October, 2007 as a consequence whereof all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of accused persons, were also declared never to have existed in the eyes of law and resultantly of no legal effect---Resultantly, all cases in which the accused persons were either discharged or acquitted under Section 2 of the National Reconciliation Ordinance, 2007 or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to the Supreme Court, and any other such cases/proceedings which may not have been brought to the notice of Supreme Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position----All the concerned courts including the Trial, the Appellate and the Revisional Courts were ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the National Reconciliation Ordinance, 2007----Federal Government, all the Provincial Governments and all relevant and competent authorities including the Prosecutor General of NAB, the Special Prosecutors in various Accountability Courts, the Prosecutors General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders were directed to offer every possible assistance required by the competent courts in the said connection---Similarly all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the National Reconciliation Ordinance, 2007 shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law---Supreme Court clarified that any judgment, conviction or sentence recorded under Section 31-A of the National Accountability Ordinance, 1999 shall hold the field subject to law and since the National Reconciliation Ordinance, 2007 stood declared as void ab initio, therefore, any benefit derived by any person in pursuance of section 6 thereof was also declared never to have legally accrued to any such person and consequently of no legal effect---Since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been. shown to Supreme Court under which the then Attorney General had been authorized to address communications to various authorities/courts in foreign countries including Switzerland, therefore, such communications addressed y him withdrawing the requests for mutual legal assistance or abandoning the status of a civil party in such proceedings abroad or which had culminated in the termination of proceedings before the competent fora in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, were declared to be unauthorized, unconstitutional .and illegal acts of the then Attorney General--- National Reconciliation Ordinance, 2007 having been declared void ab initio, therefore, any actions taken or suffered under the said law were also non est in law and since the communications addressed by the then Attorney General to various foreign fora/authorities/courts withdrawing the requests earlier made by the Government of Pakistan for mutual legal assistance; surrendering the status of civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, had also been declared by Supreme Court to be unauthorized and illegal communications and consequently of no legal effect, therefore, Supreme Court declared that the initial requests for mutual legal assistance; securing the status of civil party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland were declared never to have been withdrawn--Federal Government 'and other concerned authorities were ordered to take immediate steps to seek revival of the said requests, claims and status---In view of the above noticed conduct of the then Attorney General for Pakistan in addressing unauthorized communications which had resulted in unlawful abandonment of claims of the Government of Pakistan, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland, the Federal Government and all other competent authorities were directed to proceed against the said the then Attorney General in accordance with law in the said connection---Supreme Court placed on record its displeasure about the conduct and lack of proper and honest assistance, and cooperation on the part of the Chairman of the NAB, the Prosecutor General of the NAB and of the Additional Prosecutor General of the NAB, in the present case---Consequently, it was not possible for the Court to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation----Supreme Court therefore, suggested that the Federal Government may make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of section 6 of the National accountability Ordinance, 1999 as also in terms of the observations of the Supreme Court made in Khan Asfandyar Wali's case (PLD 2001 SC 607), however, till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law, they shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of the Supreme Court which was being established----Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in respect of court cases in the above noticed and other cases under the National Accountability Ordinance, 1999---Likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in respect of court cases in which the accused persons had been acquitted or discharged under Section 2 of the National Reconciliation Ordinance, 2007---Secretary of the Law Division, Government of Pakistan, was directed to take immediate steps to increase the number of Accountability Courts to ensure expeditious disposal of cases.

Per Sardar Muhammad Raza, J agreeing with Iftikhar Muhammad Chaudhry, C.J.

"I have no doubt about the conclusion that National Reconciliation Ordinance, 2007 is violative of all those Articles of the Constitution referred to in the judgment and is void ab initio.

Once the National Reconciliation Ordinance, 2007 is non est, the obvious legal consequence thereof would be that all cases affected thereby shall revive from the stage where each was interrupted at. As it is a matter of national importance, it has to be taken care of. For this purpose Supreme Court has devised a mode of monitoring and also the, creation of a monitoring cell. This, but for the terminology used, is not unusual. I would prefer the mode adopted by the Court in normal course of action.

Many a time, in the given circumstances of a particular hearing before Supreme Court, various instructions are issued to the executive authorities as well as judicial fora to act in a particular manner for just and expeditious disposal of matters pending before them. Such orders are issued only during hearing of a cause arising out of a matter already pending before lower fora at the stage of trial, revision or appeal etcetera.

Suo motu or direct action is not taken by the Supreme Court about matters at trial stage because most of such courts are under the direct supervisory and administrative control of the High Courts. Unless a matter is challenged before it in its Revisional, Appellate or Constitutional jurisdiction, even the High Court does not interfere with the matters pending at investigation or trial stage. The reason is quite obvious and logical that by so doing the lower forums are most likely to be influenced thereby, one way or the other. This effect is likely to enhance when originating from the apex Court.

I am, therefore, of the view that Supreme Court should monitor the cases related to the non est National Reconciliation Ordinance, 2007 in usual manner that it normally adheres to. The normal course is that orders are passed and directions issued to the lower forum in a matter pending before such forum, during hearing under appellate, review or constitutional jurisdiction of Supreme Court. After having passed such orders or directions for proper, just and smooth disposal of cases, Supreme Court retreats into an aura of judicial unconcern, without being over indulgent.

Whenever any such order passed by Supreme Court is violated, the party aggrieved resorts to the Court for redressal of its grievances or for rectification of the violation done. The Court takes, rather, serious notice of it and comes to the rescue of the party, aggrieved through such non compliance.

Similar should be the normal course about pending cases under National Accountability Ordinance. Supreme Court is to monitor such cases and pass appropriate orders only when, in each particular case, the violation of this judgment, is brought to the notice of Supreme Court by any aggrieved party; be the prosecution or the defence. It is only after such violation being brought to the notice of Supreme Court, that the Chief Justice may mark the same to any Bench of Supreme Court, including the Bench consisting of the monitoring Judge.

So far as the idea of suo motu monitoring during the stage of investigation or trial is concerned, it has never been adhered to by Supreme Court, in its dignity, grace and judicial unconcern. Supreme Court, therefore, should monitor every wrong but on the application of the aggrieved party. There are millions of cases pending in the trial Courts of the country but the High Courts or Supreme Court do not monitor those cases through a particular cell unless the wrong done is brought to the notice of the Court. NAB cases should not be made an exception.

I really appreciate, rather envy the apt choice of verse-selection by my brother Mr. Justice Ch. Ijaz Ahmed. It depicts a phenomenon of universal wisdom; that, in a country where the wealth of a poor man is looted, its Ruler has verily gone astray and has faltered. The literary or poetic expression of the verse is marvelous. Its philosophical aspect is superb. But, at the same time, I remained at loss to comprehend as to which "Sultan" he really referred to.

Does he refer to the Sultan during whose regime, the loot and plunder had occurred with reference to the dates specified in the National Accountability Ordinance? Does he refer to the "Sultan" during whose regime not only the loot and plunder occurred but the earlier plunders got exonerated through National Reconciliation Ordinance 2007? Does he refer to the "Sultan", who according to our own verdict, was also the beneficiary of such void law?

All these queries make me skeptical about many rulers but prima dona thereof, according to our judgment, is the maker of the National Reconciliation Ordinance, 2007. He was the equal beneficiary of the Ordinance as observed by us that, it was a deal between two individuals and not a reconciliation at the national level. Such deal, in other words, is tantamount to grave violation of the Constitution.

We have much dilated upon but the adventures of one set of beneficiaries whose cases, after revival, are supposed to be pending before the relevant forums. Any observation by Supreme Court about such pending cases shall not affect or influence the trial courts; but what about the beneficiary about whose action, we have given absolute and conclusive decision, that it was void ab initio.

What about the beneficiary who clearly confessed through the Ordinance that many Accountability cases were politically motivated, politically indicted, and politically prolonged, obviously as a sword of Damocles. If politically motivated, why were those indicted. If genuine, why were those dishonestly prolonged and no verdict was obtained against the accused involved.

All this, is aimed at bringing home that all beneficiaries are to be dealt with accordingly, equally and without discrimination. The maker of the Ordinance should also be brought to accountability for perpetuating corruption and for violating the Constitution. No doubt, such beneficiary is not a party to the present petitions but so are the other beneficiaries, taken care of in our judgment. Moreover, Supreme Court has, on many occasions, given verdict against persons not party to the proceedings. All beneficiaries of National Reconciliation Ordinance, 2007 of the first or the second part, are to be dealt with equally, equitably and without discrimination. If one is proceeded against, the other must also be."

Per Ch. Ijaz Ahmed, J, agreeing with Iftikhar Muhammad Chaudhry, C.J.

(p) Interpretation of Constitution---

----Legislative history/past events are relevant for interpreting constitutional provisions on the principle of historical modalities.

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

----Art. 25---Equality before law---History and concept---Concept of equality before law was introduced by Islam and further highlighted, implemented and explained by the Holy Prophet.

Pakistan Petroleum Workers Union's case 1991 CLC 13 ref.

(r) Constitution of Pakistan (1973)---

----Art. 14---Article 14 of the Constitution ensures dignity of every individual.

Francis Corolie Mullin's case AIR '1981 SC 746; A.K. Roys' case AIR 1982 SC 710; Bandhu Mukti Moracha's case AIR 1984 SC 802; Bachan Singh's case AIR 1982 SC 1235; Weereja Chaudhry's case AIR 1984 .SC 1099 and Suo Motu Constitutional Petition 1994 SCMR 1028 ref.

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

----Part II, Chap.1 [Arts.8 to 28]---Fundamental Rights---Very concept of fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law.

Jibendra Kishore's case PLD 1957 SC 9 ref.

(t) Interpretation of statutes-

----Where a statute is ex facie discriminatory but is also capable of being administered in a discriminatory manner and it appears that it is actually being administered to the detriments of a particular class in particular, unjust and oppressive manner then it has been void ab initio since its inception.

Waris Mehi's case PLD 1957 SC (Pak.) 157; Benazir's case PLD 1988 SC 416; I.A. Sherwani's case 1991 SCMR 1041 and Azizullah Memon's case PLD 1993 SC 341 at 358 ref.

(u) Words and phrases---

--- "Ameen "---Meaning.

The Concise Encyclopedia of Islam, p.41; Urdu Adera-e-Mahrafil Islamia, pp.279-80 and The Encyclopaedia of Islam (New Edn.) Vol. I, at pp.436-437 ref.

(v) Words and phrases---

--"Morality"---Meaning.

Words and Phrases, Permanent Edn. Vol. 27A and M. Saifullah Khan v. M. Afzal PLD 1982 Lah. 77 ref.

(w) Interpretation of Constitution---

----Constitution to be read as an organic whole.

(x) Constitution of Pakistan (1973)--

----Preamble---Constitution of Pakistan is based on trichotomy consisting of Legislature, Executive and the Judiciary---Principles.

Syed Zafar Ai Shah's case PLD 2000 SC 869; Mehmood Khan Achakzai's case PLD 1997 SC 26 and Farooq Ahmed Khan Leghari's case PLD 1999 Sc 57 ref.

(y) Constitution of Pakistan (1973)---

----Art. 89---Power of the President to promulgate Ordinance---Scope.

(z) National Reconciliation Ordinance (LX of 2007)---

----Preamble---Constitution of Pakistan (1973), Arts.184(3) & 45---Constitutional petition under Art.184(3) of the Constitution challenging the vires of National Reconciliation Ordinance, 2007---Held, National Reconciliation Ordinance, 2007 had not been framed for the welfare of the people of Pakistan rather framed by the President of Pakistan for his benefit and benefit of the other privileged class---No written or unwritten Constitution 'could allow framing law against the welfare of people of the country---President of Pakistan had power to pardon by virtue of Art.45 of the Constitution but had no right whatsoever to give clean chit or to withdraw the case of the complainant whose near relations were murdered---Whole National Reconciliation Ordinance, 2007 was in violation of various provisions of the Constitution.

(aa) Islamic Jurisprudence---

----Administration of justice---Principle of check and balance---Scope.

(bb) Words and phrases---

----"Corruption"-Connotation.

Khalid Malik's case PLD 1991 Kar. 1; Khawaja Ahmed Tariq Rahim's case PLD 1990 Lah. 505; Khawaja Ahmed Tariq Rahim's case PLD 1991 SC 78; Khawaja Ahmed Tariq Rahim's case PLD 1992 SC 646;Aftab Ahmed Khan Sherpao's case PLD 1991 SC 723; Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 and Benazir Bhutto's case PLD 1998 SC 388 ref.

(cc) Constitution of Pakistan (1973)---

----Preamble---Constitution of Pakistan envisages that sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him as a sacred trust.

Shahid Nabi Malik's case PLD 1997 SC 32 ref.

(dd) Constitution of Pakistan (1973)---

----Preamble---Constitution is a document which defines the regular form or system of the government, containing the rules that directly or indirectly affect distribution or exercise of the sovereign power of the State and it is thus mainly concerned with creation of three organs of State and the distribution of authority of the government among them and the definition of their mutual relation---Principles.

Shahab Nama by Qudratullah Shahab ref.

(ee) Vires of a statute---

----Scope---Validity of any law can be tested by its result or fruit--Illegal morsel gives birth to evils; similarly any legislation which hurts the welfare of the people should not be allowed to stand among the people.

(ff) National Reconciliation Ordinance (LX of 2007)---

----Preamble---Constitution of Pakistan (1973), Art.184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the vires of National Reconciliation Ordinance, 2007---Held, National Reconciliation Ordinance, 2007 being an illegal morsel was declared a legislation void ab initio.

Per Jawwad S. Khawaja, J, agreeing with Iftikhar Muhammad Chaudhry, C.J.

Though there was no significant opposition to these petitions and even though the Federal Government did not defend the National Reconciliation Ordinance, 2007 the important constitutional issues raised through these petitions were thrashed out to ensure that there is adherence to the provisions and norms of the Constitution, not only for the sake of deciding these cases but also to lay down precedent for the institutions of the State and its functionaries in terms of Article 189 of the Constitution.

There can be no possible objection to the avowed objectives of the National Reconciliation Ordinance, 2007 as set out in its Preamble, viz. promotion of national reconciliation and removal of the vestiges of political vendetta and victimization. These objectives, however, must be achieved through means which are permitted by the Constitution. The court while exercising the judicial function entrusted to it by the Constitution is constrained by the Constitution and must, therefore, perform its duty of resolving matters coming before it, in accordance with the dictates of the Constitution and the laws made thereunder. If the court veers from this course charted for it and attempts to become the arbiter of what is good or bad for the people, it will inevitably enter the minefield of doctrines such as the `law' of necessity or salus populi suprema lex, with the same disastrous consequences which are a matter of historical record. Supreme Court has, in its judgment in the case of the Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879) emphatically held that court will not deviate from strict adherence to the law and the Constitution. Decisions as to what is good or bad for the people must be left to the elected representatives of the people, subject only to the limits imposed by the Constitution.

Court cannot and should not base its decisions on expediency or on consideration of the consequences which may follow as a result of enforcing the Constitution. It is for this reason that while deciding the 'case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), Supreme Court assiduously avoided validating any of the unconstitutional acts of General Musharraf including his attempt to clothe 37 Ordinances (National' Reconciliation Ordinance, 2007 included) with permanence in violation of the Constitution. It was, in accordance with the scheme of the Constitution and its democratic' character that the right of the legislature to enact these Ordinances with retrospective effect was recognized and upheld. It is a matter of record, that the elected representatives of the people chose not to resurrect the National Reconciliation Ordinance, 2007 or to give cover to any acts thereunder through retrospective legislation.

While the Court is obliged to eschew expediency and any other extraneous considerations such as the fall-out and consequences of its judgments, the executive and legislative limbs of the State do not suffer from similar constraints. As such the consequences of executive and legislative decisions are a legitimate concern of these organs of the State. Legislators and functionaries performing executive functions may resort to expediency, compromise and accommodation in achieving political and policy objectives considered appropriate in their judgment. As long as such decisions conform to and are not violative of the Constitution, the executive and the legislature are only accountable to the electorate and not to courts. This is the democratic principle enshrined in the Constitution.

In the present case, contention of the counsel for the Federal Government was that "Pak today is poised at the cross roads. One road leads to a truly federal democratic welfare State with the balance of power between an independent judiciary, a duly elected Government representing the will of the people and a determined executive which is fighting the war against terrorism and poverty. The second road leads to destabilization of the rule of law. The people of Pakistan await your verdict."

There is, implicit in the above words, a plea to the court to once again revert to the disastrous and rejected route of expediency and to tailor the outcome of these petitions by looking at the consequences which will follow, rather than the requirements of the Constitution. The path of expediency and subjective notions of State necessity' are dead and buried. It is quite extraordinary that a democratically elected Federal Government should be imploring the court to act in a manner otherwise than in accordance with law. Supreme Court will not take into account extraneous considerations while exercising its judicial powers and also that adherence to the Constitution can never lead to "destabilization of the rule of law." On the contrary, any breach of constitutional norms is likely to destabilize the rule of law.

The onus, therefore, of stabilizing the rule of law falls on and must be assumed by the executive organ of the State which also commands a majority in the legislature. This is the requirement of the Parliamentary democratic dispensation ordained by the Constitution. Political stability and the rule of law will flow as a natural consequence of giving sanctity and respect to the Constitution, both in letter and in spirit. The Court can only strengthen the rule of law by upholding the Constitution, which is, in fact, the supreme law. The executive and legislative limbs of the State are also constitutionally obliged to apply the powers and resources at their command, in enforcing the Constitution and the rule of law without discrimination or undue favour to any person or class.

Almost a millennium before good governance' andrule of law' became fashionable buzz-words in political discourse, the importance of good governance and the rule of law and their direct co-relation with political stability was recognized by enlightened rulers. In the Siyasatnama written by Nizam-ul-Mulk Toosi the incident is narrated where the Governor of Hamas (in present day Syria) wrote to the Caliph seeking funds to rebuild the protective wall to defend the State against its enemies, that is, to ensure the stability of the government. The reply he received is instructive. He was told to build the walls of justice i.e. the rule of law and this would ensure peace, stability and freedom from the fear of enemies.

The National Reconciliation Ordinance, 2007 has been declared unconstitutional and void ab initio. It has thus met the fate it richly deserved as a black law created and prolonged by the corrupt and malevolent hands of a military dictator. The fact that the incumbent democratic government chose not to defend such a vile law bodes well for constitutionalism and the rule of law. There is, of course, the matter of persons who may be innocent of any wrongdoing but were victimized due to political vendetta. For such persons present judgment ought to be seen as a boon. Instead of living in the shadow of a malignant cloud for the rest of their lives, their reputations sullied by the foul intervention of a scheming mind, these persons are enabled through this judgment to clear their good name of any taint with which they of necessity, stood branded on account of the National Reconciliation Ordinance, 2007. This indeed would be the most potent rejoinder to those who maliciously may have initiated false cases to harm their reputations for ulterior political considerations.

By striking down the National Reconciliation Ordinance, 2007 the Court does not foreclose the possibility or impinge on the. prerogative of the legislature to enact a non-discriminatory law which can pass constitutional muster and is motivated by a desire to bring about a true and inclusive reconciliation which is genuinely national in its outreach and attempts to bring within its fold disparate groups harbouring valid grievances against oppressive and vindictive use of State machinery in the past. Even those who may have committed wrongs in the past and were not wronged against, are not beyond being redeemed through a compassionate law which heals the fissures in the nation's divided polity. These are, however, matters which fall squarely within the legislative and executive domains, should these organs of the State wish to act.

The concept of tauba and sincere repentance coupled with restitution of any ill-gotten gains and the expression of genuine remorse for past excesses provide an age-old matrix for fostering reconciliation. It has been applied successfully in ancient as well as modern societies, the most recent example being that of South Africa where a Truth and Reconciliation Commission has been able to bring about a genuine national reconciliation between staunch opponents divided among other things, by race and embittered by decades of apartheid. An example of national reconciliation also appears in our own nation's history. (This has been commented upon in the main judgment.) It would be for the executive and the legislature to consider the potential and the possibilities of what can be achieved by way of reconciliation, as opposed to perpetuation of the venom and mutual recriminations which continuously divide the nation at the cost of its well-being. Supreme Court, however, can only abide by the rule of law and in order to do so it must limit itself to the adjudication of controversies in accordance with the Constitution and with laws made consistently therewith.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Salman Akram Raja, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record assisted by Abdul Mujeeb Pirzada, Senior Advocate Supreme Court, M. Afzal Siddiqui, Mian Gul Hassan Aurangzeb, Sikandar Bashir Mohmand, Advocates Supreme Court Barrister. Feroze Jamal Shah, Hamad Ahmed, Mustafa Aftab Sherpao, Sameer Khosa, Umar Akram Chaudhry, Malik Ghulam Sabir Advocates for Petitioners (in Const. P. 76/2007).

Muhammad Ikram Ch. Advocate Supreme Court and G. N. Gohar, Advocate-on-Record for Petitioner (in Const. P. 77/2007)

Dr. Farooq Hassan, Senior Advocate Supreme Court, Hashmat Ali Habib, Advocate Supreme Court .and Ch. Muhammad Akram, Advocate-on-Record for Petitioner (in Const.P.78/2007)

Ashtar Ausaf Ali, Advocate Supreme Court for Petitioner (in Const. P.79/2007)

Tariq Asad, Advocate Supreme Court Petitioner in person (in Const. P.80/2007)

A.K. Dogar, Senior Advocate Supreme Court for Petitioner (in Const. P.59/2009)

Shahid Orakzai (in person) (in C.M.A. 4842/2009)

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Petitioner (in C.A.1094/2009).

NEMO (in HR. Cases)

Kamal Azfar, Senior Advocate Supreme Court assisted by K.K. Agha, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Ministry of Law (Respondent) (in Const. P.76-77/2007)

Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in Const P.78-80/2007 & 59/2009)

Dr. Danishwar Malik, PG., Abdul Baseer Qureshi, Addl: PG, Asghar Rana, ADPG, Ch. Akhtar Ali, Advocate-on-Record and Naveed Ahsan, Chairman NAB for the NAB.

Shah Khawar, Acting Attorney General for Pakistan assisted by Agha Tariq Mehmood Khan, DAG., Dil Muhammad Alizai, DAG and Raja Aleem Abbassi, DAG (On Court Notice).

Dr. Salahuddin Mengal, A.-G. for Government of Balochistan.

Zia-ur-Rehman, A.G.. Zahid Yousaf, Addl. A.-G. and Naveed Akhtar, A.A.G. for Government of N.-W.F.P.

M. Hanif Khattana, Addl: A.-G. and Ch. Khadim Hussain Qaiser, Addl. A.-G. for Government of the Punjab :

Yousaf Leghari, A.-G. for Government of Sindh.

Malik Muhammad Qayyum, Senior Advocate Supreme Court former Attorney General for Pakistan (On Court's call).

Justice (R) M. Riaz Kiani, Secretary Law & Justice, Dr. Riaz Mehmood, Senior .Joint Secretary and Syed Nasir Ali Shah, Solicitor General (On Court's call).

M. Salman Faruqui, Secretary General to the President (On Court's call).

Mian Allah Nawaz, Senior Advocate Supreme Court, Shaiq Usmani Senior Advocate Supreme Court, M. Sardar Khan, Senior Advocate Supreme Court assisted By Mr. Idrees Ashraf, Advocate: Amicus Curiae.

Dates of hearing : 7th -10th & 14th - 16th December, 2009.

P L D 2010 Supreme Court 483

Present: Iftikhar Muhammad Chaudhry, CJ, 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, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja and Rahmat Hussain Jafferi, JJ

JUSTICE KHURSHID ANWAR BHINDER and others---Applicants

Versus

FEDERATION OF PAKISTAN and another---Respondents

C.M.As. Nos. 2745, 2748 and 2782 of 2009, in C.R.P. No.Nil of 2009 in Const.P.No.8 of 2009; C.M.As. Nos. 2747, 2750, 2776, 2779, 2788, 2790, 2825 and 4002 of 2009 in C.R.P. No.Nil of 2009 in Const. P.No.9 of 2009 and Criminal Original Petition No.90 of 2009 [Contempt matter regarding press statement made by Syed Zulfiqar Ali Bokhari], decided on 13th October, 2009.

Per Javed Iqbal, J; Iftikhar Muhammad Chaudhry, CJ, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja and Rahmat Hussain Jafferi, JJ agreeing; Sardar Muhammad Raza Khan, J dissenting.

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

----Arts. 204, 193 & 177---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of Court---Contempt notices under Art.204 of the Constitution read with Ss.3 & 4 of the Contempt of Court Act, 1976 or any other provision of relevant law, were issued to two categories of Judges i.e. the first comprising those who were Judges of the Supreme Court or of any of the High Courts on 3-11-2007 and the second category was of those persons who were notified as Judges of Supreme Court or of the High Courts between 4-11-2007 and 23-3-2009 on the basis of "consultation" with Abdul Hameed Dogar, J., purporting to act as Chief Justice of Pakistan---Contempt notices issued to the Judges who had expressed their regrets and repentance; by tendering unconditional apologies and affirming their remorse through withdrawal of the petitions filed by them and tendering of resignations were discharged---Similarly, as to the Judges who had already retired and had tendered unconditional apologies and had expressed their repentance and remorse, the notices issued to them were dischdrged---As to the Judges, who were contesting notices, they shall be proceeded against separately along with the cases of those Judges, who had not filed replies and/or had prayed for grant of time---Judges of the Supreme Court and the High Courts, who tendered resignations after pronouncement of the judgment dated 31-7-2009 (PLD 2009 SC 879) in deference thereto shall not be proceeded against---Judges who had tendered resignations, but had not filed replies to the notices, the process shall be repeated to them so as to file the replies within two weeks---Judges, who had neither tendered resignations nor had filed replies, were required to file replies within two weeks---Counsel had prayed for grant of four weeks' time to submit reply on behalf of Justice (Retd.) Abdul Hameed Dogar; reply was directed to be filed within two weeks---Justice (Retd.) Muhammad Nawaz Abbasi had filed reply, which was not unconditional apology, therefore, his matter shall be proceeded along with other cases---Syed Zulfiqar Ali Bokhari had tendered unconditional apology and had thrown himself at the mercy of the Court, the notice issued to him was also discharged.?

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

----Arts. 193, 189 & 188---Appointment of High Court Judges---None other than the Chief Justice and not even an Acting Chief Justice of Pakistan, who is a constitutional functionary, can be the consultee in terms of Art.193 of the Constitution---Persons who were notified as Judges of the Supreme Court or of High Courts between 4-11-2007 and 23-2-2009 on the basis of "consultation" with Abdul Hameed Dogar, J. purporting to act as Chief Justice of Pakistan were not Judges of the High Courts regardless of the fact that they purported to occupy such office---Said persons did not possess locus standi to file Civil Miscellaneous Application or review petitions, the sole object of which was to seek an order that said persons were validly appointed as Judges and were entitled to hold such office---Removal of the said persons from the office being occupied by them was a direct consequence of the finding that the actions of General (Retd.) Pervez Musharraf taken on 3-11-2007 were void ab initio and secondly that the notification of those persons who were appointed Judges of the High Courts between 341-2007 and 23-3-2009 had not been issued after "consultation" with the Chief Justice of Pakistan as mandated by Art.193 of the Constitution---Such findings enunciated a `principle of law' and were based on the interpretation of the relevant provisions in Part VII of the Constitution, which inter alia, provided that any decision of the Supreme Court shall, to the extent it decided a question of law or was based upon or enunciated a principle of law shall be binding on another courts in Pakistan---Ultimate responsibility of interpreting the law of land was that of Supreme Court.?

Maroof Khan v. Damsaz Khan 1992 MLD 21; Salah-ud-Din v. The State 1990 PCr.LJ. 1221; Malik Muhammad v. Jan Muhammad 1989 CLC 776; Abdul Ghaffar Khan v. Saghir Ahmad Aslam PLD 1987 Lah. 358; Abdul Ghaffar Khan v. Saghir Ahmed Aslam PLD 1987 Lah. 384; Roshan Ali v. Noor Khan PLD 1985 SC 228, Muhammad Khan v. Sanaullah PLD 1971 SC 324; Khalid Rashid v. State PLD 1972 Lah. 729; Ali Muhammad v. Mahmood-ul-Hassan PLD 1968 Lah. 329 and Hashim v. State PLD 1963 Lah. 82 ref.

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

----Art. 189---Decisions of Supreme Court binding on other courts---Scope---Where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of Art.189 of the Constitution and is binding on all courts in Pakistan-Such pronouncement cannot be treated as mere obiter dictum---Even obiter dictum of the Supreme Court, due to the high place which the court holds in the hierarchy of courts in the country, enjoy a highly respected position as if it contains a definite expression of the court's view on a legal principle, or the meaning of the law.?

M. Ismail & Sons v. Trans-Oceanic Steamship Co., Ltd PLD 1966 Dacca 296; Nagappa v. Ramchandra AIR 1946 Bombay 365; K.C. Venkata Chalamayya v. Mad. State AIR 1958 Andh-Par. 173; K.P. Doctor v. State of Bombay AIR 1955 Bom. 220 and Bimla Devi v. Chaturvedi AIR 1953 All. 613 ref.

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

----Art.190---Action in aid of Supreme Court---Scope---Article 190 of the Constitution is a mandatory provision under which there is no alternative for the Executive but to act in aid of the Supreme Court---Persons identified as' responsible for non-implementation of the judgment can be punished by the Supreme Court for contempt for disobedience of its judgment---Such judgments, to the extent of the legal principles settled therein, are judgments in rem---Courts, as also parties, litigating in respect of matters covered by legal principles enunciated by the Supreme Court, can at best, distinguish the precedent of Supreme Court but the Courts before which litigation arises cannot disregard the legal principles so enunciated. ?

Maroof Khan v. Damsaz Khan 1992 MLD 21; Salah-ud-Din v. The State 1990 PCr.LJ 221; Malik Muhammad v. Jan Muhammad 1989 CLC 776; Abdul Ghaffar Khan v. Saghir Ahmad Aslam PLD 1987 Lah. 358; Roshan Ali v. Noor Khan PLD 1985 SC 228; Muhammad Khan v. Sanaullah PLD 1971 SC 324; Khalid Rashid v. State PLD 1972 Lah. 729; Ali Muhammad v. Mahmood-ul-Hassan PLD 1968 Lah. 329; Hashim v. State PLD 1963 Lah. 82; M. Ismail & Sons v. Trans-Oceanic Steamship Co., Ltd PLD 1966 Dacca 296; Nagappa v. Ramchandra AIR 1946 Bombay 365; K.C. Venkata Chalamayya v. Mad. State AIR 1958 Andh-Par. 173; K.P. Doctor v. State of Bombay AIR 1955 Bom. 220; Bimla Devi v. Chaturvedi AIR 1953 All. 613; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Abdul Hameed v. Special Secretary, Education Schools 2007 SCMR 1593; Abdul Waheed v. Ramzanu 2006 SCMR 489; Nazar Abbas Jaffri v. Secretary to Government of the Punjab 2006 SCMR 606; Muhammad Sharif v. Settlement Commissioner 2007 SCMR 707 and Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.

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

----Arts. 188, 193 & 177---Review of Supreme Court judgment---Scope---Appointment of Judges---Supreme Court, by virtue of powers under Art.188 of the Constitution may review any judgment pronounced or any order made by it---In the present case, since there was no challenge made to the findings and declarations recorded in the judgment under review in respect of the actions of appointment of Judges and "consultation" in terms of Art.193 of the Constitution, the true meaning of the relevant Articles of the Constitution, had been laid down---Such enunciation affected not only the petitioners in the present case, but others as well to lesser or greater degrees---To illustrate the point, case of all those such litigants who had lost legal actions in the High Courts and in the Supreme Court between 4-11-2007 to 23-3-2009, could be taken note of---Such litigants were directly and adversely affected by the judgment under review---Such was so because they had been prevented from agitating those matters on the ground that the courts which rendered decisions against them were coram non judice---If the contention of the petitioners was accepted, then there would be no justification for not allowing each one of the said litigants from seeking review of the judgment on the ground that they were not impleaded as parties or afforded an opportunity of hearing before affecting their rights to their detriment---Such losing litigants, had a much better case than the petitioners. ?

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

----Arts. 188, 189, 193, 177 & 209---Review of Supreme Court judgment---Persons who were Judges of the Supreme Court or any of the High Courts on 3-11-2007 had not challenged the findings and the declaration recorded in the judgment to the effect that the actions taken by the President of Pakistan on 3-11-2007 were unconstitutional and void ab initio; in so far as the Judges who were Judges of the Supreme Court or any of the High Courts on 3-11-2007 were concerned, their cases stood entirely on different footing and were distinguishable from the cases of Judges who were appointed in superior judiciary in violation of the Constitution and law---Said Judges, however, had deliberately and knowingly violated the order of Seven Members Bench of the Supreme Court and took oath not only in flagrant violation thereof but from Justice Abdul Hameed Dogar who was never and could have never been appointed as Chief Justice of Pakistan---Said Judges had acted in a highly prejudicial, unconstitutional and contemptuous manner fully knowing the implications and consequences of non-compliance of the said order of the Supreme Court being mandatory in nature and binding upon them pursuant to the provisions as enunciated in Art.189 of the Constitution; it was their constitutional, legal and moral duty to defend the Constitution but they took oath under the Provisional Constitution Order, 2007, having no constitutional and legal sanctity---To check such transgressions and blatant violation of the order passed by the Supreme Court, there was no escape but initiation of action under Art.209 of the Constitution and there was absolutely no lawful justification warranting interference in the judgment impugned---Supreme Court observed that the court had deliberately withheld its comments lest it may not prejudice the case of Judges in future before the Supreme Judicial Council. ?

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI --Civil Procedure Code (V of 1908), O. XLVII, R. 1---Review of Supreme Court judgment---Scope and principles.

Article 188 of the Constitution has been couched in a very simple and plain language hardly necessitating any scholarly interpretation. It, inter alia, provides that the Supreme Court has power to review its judgment or order subject to the provisions of any Act of Parliament and any rule made by the Supreme Court itself. No Act of Parliament whatsoever has been promulgated and thus it can reasonably be inferred that legislature does not want to restrict or impose any condition on the powers conferred upon Supreme Court under Article 188 of the Constitution. In fact the words "subject to the provisions of any Act of (Majlis-e-Shoora/Parliament) and of any rules made by the Supreme Court" are indicative of the fact that indirectly the powers so conferred have been enhanced and there was absolutely no intention for curtailment of such powers conferred upon Supreme Court under Article 188 of the Constitution.?

The principles of C.P.C. also need to be examined and thus the provisions as enumerated in Order XLVII, Rule 1 of C.P.C. would require consideration qua its application.?

The salient features of Order XLVII, C.P.C. are as under:--

(i) discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by the petitioner at the time when the decree was passed or order made; or

(ii) on account of some mistake or error apparent on the face of the record; or

(iii) for any other sufficient reason.

In the present case, neither there is discovery of new important fact nor some mistake or error has been pointed out and besides that no sufficient reasoning has been advanced on the basis whereof the principles as enunciated in Order XLVII, Rule 1, C.P.C. can be made applicable. "Sufficient cause" is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. Each case must be judged upon its merits and its peculiar circumstances. The words "sufficient cause" mentioned in O. XLVII, R.1 of the Code do not mean any and every cause but it means any reason sufficient on ground at least analogous to those stated in the rule. The view that the "sufficient grounds" need not necessarily be construed ejusdem generis with the words preceding cannot be accepted as laying down the correct law." None of me grounds urged by the petitioners attracted the provisions as enumerated in Order XLVII, C.P.C. and thus CMAs cannot be declared competent.?

The right of review is subject not only to the provisions of any Act of the Central Legislature but also to the provisions of any rules made by the Supreme Court and the Rules of the Court specifically provided by Order XXVI that "subject to the law and practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the C.P.C. and in a criminal proceeding on the ground of an error apparent on the face of the record". Where none of the grounds urged by the petitioner come within the ambit of this rule no valid ground could be said to have been made out for the review of the judgment."?

The words "any other sufficient reasons" used in Order XLVII Rule (1)(c), C.P.C. mean a reason sufficient on grounds at least analogous to those mentioned in a categoric manner in clauses (a), (b), and (c) of Rule 1 of Order XLVII, C.P.C. A review, is by its very nature not an appeal or a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision of Supreme Court. It can only be granted for some sufficient cause akin to those mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure the provisions whereof incorporate the principles upon which a review can be granted.?

Decision once given cannot be reviewed subject to certain legal exceptions pursuant to the provisions as enumerated in Order XLVII, Rule 1, C.P.C., scope whereof can neither be enlarged nor it can be farfetched in view of the language as employed in Order XLVII, Rule 1, C.P.C. its application would be only upto that limited extent and it cannot be unlimited. The powers of review are not wide but definite and limited in nature. It has to be confined to the four corners of the relevant rules or the phrase or for any other sufficient reason even the review jurisdiction as visualized must be traced to Order XLVII, C.P.C. which contains the prescribed conditions and limitations in terms of the requirement of the provision and more so power to review is not an inherent power. On a proper consideration it will be found that the principles underlying the limitations mentioned in Order XLVII, Rule 1, Civil Procedure Code, are implicit in the nature of review jurisdiction and cannot be equated to that of a technical obstruction.?

A review is by its very nature not an appeal or a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision of the court, but that it should only be granted for some sufficient cause akin to those mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, the provisions whereof incorporate the principles upon which a review was usually granted by Courts of law in England. The indulgence by way of review may no doubt he granted to prevent remediable injustice being done by a court of last resort as where by some inadvertence an important statutory provision has escaped notice which, if it had been noticed, might materially have affected the judgment of the court but in no case should a rehearing be allowed upon merits.?

The scope of review is much different and the review jurisdiction is substantially and materially different to the appellate jurisdiction, because it can be only utilized on the specific grounds mentioned in Order XLVII, Rule 1, C.P.C.?

The important words to be noted in this connection are "desires to obtain a review of the decree passed or order made". These words leave no room for doubt that the remedy of review could be availed of only by a person who initially was a party to the proceedings in which either a decree had been passed or an order had been made against him, otherwise the very essence of the grounds on which a review would be competent, would be rendered ineffective. It is, therefore, obvious that a stranger to the proceedings would not be permitted to avail of the grounds on which a review petition would be competent. A wider interpretation of the words "any person considering himself aggrieved" would not be the only proper and reasonable interpretation. On the other hand, these words would have to be read and interpreted in the light of the main rule and when so done their operation would be restricted and would cover the case of only those persons who initially were party to the proceedings.?

Even if there be material irregularity but there is no substantial injury consequent thereon, the exercise of power of review to alter the judgment would not necessarily be required as the irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustices.?

Rights of appeal and review are not analogous as an appeal is, review is not the continuation of same proceedings, a person not party to proceeding has no right to file review. The two sub-rules of R.1 of O.XLVII, C.P.C. read together lead to this conclusion. Sub-rule (2) begins with the words "party who is not appealing". Sub-rule (1), no doubt, begins with the words "any person considering himself aggrieved." But sub-rule (1), read as a whole persuade to take the view that the words "a party who is not appealing" cannot be kept confined to sub-rule (2) alone and cannot but we read in sub-rule (1) also for the sake of consistency, so that the expression "person" in the opening words of sub-rule (1) can only mean a person who is a party in the concerned suit or proceeding. A person who is a stranger to a suit or proceeding cannot be a person aggrieved by the decision in the suit or proceeding.?

On the touchstone of above principles allowing the review applications in the present case, would not be in aid of justice and besides that the judgment impugned is not in conflict with the Constitution or law of the land in any manner and hence no lawful justification is available for its review as it has protected, preserved and defended the Constitution being supreme law of the land.?

Evacuee Property Board v. Hameed Elahi PLD 1981 SC 108; 2003 CLC 1355; Suruj Mian v. Asst. Manager, Government Acquired Estate PLD 1960 Dacca 1045; Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty Government of Pakistan, Karachi and another PLD 1962 SC 335; Chhaju v. Neki AIR 1922 PC 112; Iftikhar Hussain Shah v. Azad Govt. of The State of J & K PLD 1984 SC (AJ&K) 111; Muhammad Ghaffar v. State 1969 SCMR 10; Jalal Din v. Mohd. Akram Khari PLD 1963 (WP) Lah. 596; Prahlad Krishna Kurne's case AIR 1951 Bom. 25; Hajee Suleman v. Custodian Evacuee Property AIR 1955 Mad Bha. 108; Rukan Din and others v. Hafiz-ud-Din and another PLD 1962 Lah. 161; Abdul Jabbar v. Collector of Central Excise and Land Customs Review Application No.15 of 1959 (Quetta); Young v. Bristol Aeroplane Company Limited (1944) 1 K B 718; Gower v. Gower (1950) 1 AER 804; H. M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another PLD 1969 SC 65; Qaim Hussain v. Anjuman Islamia PLD 1974 Lah. 846; Muhammad Rafiq v. Marium Bibi 1996 SCMR 1867; C.M.A. No.1-L of 1992 dated 14-2-1994; Raja Prithwi Chand Lal Chodhry v. Sukhraj Rai and others AIR 1941 PC 1; Syed Muhammad Zaki v.Maqsood Ali Khan PLD 1976 SC 308 and Muhammad Saifullah Khan v. Federation of Pakistan PLD 1990 SC 79 ref.

(h) 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---Legal status of Supreme Court Rules, 1980---Held, Supreme Court Rules, 1980 are on a higher pedestal and promulgated on the basis of mandate given by the Constitution itself and not by the Government, object whereof is to enhance the power of review as conferred upon Supreme Court under Art.188 of the Constitution---Principles.

The language as employed in Article 188 of the Constitution is very plain and simple and there is absolutely no confusion on the basis whereof different interpretation could be made.?

The main object to enact Article 188 of the Constitution was to enhance the power of review conferred upon Supreme Court and in order to achieve this object it has been provided specifically in the Article itself that such power would be subject to "any rules made by the Supreme Court" meaning thereby that it was entirely left to the Supreme Court that how and in what manner such power is to be regulated and exercised. It cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the Legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The Legislature must retain in its own hands the essential legislative functions which consist of declaring the legislative policy and laying down the standard which is to be enacted into a rule of law, and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. There is no denial of the fact that courts are creatures of the Constitution; they derive their powers and jurisdictions from the Constitution and must confine themselves within the limits set by the Constitution but it hardly needs any elucidation that it is the right of the judiciary to interpret the Constitution and determine as to what a particular provision of the Constitution means or does not mean even if it is a provision seeking to oust its own jurisdiction. A line of distinction is to be drawn between statutory rules made by the Executive pursuant to an Act or an Ordinance and statutory rules made by the Supreme Court pursuant to the mandate of Constitution as conferred upon it under Article 188 of the Constitution. In the former case statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute. The authority of Executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule making authority and the rules framed under an enactment must be consistent with the provisions of said enactment. The rules framed under a statute, if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statute, same shall be invalid. The rule-making authority cannot clothe itself with power which is not given to it under the statute and thus the rules made under a statute, neither enlarge the scope of the Act nor can go beyond the Act and must not be in conflict with the provisions of statute or repugnant to any other law in force.?

The Supreme Court Rules are on a higher pedestal and promulgated on the basis of mandate given by the Constitution itself and not by the Government, object whereof was to enhance the power of review as conferred upon Supreme Court under Article 188 of the Constitution.?

[Case-law referred]

(i) Interpretation of statutes---

----Intent of framers of law/Constitution---Determination---Principles.

A fundamental principle of constitutional construction has always been to give effect to the intent of the framers of the organic law and of the people adopting it. The pole star in the construction of a Constitution is the intention of its makers and adopters. When the language of the statute is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable to interpret what has no need of interpretation. Such language best declares, without more, the intention of the lawgivers, and is decisive of it. The rule of construction is "to intend the Legislature to have meant what they have actually expressed". It matters not, in such a case, what the consequences may be. Therefore if the meaning of the language used in a statute is unambiguous and is in accord with justice and convenience, the courts cannot busy themselves with supposed intentions, however admirable the same may be, because, in that event they would be travelling beyond their province and legislating for themselves. But if the context of the provision itself shows that the meaning intended was somewhat less than the words plainly seem to mean then the court must interpret that language in accordance with the indication of the intention of the legislature so plainly given. The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The essence of law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. They must, in general, take it absolutely for granted that the Legislature has said what it meant, and meant what it has said. Its scriptumest is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical interpretation is the sole form allowable. It is no doubt true that the felt necessities of the times must, in the last analysis, affect every judicial determination, for the law embodies the story of a nation's development through the centuries and it cannot be dealt with as if it contains only axioms and corollaries of a book of mathematics. A Judge cannot stand aloof on chill and distant heights. The great tides and currents which engulf the rest of men, do not turn aside in their course and pass the Judge by. But at the same time, the Judge must remember that his primary function is to interpret the law and to record what the law is. He cannot allow his zeal, say, for social or agrarian reform, to overrun his true function. He does not run a race with the Legislature for social or agrarian reform. His task is a more limited task; his ambition a more limited ambition. Of course in this process of interpretation he enjoys a large measure of latitude inherent in the very nature of judicial process. In the skeleton provided by the Legislature, 'he pours life and blood and creates an organism which is best suited to meet the needs of society and in this sense he makes and moulds the law in a creative effort. But he is tied by the basic structure provided by the Legislature which he cannot alter and to appeal to the spirit of the times or to the spirit of social or agrarian reforms or for the matter of that any other reform for the purpose of twisting the language of the Legislature is certainly a function which he must refuse to perform.

The words of a statute must, prima facie, be given their ordinary meaning. Court must not shrink from an interpretation which will reverse the previous law; for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then Court may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, court should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.?

[Case-law referred]

(j) Interpretation of statutes---

----Right of delegation inherent in the legislative power itself---Scope. ?

[Case-law referred]

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Scope---Where the question raised in review petition had been discussed and determined in a comprehensive manner in the impugned judgment, review was declined. ?

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Judgment impugned had not been challenged and what was claimed was rehearing in the interest of natural justice in oblivion of the fact that all the questions required to be reheard had been dealt with in the judgment impugned after having taken into consideration each and every aspect of the controversy---Provisions qua review in fact was not meant for getting the matter reheard---Mere desire for rehearing of the matter did not constitute a valid cause and sufficient ground for the grant of review.?

Abdul Hamid Saqfi v. Service Tribunal of Pakistan 1988 SCMR 1318; Nawab Bibi v. Hamida Begum 1968 SCMR 104; Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504; Rashid Ahmed v. Irshad Ahmed 1968 SCMR 12; Ali Khan v. Shah Zaman 1980 SCMR332; Maqbool Ahmed Tabassum v. The State 1980 SCMR 907; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741; Muhammad Najibullah Khan v. Govt. of Pakistan 1968 SCMR 768; Muhammad Ghaffar v. The State 1969 SCMR 12; Ghulam Fatima v. Settlement Commissioner 1969 SCMR 5 and Feroze Din v. Allah Ditta 1969 SCMR 10 ref.

(m) Show-cause notice---

----Non-issuance of show-cause notice---Effect----Reversing an action taken initially without issuing show-cause notice was not a principle of universal application---Undoing of such an act was refused where the facts leading to the impugned action were unconvertible and admitted and where despite a prior hearing, the results could and would not have been any different.?

S.L. Kapoor v. Jagmohan and others AIR 1981 SC 136; Muhammad Ishaq v. Said-ud-Din PLD 1959 Kar. 669 and Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907 ref.

(n) Maxim:

----Audi alteram partem---Applicability---Scope.---Removal from the office of Judges, in the present case, was fall out of the judgment impugned in review which could not be questioned individually---No stricture was passed qua their (Judges) eligibility, integrity, entitlement, qualifications and besides that their removal from the office of Judges did not amount to be a stigma---Doctrine of audi alteram partam could not be pressed into service which otherwise was not universally recognized due to certain limitations---Principles.

The removal of the applicants (Judges of Superior Judiciary) in the present case, was fall out of the judgment impugned which could not be questioned individually.

No stricture was passed qua their eligibility, integrity, entitlement, qualifications and besides that their removal from the office of judges did not amount to be stigma and therefore, the doctrine of `audi alteram partem' could not be pressed into service which otherwise was not universally recognized due to certain limitations.?

A judge is unjust who hears but one side of a case, even though he decides it justly. Based on this, has been developed "Audi alteram partem" as a facet of natural justice Audi alteram partem' means hear the other side; hear both sides. Under the rule, a person who is to decide must give the parties an opportunity of being heard before him and fair opportunity to those who are parties in the controvers for contradicting or correcting anything prejudicial to their view. The petitioners in the present case, were admittedly not a. party in the main controversy. Since the audi alteram partem rule is intended to inject justice into the law, it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation.Audi alteram partem' rule as such is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. Where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. Thus, the rule may be discarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or hazard to paramount public interests. The `audi alteram partem' rule would be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands.?

Union of India v. Tulsiram Patel AIR 1985 SC 1416; Maneka Gandhi v. Union of India AIR 1978 SC 597; Swadeshi Cotton Mills v Union of India AIR 1981 SC 818; Mohinder Singh Gill v The Chief Election Commissioner AIR 1978 SC 851; Pearlberg v. Varty (Inspector of Taxes), [1971] 1 WLR 728 (CA) and [1971] 2 All ER 552 (CA) ref.

(o) Maxim:

-?--"Audi alteram partem "---Applicability---Scope---Cases of exclusion by implication of a prima facie right to opportunity to be heard enumerated-Principles.

A prima facie right to opportunity to be heard may be excluded by implication in the following cases:

(i) When an authority is vested with wide discretion (ii) When the maxim `expressio unius est exclusio alterius' is involved (iii) Where absence of expectation of hearing exists (iv) When compulsive necessity so demands (v) When nothing unfair can be inferred (vi) When advantage by protracting a proceeding is tried to be reaped (vii) When an order does not deprive a person of his right or liberty (viii). In case of arrest, search and seizure in criminal case (ix) In case of maintaining academic discipline (x) In case of provisional selection to an academic course (xi) In case of enormous malpractices in selection process.?

In the above mentioned "exclusionary cases," the audi alteram partem' rule is held inapplicable not by way of an exception to fair play in action but because nothing unfair can be inferred by not affording an opportunity to present or meet a case. The doctrine ofaudi alteram partem' is further subject to maxim 'nemo inauditus condemnari debet contumax'. Therefore, where a person does not appear at appropriate stage before the forum concerned or is found to be otherwise defiant the doctrine would have no application. It is also to be kept in view that application of said principle has its limitations. Where the person against whom an adverse order is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention, influence, pressure and ulterior motive then the authority would be competent to rescind/withdraw/cancel such order without affording an opportunity of personal hearing to the affected party. Said principle though was always deemed to be embedded in the statute and even if there was no such specific or express provision, it would be deemed to be one of the parts of the statute because no adverse action can be taken against a person without providing right of hearing to him. Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking/applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of natural justice.?

The applicants, in the present case had flagrantly violated order passed by Seven Member Bench of the Supreme Court. Besides that the applicants had no vested right to be heard and furthermore they had acted illegally and in violation of the order of seven Member Bench of the Supreme Court for obtaining illegal gains and benefits which cannot be ignored while examining the principle of `audi alteram partem'. ?

H.W.R. Wade & C.F. Forsyth: Administrative Law, 7th Ed., at pp.391; 392; Colquhoun v. Brooks 21 QBD 52 at p.62; Humphrey's Executor v. United States (1935) 295 US 602; Y.G. Shivakumar v. B.M. Vijaya Shankar (1992) 2 SCC 207; AIR 1992 SC 952; Ram Krishna Verma v State of U.P. (1992) 2 SCC 620; AIR 1992 SC 1888; Indian Explosive Ltd. (Fertiliser Division), Panki, Kanpur v State of Uttar Pradesh (1981) 2 Lab LJ 159; Union of India v W.N. Chadha 1993 Cr LJ 859; 1993 Supp (4) SCC 260; AIR 1993 SC 1082; S.R. Bhupeshkar v Secretary, Selection Committee, Sarbarmathi Hostel, Kilpauk, Medical College Hostel Campus, Madras AIR 1995 Mad 383; Biswa Ranjan Sahoo v Sushanta Kumar Dinda (1996) 5 SCC 365, AIR 1996 SC 2552; Maneka Gandhi v Union of India AIR 1978 SC 597; (1978) 1 SCC 248. Mohinder Singh Gill v. The Chief Election Commissioner AIR 1978 SC 851; (1978) 1 SCC 405; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh 2009 PLC (CS) 161; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCMR 769 ref.

(p) Natural justice---

----Concept and applicability---Scope.

The concept of natural justice is a combination of certain rules i.e. audi alteram partem' (nobody should be condemned unheard) andnemo judex in re sua' (nobody should be a Judge in his own case or cause) application whereof is to be decided by the court itself in accordance with the fact, circumstances, nature of the case vis-a-vis the law applicable on the subject. It squarely falls within the jurisdictional domain of the court concerned whether it would be necessary to embark upon the concept of natural justice and whether it would be inevitable for the just decision of the case. The court is not bound to follow such rules where there is no apprehension of injustice. It can be said with certainty that the concept of natural justice is flexible and it cannot be rigid because it is the circumstances of each case which determine the question of the applicability of the rules of natural justice. Rules of natural justice vary with varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provision of the relevant Act. While natural justice is universally respected, the standard vary with situations contacting into a brief, even post-decisional opportunity, or expanding into trial-type trappings. As it may always be tailored to the situation, minimal natural justice, the bare notice, `littlest' opportunity, in the shortest time, may serve. In exceptional cases, the application of the rules may even be excluded.?

The concept of audi alterum partem cannot be invoked in view of the peculiar circumstances of the case as it would be an aid to and violation of the Constitution, which can never be the object of natural justice.?

The phrase "natural justice" is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of a cast-iron formulae. Historically, "natural justice" has been used in a way "which implies the existence of moral principles of self-evident and unarguable truth. In course of time, Judges nurtured in the traditions of British Jurisprudence, often invoked it in conjunction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural Justice" was considered as "that part of natural law which relates to the administration of justice."?

Justice, and with it natural justice', is in truth an elaborate and artificial product of civilization which varies with different civilisations.Natural justice' understandably meant no more than justice' without the adjective. But what isjustice'? It is a question which has been asked for thousands of years by distinguished scholars and men of eminence. Socrates asked it 2000 years ago, and never got a satisfactory answer.

LORD DENNING said:

"Justice isn't something temporal-it is eternal-and the nearest approach to a definition that I can give is, "Justice is what the right thinking members of the community believe to be fair."

Rules of natural justice are principles ingrained into the conscience of men. Justice being based substantially on natural ideals and human values, the administration of justice here is freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. The principles of natural justice are easy to proclaim, but their precise extent is far less easy to define.?

Swadeshi Cotton Mills v. Union of India AIR 1981 SC 818; "Natural Justice" by Paul Jackson, 2nd Edn., page 1; Maclean v. The Workers' Union; Green v Blake; (1981) 51 Comp Cas 210 SC; (1981) 2 SCR 533; Abbott v. Sullivan [1952] 1 KB 189; [1952] 1 All ER 226; [1929] 1 Ch 602; [1929] All ER Rep 468; [1948] IR 242; Constitutional Developments in Britian by Lord Denning; Suresh Koshy George v. University of Kerala AIR 1969 SC 198; (1968) 2 SCWR 117; Union of India v Col. J.N. Sinha AIR 1971 SC 40; (1971) 1 SCR 791; A.K. Kraipak v Union of India AIR 1970 SC 150; (1970) 1 SCR 457; (1969) 2 SCC 262; (1969) 1 SCA .605; (1981) 2 SCR 533; (1981) 51 Comp CAs 210 (SC), J.Mahapatra & Co. v. State of Orissa AIR 1984 SC 1572; Smt. Maneka Gandhi v Union of India AIR 1978 SC 597; (1978) 1 SCC 248; AIR 1957 SC 232; Mohinder Singh Gill v The Chief Election Commissioner, New Delhi AIR 1978 SC 851; (1978) 1 SCC 405; S.L. Kapoor v Jagmohan AIR 1981 SC 136; (1980) 4 SCC 379; Union of India v Tulsiram Patel AIR 1985 SC 1416 and (1985) 3 SCC 398 ref.

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

----Arts. 193, 177 & 188---Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order, 2007, Preamble---Review of Supreme Court judgment---Appointments made in superior judiciary---Validity---Natural justice, principles of---Applicability---Scope---All appointments made in the superior judiciary had been declared in the impugned judgment under Art.184(3) of the Constitution, to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith---Held, any superstructure subsequently built on the basis of such void orders passed under the garb of Provisional Constitution Order, 2007 did not possess any legal sanctity and besides that constitutional jurisdiction under Art.184(3) of the Constitution could not be invoked in aid of injustice---Courts refuse to intervene and the judicial consensus was that where the grant of relief would amount to retention of ill-gotten gains or would lead to injustice or aiding the injustice as such the question of the applicability of natural justice did not arise---Review was declined.?

[Case-law referred]

(r) Constitution of Pakistan (1973)---

----Part VII [Arts. 175 to 203-J]---Judicature---Object of the establishment and the continued existence of the courts of law is to dispense and foster justice, and to right the wrongs---Said purpose can never be completely achieved unless the injustice done was undone and unless the courts stepped in and refused to perpetuate what was patently unjust, unfair and unlawful---Courts have never permitted their judicial powers to be invoked or used for retention of illegal and ill-gotten gains, nor have the courts ever opted to exercise their powers in aid of injustice or to grant any relief to persons with unclean hands or for protecting the unethical or underserved benefits---Courts cannot render any help to the applicants who were admittedly the consequent beneficiaries of the unconstitutional, illegal and unethical actions---Superior Courts are not expected to act in aid of injustice and to perpetuate the illegalities or put a premium on ill-gotten gains. ?

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

----Art. 2A---Objectives Resolution---Applicability---Scope---Right to obtain justice---Supreme Court observed that need had arisen to further rely on Art.2A of the Constitution so as to give effect to the Objectives Resolution treating the right to obtain justice as a very important substantive part of the entire constitutional set up as well as the Constitution itself.

No interpretation of any Article of the Constitution repugnant to the Islamic provisions has been made in the judgment impugned. The Objectives Resolution remained a subject of discussion in various judgments and the judicial consensus seems to be that "while interpreting the Constitution, the Objectives Resolution must be present to the mind of the Judge and where the language of the constitutional provision permits exercise of choice, the court must choose that interpretation which is guided by the principles embodied therein." But that does not mean, that Objectives Resolution is to be given a status higher than that of other provisions and used to defeat such provisions. One provision of the Constitution cannot be struck down on the basis of another provision. The Objectives Resolution made substantive part of the Constitution provides a new approach to the constitutional interpretation since the principles and provisions of the Objectives Resolution have been placed in the body of the Constitution and have now to be read along with the other provisions of the Constitution. While interpreting the provisions of the Constitution and the law the provisions contained in Article 2A read with Objectives Resolution have also been kept in mind in the sense that any doubt, major or minor, has been resolved in such a manner so as to advance the dictates of justice as well as the rule that justice not only should be done but it should seem to have been done. The last mentioned principle is enshrined as much in the Islamic jurisprudence as in any other juridical system. Supreme Court observed that a need had arisen to further rely on Article 2A of the Constitution so as to give effect to the Objectives Resolution treating the right to obtain justice as a very important substantive part of the entire constitutional set up as well as the Constitution itself, the court would have done it.?

In the present case, the judgment impugned is neither in violation of the Objectives Resolution as enumerated in Article 2A of the Constitution nor is repugnant to any principle of Qur'an and Sunnah. The Objectives Resolution would not render any help to the case of the applicants because the main purpose of insertion of Article 2A in the Constitution was the enforcement of Qur'an and Sunnah within the framework of the principles and provisions of the Objectives Resolution through courts of law.?

Ghulam Mustafa Khar v. Pakistan PLD 1988 Lah. 49; Farhat Jaleel (Miss) v. Province of Sindh PLD 1990 Kar. 342; Mrs. Resham Bibi v. Elahi Sain PLD 1991 SC 1034; Mirza Qamar Raza v. Tahira Begum PLD 1988 Kar. 169; Bank of Oman Ltd. v. East Trading Co. PLD 1987 Kar. 404; Shaukat Hussain v. Rubina PLD 1989 Kar 513; Habib Bank Ltd v. Muhammad Hussain PLD 1987 Kar. 612 and Muhammad Sharif v. MBR Punjab PLD 1987 Lah. 58 ref.

(t) 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---No person can prefer review with the plea that he was deprived of the benefit which had accrued to him by an illegal construction of a piece of legislation.?

(u) 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--Plea taken for review of the judgment was that petitioners had not been issued notices of the proceedings of the case in the Supreme Court--Such notice was issued to the President of Pakistan who had violated the Constitution and the notice was specific for the President and general for anyone---Electronic and print-media had widely published the proceedings and the judgment impugned---All the petitioners who were Judges of superior courts were aware of the proceedings and final verdict on the case, thus it was incumbent upon them to have approached the Supreme Court for impleadment--Petitioners, in the present case, had no legitimacy and no legal right to hold the office of Judges of superior courts when the judgment on the basis of which they were holding said offices had been set aside by the Supreme Court---Presumption of knowledge of the order could be validly drawn---Petitioners, in circumstances, could not take the plea that they were unaware and should have been afforded proper opportunity of hearing---Review was declined---Principles.?

(v) 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---No yardstick can be fixed that by whom review can be filed and therefore, no restriction can be made on an ordinary litigant for the redressal of his genuine grievances subject to circumstances of the case---Impugned judgment, in the present case, had only reaffirmed the well entrenched legal proposition finally decided in other cases by the Supreme Court---Declaration contrary to the law laid down by the Supreme Court could not be given in circumstances---Powers as conferred upon Supreme Court under Art.188 of the Constitution, Rule XXVI of the Supreme Court Rules, 1980 and O.XLVIII, C.P.C. can be invoked in suitable cases as Supreme Court had a prerogative and privilege to do so if found in the intere st of justice, fair play and equity-Ordinary litigant must not be prejudiced by the observations made in the present case in a peculiar backdrop and scenario.?

Tikka Muhammad Iqbal Khan's case PLD 2008 SC 6; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Al-Jehad Trust's case PLD 1996 SC 324 and Ghulam Hyder Lakho's case PLD 2000 SC 179 ref.

(w) 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---Judgment in rem and judgment in personam---Distinction---Judgment in rem applies to all, regardless of whether they were parties or not, and a judgment in personam does not bind non?parties---In the present case, judgment sought to be reviewed is a judgment in rem enunciating a legal principle and has the status of conclusiveness and finality and no person can be allowed to challenge same merely for the reasons that he was. not a party in the case and has not been heard---In fact the impugned judgment has been considered in the country as well as on global level as a triumph of democratic principles and a stinging negation of the dictatorship---Supreme Court, for the first time has stated in the judgment, in a categoric, loud and abundantly clear manner that military interventions are illegal and will hare; find any colluder in future within the Judiciary---Impugned judgment provides much needed redress as it will render considerable help in blocking the way of adventurers and dictators to creep in easily by taking supra-constitutional steps endorsed, supported and upheld under the garb of the principle of necessity in the past which will never happen again---Verdict in the impugned judgment, has been appreciated by all segments of the society for being issue oriented rather than individual specific and therefore, no individual including the petitioners should be aggrieved---Judgment impugned would encourage future Justices to take the firm stand against usurpers---Judgment impugned being in the supreme national interest hardly needs any justification for review---Review applications being not maintainable, were dismissed by Supreme Court.?

Pir Bakhsh v. Chairman Allotment Committee PLD 1987 SC 145 and Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185 ref.

Per Sardar Muhammad Raza Khan, J, Contra. [Minority view]

"Supreme Court has unfettered powers under Arts. 187, 188 of the Constitution read with O.XXVI of the Supreme Court Rules, 1980 to do ultimate justice for which review petitions are absolutely maintainable. Present review applications are hereby accepted and the review petitions entertained for full hearing by the Supreme Court"---Principles.

?

Malik Asad Ali's case PLD 1998 SC 161; Jhabba Lal's case AIR 1917 Allah. 160; Kawadu's case AIR 1929 Nag. 185(d); Shiv Deo Singh's case AIR 1963 SC 1909; H.M. Saya and Company's case PLD 1969 SC 65; Fahmida Khatoon's case PLD 1975 Lah. 942; Pakistan Muslim League's case PLD 2007 SC 642; Faqirullah's case 1999 SCMR 2203; Pir Bakhsh's case PLD 1987 SC 145; Al-Jehad Trust's case PLD 1996 SC 324; Hamid Akhtar Niazi's case 1996 SCMR 1185; Methew v. Albridge; Fisher v. Keen (1878) 11 Ch.D. 353; Tulsi Ram's case AIR 1985 SC 1416; Lewis v. Heffer (1978) 1 WLR 1061.1076; Maclean v. Workers Union (1929) 1 Ch.602, 624; Ridge v. Baldwin (1964) AC 40; Bosweel's case (1605) 6 Co.Rep.48b.52a and Monika Gandhi's case AIR 1978 SC 597 ref.

Per Ch. Ijaz Ahmed, J. agreeing with Javed Iqbal, J.

"The judgment has declared the imposition of emergency as illegal and unconstitutional and as a consequence thereof its offsprings get affected. The petitioners being offsprings concede that emergency was unconstitutional but challenged the consequential order on the plea that it was passed without granting opportunity of hearing to the affectees. The argument in essence is that cutting of roots of undesirable tree is valid but thereafter pruning of its branches is invalid.

The doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. It is, therefore, for the courts to articulate from case to case what is involved in the concept of natural justice in a particular situation. The courts do not like the idea of confining the rules of natural justice within any rigid formula.

The reliefs claimed in review petitions are of general nature and are against the State and no particular relief is claimed against any individual party, therefore, beneficiary of consequential order is not entitled to any hearing before striking such order.

The courts only insist on fair play in action. Fairness does import an obligation to see that no body can take benefits of any acts which were passed by the authorities beyond the parameters of the Constitution. A ship and its sailors swim and sink together. Hence, when the hazardous ship of emergency is drowned then its sailors cannot claim immunity as the fair play demands equal treatment."?

Per Rahmat Hussain Jafferi, J. agreeing with Javed Iqbal, J

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

----O. XLVII, R.1 & S. 114---Filing of review petition by stranger---Scope.

"A bare reading of Section 114, C.P.C. reveals that right to apply for review has been given to "any person" but subject to condition that he should be aggrieved by a decree or order of the court. The phrase "any person" means a person, no matter who or a person of any kind. Words "a person" appearing in Section 12(2), C.P.C. has been defined as a person not party to the suit. Thus there is no restriction placed under Section 114, C.P.C. to debar any person other than the parties to the suit to file review application.

The rules contained in the First Schedule of Code of Civil Procedure are enabling provisions for the advancement of justice, therefore, they are required to be consistent with the provisions of the enactment. The said rules cannot enlarge or reduce the scope of relevant Sections of C.P.C. Statutory rules cannot enlarge the scope of the Section under which it is framed and if a rule goes beyond what the Section contemplates, the rule must yield to the statute.

A perusal of Order XLVII, C.P.C. would show that in sub-rule 1 the words "any person" have been used which are also appearing in Section 114, C.P.C. whereas in sub-rule 2 instead of using the words "any person" the framers of rules have used the words "a party". This departure is a significant one which clearly demonstrates that the lawmakers did not intentionally use the words "a party" in sub-rule (1), so as to make it in consonance with section 114, C.P.C. All the grounds mentioned in sub-rule 1 of Order XLVII, C.P.C. for review of the decree or order would be available to the parties of the suit whereas the last two grounds: (i) on account of mistake or error apparent on the face of record or (ii) for any other sufficient reason would appear to be available to the persons who are not parties to the suit. If the meaning of "any person" is restricted to the parties of the suit then it will negate the words "any person" appearing in section 114, C.P.C. which would not be the intention of the framers of rules. Therefore, the words "any person" would not only include the parties to the suit but also other persons.

Under sub-section 2 of section 114, C.P.C. the subsection (1) thereof has been excluded from application before Supreme Court. Therefore, section 114(1), C.P.C. would not be applicable before Supreme Court and so also the rules framed thereunder viz. Order XLVII. Nevertheless, Order XXVI Rule 1 of Supreme Court Rules, 1980 shows that only reference has been made to the grounds mentioned in Order XLVII Rule 1, C.P.C.

Thus for the purpose of review of judgment or order of Supreme Court, only the grounds mentioned in Order XLVII, Rule 1 of C.P.C. can be taken into consideration and not the Order itself or section 114, C.P.C. However, the grounds may be other than the grounds mentioned as the word "similarity" has been used, which has enlarged the scope from the above provisions of C.P.C.

Sub-rule 6 of Order XXVI of Supreme Court Rules, 1980 deals with entertaining and hearing of review application.

Said provision clearly shows that the Advocate, who had appeared at the hearing can draw the review application and be heard in support of the said application. Thus it refers to the party. However, the court has also suo motu powers to review the judgment or order on its own or on receipt of any information through any source in any manner either written or oral. The person supplying information can be treated as informer and if the court finds that the information is such where any of the grounds for review is attracted then the matter can be heard to do complete justice."?

Qaim Hussain v. Anjuman Islamia PLD 1974 Lah. 346; Muhammad Yousaf v. Federal Government 1999 SCMR 1516 and Ghulam Muhammad v. M. Ahmad Khan 1993 SCMR 662 ref.

Wasim Sajjad, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Applicant (in C.M.A. No.2745/2009)

Farooq Amjad Meer, Advocate Supreme Court for applicant (in C. M. A. No.2747/2009)

Malik Muhammad Qayyum, Senior Advocate Supreme Court for applicant (in C. M. A.No.2748/2009)

Dr. A. Basit, Senior Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Applicant (in C.M.A.No.2750/2009)

Sheikh Zamir Hussain, Senior Advocate Supreme Court, Ejaz Muhammad Khan, Advocate-on-Record and Mahmoodul Islam, Advocate-on-Record (absent) for Applicant (in C.M.As.No.2776 & 2782/2009)

Dr. Khalid Ranjha, Senior Advocate Supreme Court, Mrs. Yasmin Abbasi (in person) and Mazhar Ali B. Chohan, Advocate-on-Record (absent) for Applicant (in C.M.A.No.2779/2009)

Dr. Khalid Ranjha, Senior Advocate Supreme Court and A.H. Masood, Advocate-on-Record (absent) for Applicant (in C.M.A. No.2788/2009)

Applicant in person (in C.M.A.No.2790/2009)

Syed Ali Zafar, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Applicant (in C.M.A.No.2825/2009)

Syed Naeem Bokhari, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Applicant (in C. M. A.No.4002/2009)

Shah Khawar, Acting Attorney-General for Pakistan for the Federation.

Hamid Khan, Senior Advocate Supreme Court, Rashid A. Rizvi, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for the Sindh High Court Bar (On caveat).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Nadeem Ahmed, Advocate (On caveat).

Syed Zulfiqar Ali Bokahri (in person) on Court notice.

Date of hearing: 13th October, 2009.

P L D 2010 Supreme Court 569

Present; Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed; JJ

GHULAM MURTAZA---Appellant

Versus

Mst. ASIA BIBI and others---Respondents

Civil Appeals Nos.1378, 1379 and 1380 of 2006, decided on 21st October, 2009.

(On appeal from judgment of Lahore High Court, Lahore dated 17-5-2004, passed in C.Rs. No.1975, 2217 and 1974 of 2002 respectively).

Benami transaction---

----Motive---Scope---Parties were husband and wife and after their separation, dispute between them arose with regard to title over suit properties---Each party claimed itself to be the real owner of the suit properties---Trial Court and Lower Appellate Court concurrently held wife as mere Benamidar and decreed the suits in favour of husband declaring him the real owner---High Court in exercise of revisional jurisdiction set aside concurrent judgments and decrees passed by two courts below and declared wife as the real owner---Validity---Motive in Benami transactions was the most important one and a transaction could not be dubbed as Benami simply because one person happened to make payment for or on behalf of the other---There were innumerable transactions where a father had purchased property with his own sources for his minor son or daughter keeping in mind that the property would vest in the minor---Such transaction, subsequently could not be challenged by father as Benami simply because amount was paid by him---There were people who, with positive application of mind purchased properties in the name of others with intention that title should vest in that other---If such principle was denied and that of Benami attracted simply because sources of consideration could not be proved in favour of named vendee, it would shatter the most honest and bona fide transactions thereby bringing no end to litigation---At one time husband came out with reason that name of his wife was entered merely to please her, there came principle of bona fides, goodwill and sanctities attached to a transaction---Once having done so, when husband and wife were amicably living, no one could turn around subsequently to claim exclusive title when relations had become strained and spouses fell apart---Even if the amount had been paid by husband, yet he could not have turned around to claim that wife was a Benami beneficiary---Supreme Court declined to interfere in the judgment and decree passed by High Court---Appeal was dismissed.

Mian Atta-ur-Rehman, Advocate-on-Record (In all cases).

Mian Israr-ul-Haq, Advocate Supreme Court for Respondents (In all cases)

Date of hearing: 21st October, 2009.

P L D 2010 Supreme Court 573

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Ghulam Rabbani, JJ

Sheikh RASHID AHMED---Appellant

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Appeal No.1410 of 2009, decided on 30th December, 2009.

(On appeal against the judgment dated 25-11-2009 passed by the Lahore High Court, Lahore in ICA No.852 of 2009).

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

----Art. 219(b)---Election, organizing of---Scope---Constitution places upon Chief Election Commissioner an obligation to organize election.

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

----Part VIII [Arts. 213 to 226]---Bye-elections---Law and order situation---Effect---Provincial Government sought suspension of bye-election on the ground of law and order situation in the Province---High Court in exercise of Constitutional jurisdiction, suspended the notification issued by Chief Election Commissioner for holding bye­election---Validity---Chief Election Commissioner and Election Commission were absolutely independent with exclusive jurisdiction while performing duties within the terms of Part VIII of the Constitution in which no interference was allowable by any of the parties interested by resorting to any manner and mode---All concerned quarters, namely Federal and Provincial Governments, the Law Enforcing Agencies as well, were under obligation to ensure that Chief Election Commissioner / Election Commission should function independently---Such authorities were also to see that Chief Election Commissioner/Election Commission were properly strengthened enabling them to discharge their Constitutional commitments fairly, freely and without any hindrance and pressure of whatsoever nature---Judgment passed by High Court was set aside by Supreme Court---Appeal was allowed.

Muhammad Shafiq Chaudhry v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others 1998 SCMR 1957 ref.

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

----Art. 224 (4)---Chief Election Commissioner---Status---Chief Election Commissioner is independent Constitutional authority without trace of subservience and executive authorities are bound to assist the Chief Election Commissioner in organizing or holding of election.

Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 and Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396 rel.

Waseem Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Anwar Mansoor Khan, Attorney-General for Pakistan and Shah Khawar, D.A.G. for Federation.

Khadim Hussain Qaiser, Addl. A.-G. for Government of Punjab.

Dil Muhammad Alizai, D.A.G., M.S. Khattak, Advocate-on-Record and Sher Afgan, Dy. Secretary ECP for Election Commission.

Date of hearing: 30th December, 2009.

P L D 2010 Supreme Court 580

Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

ALLAH DAD and others---Appellants

Versus

ABDUL GHANI and others---Respondents

Civil Appeal No.674 of 2007, decided on 23rd November, 2009.

(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 20-5-2002, passed in civil Revision No.1173 of 2001).

Civil Procedure Code (V of 1908)---

----S. 12(2)---Decree granted by Appellate Court in suit dismissed by Trial Court---Revision filed against such decree dismissed by High Court, whereagainst Supreme Court refused to grant leave to appeal---Application under S.12(2), C. P. C. for setting aside such decree filed in Appellate Court---Maintainability---Decree/judgment would become final, if not sought to be reversed, modified or maintained in appeal, revision or review---Decree passed by Appellate Court would have become final, had no revision been filed thereagainst before High Court---Judgment passed by High Court in revision was final judgment, thus, such application was bound to be filed before High Court being final Court of fact---Such application was dismissed for having been filed before wrong forum.

Mubarik Ali's case PLD 1995 SC 564 and Abid Kamal's case 2000 SCMR 900 rel.

Syed Kabeer Mehmood, Advocate Supreme Court for Appellants.

Amin K. Jan, Advocate Supreme Court for Respondents.

Date of hearing: 23rd November, 2009.

P L D 2010 Supreme Court 582

Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

PROVINCE OF PUNJAB through Collector and others---Appellants

Versus

MUHAMMAD FAROOQ and others---Respondents

Civil Appeal No.2204 of 2006, decided on 8th February, 2010.

(On appeal from judgment of Lahore High Court, Lahore dated 29-11-2002, passed in Civil Revision No.1723 of 2002).

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

----S. 115 [as amended by Civil Procedure Code (Amendment) Act (III of 1992)]---Limitation Act (IX of 1908), S.12(2)---Revision petition---Exclusion of time spent in obtaining copy of impugned judgment---Scope---Legislature while enacting Limitation Act, 1908 had rightly omitted word "revision" from S.12(2) thereof as no limitation therefor was provided then---Legislature while providing limitation of 90 days through Civil Procedure Code (Amendment) Act, 1992 had not taken notice to amend corresponding S.12(2) of Limitation Act, 1908 and include therein word "revision" also---Time spent in obtaining copy of impugned judgment should be excluded while computing period of limitation for filing a revision petition---Principles.

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

----S. 115---Limitation Act (IX of 1908), Ss. 5 & 29(2)---Revision petition, filing of, delay in, condonation of---Scope---Such delay could not be condoned under S.5 of Limitation Act, 1908.

Allah Dino's case 2001 SCMR 286; Muhammad Mian's case 1995 SCMR 69 and Government of N.-W.F.P.'s case 1994 SCMR 833 rel.

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

----S. 115--Revision---Limitation of 90 days fixed in second proviso to S.115, C.P.C. for filing a revision---Applicability---Such limitation restricted a party to proceedings, but not court while exercising power under S.115(1), C.P.C.---Court could consider revision petition as a mere information and avoid such limitation by taking suo motu action under S.115(1), C.P.C., provided merits of case demanded setting aside of impugned order---Principles.

Riaz Hussain's case 2003 SCMR 181 rel.

Saeed Yousaf, Addl. A.G. (Punjab) for Appellants.

Respondents: Ex parte.

Date of hearing: 24th November, 2009.

P L D 2010 Supreme Court 585

Present: Iftikhar Muhammad Chaudhry, C.J., Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

MUHAMMAD RAMZAN---Appellant

Versus

RAHIB and others---Respondents

Criminal Petition No.100-K of 2009, decided on 4th February, 2010.

(On appeal from order dated 26-8-2009 of High Court of Sindh, Bench at Sukkur, passed in Criminal Bail Application No.586 of 2009).

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/149---Constitution of Pakistan (1973), Art.185(3)---Qatl-i-amd, attempt to commit qatl-i-amd---Cancellation of bail, refusal of---Allegation against accused was that he, armed with a gun along with co-accused armed with a rifle had caused injuries from their respective weapons to the injured witness---Medical Certificate, prima facie, did not support the allegations made against the accused---None of the injuries appeared to have been caused by a gun---Measurements of the injuries showed that the same could not have been caused by pellets of cartridge used in the gun and could be caused only by a weapon loaded with bullet---Said point could, however, be properly examined and adequately determined at the trial after the evidence of the Medical Officer---Common object and participation of the accused in the occurrence was yet to be determined by the Trial Court in view of the said discrepancy and conflict between medical and oral evidence--Case of bail at such stage having been made out, High Court had rightly granted bail to accused---Petition for cancellation of bail was dismissed and leave to appeal was refused to complainant accordingly.

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

----Chap. XXII-A [Ss.265-A to 265-N)---Trial before Court of Session---Legislative background of sessions trial detailed.

Mehar Khan v. Yaqub Khan 1981 SCMR 267 ref.

(c) Criminal trial---

----Early disposal of cases---Supreme Court while identifying the causes of delay, ordered few steps to be taken for the exercise of powers of Magistrate and Sessions Court in the light of various provisions of the Criminal Procedure Code, 1898, to adopt a uniform procedure in the courts to have expeditious disposal of the cases---Supreme Court directed that a copy of the present order be sent to Registrars of all High Courts for circulating amongst all the Judges and Magistrates for implementation and 'strict compliance---Sessions Judges of the Districts were directed to supply a copy of the order to the District Bar Associations of their Districts for information and strict compliance---Copy of the order was directed to be sent to PPO/IGPs of all the Provinces and Federal Capital for strict compliance---PPO/IGPs should issue special instructions to all SHOs and concerned officers to produce all the witnesses before the Court of Session for trial, failing which strict action as permissible under the law should be taken with information to the concerned Sessions Judge and High Court.

The scheme of the Code of Criminal Procedure is that the police after completing the investigation have to form opinion as to whether or not there is sufficient evidence and reasonable ground or suspension to justify the forwarding of the accused to a Magistrate. If the opinion is in the negative, the police officer is required to release the accused if in custody on executing bond, with or without surety as such officer may direct, to appear if and when so required, before the Magistrate in order to take cognizance of the offence, on a police report and to try the accused or send him for trial as provided under section 169 of the Code.

If the opinion is positive, the police officer is required to forward the accused in custody to the Magistrate empowered to take cognizance of the offence upon a police report for trial of the accused or to send him for trial to the Court of Session if the offence is bailable and the accused is able to give surety, the police officer is required to take surety from him for his appearance before the Magistrate on a day fixed and for his appearance from day to day before such Magistrate. At the same time, the police officer is also required to send to the Magistrate any weapon or other articles which may be necessary to be produced before him along with the bonds of the complainant and witnesses for their appearance before the Magistrate as required under section 170 of the Code.

In both cases, when the accused is released under section 169 or is forwarded to the Magistrate, the police officer is required to submit the report, which is commonly known as challan, in the form provided under section 173 of the Code.

Thus under the provisions of section 170 of the Code, the police officer is required to produce the property and other articles as are necessary before the Magistrate. If the police did not produce the property before the Magistrate nor the Magistrate directed the police to produce the property, in these circumstances, the process of delay started from the very first stage. Had the police taken proper steps to produce the property before the Magistrate the delay would have not been caused. Equally when the police had not produced the property at the relevant time, had the Magistrate been vigilant enough to ask for the property, the delay in production of the property could have been avoided.

Now, comes the question of absconders and accused released and placed in column No.2 of the challan. The accused who is released with direction to appear before the Magistrate, if and when required by him as provided under section 169 of the Code, it may be stated that in such a case the Magistrate is empowered to discharge the bond executed before the police only or pass any order, as he thinks fit as provided under section 173(3) of the Code.

It is important to note that provision of S.173(3), Cr.P.C. is mandatory, therefore, the Magistrate is required to pass appropriate order. For exercising the above powers, the Magistrate should not act mechanically, as he has to form an opinion as to whether it is a fit case where bond should be discharged or pass any other order including joining him as an accused. For that, he is required to examine the file so as to form his opinion. Such order of the Magistrate is not a judicial order but is an administrative one. If the Magistrate discharges the bond executed before the police of the released accused then it will not preclude the Sessions Court to join such accused in the case as that will be a judicial act which is taken after taking cognizance by Sessions Judge as required under section 193 of the Code. However, the police cannot re-investigate the case against such accused without getting the order of discharge of bond passed by the Magistrate recalled.

As regards the accused who are shown absconders in the challan, it is to be noted that the Magistrate is competent to issue process including warrant of arrest to procure their attendance as provided under section 204 of the Code because he has powers to take cognizance in the matter. Further the evidence against accused, who is absconder can be recorded after declaring him absconder as provided under section 512 of the Code.

The phrase "or send for trial to the Court of Session or High Court" appearing in section 512 of the Code clearly demonstrates that the Magistrate who is empowered to send the case to the Court of Session has also power to record the evidence in the absence of accused after declaring him absconder which can be done as required under sections 87 and 88 of the Code after issuance of warrants of arrest as provided under section 204 of the Code. Thus such Magistrate has power to initiate proceedings under sections 87 and 88 of the Code in a case triable by the Court of Session.

By virtue of section 190(2) of the Code, the Magistrate is required to send the case to the Court of Session without recording evidence, which was enacted after repealing Chapter XVIII of the Code to make the inquiry process simple, but this provision is general in nature applicable to all the accused persons. However, section 512 of the Code is a special provision applicable to particular class of accused i.e. absconders. Therefore, the special provision will prevail upon general provision of the same enactment. Thus section 512 of the Code is an exception to the general provisions of section 190(2) and section 353 of the Code.

Originally such power was not given to the Magistrate, when committal proceedings were being conducted. However, this power was given to the Magistrate after abolishment of committal proceedings. The above phrase was added by the Law Reforms Ordinance, 1972 with a view that the Sessions Court should not be burdened with these type of proceedings because the main function of the Sessions Court is session trial. If the Sessions Court is involved in these types of proceedings, its major portion of time would be consumed in conducting these proceedings, which is being consumed now a days and further the status of the Sessions Court would be reduced to that of court of Magistrate. If the proceedings under sections 87 and 88 of the Code are completed at the level of the Magistrate before the case is sent up to the Court of Session then the Sessions Court will be in a position to start the trial expeditiously and the time consumed in such proceedings by it can be saved.

In order to comply with Ss.87 and 88 of the Code, it is directed that if all the accused are shown absconders in the challan then the case be sent up to the Court of Session after completing the proceedings as provided under section 512 of the Code. After receipt of case, the Sessions Court may pass order for keeping the case on dormant file or pass any appropriate order as it deems fit. If some of the accused are absconders and some are present, then before sending the case to the Court of Session the Magistrate should simply complete the proceedings under sections 87 and 88 of the Code within the shortest possible time but not later than two months after taking cognizance. The Magistrate should ensure that when a case is sent up to the Court of Session it should be complete in all respect enabling the Court of Session to start the trial immediately.

In this connection the Magistrate should provide all the copies of required documents to the accused, to obtain information from the accused as to whether he would engage an Advocate himself otherwise an advocate could be provided to him on State expenses, produce the property, statements of P.Ws. under section 164 of the Code, confession, memo. of identification test etc. The case should be sent up along with a detailed order showing the application of mind as to whether the case is exclusively triable by the Court of Session keeping in view the facts, circumstances of the case and material made available by the police, mentioning all the proceedings including the above mentioned points so as to facilitate the Sessions Court to fix the case for trial. After receipt of the case by the Court of Session, a thorough scrutiny be made to see as to whether anything is lacking or missing which may affect the start of trial then such shortcoming should be removed and fulfilled including engaging an Advocate on State expenses if the accused so demand before the Magistrate. After fixing the case for trial, the Sessions Court should issue process for appearance of the witnesses keeping in view the bonds executed by them before the Magistrate in compliance with the provision of section 173(5) of the Code well in advance preferably not less than one month to the concerned SHO who shall be responsible to produce all the witnesses before the court on the date fixed for trial. If the SHO fails to produce the witnesses before the court, serious action should be taken against him by initiating departmental proceedings by the competent authority of police on the report of Sessions Court including prosecution under section 174, P.P.C. Notice should also be given to the prosecution, the accused and" his advocate one month in advance so that the prosecution and defence could prepare their case and make necessary arrangements with regard to their other professional duties so as to make them available before the court for trial. No adjournment should be granted on any flimsy or artificial ground except on a very strong and cogent cause by assigning valid and legal reasons. The Sessions Court should try the case .on day to day basis till its completion. Non-compliance would entail very serious consequences. Defence Advocate and Prosecutor shall give preference to the session trial except in a case of criminal trial fixed before the High Court on its original side. No obstruction shall be made in the session trial which can be visualized as an obstructing in the administration of justice. In appropriate cases the Sessions Judges may report the matter to the Bar Council for taking appropriate action against such advocate. In short, all stakeholders shall ensure that Sessions trial should not fail.

As regards the pending cases in which the accused are shown absconders, the court should separate the case of accused person, who is in attendance either on bail or in custody from the accused person who is absconder so that an early trial should be started fulfilling the constitutional rights of the accused and complainant for expeditious disposal of the case. After separating the case of accused person, who is absconder the process should be issued in that case to get it ripe for trial.

It is important to note that under section 233 of the Code every charge of a distinct offence which any person is accused should be tried separately except in the cases mentioned in sections 234, 235, 236 and 239 of the Code. Sections 239 deals with joint trial of several accused persons together. A perusal of sections 233 and 239 of the Code reveals that under such provisions a discretion lies with the court to try the offences of the kind indicated therein jointly in the circumstances mentioned therein, but there is nothing in them to indicate that the court is bound to try such offences or persons together in every case.

Further vide Notification GRHD No.223411/40, dated 5-7-1941, it is provided that where more than one accused are involved the commencement of proceedings should not be held up until all the wanted persons are apprehended, but the case should be proceeded with as soon as the principal accused is/are secured…….such reference is available at page 165 of Federal Capital and Sindh Courts Criminal Circulars 1997 Edition.

Thus there is no bar in separating the case of the absconder from the case of accused who is present before the court. All the courts are directed to adopt such method and immediately proceed with the cases in which some of the accused are present before the court after bifurcating and separating the case of absconder and required process be issued against absconder in those cases.

Another factor, which causes delay, is late submission of challan before the court in violation of provisions of section 173 of the Code. The police officials are exposing themselves to take appropriate action in not submitting the challan within the required period of section 173 of the Code. At the same time, Magistrates were asked to take steps to compel the police officers to submit the challan within time. Sessions Judges were directed to supervise such process sin exercise of their revisional powers.

In order to implement the provisions of section 173 of the Code if the police officer does not submit the challan within the required period then such officer prima facie is disobeying the direction of law contained in section 173 of the Code thereby falling within the ambit of offence punishable under section 166, P.P.C. which is a Scheduled offence of Pakistan Criminal Law (Amendment) Act, 1958. As such if the Magistrate finds that any police officer has violated the provisions of section 173 of the Code then he should either himself on behalf of the court or through any officer of the court file complaint before the Special Court created under the above enactment for prosecution of such police officer. The said court should give preference to the case and the same be decided in accordance with evidence and law within a shortest possible time. Such court shall furnish fortnightly report to the High Court about the progress of the case. If the Magistrate performs his functions in accordance with law and under the supervision of the Sessions Judge, then this problem can be solved adequately.

A copy of the order of the Supreme Court was directed to be sent to Registrars of all High Courts for circulating amongst all the Judges and Magistrates for implementation and strict compliance. The Sessions Judges of the Districts are directed to supply a copy of the present order to the District Bar Associations of their Districts for information and strict compliance. A copy of the order was also directed to be sent to PPO/IGPs of all the Provinces and Federal Capital for strict compliance. The PPO/IGPs should issue special instructions to all SHOs and concerned officers to produce all the witnesses before the Court of Session for trial, failing which strict action as permissible under the law should be taken with information to the concerned Sessions Judge and High Court.

Noor Ahmed v. State PLD 1964 SC 120 and Mumtaz Ahmed v. State PLD 2002 SC 590 ref.

Shakeel Ahmed, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellant.

Zafar Ahmed Khan, Addl. P.G., Sindh for the State.

Date of hearing: 4th February, 2010.

P L D 2010 Supreme Court 604

Present: Nasir-ul-Mulk and Khilji Arif Hussain, JJ

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and another---Petitioners

Versus

JAFFAR KHAN and others---Respondents

Civil Petition No.1563 of 2009, decided on 22nd February, 2010

(On appeal from the judgment dated 27-5-2009 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in C.R.No.314 of 2006).

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

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.XVII, R.3---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration and permanent injunction---Plaintiff's claim to be owner of suit-land denied by defendant-Non-production of evidence by defendant in support of his defence despite availing almost nine (9) opportunities with a warning---Closure of defendant's evidence by Trial Court under O.XVII, R.3, C.P.C., and passing of decree in favour of plaintiff on basis of material available on record---Dismissal of defendant's appeal and revision by courts below---Defendant's plea that Trial Court had not considered his plea in written statement and documents upon which he relied---Validity----Trial Court had granted more than sufficient opportunities to defendant to produce evidence in support of his claim, but had failed to do so---Party having produced no evidence on its own would have to abide it and be bound by such evidence as had come on record---Written statement could neither be exhibited without examining person having filed same nor be treated without examining person having filed same nor be treated as substantive evidence except where same amounted to admission of plaintiff's plea---Defendant had neither brought on record copy of such document nor confronted with same plaintiff's witnesses during their cross-examination---Document not brought on record through witnesses and duly exhibited could not be taken into consideration by court---Supreme Court repelled such plea of defendant and refused to grant him leave to appeal in circumstances.

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

----O. XIII, Rr. 3 & 4---Document not brought on record through witnesses and duly exhibited---Validity---Such document could not be taken into consideration by court.

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

----O.XVII, R.3---Party having produced no evidence on his own would have to abide by it and be bound by such evidence as had come on record.

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

----O. VI, R.1 & O. XIII, R.4---Written statement---Evidentiary value---Written statement could neither be exhibited in evidence without examining person having filed same nor be treated as substantive evidence except where same amounted to admission of plaintiff's plea.

Agha Tariq Mehmood, D.A.G. for Petitioners.

Sardar M. Aslam, Advocate Supreme Court for Respondents.

Date of hearing: 17th February, 2010.

P L D 2010 Supreme Court 608

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

GHULAM FARID and others---Appellants

Versus

MEHMOOD AKHTAR and others---Respondents

Civil Appeal No.147 of 2006, decided on 22nd February, 2010.

(On appeal from the judgment dated 20-5-2004 of the Lahore High Court, Rawalpindi Bench passed in Civil Revision No.281-D of 1998).

(a) Pre-emption---

----Right of pre-emption---Proof---In order to succeed in a suit for pre-emption a party has to have a superior right of pre-emption at the time of sale, at the time of filing of suit and also at the time of final decision of suit.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss.21 & 21-A---Right of pre-emption---Improvement of status by vendee---Principle of sinker---Applicability---Vendee along with three other persons jointly purchased suit land, soon after filing of suit by pre-emptor, vendee purchased the shares of other persons also---Pre­emptor claimed his superior right of pre-emption on the basis of his being collateral while vendee claimed to be tenant of the land---Suit filed by pre-emptor was dismissed by Trial Court but Lower Appellate Court decreed the suit in favour of pre-emptor, which judgment and decree was maintained by High Court---Validity---Any improvement made in status of vendee after filing of suit for possession through pre-emption was to be of no use to vendee---Any improvement of status of vendee after filing of suit for possession through pre-emption by pre-emptor could not retrospectively improve vendee's status at the time of sale when his status had sunk to the level of other co-sharers and he had been denuded of any right of pre-emption possessed by him at all--Pre-emptor was co-sharer and his claim regarding being collateral of vendor was also never contested by vendee---Lower Appellate Court as well as High Court were quite justified in applying doctrine of sinker and in concluding that pre-emptor was possessed of better right of pre-emption as against vendee---Supreme Court declined to interfere in judgment and decree passed by High Court---Appeal was dismissed.

Piara Khan v. Bashir Ahmad 1991 SCMR 2107; Ghulam Rasool v. Muhammad Latif PLD 1993 SC 52; Muhammad Ramzan v. The Member Board of Revenue 1993 PSC 1596; Ghulam Muhammad v. Shamim Ahmad Khan 2007 SCMR 1028 and Muhammad Hussain v. Muhammad Khan 1989 SCMR 1026 ref.

Tariq Mehmood, Advocate Supreme Court for Appellants.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondents.

Date of hearing: 22nd February, 2010.

P L D 2010 Supreme Court 612

Present: Sardar Muhammad Raza Khan, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

MIR SHAKEELUR REHMAN and others---Appellants

Versus

YAHYA BAKHTIAR and others---Respondents

Criminal Appeals Nos.56 of 1999 and 288 of 2004, decided on 9th February, 2010.

(a) Malicious prosecution---

----Remedies in civil and criminal law---Distinction---In domain of civil law, the person wronged can file a suit for damages for malicious prosecution---Such is a personal action and dies with death of either of the parties---Libel or defamation in criminal law, besides being personal injury is an offence against society as it may have potential of disturbing public peace---Such action survives death of complainant if imputation not only harms reputation of that person but is also intended to be hurtful to his family members or force or institution of which the deceased was member.

Halsbury's Laws of England (Vol.28 Libel and Slander P-8, para.14; Maniramlala Baliramala v. Mt.Chattibai AIR 1937 Nagpur 216; Mahant Salig Ram v. Charan Dass and another AIR 1939 Lah. 492; Mst. Nasri Begum v. Virgil L. Moore, Consular for Administration Embassy of United States of America 1989 CLC 511; Government of Punjab through Secretary Ministry of Agriculture v. Mst. Kamina 1990 CLC 404; Mercantile Cooperative Bank Ltd. v. Messrs Habib and Co. and others PLD 1967 Kar. 755; M. Veerappa v. Evelyn Sequeria 1989 MLD 3225 and Ratanlal Bhannalal Mahajan v. Baboolal Hajarilal Jain AIR 1960 Madhya Pradesh 2000 rel.

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

----Ss.500, 501 & 502---Defamation---Death of complainant---Impleading of legal heirs---Principle---Person specific and transaction specific complaint---Effect---Complainant filed private complaint under Ss.500, 501 and 502, P.P.C. against accused for publishing report against him in his newspaper---Complainant died during pendency of proceedings and his legal heirs were impleaded as complainants in the case---Validity---Held, it was not a case which fell in the category of cases where complaint would survive the complainant---Libel published in the newspaper was directed against the person of complainant alone---Publication could be wrong and scandalous but the fact remained that it was person specific and transaction specific---In the complaint filed by complainant and statement made by him before Trial Court, there was no allegation that libel had in any manner injured reputation of his family or relatives---Order passed by High Court was set aside and complaints subject-matter of appeal pending in Trial Court were declared to have abated---Appeal was allowed.

Mehrotra's Law of Defamation (3rd Edn.) and U Tin Maung and another and The King (28) AIR 1941 Rang. 202 ref.

Asadullah Siddiqui, Advocate Supreme Court for Appellants (in Criminal Appeal No.56 of 1999).

M.W.N. Kohli, Advocate Supreme Court for Appellants (in Criminal Appeal No.288 of 2004).

Riaz Ahmad, Advocate-on-Record for Private Respondents.

Rana Abdul Ghafoor, Advocate Supreme Court on behalf of Government of Balochistan for the State.

Date of hearing: 17th November, 2009.

P L D 2010 Supreme Court 623

Present: Mian Shakirullah Jan, Rahmat Hussain Jafferi and Tariq Parvez, JJ

ALI MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.298 of 2009, decided on 6th January, 2010.

(Against judgment dated 9-8-2006 of High Court of Sindh, Circuit Court, Hyderabad, passed in Criminal Appeals No.109 and 64 of 2002).

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

----S. 6---Criminal Procedure Code (V of 1898), S.516-A---Case property---Custody and disposal of. narcotic substances---Procedure---Right of accused---Destruction of case property, pending trial---Scope---Duty lies upon prosecution to produce case property in court as it is the evidence, which has been collected during investigation and is being used against accused to prove offence---At the same-time, it is the right of accused to examine allegedly recovered property: during trial, when prosecution has discharged its duty in producing case property but second and third provisos to S.516-A, Cr. P. C. have made exceptions to the general rule---Discretion vested in court under second proviso to S.516-A, Cr. P. C. is to be exercised judicially before and at the time of destruction of property to safeguard interest of all concerned including accused---By destroying entire case property after keeping its samples, accused would be deprived of his right to examine the same at the time of trial, if it is done without his knowledge---When entire property is produced before the court, in order to safeguard rights of accused about weight, contents of packets, seals affixed on packets, legal possession or a request for sending entire property for analysis, which might raise at the trial, could be taken into consideration at the time of passing the order of destruction of the property by giving notice to accused person---If court suo motu exercises power under second proviso then it is essential to give notice not only to accused but also to prosecution so that after hearing contentions and objections, if any, by any party, order of destruction of property can properly be passed---Issuing of notice to parties is an essential requirement of law to hear the parties.

(b) Natural justice, principles of ---

----Condemning unheard---Effect---Nobody should be condemned unheard and no adverse order, concerning his rights can be passed against any party without hearing him---Such rule of natural justice, which unless prohibited by wording of statute, must be read in each and every statute.

Abdul Majeed Zafar v. Governor of the Punjab 2007 SCMR 330 and Asim Khan v. Zahir Shah 2007 SCMR 1451 rel.

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

----S. 516-A---Disposal of case property---Principle---Whenever an order under S.516-A, Cr. P. C. is passed for proper custody of property, a notice is not only required to be issued to prosecution but if ownership of property is established then a notice is also required to be issued to the owner of the property in appropriate cases and after hearing them property can be handed over to the person from whom it was secured or to its owner.

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

----S. 6---Criminal Procedure Code (V of 1898), S.516-A---Narcotic drugs---Proof---Right of accused---Accused has right to make prayer before Trial Court or High Court for referring entire case property allegedly recovered from him to Chemical Analyzer for report as to whether or not it is a narcotic substance or drug---Notice is required to be issued to accused or prosecution, as the case may be, when an application for destruction of property is moved by any party and while exercising powers of suo motu, court should issue notice to prosecution and accused.

Ali Muhammad v. State 2003 SCMR 54 rel.

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

----Ss. 6 & 9 (c)----Criminal Procedure Code (V of 1898), Ss.516-A & 537---Reappraisal of evidence---Benefit of doubt---Destruction of narcotics---Incurable irregularity---Charas weighing 192 kilograms was recovered from the possession of accused---Trial Court convicted the accused under S.9 (c) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life---Conviction and sentence awarded by Trial Court was maintained by Lower Appellate Court---Validity---Magistrate destroyed case property, without giving any notice to prosecution or accused or passing any appropriate order for allowing application, without permission of Trial Court and preparing samples---Supreme Court noted it with great concern that entire process of destruction was illegal, objectionable and for that Magistrate should be taken to task---Supreme Court directed that matter should be reported to High Court for taking appropriate action in accordance with law---As no opportunity was given to accused to protect his rights in the proceedings of destruction of property, therefore, he was prejudiced in his defence, which could not be cured under S.537 Cr. P. C. ---Prosecution failed to prove the case against accused beyond reasonable doubt, therefore, he was entitled to benefit of doubt, which was accordingly given to him---Supreme Court set aside conviction and sentence awarded to accused by the courts below and he was acquitted of the charge-Appeal was allowed.

Ch. Muhammad Akram, Advocate Supreme Court for Appellant.

Saleem Akhtar, Addl. P.-G., Sindh and Raja Abdul Ghafoor, Advocate-on-Record for the State.

Date of hearing: 6th January, 2010.

P L D 2010 Supreme Court 632

Present: Mian Shakirullah Jan, Muhammad Moosa K. Leghari and Muhammad Sair Ali, JJ

AZHAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.177 of 2003, decided on 21st April, 2009.

(On appeal against the judgment dated 7-6-2001 passed by Peshawar High Court, in Criminal Appeal No.11 of 1998).

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

----Ss. 302(b), 449, 452, 337-A(ii) & 337-A(iii)---Qatl-i-amd, house trespass etc.---Appraisal of evidence---Benefit of doubt---Statement of the complainant regarding the presence and role of accused in the occurrence and material contradictions, when read in the light of non-recovery of pistol and crime empties from the site---Alleged shot fired by accused from his pistol had gone amiss---Entry of accused in the place of occurrence was not proved by examining the necessary prosecution witnesses---Injuries allegedly caused by the accused to a lady prosecution witness by the "butt" of his pistol, had been denied by her while deposing in court---Trial Court had rightly acquitted the accused on benefit of doubt disbelieving his presence and participation in the occurrence---Findings of Trial Court were not the result of inapplicability of mind, misreading, misinterpretation of evidence, rather the same were based on sound and cogent analysis and appreciation of the evidentiary principles of criminal jurisprudence--High Court had failed to apply the test of impossibility as that of imbalance to upset the judgment of Trial Court, which was neither perverse nor artificial, shocking, ridiculous, flimsy or suffering from distrotion or misreading of evidence---As regards High Court, at best it could be a case of mere "difference of opinion" on the evaluation of evidence, which was not a ground for depriving an acquitted accused of the judgment in his favour---High Court was not justified in setting aside the Trial Court's judgment of acquittal and substituting the same with a judgment of conviction---Impugned judgment passed by High Court was consequently set aside and the judgment of Trial Court acquitting the accused was restored---Appeal was accepted accordingly.

State v. Muhammad Sharif and 3 others 1995 SCMR 635; Inayatullah v. The State PLD 1979 SC 956; Sheo Swarup and others v. King Emperor AIR 1934 PC 227(2); Mirza Noor Hussain v. Farooq Zaman and 2 others 1993 SCMR 305; Yar Muhammad and 3 others v. The State 1992 SCMR 96; Ahmed v. The Crown PLD 1951 FC 107; Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426; Feroze Khan v. Fateh Khan and 2 others 1991 SCMR 2220 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

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

----S. 417---Appeal against acquittal---Conversion of judgment of acquittal into judgment of conviction---Principles---Appellate Court should and will always give proper weight and consideration to the views of the Trial Court as to credibility of the witnesses; the presumption of innocence in favour of the accused, a presumption certainly not weakened by his acquittal at the trial; the right of the accused to the benefit of any doubt; and the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witnesses.

Shoe Swarup and others v. King Emperor AIR 1934 PC 227(2) ref.

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

----S. 417---Appeal against acquittal---Principles---Jurisdiction of High Court---Scope---High Court will not exercise jurisdiction under S.417, Cr.P.C. unless the judgment of Trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is. guilty or there has been complete misreading of evidence leading to miscarriage of justice---In exercising this jurisdiction High Court is always slow, unless it feels that gross injustice has been done in the administration of criminal justice, due to the incompetency, stupidity or perversity of Trial Court culminating into distorted conclusions.

Yar Muhammad and 3 others v. The State 1992 SCMR 96; Ahmed v. The Crown PLD 1951 FC 107 and Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426 ref.

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

----S.417---Appeal against acquittal---Appreciation of evidence---Difference of opinion---Mere difference of opinion regarding appreciation of evidence is not a good ground for setting aside an acquittal.

Feroze Khan v. Fateh Khan and 2 others 1991 SCMR 2220 ref.

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

----S.417---Appeal against acquittal---Test of impossibility---Courts in such like difficult situations have often applied test of "impossibility" by asking question, whether it was impossible for any reasonable person to have held the impugned view on appreciation of evidence on account of which the acquittal took place---Court would not interfere with acquittal merely because on reappraisal of evidence it comes to the conclusion different from that of the court acquitting the accused, provided both the conclusion are reasonably possible---Important test visualized in such cases is that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

Ch. M. Akram, Advocate Supreme Court for Appellant. Muhammad Rafi, Complainant (in person).

Qari Abdur Rashid, Advocate Supreme Court (on behalf of N.-W.F.P.) for the State.

Date of hearing: 21st April, 2009.

P L D 2010 Supreme Court 642

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Tariq Parvez, JJ

ARBAB TASLEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.42 of 2009, heard on 11th November, 2009.

(On appeal from judgment of Peshawar High Court, Peshawar dated 13-1-2009 passed in Criminal Appeal No.838 of 2005).

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

----Ss. 302(b)/34 & 324/34---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-amd and attempt to qatl-e-amd---Leave to appeal was granted only to examine whether conviction of accused under section 302(b), P.P.C. on the basis of mere examination-in-chief of the eye-witness, who was not cross-examined by the accused, could have been treated by the court as statement under section 512, Cr. P. C, because at the time of recording of such statement accused was neither absent nor absconding.

Per Anwer Zaheer Jamali, J; Khilji Arif Hussain, J. and Tariq Pervez, J, agreeing.

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

----Ss. 302(6)/34 & 324/34---Qanun-e-Shahadat (10 of 1984), Arts.46, 47 & 131---Criminal Procedure Code (V of 1898), S. 512---Qatl-e-amd and attempt to commit qatl-e-amd---Appraisal of evidence---Evidence of the eye-witness in the form of examination-in-chief was an admissible piece of evidence, which could be legally taken into consideration by the Court in peculiar facts and circumstances, but with extra care and caution, already taken by the two Courts below, as the said evidence was fully corroborated by medical evidence and other surrounding circumstances of the case---Legally and technically the said examination-in-chief might not be termed as a statement under section 512, Cr.P.C. in the strict sense, nor the Appellate Court in its impugned judgment had so held, but the fact remained that the manner in which the proceedings in the Sessions case were delayed, the star eye-witnesses of the incident were repeatedly required to appear in court for their evidence, the circumstances under which examination­-in-chief of the eye-witness was recorded before the Trial Court, the conduct of the accused and his counsel in court, non-availing of the opportunity' of cross-examination even thereafter for a period of over one month and three dates of hearing, were the material facts which could not be ignored to give benefit of such delay in the proceedings of Sessions case to the accused---Evidence of eye-witness in the form of his examination-in-chief could not be rejected on the simple proposition that he was not subjected to cross-examination, as the accused had himself avoided in a deliberate and calculated manner to avail such an opportunity---Distinction had to be drawn between the two situations, one where opportunity to cross-examination was not given or denied to a party, and second where it was given but deliberately or otherwise not availed of; present case undoubtedly fell under the second category---Accused's side had deliberately avoided to cross-examine the eye-witness who had been killed---Prosecution had succeeded to prove its case beyond reasonable doubt against the accused on the basis of the evidence of the said sole eye-witness of the incident---Courts below mere fully justified in relying upon the aforesaid testimony---Convictions and sentences of accused were upheld in circumstances and the appeal was dismissed accordingly.

Maharaja of Kalhapur v. Sundaram Ayyar AIR 1925 Madras 497; Mangal Sen v. Emperor AIR 1929 Lah. 840(2) and Ahamd Ali v. Joti Prasad AIR 1949 Allahabad 188 ref.)

(c) Administration of justice---

----Principle---Law is a living organ and it is the duty of the court to adopt a realistic and pragmatic approach for its application, looking to the peculiar facts and circumstances of each case.

Per Tariq Parvez, J., agreeing with Anwar Zaheer Jamali, J.

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

----Ss. 302(b)/34 of 324/34---Qanun-e-Shahdat (10 of 1984), Arts. 18 & 21---Qalt-e-amd and attempt to commit qatl-e-amd---Relevancy of facts---Examination-in-chief containing the names of the deceased, person charged for his killing and motive for killing the deceased, qualifies the requirements of Articles 18 and 21 of the Qanun-e-Shahadat, 1984.

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

----Arts. 132 & 46---Criminal Procedure Code (V of 1898), S.512---Evidence---General rule and exception---As a general rule of evidence only such statement is legal and admissible which is given during the course of judicial proceedings on oath and is taken by a person authorized under the law to take down the evidence and it is made in the presence of the adverse party, giving him right to cross-examine the deponent---There are two exceptions to the said general rule where a statement made by a witness without being cross-examined and made at the back of the accused is made admissible; one exception is covered under Art.46 of the Qanun-e-Shandat, 1984, when a person makes a statement as to the cause of his death and the second exception is under S.512, Cr.P.C. where an accused absconds and law makes it permissible to preserve the evidence of witness with a view that if at his trial any such witness is either dead or has become incapable of giving evidence or his presence cannot be acquired without unnecessary delay, his statement previously recorded at the back of accused can be taken into evidence.

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

----Art. 132---Criminal Procedure Code (V of 1898), S.512---Examination-in-chief, admissibility of---On the analogy of S.512, Cr.P.C. where but for the fault on the part of defence a witness though available but was not cross-examined his statement recorded in chief would be legal and admissible in evidence.

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

----Art.132---Cross-examination---To cross-examination a witness is the right of the adverse party, but if it fails by its own conduct to do so, it cannot agitate that any prejudice has been caused to it by non-cross­-examination of the witness.

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

----Arts. 131 & 132---Penal Code (XLV of 1860), Ss.302(b)/34 & 324/34---Qatl-i-amd and attempt thereof---Evidence---Examination-in-­chief---Evidentiary value---Statement of eye-witness in the form of examination-in-chief, though found legal and admissible in evidence, yet its evidentiary value could not be equated with such statement subjected to cross-examination; therefore for giving weight to the statement of such witness, it would have to be seen whether the examination-in-chief intrinsically rang true and whether or not same was supported by circumstantial evidence---If such statement was supported by independent evidence in the shape of any circumstance or corroborated by any source, it would be good piece of evidence.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Appellant.

Tasleem Hussain, Advocate-on-Record for the State.

Date of hearing: 11th November, 2009.

P L D 2010 Supreme Court 657

Present: Nasir-ul-Mulk, Khilji Arif Hussain and Mian Saqib Nisar, JJ

HASSAN AKHTAR and others---Petitioners

Versus

AZHAR HAMEED and others---Respondents

Civil Petition Nos.499 and 500 of 2009, decided on 19th February, 2010.

(On appeal from the judgment dated 28-1-2009 of the Islamabad High Court, Islamabad passed in R.S.A.No.2 of 2007).

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

----O. III, Rr. 3, 4 & O.XXIII, Rr. 1(1), (3)---Advocate's power to compromise or abandon claim on behalf of his client---Scope---Advocate in his discretion could do so in interest of his client, unless his Vakalatnama restricted such authority---Principles.

An Advocate has authority to make statement on behalf of his client, which is binding upon the client, unless there is any thing contrary in the Vakalatnama putting restriction on the authority of the Advocate to compromise or abandon claim on behalf of the client. The Advocate's power in the conduct of a suit allows him to abandon the issue, which in his discretion, advisable in the general interest of his client.

Messrs Arokey Ltd. and another v. Munir Ahmed Mughal and 3 others PLD 1982 SC 204 rel.

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

----S. 39---Punjab Pre-emption Act (I of 1913), S.6---Civil Procedure Code (V of 1908), O.II, R.2, O.III, R.4 & O.XXIII, R.1(3)---Suit for cancellation of sale-deed executed by alleged attorney and in alternative for possession through pre-emption---Withdrawal of claim by plaintiff to extent of cancellation of sale-deed---Second suit for cancellation of sale-deed filed by plaintiff before dismissal of pre-emption suit by Trial Court on statement of his Advocate not pressing for relief prayed therein---Dismissal of second suit by Trial Court for being barred by O.XXII, R.1(3) and O.II, R.2, C.P.C.---Such judgment of Trial Court upheld by First and Second Appellate Courts---Plea of plaintiff that his Advocate was not authorized to make such statement, thus, second suit was not barred---Validity---Record revealed that same Advocate after making statement abandoning claim in first suit pertaining to sale-deed not only kept representing plaintiff, but also filed second suit---All this would show that Advocate had acted with authority and consent of plaintiff, who was bound by his acts---Vakalatnama of Advocate had authorized him to make such statement on behalf of plaintiff including power to compromise or refer matter to arbitration---Supreme Court refused to grant leave to appeal against impugned judgment.

Ghasiram Goenka v. Harbux Goberdhonedas and another AIR 1980 Cal. 477; Din Muhammad and another v. Farooq Mirza PLD 1955 Sindh 62 and Muhammad Hussain and others v. Mst. Hanaf Ilahi and others 2005 SCMR 1121 ref.

Messrs Arokey Ltd. and another v. Munir Ahmed Mughal and 3 others PLD 1982 SC 204 rel.

Gulzarin Kiani, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.

Saeed-ul-Haq, Advocate Supreme Court for Respondents.

Date of hearing: 19th February, 2010.

P L D 2010 Supreme Court 661

Present; Mahmood Akhtar Shahid Siddiqui, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

BASHIR AHMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, FAISALABAD and 4 others---Respondent

Civil Petition No.814-L of 2006, decided on 5th March, 2010.

(On appeal from the order dated 10-4-2006 of the Lahore High Court Lahore passed in Writ Petition No.3287 of 2006).

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.265-A---Constitution of Pakistan (1973), Art. 185 (3)---Illegal dispossession---Co-sharers in land in dispute---Civil dispute---Qabza group or land mafia---Abuse of process of law---Petitioner filed complaint against respondents for allegedly forcibly dispossessing him from land in question---Trial Court in exercise of powers under S.265-K, Cr.P.C., acquitted respondents on the ground that they were co-sharers in land in question, having registered sale-deed in their favour and they were shown as owners in possession in Revenue Record---Validity---No material was available with petitioner to establish that respondents belonged to Qabza group or land mafia or they had credentials or antecedents of being property grabbers---Acquittal of respondents recorded under S.265-K, Cr.P.C. by Trial Court was justified and dismissal of petitioner's constitutional petition by High Court was also unexceptionable---Through filing of complaint under Illegal Dispossession Act, 2005, petitioner had tried to transform bona fide civil dispute between parties into criminal case so as to bring weight of criminal law and process to bear upon respondents in order to extract concession from them---Such utilization of criminal law and process by petitioner was abuse of process of law, which could not be allowed to be perpetuated---Supreme Court declined to interfere in judgments passed by High Court as well as by Trial Court---Leave to appeal was refused.

Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 rel.

Saif-ul-Malook, Advocate Supreme Court for Petitioner.

Respondent No.2 in person.

Faisal Zaman Khan, Addl. A.-G., Punjab for the State.

Date of hearing: 5th March, 2010.

P L D 2010 Supreme Court 665

Present; Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

MOBASHIR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Review Petition No.34 of 2009, in Criminal Appeal No.110 of 2004, decided on 8th March, 2010.

(From the judgment dated 23-4-2009 passed by this Court in Crl.A. No.110 of 2004 and on appeal from the judgment dated 2-7-2002 passed by the Lahore High Court, Lahore in Crl.A. No.915 of 1999 and M.R. No.285-T of 1999).

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

----Art. 188---Penal Code (XLV of 1860), S.302(b)---Qatl-i-amd---Review of Supreme Court judgment---All the contentions raised on behalf of accused had been dealt with in a comprehensive manner in the impugned judgment, which being well based could not be reversed, without any lawful justification, which was lacking in the case---Reversal of conclusion earlier reached by Supreme Court after full consideration of the question was not possible in exercise of review jurisdiction, as a review could not be granted for mere re-examination of the same arguments---Re-arguing a case on merits as well as additional grounds was beyond the scope of review petition---Mere desire of hearing of the matter could not constitute sufficient ground for the grant of review---Review petition had no merits and the same was dismissed accordingly.

Muhammad Hussain v. Zohra Bibi PLD 1990 SC 924; Manzoor Hussain v. Zohra Bibi PLD 1990 SC 9; Muhammad Sarwar v. Asad Hakim 1983 SCMR 177; Jalal v. Nazir Ahmad 1980 SCMR 320; Abdul Hamid Saqi v. Service Tribunal of Pak. 1988 SCMR 1318; Ali Khan v. Shahzaman 1980 SCMR 332; Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504; Maqbool Ahmad Tabassam v. State 1980 SCMR 907; Zulfikar Ali Bhutto v. State 1979 SC 741; Nawab Bibi v. Hamida Begum 1968 SCMR 104; Muhammad Hayat v. Government of West Pakistan 1968 SCMR 107; Muhammad Najeebullah v. Government of Pakistan 1968 SCMR 768; Muhammad Ghaffar v. State 1969 SCMR 12; Ghularn Fatima v. Settlement Commissioner 1969 SCMR 5; Ghulam Fatima v. Settlement Commissioner 1969 SCMR 247; Feroz Din v. Allah Ditta 1969 SCMR 10; Dewan Jairamadass and others v. Syed Niamat Ali and others 1983 SCMR 330; Akbar Ali Bukhari v. State Bank of Pakistan 1981 SCMR 518; Basharat Khan v. The State 1984 SCMR 1033; Muhammad Nazir v. State 1979 SCMR 89; Kalal Khan v. Misri Khan 1979 SCMR 347; Saghir Ali v. Mehar Din 1968 SCMR 729; Master Tahilram v. Lilaram 1970 SCMR 622; Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner Pakistan 1968 SCMR 800; Rehmatullah v. Abdul Majid 1968 SCMR 838; Hassan Din v. Claims Commissioner 1968 SCMR 1047(2); Qamar Din v. Maula Bakhsh 1968 SCMR 1042(4); Muhammad Akram v. State 1970 SCMR 418; Muhammad Akram v. State 1970 PCr.LJ 909; Zulfikar Ali Bhutto v. The State 1979 SCMR 427, Rizwan Cooperative Society Ltd. v. Custodian of Evacuee Property 1978 SCMR 449; Farzand Ali v. Muhammad Arif 1979 SCMR 281 and Rashiduddin Qureshi v. State 1979 SCMR 99 ref.

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

----Art. 188---Review by Supreme Court---Practice and procedure---Where all material grounds taken up by petitioner during the course of hearing of appeal had been dealt with and decided by Supreme Court in the judgment under review, re-hearing of the same arguments on the wish of the petitioner in order to obtain a different decision without satisfying jurisdictional requirement necessary for maintaining review petition, is not legally qualified.

Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741; Akbar Ali Bukhari v. State Bank of Pakistan 1981 SCMR 518; Basharat Khan v. The State 1984 SCMR 1033; Muhammad Nazir v. State 1979 SCMR 89; Kalal Khan v. Misri Khan 1979 SCMR 347 and Saghir Ali v. Mehar Din 1968 SCMR 729 ref.

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

----Art. 188---Review of judgments or orders by Supreme Court---Principles---Some new point based upon discovery of new evidence which could not with diligence have been found out on the previous occasion, must be available---Review petition is not competent where neither any new and important matter or evidence has been discovered, nor is any mistake or error apparent on the face of the record---Such error may be an error of fact or of law, but it must be self-evident and floating on surface and not requiring any elaborate discussion or process of ratiocination---Orders based on erroneous assumption of material facts, or without adverting to a provision of law, or a departure from undisputed construction of law and constitution, may amount to error apparent on face of the record---Error, on the other hand, must not only be apparent but must also have a material bearing on fate of the case and be not of inconsequential import---If judgment or finding, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on record, review is not justifiable notwithstanding error being apparent on the face of the record---Where order under review did not appear to have been vitiated by any error on face of the record, nor any other good and sufficient reason was given for review of order, review petition merits dismissal.

Nawab Bibi v. Hamida Begum 1968 SCMR 104; Master Tahilram v. Lilaram 1970 SCMR 622; Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner Pakistan 1968 SCMR 800; Rehmatullah v. Abdul Majid 1968 SCMR 838; Hassan Din v. Claims Commissioner 1968 SCMR 1047(2); Qamar Din v. Maula Bakhsh 1968 SCMR 1042(1); Muhammad Akram v. State 1970 SCMR 418; Muhammad Akram v. State 1970 PCr.LJ 909; Zulfikar Ali Bhutto v. The State 1979 SCMR 427; Rizwan Co-operative Society Ltd. v. Custodian of Evacuee Property 1978 SCMR 449; Farzand Ali v. Muhammad Arif 1979 SCMR 281 and Rashiduddin Qureshi v. State 1979 SCMR 99 ref.

Aftab Farrukh, Senior Advocate Supreme Court for Petitioner.

Muhammad Ilyas Siddique, Advocate Supreme Court for the Complainant.

Date of hearing: 17th November, 2009.

P L D 2010 Supreme Court 669

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

KHADIM HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.196 of 2009, decided on 18th November, 2009.

(On appeal from the judgment dated 15-10-2008 passed by the Lahore high Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No.98 of 2003).

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

----Ss. 302(6), 324/34 & 449---Constitution of Pakistan (1973), Art.185(3)---Qatl-e-amd, attempt to commit qatl-e-amd and house trespass---Leave to, appeal was granted to accused by Supreme Court to reappraise the entire evidence to ensure safe dispensation of justice.

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

----Ss. 302(b), 324/34 & 449--Qatl-e-amd, attempt to commit qatl-e-amd and house trespass---Appraisal of evidence---Medical evidence had fully supported ocular version---Two crime empties secured from the place of occurrence had matched with the rifle recovered at the instance of accused, as indicated by the positive Forensic Science Laboratory report---Eye-witnesses who had received injuries during the incident had no enmity with the accused and their statements being free from any ambiguity, exaggeration and dishonest omissions had rightly been relied upon by the courts below---Minor contradictions creeping in evidence with the passage of time could be safely ignored---Relationship of eye-witnesses with the deceased was no ground to discredit them, when they had stood firm during cross-examination and sufficient corroboratory material was available to support their testimony--Intrinsic value of the statements of prosecution witnesses had to be examined and not their relationship---Defence version was nothing but a denial simpliciter on account of false involvement without even alleging the nature of enmity---Plea of grave and sudden provocation was not established---Impugned judgment did not suffer from misreading' of credible and confidence-inspiring evidence or any illegality or irregularity---Appeal was dismissed in circumstances.

Riaz Hussain v. The State 2001 SCMR 177; Devi Prasad v. State AIR 1967 All. 64; Niaz v. State PLD 1960 (Pak.) 387; Nazir v. The State PLD 1962 SC 269; Manawar Ali v. State 2001 SCMR 614; Muhammad Amin v. The State 2000 SCMR 1784; Iqbal alias Bhala v. State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta v. The State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274 and Muhammad Rafique v. State 1977 SCMR 457 ref.

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

----Ss. 302(b), 324 & 449---Qatl-e-amd, attempt to commit qatl-i-amd and house trespass---Appreciation of evidence---Contradictions---Minor contradictions do creep in evidence with the passage of time and the same can be ignored safely.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Related witness---Corroboration---Mere relationship of a witness with the deceased is not sufficient to discard his statement, if he stands firm to the test of cross-examination and is corroborated by sufficient material---Corroboration is necessary only for the safe dispensation of justice in certain given circumstances, but this principle cannot be extended to the case of ancillary facts testified by the witness---Intrinsic worth of the statement of the witness has to be examined and not his relationship---Court in such like cases is required to look for some circumstances that give sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction, and this is what is meant by saying that the statement of an interested witness ordinarily needs corroboration.

Riaz Hussain v. The State 2001 SCMR 177; Devi Prasad v. State AIR 1967 All. 64; Niaz v. State PLD 1960 (Pak.) 387; Nazir v. The Sate PLD 1962 SC 269 ref.

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

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Appreciation of evidence---Interested witness, credibility of---Friendship or relationship of a witness with the deceased is not enough to discredit him, particularly when he has no motive to falsely involve the accused in a heinous offence like murder.

Manawar Ali v. State 2001 SCMR 614; Muhammad Amin v. The State 2000 SCMR 1784; Iqbal alias Bhala v. State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta v. The State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274 ref.

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

----Ss. 302(c)---Qatl-e-amd---Appreciation of evidence---Grave and sudden provocation---Application and scope---Grave and sudden provocation had to be shown distinctly not only that the act was done under the influence of some feeling which had taken away from the accused all control over his actions, but that feeling had an adequate cause.

Muhammad Rafique v. State 1977 SCMR 457 and Riaz Hussain v. The State 2001 SCMR 177 ref.

Aftab Ahmad Khan, Advocate Supreme Court for Appellant.

Shahid Mehmood Abbasi, DPG for the State.

Date of hearing: 18th November, 2009.

P L D 2010 Supreme Court 676

Present: Iftikhar Muhammad Chaudhry, C.J., Rahmat Hussain Jafferi and Ghulam Rabbani, JJ

PAKISTAN INTERNATIONAL AIRLINE CORPORATION and others---Appellants

Versus

TANWEER-UR-REHMAN and others---Respondents

Civil Appeal Nos. 172-K to 175-K, 177-K to 182-K of 2009, decided on 12th March, 2010.

(On appeal from the judgment dated 3-7-2008, 14-10-2008, 28-11-2008 passed by High Court of Sindh at Karachi in C.P. Nos.D-2042 to D-2044/07, D-101, D-1570 to D-1572/2007).

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

----Arts. 199 & 185(3)---Leave to appeal was granted by Supreme Court to consider; whether period of 90 days prescribed in clause (c) of para 109 of judgment passed by Supreme Court in case titled Muhammad Mubeen-us-Salam and another vs. Federation of Pakistan and others, reported as PLD 2006 SC 602, was applicable to constitutional petitions filed under Art. 199 of the Constitution for which no period of limitation was prescribed under any law subject to question of laches; whether such period of 90 days would be applicable to those cases where a period of time was prescribed by law and that had not expired; and whether constitutional petition against Pakistan International Airlines being a Corporation having no statutory rules would be maintainable in cases of disputes as regards the terms and conditions of its employees, more particularly as Pakistan International Airlines was not performing any functions, in connection with the affairs of the Federation.

Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602 rel.

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

----Art. 199(1)(a)(i) & (5)---Expression "performing functions in connection with the affairs of the Federation"---Connotations---Test---Expression clearly connotes governmental or State functions involving element of exercise of public power---Functions may be traditional police functions of the State involving maintenance of law and order or those may be functions concerning economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature---Generally, such functions are to be performed by persons or agencies directly appointed, controlled and financed by the State; either by Federation or by Provincial Government---Private organizations or persons as distinguished from government or semi-government agencies and functionaries, cannot be regarded as a person performing functions in connection with the affairs of the Federation or a Province, simply for the reason that their activities are regulated by laws made by the State---Primary test must always be; whether functions entrusted to organization or person concerned are indeed functions of State involving some exercise of sovereign or public power; whether control of organization vests in substantial manner in the hands of government; and whether bulk of funds is provided by the State---If such conditions are fulfilled, then person, including body politic or body corporate, may be regarded as person performing functions in connection with the affairs of Federation or Province, otherwise not.

Muhammad Dawood v. Federation of Pakistan 2007 PLC (C.S.) 1046 rel.

(c) Pakistan International Airlines Corporation Act (XIX of 1956)---

----Ss. 4, 5, 6, 8 & 10---Constitution of Pakistan (1973), Art.199(1)(a)(i), Schedule Fourth, Federal Legislative List Part-I, item No. 24---Rules of Business, (1973), Schedule-II, item No.5(20)---Pakistan International Airlines Corporation---Expression "performing functions in connection with the affairs of the Federation''---Applicability---Carriage of persons and goods by sea or air has been made legislative subject of Parliament with reference to Federal Legislative List Part-I of Fourth Schedule, item No.24---Pakistan International Airlines Corporation has been included with the domain of Defence Division, Government of Pakistan, under Schedule II, item No.5(20) of Rules of Business, (1973)---Nine Directors of the Corporation, out of eleven, including the Chairman are to be appointed by Federal Government--Although, the government has no direct control in the Corporation as its affairs are to be managed by Board of Directors under S.5 of the Pakistan International Airlines Corporation Act, 1956, yet the fact remains that Federal Government has power to issue directives to the Corporation on matters of policy if it considers necessary and such directives are binding on the Corporation---Power to appoint Chairman and Directors remains with the government and in addition to it the government also holds controlling shares of more than 50%---Pakistan International Airlines Corporation is providing carriage of persons and goods, which is one of the functions of the State, as mentioned in Federal Legislative List and its affairs are indirectly controlled by Defence Division of Federal Government---Pakistan International Airlines Corporation is performing its functions in connection with the affairs of the Federation.

(d) Pakistan International Airlines Corporation Act (XIX of 1956)---

----Ss. 4, 5, 6, 8, 10 & 30---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Terms and conditions of service of employees of Pakistan International Airlines Corporation---Plea raised by Corporation was that constitutional petition before High Court was not maintainable and principle laid down by Supreme Court in Muhammad Mubeen-us-Salam's case, reported as PLD 2006 SC 602 and Muhammad Idrees's case, reported as PLD 2007 SC 681, was applicable---Validity---Although the Corporation was discharging functions in connection with the affairs of Federation, yet aggrieved persons could not approach High Court by invoking its constitutional jurisdiction---If any adverse action was taken by employer in violation of statutory rules, only then such action should be amenable to constitutional jurisdiction but if such action had no backing of statutory rules then principle of Master and Servant' would be applicable and such employees had to seek remedy permissible before the court of competent jurisdiction---Rules laid down in the judgments of Supreme Court in Muhammad Mubeen-us-Salam's case, reported as PLD 2006 SC 602 and Muhammad Idrees's case, reported as PLD 2007 SC 681, would be applicable to ordinary person filing petition by invoking jurisdiction of High Court under Art. 199 of the Constitution and he had to approach the court within a reasonable time---Although no definition of the expression "reasonable time" was available :» any instrument of law, however the courts had interpreted it to be ninety days---Pakistan International Airlines Corporation was performing functions in connection with the affairs of the Federation but since services of employees were governed by the contract executed between both the parties and not by statutory rules framed under S.30 of Pakistan International Airlines Corporation Act, 1956, with prior approval of Federal Government, therefore, they would be governed by the principle ofMaster and Servant'---Appeal was disposed of accordingly.

Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 and Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 rel.

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Black's Law Dictionary 6th Edn.(1990); Maqsood Ahmed Toor v. Federation of Pakistan 2000 SCMR 928; Ziaullah Khan Niazi v. Chairman Pakistan Red Crescent Society 2004 SCMR 189; Pakistan Red Crescent Society v. Nazir Gillani PLD 2005 SC 806; Printing Corporation of Pakistan v. Province of Sindh PLD 1990 SC 452; Principal Cadet College Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Raziuddin v. Chairman PIAC PLD 1992 SC 531; Habib Bank Ltd. v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60; Anisa Rehman v. PIAC 1994 SCMR 2232 and Justice Khurshid Anwar Bhinder v. Federation of Pakistan CMA No.2475 of 2009 ref.

Aitchison College v. Muhammad Zubair PLD 2002 SC 326; Airport Support Services v. Airport Manager 1998 SCMR 2268 and Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274 distinguished.

Khalid Javed, Advocate Supreme Court with Mrs. Shiraz Iqbal Ch., Advocate-on-Record (in CAs. Nos.172-K to 175-K/2009) and Mazhar Ali B. Chohan, Advocate-on-Record (in C.As. No.179-K to 181-K/2009 for PIAC.

Syed Shahenshah Hussain, Advocate Supreme Court with Ghulam Qadir Jatoi, Advocate-on-Record (in C.As. Nos. 177-K, 178-K and 182-K of 2009) and A.S.K. Ghori, Advocate-on-Record (in C.A.No.175-K/2009 for Employees.

Nemo (in other cases).

Date of hearing: 3rd February, 2010.

P L D 2010 Supreme Court 691

Present: Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmed, JJ

RAI ASHRAF and others---Petitioners

Versus

MUHAMMAD SALEEM BHATTI and others---Respondents

Civil Petition No.1398-L of 2009, decided on 9th September, 2009.

(Against the order dated 8-4-2009 passed by the Lahore High Court Lahore in W.P. No.11774 of 2007).

(a) Administration of justice---

----Each and every case is to be decided on its own peculiar facts and circumstances.

Muhammad Saleem's case 1994 SCMR 2213 and Mushtaq Ahmed's case PLD 1973 SC 418 rel.

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

----Ss. 22-A, 22-B, 154 & 200---Constitution of Pakistan (1973), Art.199---Constitutional petition before High Court---Scope---Registration of F.I.R., application for---Demolition of outer wall and gate of applicant's house etc., by respondent with police aid---Dismissal of application by Ex officio Justice of Peace/Additional Sessions Judge after securing report from concerned S.H.O.---Disposal of constitutional petition by High Court directing S.H.O. to look into contents of petition and pass appropriate orders thereon in accordance with law---Validity---Dispute between parties was over such house---Applicant had secured restrain, order against respondent from Civil Court, and for its violation, he had a remedy before Civil Court---Applicant had an alternate remedy to file private complaints against respondent---Applicant had filed another application before Ex-officio Justice of Peace/Additional Sessions Judge to restrain public functionaries from taking action against him under Lahore Development Authority Act, 1975, Rules and Regulations framed thereunder---Application for registration of F.I.R. had been filed with mala fide intention---High Court had erred in law to exercise discretion in favour of applicant---Constitution petition was not maintainable as disputed questions of fact could not be decided in constitutional jurisdiction---Supreme Court set aside impugned order in circumstances.

Muhammad Bashir's case PLD 2007 SC 539 ref.

Jamshed Ahmed's case 1975 SCMR 149 rel.

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

----Art. 199---Disputed questions of fact could not be decided by High Court in constitutional jurisdiction.

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

----Art. 199---Constitutional jurisdiction of High Court---Nature of---Such jurisdiction being discretionary in character need to be exercised after proper application of mind with cogent reasons and not arbitrarily.

Muhammad Rashid Ahmed, Advocate Supreme Court for Petitioners.

Mian Nisar Ahmed, Advocate Supreme Court for Respondent No.1.

Date of hearing: 9th September, 2009.

P L D 2010 Supreme Court 695

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

CHAIRMAN AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and another---Appellants

Versus

MUMTAZ KHAN---Respondent

Civil Appeal No.589 of 2002, decided on 8th April, 2010.

(On appeal from the judgment dated 3-7-2000 of the Federal Service Tribunal Islamabad passed in Appeal No.81(P) of 1999).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Penal Code (XLV of 1860), S.53---Constitution of Pakistan (1973), Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider; whether appeal before Service Tribunal was not time barred; whether convicted person, who was released after payment of Diyat amount could be said or could be declared as a person acquitted honourably and in that eventuality could such person, who was released on payment of Diyat, was liable to be reinstated into service; whether payment of Diyat could absolve a person from accusation of murder; and whether respondent was an acquitted person or was a convicted person even after payment of Diyat.

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

----Ss. 309 & 310-Criminal Procedure Code (V of 1898), Ss.249-A & 265-K--- Islamic law---Crime and punishment---Acquittal---Scope---Benefit of doubt---Prior to introduction of Islamic provisions in Penal Code, 1860, acquittal of an accused person could be recorded when prosecution failed to prove its case against him beyond reasonable doubt or when faced with two possibilities, one favouring prosecution and the other favouring defence, Court decided to extend benefit of doubt to accused person--Acquittal could also be recorded under S.249-A, Cr. P. C. or S.265-K, Cr. P. C., when charge against accused person was found to be groundless or there appeared to be no probability of his being convicted of any offence---After introduction of Islamic provisions in Penal Code, 1860, it has now also become possible for accused person to seek and obtain his acquittal in a case of murder either through waiver/Afw under S.309 P.P.C. or on the basis of compounding/Sulk under S. 310 P.P.C.---In case of waiver/Afw acquittal can be earned without any monetary payment to the heirs of deceased but in case of compounding/Sulh an acquittal may be obtained upon acceptance Badal-i-Sulh by the heirs of deceased from the accused person.

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

----Ss. 53, 299(e), 310(5) & 323---Diyat' and `Badal-i-Sulh'---Distinction---Concept of Badal-i-Sulh is totally different from the concept of Diyat inasmuch as provisions of S.310(5), P.P.C. and the Explanation attached therewith show that Badal-i-Sulh is to be "mutually agreed" between the parties as a term of Sulh between them---Diyat, under S. 53, P.P.C. is punishment and provisions of S.299(e), P.P.C. and S. 323, P.P.C. manifest that amount of Diyat is to be fixed by Court.

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

----S. 310 (5)---Criminal Procedure Code (V of 1898), S.345---Compounding of offence of murder---Payment of Badal-i-Sulh---Effect---Compounding of offence of murder upon payment of Badal-i-Sulh is not a result of payment of Diyat which is form of punishment and that such compounding of offence leads to nothing but an acquittal of accused person.

Dr. Muhammad Islam v. Government of N.-W.F.P. through Secretary Food, Agricultural, Live Stock and Cooperative Department, Peshawar 1998 SCMR 1993 rel.

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

----S. 310(5)---Criminal Procedure Code (V of 1898), S.345---Compounding of offence of murder---Admission of guilt---Scope---It is not always that a compromise is entered into by accused person on the basis of admission of guilt by him---In many cases of false implication or spreading net wide by complainant party accused persons compound the offence only to get rid of the case and to save themselves from the hassle or trouble of getting themselves acquitted from Courts of law after arduous, expensive and long legal battle---Compounding of an offence does not amount to admission of guilt on the part of accused person or that an acquittal earned through such compounding of an offence may not have ramification regarding all spheres of activity of acquitted person's life, including his service or employment, beyond criminal case against him.

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

----S. 403---Constitution of Pakistan (1973), Art. 13(a)---Acquittal---Maxim autrefois acquit---Principle of Afw---Scope---Ultimate acquittal in a criminal case exonerates accused person completely for all future purposes vis-a-vis the criminal charge against him---Concept of autrefois acquit embodied in S. 403, Cr.P.C., protection guaranteed by Art.13(a) of the Constitution, Afw (waiver) or Sulh (compounding) in respect of an offence has the effect of purging the offender of the crime.

(g) Service Tribunals Act (LXX of 1973)---

----S. 4---Penal Code (XLV of 1860), Ss.302 & 310 (5)---Criminal Procedure Code (V of 1898), S.345---Reinstatement in service---Acquittal by compounding offence of murder---Payment of Badal-i-Sulk---Respondent was employee of a Bank and was convicted on the charge of murder but later on offence was compounded between the parties and respondent was acquitted after payment of Badal-i-Sulh---After the respondent was convicted under the charge of murder, Bank proceeded against him and removed him from service---Bank declined to reinstate him in service, after he was acquitted of the charge but Service Tribunal allowed the appeal and reinstated him in service---Validity---No allegation was levelled against respondent regarding any illegality, irregularity or impropriety committed by him in relation to his service and acquittal in the case of murder had removed the only blemish cast upon him---Conviction of respondent in murder was the only ground on which he had been removed from service and that ground had subsequently disappeared through his acquittal, making him re-emerge as a fit and proper person entitled to continue with his service---Even order of removal of respondent from service had provided that his case would be considered by competent authority for his reinstatement in service in case he was acquitted of the criminal charge---Respondent was justified in claiming his reinstatement in service upon earning acquittal from the competent criminal court--Supreme Court declined to interfere in the judgment passed by Service Tribunal, whereby respondent was reinstated in service---Appeal was dismissed.

Shehzad Ahmad alias Mithu and another v. The State 2005 PCr.LJ 1316 and Muhammad Siddique v. The State PLD 2002 Lah. 444 ref.

(h) Service Tribunals Act (LXX of 1973)---

----S.4---Appeal---Limitation---Civil servant sought reinstatement in service, after he was acquitted from murder case---Service Tribunal allowed the appeal filed by civil servant and reinstated him in service---Plea raised by employer/bank was that appeal was barred by limitation---Validity---Civil servant was acquitted in criminal case on 22-9-1998 and he filed his departmental appeal on 12-10-1998, i.e. within three weeks of his acquittal in criminal case---It would have been a futile attempt on the part of civil servant to challenge his removal from service before earning acquittal in the relevant criminal case---It was unjust and oppressive to penalize civil servant for not filing his departmental appeal before earning his acquittal in criminal case which had formed the foundation for his removal from service---Appeal before Service Tribunal was not barred by limitation.

The Chairman P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951 and Muhammad Aslam v. WAPDA and others 2007 SCMR 513 distinguished.

Raja Aleem Abbasi, Advocate Supreme Court for Appellants.

Shakeel Ahmad, Advocate Supreme Court for Respondent.

Mudassar Khalid Abbasi, D.A.G. (On Court notice).

Date of hearing: 8th April, 2010.

P LD 2010 Supreme Court 705

Present: Javed Iqbal and Anwar Zaheer Jamali, JJ

LAHORE DEVELOPMENT AUTHORITY---Petitioner

Versus

Mst. SHARIFAN BIBI and another---Respondents

Civil Petition No.1450-L of 2005, decided on 30th March, 2010.

(On appeal from the order dated 26-5-2005 of the Lahore High Court, Lahore passed in C.R. No.379 of 2001).

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

----S. 115---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 185(3)---Civil revision---Limitation---Condonation of delay---Revision application filed by petitioner was barred by limitation and High Court declined to condone the delay, resultantly the same was dismissed---Validity---Law of limitation could not be considered merely a formality and required to be observed being mandatory in nature---Purpose of law of limitation was to help vigilant and not the indolent----Helping hand might not be extended to a litigant having going into deep slumber, on having become forgetful of his rights---Concerned person had to be made aware of invasion of his interest and such awareness had to be ascertained as a matter of fact---Supreme Court declined to interfere with exercise of discretion regarding question of limitation by High Court and order passed by High Court was neither illegal nor unreasonable but well based and did not warrant interference---Leave to appeal was refused.

Muhammad Bashir v. Province of Punjab 2003 SCMR 83 distinguished.

Commentary on the Law of Limitation by M. Mahmood; Secretary, Finance Division v. M. Iqbal Solangi 1993 PLC (C.S.) 877; Rehmat Bibi v. Ghazanfar Hussain PLD 1983 SC (AJ&K) 25; Muhammad Bashir v. Province of Punjab 2003 SCMR 83; Irtiqa Rasool Hashmi. v. Water and Power Development Authority 1980 SCMR 722; Naseem Ahmad Chaudhry v. Chairman, Punjab Labour Appellate Tribunal 1995 SCMR 1655; Water and Development Authority v. Zahoor Ahmad 1994 SCMR 960 and Allah Dino v. Muhammad Shah 2001 SCMR 286 ref.

Iftikhar Ahmad Mian, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 30th March, 2010.

P L D 2010 Supreme Court 709

Before Muhammad Sair Ali and Jawwad S. Khawaja, JJ

MAHBOOB ELAHI and others---Appellants

Versus

Mst. HAMIDA BEGUM and others---Respondents

Civil Appeal No.1884 of 2005, decided on 13th April, 2010.

(On appeal against the order dated 4-7-2003 passed by the Lahore High Court, Lahore in W.P. No.5959 of 1992).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(2)(iv), (3)(a)(i)(ii), (4) (5) & (5-A)---Constitution of Pakistan (1973), Art. 185(3)--- Ejectment petition--- Bona fide personal need of landlord and reconstruction of demised shop---Eviction of tenant ordered by Rent Controller---Failure of landlord to demolish/construct shop within prescribed period---Conviction and punishment of landlord and restoration of possession of shop to tenant on his application by Rent Controller---Order of Conviction and punishment of landlord upheld by Appellate Authority was set aside by High Court for being without jurisdiction---Plea of tenant that provision of S. 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 envisaged eviction of tenant on various grounds, but eviction ordered under sub-section (2)(iv) or (3)(ii) thereof was reversible if condition which had led to eviction, were not satisfied within prescribed limit; that if tenant was dispossessed on ground that landlord or his children required premises for his or their occupation and he or they did not occupy premises or having occupied same re-let same within two months of taking over possession thereof, then Rent Controller on being approached could straight away direct that evicted tenant be put back into possession thereof as envisaged by S.13(4) of the Ordinance, and that if Rent Controller was cheated by landlord and secured eviction of tenant on ground of reconstruction of premises, then would it be just and proper and could that be intention of law that such a deceitfully evicted tenant should first go to a criminal Court; seek eviction of landlord under S.13(5) of the Ordinance then pursue conviction of landlord in appellate and revisional Courts possibly up to Supreme Court to ensure that conviction was maintained, which exercise could take months and even years and then go back to Rent Controller asking for a direction to be put back into possession of premises wherefrom he had been cheated out--- Supreme Court granted leave to appeal to consider such questions for being of first impression.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(b), 13(2)(iv), (3)(a)(i)(ii), (4) & (5)---Constitution of Pakistan (1973), Art.185(3)---Ejectment petition---Bona fide personal need of landlord and reconstruction of premises--- Eviction of tenant ordered by Rent Controller--- Failure of landlord to demolish/re-construct premises within prescribed period---Composite application by tenant to Rent Controller for convicting and punishing landlord and putting him back into possession of premises---Maintainability--- Proceedings under S.13(5) & (5-A) of the Ordinance, though inter dependant, but were independent---Legislature in S.13(5) of the Ordinance in contradistinction to term "Controller" had used term "Court", but in S.13(5-A) thereof had used term "Controller" twice---Term "Controller" had been defined in S.2(b) of the Ordinance whereas neither term "Court" had been defined therein nor had procedure for trial of an offence punishable under S.13(5) thereof been defined therein---Cognizance of offence under S.13(5) of Ordinance, could, thus, be taken on tenant's application only be ordinary Court of criminal jurisdiction under Criminal Procedure Code, 1898---Right of tenant to apply to Rent Controller for restoration of possession of premises would accrue only on conviction of landlord by Court under S.13(5) of the Ordinance---Consequent upon trial and conviction of landlord by criminal Court, Rent Controller upon tenant's application would assume jurisdiction under S.13(5-A) of the Ordinance, but not otherwise---Rent Controller would only inquire as to whether landlord had been convicted by Court and whether premises had been demolished or not---Rent Controller, if found that landlord had been convicted by Court under S.13(5) of the Ordinance and that premises had not been demolished, would direct restoration of possession thereof to the tenant---Rent Controller had no jurisdiction to entertain, try and decide such composite application of tenant under S.13(5) & (5-A) of the Ordinance, Principles.

Mst. Khadija Bibi v. Abdul Waheed 1980 CLC 2145 ref.

Khadim Mohy-ud-Din and Mrs. S. Mahmud v. Ch. Rehmnat Ali Nagrea and Mst. Aziz Begum PLD 1965 SC 459; Haji Jamil Ahmed v. Muhammad Ibrahim 1984 CLC 2804; Abdul Jabbar v. Shamim Akhtar and another 1995 MLD 1104 and Farukh Nawaz v. Faisal Ajmal and another PLD 2003 Quetta 68 rel.

Raja Abdur Rehman, Advocate Supreme Court for Appellants.

Sh. Naveed Shehryar, Advocate Supreme Court for Respondent No.1.

Ex parte: for Respondents Nos. 2-7.

Date of hearing; 17th September, 2009 (Judgment reserved).

P L D 2010 Supreme Court 719

Present: Javed Iqbal, Raja Fayyaz Ahmad and Muhammad Sair Ali, JJ

LAND ACQUISITION COLLECTOR and others-Appellants

Versus

Mst. IQBAL BEGUM and others---Respondents

Civil Appeals Nos. 1259, 1260 and 1265 of 2003, decided on 7th January, 2010.

(On appeal from the judgment dated 12-6-2003 passed by the Lahore High Court, Lahore in R.F.A. No.589 of 2001).

(a) Land Acquisition Act (I of 1894)---

---Ss. 4 & 23--Compensation of acquired land---Potentiality of land, determination of---Factors essential to be considered by Court stated.

Potentiality of land should not be determined merely at the time of issuance of notification under S.4 of the Land Acquisition Act, 1894, but it should also be with reference to the use to which land is reasonably capable of being put in future.

Potentiality of land cannot be determined without examining its future prospects; therefore, compensation cannot be based merely on basis of "past sales".

Market Committee v. Rayyat Ali 1991 SCMR 572; Collector, Land Acquisition v. Abdur Rashid 1996 CLC 1193; West Pak. WAPDA v. Hiran Begum 1972 SCMR 138; Islamic University, Bahawalpur v. Khadim Hussain 1990 MLD 2158; Government of Pakistan Rawalpindi and another v. Malik Muhammad Aslam and 5 others 1978 SCMR 5 rel.

(b) Land Acquisition Act (I of 1894)---

----Preamble & S.23-- Object of Land Acquisition Act, 1894 was to provide complete indemnity to owner and not to allow acquisition of land without proper and adequate compensation.

Chairman Serampore Municipality v. Secretary to State for India AIR 1922 cal. 386 and West Pakistan WAPDA v. Hiran Begum 1972 SCMR 138 rel.

(c) Land Acquisition Act (I of 1894)---

----S. 23---Compensation of acquired land, determination of---Principles ---Gold be given for gold and not copper for gold.

Nazarul Hussain v. Collector PLD 1990 Lah. 472 and Land Acquisition Officer v. Kambar Ali Beg 1981 CLC 556 rel.

(d) Land Acquisition Act (I of 1894)---

----S.23---Compensation of acquired land, determination of ---Factors essential to be considered by Court stated.

To determine compensation, the Court must ascertain the value on the date of notification, considering various factors including nature and location of acquired land and sale price of adjoining lands. In assessing market value of land, its location, potentiality and price evidence by transactions of similar land at the time of notification are factors, which should be kept in view. One year's average of sales taking place before publication of notification under section 4 Land Acquisition Act, 1894 of similar land is merely one of the modes for ascertaining market value and is not an absolute yardstick for assessment of compensation. Moreover, status of acquired land, its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation.

Potentiality of land cannot be determined without examining its future prospects and therefore, compensation cannot be based merely on the basis of "past sales".

Province of Punjab through Collector Sheikhupura and others v. Akbar Ali and others 1990 SCMR 899; Market Committee, Kanganpur through Administrator v. Rayyat Ali and others 1991 SCMR 572; Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others 1992 SCMR 2342; Land Acquisition Collector, Rawalpindi and others v. Dina and others 1999 SCMR 1615; Murad Khan through his widow and 13 others v. Land Acquisition Collector, and another 1999 SCMR 1647; Province of West Pakistan and another v. M. Salim Ullah and others PLD 1966 SC 547; Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others 2000 SCMR 1322; Fazal Haq College through Vice-Chairman v. Said Rasan and others PLD '2003 SC 480; Land Acquisition Collector (PWD) B&R, Central Region, Lahore and others v. Messrs Ranan Motors Ltd, Lahore and others 1988 SCMR 1880; Punjab Province v. Umar Daraz and others 1988 MLD 1900; Federation of Pakistan and others v. Shafique Ahmad Khan and others NLR 1994 (Revenue) 23; Water and Sanitation Authority v. Niaz Muhammad PLD 1992 Quetta 75, Pakistan Burmah Shell Ltd. v. Province of N.-W.F.P. PLC 1993 SCMR 1700; Land Acquisition Officer, Badin District v. Altaf Hussain Shah 1994 CLC 160, Government of Sindh v. Shakir Ali Jafri 1996 SCMR 1361; Collector, Land Acquisition v. Abdur Rashid 1996 CLC 1193; West Pak. WAPDA v. Hiran Begum 1972 SCMR 138; Islamic University, Bahawalpur v. Khadim Hussain 1990 MLD 2158 and Government of Pakistan Rawalpindi and another v. Malik Muhammad Aslam and 5 others 1978 SCMR 5 rel.

(e) Land Acquisition Act (I of 1894)---

----S.23---Compensation, determination of ---Market value would mean what a willing purchaser would have paid for acquired land.

Government of Pakistan Rawalpindi and another v. Malik Muhammad Aslam and 5 others 1978 SCMR 5 rel.

Jehanzeb Khan Bharewana, Advocate Supreme Court for Appellants (in C.As. Nos. 1259-1260 of 2003).

Ch. Mushtaq Masood, Advocate Supreme Court for Appellants (in C.A. No.1265 of 2003).

Ch. Mushtaq Masood, Advocate Supreme Court for Respondents (in C.As. Nos.1259, 1260 of 2003).

Jehanzaib Khan Bharwana, Advocate Supreme Court for Respondents (in C.A.No.1265 of 2003).

Date of hearing: 7th January, 2010.

P L D 2010 Supreme Court 725

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

SHAHABUDDIN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.13 of 2010, decided on 19th February, 2010.

(On appeal from the judgment/order dated 22-12-2009 passed by High Court of Sindh Karachi in Criminal Appeal No.224 of 2009).

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

----S. 3---Constitution of Pakistan (1973), Art.185(3)---Illegal Dispossession---Complainant had been found the lawful owner of the plot in dispute by the High Court, possession whereof had been assumed by the accused without lawful authority during the absence of the complainant from the city---Such assumption of possession in cases of constructive possession would amount to 'dispossession'-Case of accused, thus, on merit fairly and squarely fell under S.3 of the Illegal Dispossession Act, 2005---Said findings of High Court did not suffer from any misreading or non-reading of evidence and the same, therefore, could not be interfered by Supreme Court---Plot in question was transferred in the name of complainant in the year 2004, but the same remained in his constructive possession till March, 2006, when accused trespassed into his possession and started raising construction over it and the act of trespassing was admittedly committed after the promulgation of the Illegal Dispossession Act, 2005---Contention that the Illegal Dispossession Act, 2005, was meant for the land grabbers, was not helpful to accused, as he had failed to prove his lawful ownership over the plot---Illegal Dispossession Act, 2005 had been promulgated to discourage the land grabbers and to protect the rights of owners and lawful occupants of the property as against the unauthorized and illegal occupants---Observations made by High Court in the impugned judgment that an illegally dispossessed individual has a right to have a recourse to the provisions of the Illegal Dispossession Act, 2005, without prejudice to the such other remedies simultaneously available to him under the other laws, were irrefutable and worthy of credence---Conviction of accused was consequently maintained, but since he was a first offender his sentence of three years' R.I. was reduced to one year's R.I. with direction to pay Rs.10,000 as compensation to the complainant in circumstances.

Zahoor Ahmad v. The State PLD 2007 Lah. 231 and Rahim Tahir v. Ahmed Jan PLD 2007 SC 423 ref.

Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404 distinguished.

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

----Preamble---Extent and scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, having no retrospective effect may not be applicable to the cases of unauthorized occupants pending before any other forum on the date of promulgation of the said Act, but if the case of an illegal occupant was not already pending before any other forum on the date of enforcement of the Act, the same would squarely fall within the ambit of the Act.

Rahim Tahir v. Ahmed Jan PLD 2007 SC 423 ref.

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

----S. 3---Prevention of illegal possession of property etc.---Expression "grab", "control" or "occupy" used in S.3 of the Illegal Dispossession Act, 2005, cannot be restricted to the illegal occupants who entered into the premises subsequent to the promulgation of the Act, rather all cases of illegal and unauthorized occupants would be subject to the Act, except the cases which were pending adjudication before other forums.

Rahim Tahir v. Ahmed Jan PT .D 2007 SC 423 ref.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Petitioner.

Ms. Akhtar Rehana, Addl. PG Sindh for Respondent.

Date of hearing: 19th February, 2010.

P L D 2010 Supreme Court 731

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

In re: SUO MOTU CASE NO.5 OF 2010

Suo Motu Case No.5 of 2010, decided on 28th April, 2010.

(Action regarding huge loss to public exchequer by ignoring lowest bid of Fauji Foundation and Multinational Energy from Vitol by awarding LNG Contract).

Constitution of Pakistan (1973)---

---Art. 184(3)---Public Procurement Regulatory Authority Ordinance (XXII of 2002)---Public Procurement Rules, 2004---Human rights jurisdiction ---Awarding of contract---Transparency---Supreme Court, duty of---Massive corruption was alleged in awarding contract of supply of Liquefied Natural Gas (LNG)---Supreme Court, in exercise of powers under Art. 184(3) of the Constitution took notice of the allegation and issued notices to the parties concerned---Validity---Ministry of Petroleum and Gas Company did not follow the process for awarding contract for LNG supply for Mashal or Short Term project seriously and with high order of transparency---Price slope averaging from 0.145 to 0.155, needed to be kept in view---It was duty of Supreme Court to ensure that Public Procurement Regulatory Authority Ordinance 2002, read with Public Procurement Rules, 2004, were adhered to strictly to exhibit transparency---Such type of transactions must be made in transparent manner for the satisfaction of people, who were the virtual owners of national exchequer, which was being invested in such projects---Supreme Court had noted irregularities, omissions and commissions in awarding of the contract in question--Supreme Court directed that officers/functionaries responsible for the same were required to be dealt with in accordance with law and hoped that Chief Executive/Prime Minister would probe into the matter accordingly---Secretary Petroleum assured the Supreme Court regarding dealing the matter himself---Petition was disposed of accordingly.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268 and M/s. Ramna Pipe and General Mills (Pvt.) Ltd. v. M/s. Sui Northern Gas Pipe Lines (Pvt.) Ltd. 2004 SCMR 1274 ref.

Abdul Rauf Kalasra, Senior Correspondent, The News (On Court notice).

M. Iqbal Awan, Addl. Secretary Finance for Ministry of Finance.

Muhammad Afzal, JS for Cabinet Division.

Barrister Sajid Zahid, Advocate Supreme Court, Arshad Ali Ch., Advocate on Record and Gen. (R) Hamid Rab Nawaz, MD for Fauji Foundation.

S.M. Zafar, Senior Advocate Supreme Court, Raja Abdul Ghafoor, Advocate on Record and Kamran Lashari, Secretary Petroleum for Ministry of Petroleum.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court Sikandar Bashir Momand, ASC and M.S. Khattak, Advocate-on-Record for GDF Suez.

Ali Zafar, Advocate Supreme Court, Syed Safdar Hussain, Advocate on Record and M. Naim Sharafat, Senior Project Manager, for SSGCL.

Anwar Mansoor Khan, Senior Advocate Supreme Court, Ch. Muhammad Akram, Advocate-on-Record along with G.A. Sabri, Special Secretary in person for G.A. Sabri, Special Secretary Petroleum.

Dates of hearing; 14th, 21st to 23rd and 26th to 28th April, 2010.

P L D 2010 Supreme Court 745

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Parvez and Khalil-ur-Rehman Ramday, JJ

LAND ACQUISITION COLLECTOR and 6 others---Appellants

Versus

MUHAMMAD NAWAZ and 6 others---Respondents

Civil Appeal Nos. 766, 767, 1018 to 1021 and 1061 of 2009, decided on 15th April, 2010.

(On appeal from the judgments dated 28-5-2009, 19-5-2009, 21-5-2009 and 30-6-2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in R.F.As. Nos. 3 of 2007, 26, 68 to 71 and 110 of 2008).

(a) Land Acquisition Act (1 of 1894)---

----Ss. 18(3)(4), 22-A, 50(2), proviso & S.54---Constitution of Pakistan 1973, Art.203-D(3)(b)---Appeal against award---Right of Federal Government or beneficiary of acquired land to file appeal ---Scope---Provisions of Ss.18(3)(4), 22-A 50(2) and 54 of Land Acquisition Act, 1894 barring right of appeal to such Government/beneficiary had been declared as repugnant to Injunctions of Islam by Shariat Appellate Bench of Supreme Court vide judgment dated 18-2-1991 after fixing a cut-off date till 30-9-1991 for making therein necessary amendments by competent bodies ---According to Art.203-D(3)(b) of the Constitution, any law or its provision declared by Shariat Court as repugnant to Injunctions of Islam would cease to have effect on date on which its decision would take effect---No Court or tribunal including Supreme Court could entertain any proceedings or exercise any power or jurisdiction in respect of any matter within power or decision of Shariat Appellate Bench or vary in any way its judgment/order---Such Government/beneficiaries after expiry of such cut-off date would have right to an appeal.

Defence Department of Pakistan through Secretary M/o Defence v. Province of Punjab and another 2006 SCMR 402;.BP Pakistan Exploration and Production through Attorney v. Sher Ali Khawaja and another PLD 2008 SC 400; Pir Khan through his legal heirs v. Military Estate Officer Abbottabad and others PLD 1987 SC 485; Iftikhar Hussain Shah and others v. Pakistan through Secretary Ministry of Defence Rawalpindi and others 1991 SCMR 2193; Land Acquisition Collector Abbottabad and others v. Muhammad Iqbal and others 1992 SCMR 1245; Pakistan Atomic Energy Commission and others v. Land Acquisition Collector and others 2008 SCMR 1280; Pakistan through Military Estate Officer Kharian Cantt and another v. Abdul Hayee Khan through Legal heirs and 5 others PLD 1995 SC 418; Federation of Pakistan and another v. Abdul Hayee Khan and others 1996 SCMR 1389; Province of Punjab through Collector, Muzaffargarh and 2 others v. Muhammad Ramzan and 47 others 2001 MLD 459; Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590 and Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 ref.

Shariat Appellate Bench of this Court in Shariat Appeal No.7 of 1989, Muhammad Aslam Khan v. Jamil-ur-Rehman and others decided on 18-2-1991; Military Estate Officer Quetta Circle, Quetta Cantt. v. Assistant Commissioner Cum Collector Quetta and 4 others 1997 CLC 556; Director (IS & ML) N.-W.F.P. v. District Land Acquisition Collector and others PLD 2004 Pesh. 44; Haji Muhammad Pervez and 3 others v. Engineer Azizullah Khan and 4 others PLD 1999 Pesh. 53; Province of Punjab through Collector, Rawalpindi and 2 others v. Naseer-ud-Din and 13 others 1994 SCMR 2091 and Mst. Aziz Begum and others v. Federation of Pakistan and others PLD 1990 SC 899 rel.

Military Estate Officer Quetta Circle, Quetta Cantt. v. Assistant Commissioner Cum Collector Quetta and 4 others 1997 CLC 556; Director (IS&ML) N.-W.F.P. v. District Land Acquisition Collector and others (PLD 2004 Pesh. 44 and Haji Muhammad Pervez and 53 others v. Engineer Azizullah Khan and 4 others (PLD 1999 Pesh. 5 approved.

(b) Administration of justice---

----Judge must wear all laws of country on sleeve of his robe---Failure of counsel to properly advise Court would not be complete excuse in the matter.

Muhammad Sarwar v. The State. PLD 1969 SC 278 rel.

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

---Arts. 188 & 189---Division Bench, earlier judgment of---Binding effect---Such Bench would either follow such judgment of equal number or refer to Chief Justice for constitution of larger Bench.

Gulzarin Kiani, Advocate Supreme Court, Ch. Akhtar Ali Advocate-on-Record with Qazi Muhammad Ali, A.D. (Legal) for Appellants (in C.A.No.766 of 2009).

Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in CA.No.767 of 2009).

Sardar Asmat Ullah Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. No.1018 of 2009).

Sardar Asmat Ullah Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. No.1019 of 2009).

Sardar Asmat Ullah Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. No.1020 of 2009).

Sardar Asmat Ullah Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. No.1021 of 2009).

Gulzarin Kiani, Advocate Supreme Court, Ch. Akhtar Ali Advocate-on-Record for Appellants (in C.A.No.1061 of 2009).

Sadaqat Ali Khan, Advocate Supreme Court for Respondents (in C.A.No.766 of 2009).

M. Younas Bhatti, Advocate Supreme Court for Respondents (in C.A.No.767 of 2009).

Mian Inamul Haq, Advocate Supreme Court for Respondents (in C.A.No.1018 of 2009).

Azam Khan in person for Respondent (in C.A.No.1019 of 2009).

Nemo for others Respondents (in C.A.No.1019 of 2009).

Nemo for others Respondents (in C.A.No.1020 of 2009).

Muhammad Asif Ch., Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.A.No.1021 of 2009).

M. Sher Bahadur Khan, Advocate Supreme Court for Respondents (in C.A.No.1061 of 2009).

Date of hearing: 24th March, 2010.

P L D 2010 Supreme Court 759

Present: Iftikhar Muhammad Chaudhry, C. J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

In the matter of: HUMAN RIGHTS CASES NOS.4668 OF 2006, 1111 OF 2007 and

15283-G of 2010

Human Rights Case No.4668 of 2006; Human Rights Case No.1111 of 2007 and Human Rights Case No.15283-G of 2010, decided on 4th June, 2010.

(Action taken on news clippings regarding Fast Food outlet in F-9 Park Islamabad)

(a) Interpretation of statutes---

----Non-adherence to legislative provisions other than the Constitution is permissible, provided it does not entail penal consequences---There are two types of statutory/legislation i.e. mandatory and directory---Mandatory provision is required to be enforced strictly without interpreting/construing it in any manner liberally.

Niaz Muhammad v. Mian Fazal Raqib PLD 1974 SC 134 and Interpretation of Statutes by Maxwell (10th Edn., 1953) ref.

(b) Interpretation of statutes---

----"Mandatory provision "---Nature described.

Words and Phrases, Permanent Edn. Vol. 26, p.463 quoted.

(c) Administration of justice---

----Things are required to be done strictly according to law, or it should not be done at all.

Mir Dost Muhammad v. Government of Balochistan PLD 1980 Quetta 1 quoted.

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division Lahore and 2 others P L D 1971 SC 61; Muhammad Yousaf Khan Khattak v. S. M. Ayub and 2 others P L D 1972 Pesh. 151; In the Statutory Laws, 6th Edn., Craies; Mazhar Illahi v. State PLD 2008 Pesh. 162; Commissioner of Income Tax/Wealth Tax v. M/s. Idara-i-Kissan 2006 PTD 2569; Iftikhar Ahmed alias Ali v. State 2006 YLR 2826; Dr. Ishtiaq Hussain v. Special Judge Anti-Corruption 2004 YLR 716; Muhammad Iqbal v. SHO, PS New Anarkali, Lahore 2000 PCr.LJ 1924 and Ghulam Hassan v. Jamshaid Ali 2001 SCMR 1001 ref.

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

---Ss. 19 & 21---Development scheme---Alteration or modification of sanctioned scheme is permissible in the manner prescribed by the relevant law.

Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223 ref.

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

----Ss. 19, 21 & 49---Constitution of Pakistan (1973), Arts. 18 & 184---Judicial notice under Art.184 of the Constitution---Setting up/opening a branch of a Multi-national Food Chain (fast food) in a public park by Capital Development Authority and interested parties were requested to express their interest and submit applications for pre-qualification with detailed technical proposals, area required terms and conditions, etc.---Validity---Citizens/local chains were deprived to participate in the competition, therefore, action taken by the Chairman, Capital Development Authority was in violation of Art.18 of the Constitution---Right of trade/business or profession under Art.18 of the Constitution though was not an absolute right, but so long a trade or business was lawful, a citizen, who was eligible to carry out the business could not be deprived from undertaking the same---By inviting expression of interest from international food chains alone was not only a violation of Art.18 of the Constitution, but at the same time the Chairman, Capital Development Authority had allowed the international food chains to have monopoly, which, under clause (c) to the proviso to Art.18 of the Constitution was available to no one else except the Government---Park was only to be used for the purpose for which it had been established and not for running a business/trade; Judicial notice therefore, could be taken of the fact that such facilities in Park were used by general masses belonging to all walks of life, including citizens and children belonging to the families who were living below poverty line---Multi-national Food Chain was bound to earn profit as per its international standards, which was beyond the reach of an ordinary person comparing to a local restaurant providing food to the visitors of the Park at a cheaper rate---No transparency had been found in granting lease to the Multi-national Food Chain; there was no decision by the Capital Development Authority Board either, and exercising of accommodating the Multi-national Food Chain was undertaken on the basis of a chit issued under the signatures of the then Chairman of the Capital Development Authority---In the absence of any decision by the Capital Development Authority Board, the use of the restaurant by the masses was tantamount to defeating the object/purpose for which the public park had been established---Held, by no strech of imagination, transaction in question was transparent, this was rather a shabby deal in violation of the Constitution and the law---Public functionaries were supposed to adhere to the principle of transparency in the performance of their duties and were not bound to carry out/implement any order which was not in accordance with law, they were only obliged to carry out lawful orders of their superiors and if they were being pressurised to implement an illegal order, they should put on record their dissenting note---Deviation, if of substance, could be corrected through constitutional jurisdiction.

Arshad Mehmood v. Government of Punjab PLD 2005 SC 193; Messrs Airport Support Services v. The Airport Manager 1998 SCMR 2268; Shams and Brothers v. Government of Pakistan 2007 CLD 125; Sheri-CBE v. Lahore Development Authority 2006 SCMR 1202; Government of Balochistan v. Muhammad Ali 2007 SCMR 1574; Capital Development Authority v. Shaheen Farooq 2007 SCMR 1328; Mehr Ali v. Noor Muhammad 2007 SCMR 1965; Iqbal Hussain v. Province of Sindh 2008 SCMR 105; Government of Pakistan v. Farheen Rashid 2009 PLC (C.S.) 966; Secretary Ministry of Health v. Rehana Hameed 2010 SCMR 511; Zahid Akhtar v. Government of Punjab through Secretary, local government and Rural Development PLD 1995 SC 530 and Muhammad Akhtar Shirani v. Punjab Tex Book Board 2004 SCMR 1077 ref.

Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 applied.

(f) Public functionary---

----Duty--- Public functionaries were supposed to adhere to the principle of transparency in the performance of their duties and were not bound to carry out/implement any order which was not in accordance with law, they were only obliged to carry out lawful orders of their superiors and if they were being pressurised to implement an illegal order, they should put on record their dissenting note.

(g) Islamabad Land Disposal Regulations, 1993---

----Reglns. 12(2) & 15(2)---Allotment of land of community buildings and facilities in the public and private sectors---Procedure---Under Regln.12(2), Islamabad Land Disposal Regulations, 1993, community buildings and facilities shall be allotted to government organizations at amenity rates whereas under Regln.15(2) of the Regulations, plots for other private institutions, including plots for hospitals, maternity homes, clinics, art galleries, gymnasium, amusement parks etc., shall be sold/leased by auction---Private entity was not entitled to be allotted a plot on amenity rate as provided under Regln.12(2)---Where the procedure governing allotment of plots, to private institutions envisaged by Regln.15(2), viz. sale/lease by auction was not followed in the matter of allotment to a private Institution, Capital Development Authority was ready to take over the plot/buildings in question.

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

----S. 19---Construction of Citizens Club in public park---Master plan of said park showed that no residential building for lodging/boarding of the members of the Citizens Club could be constructed without approval of the competent authority and without taking into consideration the requirement of the public park---Revised Master Plan (1995), which envisaged establishment of a club, itself was not a legal document in absence of approval by the Federal Government in terms of S.19 of the Capital Development Authority Ordinance, 1960 and by the Capital Development Authority Board, therefore, no superstructure could be built upon it and no scheme prepared in pursuance thereof---Establishment of Citizens Club aimed at providing facilities to the elitist class atone and being not for the general masses for whom the park was primarily meant was not permissible---Huge amount having already been spent on the construction of said Citizens Club, Supreme Court directed that Capital Development Authority, with the approval of the Federal Government, instead of abandoning the project, may utilize the building and other facilities for any public welfare project like women university, medical/engineering college, science technology or Information Technology institution etc.---Principles.

Bangalore Medical Trust v. B.S. Muddappa AIR 1991 SC 1902 ref.

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

----S. 13---Islamabad Land Disposal Regulations, 1993, Regln. 12(3)---Islamabad Residential Sectors Zoning (Building Control) Regulations, 1993---Setting up of a bowling alley/centre in a public park---Non­-compoundable violations by the lessee---Regularization of such violations by the Capital Development Authority---Validity---Held, in the absence of any legal instrument empowering the Capital Development Authority to take the kind of actions that it did in the present case, the entire transaction from the beginning to the end was illegal and unsustainable in law---Principles.

(j) Islamabad Land disposal Regulations, 1993---

----Regln. 12(3)---Capital Development Authority is obliged to itself develop and maintain public parks, playing fields and graveyards, and could not violate the Regulation by awarding lease/licence to private parties for the purpose.

Iqbal Haider v. Capital Development Authority PLD 1006 SC 394 ref.

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

----Ss. 12 & 15---Islamabad Land Disposal Regulations, 1993, Reglns. 12(3) & 15---Islamabad Residential Sectors Zoning (Building Control) Regulations, 1993---Constitution of Pakistan (1973), Arts. 18 & 184---Judicial notice under Art.184 of the Constitution---Lease for establishment/construction of Multinational Food Chain by a private party; allotment of land to Nazriya Pakistan Council, a non-government organization, for constructing Aiwan-e-Quaid; grant of lease of land to a private party for establishing a Bowelling Alley and lease of land to Citizens Club in a public park by Capital Development Authority in violation of Capital Development Authority Ordinance, 1960, rules and regulations made thereunder and the Constitution---Supreme Court declared and held that establishment/construction of restaurant in the Park, was contrary to Article 18 of the Constitution read with Capital Development Authority Ordinance, 1960, consequently, Capital Development Authority was directed to cancel the lease of the lease-holder forthwith, put up the matter before the Capital Development Authority Board for converting cuisine pavilion area with dense vegetation into restaurant area, and then re-auction a site for setting up a food outlet therein, and seek approval from the Federal Government to the Master Plan as also the schemes prepared thereunder, in accordance with the provisions of the Capital Development Authority Ordinance, 1960 and the other relevant rules and regulations---If the Capital Development Authority Board or the Federal Government declined to grant conversion of the cuisine pavilion into a site for construction of food restaurant, the existing superstructure raised shall be demolished by defunct lease holder at its cost within three months. Fresh applications shall be invited from the local as well as international food chains by inviting expression of interest, indicating the area, facilities, etc., and whosoever succeeds shall be entitled to set up a food outlet accordingly---If the existing lease-holder participated and succeeded in the auction, it shall continue with the business subject to fresh terns and conditions, without introducing in the business any third party, like specified group/group company, etc.---If any other food chain succeeded, then the parties with the intervention of the Capital Development Authority shall negotiate the cost of the existing structure of present lessee's restaurant---Capital Development Authority shall forthwith cancel the allotment of land to Nazriya Pakistan Council, take over the premises along with facilities and place the matter before the Federal Government in the light of the MoU signed between the Ministry of Education and the Nazriya Pakistan Council so as to run affairs of Aiwan-e-Quaid smoothly and achieve the objects for which it was established, however, it would be for the Federal Government to allow representation to Nazriya Pakistan Council in the management committee, but complete administration of the premises shall rest with the Government---Boweling alley was transferred contrary to the terms of the licence; therefore, the occupants subject to the rights of the original licence holder shall be given opportunity to get the same transferred in their name in accordance with law/guidelines issued by the Securities and Exchange Commission of Pakistan within a period of three months, failing which the licence shall be cancelled, the land shall be taken over by the Capital Development Authority and the occupants shall be directed to restore same to the position as it was prevailing before issuing the licence in favour of the enterprises--Construction of Citizens Club shall be completed as a huge amount of public money had been spent over it unauthorizedly and the building with other facilities shall be used for a project of public welfare--Supreme Court observed that perusal of the documents made available to the Court abundantly made it clear that the former Chairman of the Capital Development Authority, in violation of the Constitutional provisions, Capital Development Authority Ordinance, 1960 as well as other rules and regulations on the subject, granted lease for 33 years of government land at a very nominal lease money to a party in a non-transparent manner, undoubtedly, with the connivance of the other officials of the Capital Development Authority; therefore, they all deserved to be dealt with strictly for misconduct, departmentally as well as by instituting both civil and criminal actions against them, so that it may serve as a deterrent for like-minded persons, who discharge their duties/functions without adhering to the relevant provisions of the Constitution and the law---Such an action had become necessary with a view to avoiding in future violation of any provision of the Constitution and the law---Capital Development Authority through Establishment Division, Government of Pakistan was directed by Supreme Court to take action against the former Chairman Capital Development Authority for violation of the Constitution, the Capital Development Authority Ordinance, 1960, rules and regulations, the Chairman Capital Development Authority shall ensure implementation of directions of the Supreme Court through concerned functionaries of the Federal Government within a period of three months from the date of present judgment; he was also directed to ensure transparency in other projects of the Capital Development Authority and at the same time office files of Master Plan and preparation of schemes shall be maintained properly instead of showing helplessness to produce the record before the Court---Unconditional apology tendered by lessee was accepted by the Supreme Court because he himself volunteered for the same, however, he was warned to be careful in future and avoid scandalizing the courts---Present petitions having been considered involving public interest/general masses/citizens, thus no order was made as to costs.

Barrister Saadia Abbasi with Aman ullah Kanrani, Advocate Supreme Court for Applicant.

Mian Allah Nawaz, Senior Advocate Supreme Court, Afnan Karim Kundi, Advocate Supreme Court, Imtiaz Inayat Illahi, Chairman, CDA with Mazhar Hussain, Member (Environment), Abdul Jabbar Milano, Member Planning/Engineering, Syed Mustafain Kazmi, Member Administration and Mansoor Ali Khan, Director DMA for Capital Development Authority.

Anwar Kamal, Senior Advocate Supreme Court with Amin Muhammad Lakhani for Siza Foods.

M. Bilal, Senior Advocate Supreme Court for NPC.

Shah Sharabeel (in person).

Dates of hearing: 6th, 7th, 10th and 13th May, 2010.

P L D 2010 Supreme Court 803

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Pervez and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD HUSSAIN---Petitioner

Versus

MUHAMMAD through Legal Heirs and others---Respondents

Civil Review PetitinNo.155 of 1999 in Civil Appeal No.97 of 1995, decided on 22nd March, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 31---Supreme Court Rules, 1980, O.XXVI, R.1---Constitution of Pakistan (1973), Art.188---Transfer of Property Act (IV of 1882), S.52---Review of Supreme Court judgment---Right of pre-emption--Subsequent vendee---limitation---Lis pendens, principle of---Applicability---During pendency of suit filed by pre-emptor vendee sold land in question and pre-emptor impleaded subsequent, vendee as defendant---High Court in exercise of revisional jurisdiction set aside the order passed by Trial Court on the ground that subsequent vendee could only be impleaded within the period of limitation provided under S.31 of North-West Frontier Province Pre-emption Act, 1987---Validity---Principle of lis pendens was not applicable to cases, where a suit for pre-emption had already commenced within the period of prescribed time---Right of subsequent vendee was also governed on the basis of suit, which had already commenced in respect of same property because right of pre-emption had been claimed in respect of the property and not in respect of the person who became first or second vendee--Judgment under review was required to be revisited and judgment passed by High Court was set aside and matter was remanded to High Court for decision afresh---Petition was allowed.

Muhammad Khan v. Sadiq PLD 1968 Lah. 929; Pyare Mohan v. Rameshwar AIR 1980 Raj. 116; Abdul Yameen Khan v. Ashrat Ali Khan 2004 SCMR 1270 and Mustaqim Khan v. Abdullah Khan and others PLD 1951 Pesh. 1 ref.

Mian Muhammad Younas Shah, Senior Advocate Supreme Court for Petitioner.

Sh. Zameer Hussain, Senior Advocate Supreme Court for Respondents.

Date of hearing: 22nd March, 2010.

P L D 2010 Supreme Court 806

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmed, Jawwad S. Khawaja, Rahmat Hussain Jafferi

and Tariq Parvez, JJ

Justice HASNAT AHMED KHAN and 3 others---Petitioners

Versus

REGISTRAR, SUPREME COURT OF PAKISTAN and others---Respondents

Constitutional Petition Nos.26 to 29 of 2010, decided on 4th May, 2010.

(Petitions under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 to enforce fundamental right of equal protection of law guaranteed to the petitioners by Article 25(1) Chapter 1 of part II of the Constitution).

Contempt of Court Ordinance (V of 2003)---

----Preamble, Ss.3 & 5---Contempt of Court Act (LXIV of 1976)---Preamble---Constitution of Pakistan (1973), Arts.204, 270-AA & 184(3)---Contempt proceedings---Contempt of Court Ordinance, 2003 has been given permanence and protection by Art.270-AA of the Constitution; and S.20 of the Contempt of Court Ordinance, 2003 has repealed the Contempt of Court Act, 1976---Contempt of Court Ordinance, 2003 is the law in force regulating proceedings of contempt of court---Contention, in the present case, was that since notices to the petitioners and the respondents in the connected matters were issued under Contempt of Court Act, 1976 in accordance with the order of a 14 Members Bench of the Supreme Court, a 5 Member Bench (present Bench) could not alter the provision of law---Held, indeed the notices were issued "under Art.204 of the Constitution read with Ss.3 & 4 of the Contempt of Court Act, 1976 or any other enabling provisions of the relevant law "; reference to "any other enabling provision of the relevant law ", in the notices, was in the alternative to the provisions of the Contempt of Court Act, 1976 and said phrase was added as a precaution---Contention that said phrase be read as ejusdem generis with the Contempt of Court Act, 1976 was untenable in that the "enabling provisions" mentioned in the phrase was followed by the words "of the relevant law" which meant law other than the Contempt of Court Act, 1976, if so found relevant---Supreme Court observed that it was, therefore, not necessary to refer the case back to a larger Bench for rectifying the order of issuing notices---In view of the finding that Contempt of Court Act, 1976 stood repealed, contention that constitutional petitions be heard as intro court appeals under S.10(2 A), Contempt of Court Act, 1976 was repelled being not maintainable---Supreme Court while clarifying and specifying the law under which the proceedings, in the present case, would be regulated, further observed that respondents, therein, may if so advised, file additional statements and the case shall come up for preliminary hearing under S.17(3) of the Contempt of Court Ordinance, 2003---Principles.

The question for determination, in the present case, is whether the Contempt of Court Act, 1976 or the Contempt of Court Ordinance, 2003 is the law in force regarding contempt proceedings. The Act was replaced and repealed by the Contempt of Court Ordinance, 2003 issued on 10th July, 2003. Upon expiry of the said Ordinance, Contempt of Court Ordinance, 2003 was promulgated on 15th December, 2003 re-enacting the provision of expired Ordinance. Section 20 of this Ordinance also repealed the Contempt of Court Act, 1976. Another Ordinance No.1 of 2004 was promulgated on 15th July, 2004, the contents whereof were the same as the other two Ordinances and this also repealed the Contempt of Court Act, 1976. The Constitution (17th Amendment) Act, 2003 substituted Articles 270-AA, for saving the instruments issued during the period when the country was under the military rule. Clause 3 of the said Article thus provided that "All Proclamations, President's Ordinances????" in force immediately before

the date (31-2-2003) on which this Article comes into force shall continue in force until altered, repealed or amended by the competent authority". A similar provision has now been incorporated in Clause 2 of Article 270-AA by Constitution (18th Amendment) Act, 2010 that provides????." all laws including President's Orders, Acts, Ordinances made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty-first day of December, two thousand and three (both days inclusive) and still in force shall, continue to be in force until altered, repealed or amended by the competent authority".

It would be seen that the Contempt of Court Act, 1976 has been repealed effectively by all three successive Ordinances. Furthermore, Article 270-AA substituted by Constitution (17th Amendment) Act, 2003 has accorded permanence to the Ordinances issued prior to 31st December, 2003. Contempt of Court Ordinance, 2003 issued on 15th December, 2003 comes under its protection. The Constitution (18th Amendment) Act, 2010 again substituted Article 270-AA and while declaring unlawful a number of instruments issued during the military rule, nevertheless, by Clause 2 accorded permanence to, inter-alia, Ordinances promulgated between 12th October, 1999 and 31st December, 2003. Contempt of Court Ordinance, 2003, being permanent legislation and having repealed the Contempt of Court Act, 1976, is the law regulating the proceedings of contempt of court.

The contention that Contempt of Court Ordinance, 2003 was replaced by Ordinance I of 2004 and since issued after 31st December, 2003, it lapsed upon expiry of its life, has no force. Once the Contempt of Court Ordinance, 2003 was given the status of permanent legislation, Contempt of Court Ordinance, 2004 was superfluous and it seems that it was issued on account of ignorance of the constitutional position. In any case, Contempt of Court Ordinance, 2004 did not repeal Contempt of Court Ordinance, 2003 and even if the former is considered to have been validly promulgated, it lapsed upon expiry of four months. Looking at it from any angle, Contempt of Court Ordinance, 2004 did not, in any way, replace Contempt of Court Ordinance, 2003.

Supreme Court and the High Court derive power to punish contemnors from Article 204 of the Constitution, and are not dependant upon sub-constitutional legislation. Clause 3 of the Article only provides that the exercise of power conferred upon the Court under the Article may be regulated by law and, subject to law, by rules made by the Court. All the foregoing statutes from the Contempt of Court Act, 1976, onwards have been enacted with reference to Clause 3 of Article 204.?

Further contention was that since notices to the petitioners and the respondents in the connected matters were issued under Contempt of Court Act, 1976 in accordance with the order of a 14 Members Bench of the Supreme Court dated 13-10-2009 a 5 Member Bench could not alter the provision of law. Indeed, in the present case, the notices were issued "under Article 204 of the Constitution read with sections 3 and 4 of the Contempt of Court Act, 1976 or any other enabling provisions of the relevant law". Reference to "any other enabling provision of the relevant law", in the notices was in the alternative to the provisions of the Contempt of Court Act, 1976. Perhaps this phrase was added as a precaution as there was still some controversy prevailing at the time as to whether or not the Contempt of Court Act, 1976 stood effectively repealed and replaced by Contempt of Court Ordinance, 2003. The argument that the said phrase be read as ejusdem generis with the Contempt of Court Act, 1976, is untenable in that the enabling provisions' mentioned in the phrase is followed by the wordsof the relevant law'. If it was intended to refer to the enabling provisions of the Contempt of Court Act, 1976, it would not have been qualified by the words `the relevant law', the relevant law means law other than the Contempt of Court Act, 1976, if so found relevant. The Contempt of Court Ordinance, 2003 is the relevant law. It is, therefore, not necessary to refer the case back to a larger Bench for rectifying the order of issuing notices.?

In view of finding that the Contempt of Court Act, 1976 stands repealed, the argument that constitution petitions be heard as intra court appeals under section 10(2-A) of the Contempt of Court Act, 1976 need not be dilated upon. The Contempt of Court Ordinance, 2003 has been given permanence and protection by Article 270-AA as substituted by the Constitution (17th Amendment) Act, 2003 as well as by the Constitution (18th Amendment) Act, 2010 and section 20 of the Contempt of Court Ordinance, 2003 has repealed the Contempt of Court Act, 1976. Thus, no intra court appeal under section 10(2-A) of the Contempt of Court Act, 1976 is maintainable. Since the Contempt of Court Ordinance, 2003 is the law in force regulating proceedings of contempt of court, the said Ordinance is the "relevant law" mentioned in the notices issued to the petitioners. Accordingly, the notices to the petitioners as well as to the others in the connected criminal original petitions, shall be read as having been issued under Article 204 of the Constitution of the Islamic Republic of Pakistan read with sections 3 and 5 of the Contempt of Court Ordinance, 2003.?

Supreme Court having clarified and specified the law under which the proceedings in criminal original petition will be regulated, observed that the respondents therein, may, if so advised, file additional statements by specified date and the cases shall come up for preliminary hearing under subsection 3 of section 17 of Contempt of Court Ordinance, 2003.?

Sindh High Court Bar Associating v. Federation of Pakistan PLD 2009 SC 879 and Suo Motu Case No.1 of 2007 (PLD 2007 SC 688) ref.

Dr. A. Basit, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for petitioners (in Const.Ps.26-27 of 2010).

Gul Zarin Kiyani, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in Const. P. No.28 of 2010).

Syed Ali Zafar, Nadeem Ahmad Sheikh, Advocates Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner (in Const.P.29 of 2010).

Nemo for Respondents.

Date of hearing: 3rd May, 2010.

P L D 2010 Supreme Court 817

Present: Iftikhar Muhammad Chaudhry, C.J. Ch. Ijaz Ahmed, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Pervez and Khalil-ur-Rehman Ramday, JJ

Nawabzada IFTIKHAR AHMAD KHAN BAR---Petitioner

Versus

CHIEF ELECTION COMMISSIONER ISLAMABAD and others---Respondents

Civil Petition No.287 of 2008, decided on 25th March, 2010.

(On appeal from the judgment/order dated 25-2-2008 passed by Lahore High Court, Multan Bench in W.P. No.607 of 2008).

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

----Ss. 7, 14 & 99-C---Constitution of Pakistan (1973), Arts.62(d)(e)(f), 185 & 199---Civil Procedure Code (V of 1908), O. X, R. 2---National Assembly, election of---Academic qualification---Returned candidate holding degree of Alshahadat-ul-Aalmia (equivalent to M.A. in Islamic Studies) issued by a Jamia---Writ of quo warranto by contesting candidate for declaring the returned candidate not to be qualified to become member of National Assembly for not being a graduate and his removal from said office--Dismissal of such writ by High Court for being premature as respondent had not been notified till then as returned candidate by Election Commission---Validity---Nazim of Tanzeem-ul-Madaris, Ahal-e-Sunnat [an institution recognized by Higher Education Commission] denied to have issued four alleged Sanads produced by respondent and issued by the Jamia, which was neither included in list of ten (10) religious institutions approved/recognized by Higher Education Commission nor competent to issue same in name of Tanzeem-ul-Madaris nor affiliated/registered with Tanzeem-ul-Madaris---Respondent claimed to have successfully completed studies for Sanvia Aama (equivalent to Matric), Sanvia Khasa (equivalent to intermediate), Alshahadatul Aalia (equivalent to B.A.), and Alshahadatul Aalmia (equivalent to M.A.) each being of two years course---Sanad equivalent to Matric was allegedly obtained by respondent in year 1993, while remaining three Sanads were allegedly issued to him with regular intervals of two years, which showed that he would have joined said Jamia in year 1991, while on court's question, he submitted to have joined the Jamia in year 1994---Respondent having studied Uloom-e-Islamee for eight long years would be expected to be an "AALAM" well-conversant with all matters relating to Arabic language and religion of Islam, but he on Supreme Court's questions could not tell number of verses and SURAS (chapter) of Holy Qur'an, name of first and second SURAS and Tafseer and meaning of "TAJWEED"---Respondent during such court's questions sought time to make decision either to defend his case or not, whereupon he was granted time and then alone his counsel returned to the Supreme Court and submitted that respondent had decided not to defend his case and had tendered his resignation to Speaker of National Assembly for not being a graduate and placed on record copy of resignation--Respondent being constitutionally and legally debarred from being a member of Parliament had managed to sneak therein by making false statement on oath and using bogus, fake and forged documents polluting piety of Parliament---Such conduct of respondent had demonstrated not only his callous contempt for basic norms of honesty, integrity and his own oath, but undermined sanctity, dignity and majesty of Parliament---Respondent was guilty of impersonation i.e. posing to be what he was not i.e. a graduate---Respondent was guilty of having been a party to making false statements and then dishonestly using same for his benefit knowing same to be false---Respondent was guilty of cheating not only his own constituents, but the nation at large---Supreme Court observed that such like "HOUSE-BREAKING" tendencies on part of dishonest and unscrupulous individuals must be strongly checked before virus becomes an uncontrollable epidemic---Petitioner had not prayed for punishing respondent for his such acts, thus, Supreme Court declined to take any action against him---Returning Officer had not taken any steps to determine eligibility of respondent or whether he was actually possessed of acclaimed qualification---Supreme Court set aside all orders and decisions rendered in such matter by concerned authorities including impugned judgment and directed Election Commission to conduct bye election of the seat vacated by respondent in accordance with law.?

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

----Art. 50---Parliament---Importance stated.

The Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation, but in fact shaping and carving its very destiny.?

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

----Ss. 7 & 14---Constitution of Pakistan (1973), Arts. 62 & 218---Election of Parliament and Provincial Assemblies---Eligibility of candidates to contest election, determination of---Nomination papers, screening of---Role and duty of Returning Officer stated.

A Returning Officer appointed under section 7 of the Representation of the People Act, 1976 is the key-man in the entire exercise of conducting an honest, a just and fair election in accordance with law as commanded by Article 218 of the Constitution. The first and the most crucial step towards the attainment of the said commanded goal is to ensure that no person who is not constitutionally -id legally qualified to contest any election is allowed to enter the arena. And for the said purpose, the provisions of section 14 of the said Act clothe the said Officer with immense powers to conduct such enquiries as he deems fit to make sure that only the qualified persons are allowed to contest an election and no ineligible intruders are permitted to participate in the same. A reference especially to subsection (3) of the said section 14 would demonstrate that in order to carry out the said process of screening, the Returning Officer has not been left at the mercy of anyone and he is obliged to move in the matter of his own motion without sitting there and waiting for an objector to come forward, so that he could reject the nomination papers of an unqualified person.?

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

----Art. 93---Supreme Court Rules, 1980, O. IV, Rr.29 & 30---Appointment of an Advocate of Supreme Court as an Advisor to Federal Government---Appearance of such Advisor before Supreme Court in a case as an Advocate of a private party--- Subsequent statement of such Advisor not to act as an Advocate while holding such office and his withdrawal from such case--- Supreme Court declined to take any action against such Advisor in circumstances.?

Tariq Mehmood Khokhar, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondent No.1.

Waqar Ahmed Qureshi, Controller, BZU, Multan for Respondents Nos.2 and 3.

Mian Abdul Rauf, Advocate Supreme Court for Respondent No.6.

Anwar Mansoor Khan, AGP and Abul-Inam, Vice-Chancellor, PBC (on Court Notice).

Date of hearing: 25th March, 2010.

P L D 2010 Supreme Court 828

Present: Iftikhar Muhammad Chaudhry, C. J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD RIZWAN GILL---Applicant

Versus

NADIA AZIZ and others---Respondents

C.M.A. No.1624 of 2010 in Civil Appeal No.409 of 2010, decided on 15th June, 2010.

(On appeal against the judgment dated 28-5-2010 passed by Election Tribunal Lahore in E.P. No.123 of 2008).

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

----Ss. 99, 14, 67, 78, 82, 94 & 100---Constitution of Pakistan (1973), Arts.62, 63, 218 & 225---Making false statement in respect of educational qualification' by a candidate for election of Legislative Assembly---Effect---Corrupt practices'---Definition---Significance, importance and the usefulness of the Legislative Institutions of a country and dire need to protect their majesty, their dignity, their sanctity and their purity highlighted by Supreme Court---Supreme Court observed that Parliament of any country was one of its noblest, honourable and important institution making not only the policies and the laws for the nation but in fact shaping and carving its very destiny---To preserve the pureness, the piety and the virtuousness of such like eminent and exalted institutions that, inter alia, Arts.62 and 63 of the Constitution and S.99 of the Representation of the People Act, 1976 had declared that amongst others, the persons who were not of good character, who indulged in commission of major sins; who were not honest; who were removed, dismissed or compulsory retired from service of Pakistan; who had obtained loans from Banks and had not repaid the same or who had indulged in corrupt practices during the course of elections, would not be allowed to pollute the clearness of these legislative institutions---First and the most crucial step towards the attainment of the said commanded goal was to ensure that no person who was not constitutionally and legally qualified to contest any such election, was allowed to enter the arena---Demanding duty was cast on the Election Commission and on all other performing functionaries under various election laws to ensure not only that the elections were fair and honest; that no corrupt practices were practised in the elections but also that the individuals who had been declared disqualified to enter the legislative institutions, were not allowed to break into the said Houses and further that to discharge the said onerous obligations, the said functionaries had not been left at the mercy of the objectors or even of the rival candidates and that they could act in the matter even suo motu---Election Tribunals envisaged by Art.225 of the Constitution and performing functions under Representation of the People Act, 1976 and even the Supreme Court while acting as the appellate forum under S.67 of Representation of the People Act, 1976 also stood charged with the same duties--Supreme Court further observed that it was incumbent upon the Election Commission to discharge its constitutional obligations to guard against corrupt practices, to launch prosecution of persons who stood accused of the commission of the same---Punishment and consequent disqualification of such like persons would not be an act undermining the dignity and the majesty of the Houses of Legislature but an act in aid of enhancing the same---Supreme Court issued directions to initiate action against all such persons who were accused of commission of corrupt practices; of committing forgery and of using, as genuine, documents which they knew or at least had reason to believe to be forged.

Supreme Court highlighted the significance, the importance and the usefulness of the, Legislative institutions of a country and hence the dire need to protect their majesty, their dignity, their sanctity and their purity and observed that the Parliament of any country is one of its noblest, honourable and important institution making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. In the present case, a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body his said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House.?

It was to preserve the pureness, the piety and the virtuousness of such-like eminent and exalted institutions that, inter alia, Articles 62 and 63 of the Constitution and section 99 of the Representation of the People Act, 1976 had declared that, amongst others, the persons who were not of good character; who indulged in commission of major sins; who were not honest; who were removed, dismissed or compulsorily retired from service of Pakistan; who had obtained loans from banks and had not re-paid the same or who had indulged in corrupt practices during the course of elections, would not be allowed to pollute the clearness of these legislative institutions.

The first and the most crucial step towards the attainment of the said commanded goal is to ensure that no person who was not constitutionally and legally qualified to contest any such election, was allowed to enter the arena. ?

With reference to Art.218(3) of the Constitution and various provisions of the Representation of the People Act, 1976 and of the Rules framed thereunder including the provisions of section 14 of the said Act, a demanding duty stood cast on the Election Commission and on all others performing. functions under various election laws to ensure not only that the elections were fair and honest; that no corrupt practices were practised in the elections but also that the individuals who had been declared disqualified to enter the Legislative institutions, were not allowed to break into the said Houses and further that to discharge the said onerous obligations, the said functionaries had not been left at the mercy of the objectors or even of the rival candidates and that they could act in the matter even suo motu. The Election Tribunals envisaged by Article 225 of the Constitution and performing functions under the Representation of the People Act, 1976 and even the Supreme Court while acting as the Appellate Forum under section 67 of the Act, also stand charged with the same duties.?

The provisions of Article 218(3) of the Constitution order the Election Commission, amongst others, to GUARD AGAINST THE CORRUPT PRACTICES. Wouldn't the said Commission then be failing in its duty if it did not so do??

`Corrupt Practice' stands defined by section 78 of the Representation of the People Act, 1976 and includes vide clause (d) of subsection (3) thereof, an act of making a false statement by a person in respect of his "Educational Qualifications". The provisions of section 82 of the said Act, make the said corrupt practice, a penal offence punishable with an imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both. Section 94 of the said Act makes the said offence, a cognizable offence triable by a Sessions Judge. The provisions of section 100 of Representation of the People Act, 1976 declare that a person guilty of a corrupt practice could then get disqualified for a specified term from being elected as a member of an Assembly.

Shouldn't it then be incumbent upon the Election Commission, in discharge of its constitutional obligations to guard against corrupt practices, to launch prosecution of persons who stood accused of the commission of the same. Punishment and consequent disqualification of such-like persons would not be an act undermining the dignity and the majesty of the Houses of Legislature but an act in aid of enhancing the same.?

The Election Commission was directed by Supreme Court to initiate action against all such persons who were accused of commission of corrupt practices; of committing forgery and of using, as genuine, documents which they knew or at least had reason to believe to be forged. The Election Commission shall ensure that the investigations in these matters are conducted honestly, efficiently and expeditiously and shall depute one of its senior officers to supervise the same. The Sessions Judges to whom these trials shall then be entrusted, were also directed to conclude the same without any delay, in consonance with the spirit of the Elections laws as displayed, inter alia, by the Provisos newly added to subsection (1-A) of section 67 of Representation of the People Act, 1976 through the Amending Act No.IV of 2009 promulgated on 2-11-2009. In any case, it should not take each Sessions Judge who gets seized of the matter, more than three months to conclude the same.?

No criminal could ever be heard., in any civilized society, to avoid punishment on the ground that some others, similarly placed had, on some earlier occasions escaped punishment. Like-wise, no individual except the ones constitutionally and legally authorized for the purpose, could be allowed in a civilized society to declare which law of the land was good and which one was a bad law and then feel authorized to defeat the same through un-lawful and even criminal acts. Such-like attempts, if not nipped in the bud, could lead a society into the dark depths of destruction. Every law of the land, so long as it exists on the statute books; has to be respected and must be followed. The same should also serve as an answer to some reservations expressed about disqualification of a person from becoming a Member of a legislative institution if he did not practise the obligatory duties. Identifying persons who could or could not become members of Legislative institutions was a policy matter but so long as such-like disqualifications were not omitted from the Constitution or the law, the courts were bound to honour and enforce the same and not so doing could amount to a grave dereliction of duty.?

Nawabzada Iftikhar Ahmad v. The Chief Election Commissioner and others PLD 2010 SC 817 quoted.

(b) Administration of justice---

----No criminal could ever be heard, in any civilized society, to avoid punishment on the ground that some others, similarly placed had, on some earlier occasions escaped punishment---Like-wise, no individual except the ones constitutionally and legally authorized for the purpose, could be allowed in a civilized society to declare which law of the land was good and which one was a bad law and then feel authorized to defeat the same through unlawful and even criminal acts---Such-like attempts, if not nipped in the bud, could lead a society into the dark depths of destruction---Every law of the land, so long as it exists on the statute books, has to be respected and must be followed.?

M. Akram Sheikh, Senior Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Applicant.

Kh. Saeed-ul-Zafar, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos. 2-13.

Date of hearing: 14th June, 2010.

P L D 2010 Supreme Court 841

Present: Iftikhar Muhammad Chaudhry, C. J., Ch. Ijaz Ahmed and Ghulam Rabbani, JJ

ABID IQBAL HAFIZ and others---Petitioners

Versus

SECRETARY; PUBLIC PROSECUTION DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and others---Respondents

Civil Petitions Nos. 2199 of 2009 and 146 and 252 of 2010, decided on 30th March, 2010.

(On appeal against the judgment dated 4-12-2009 of the Lahore High Court, Lahore in W.P. No.9394 of 2008).

(a) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 8(3)(4)---Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007, Rr.2(d), 4 & 5(1)---Contract Appointment Policy, 2004 (Punjab)---Constitution of Pakistan (1973), Art. 185(3)---Contract appointments---Protection of law---Principles of natural justice--Punjab Government established prosecution department and appointed petitioners on contract basis to work temporarily till permanent appointments were to be made---Grievance of petitioners was that their services could not be terminated as they had protection of law guaranteed under the Constitution---Validity---Appointments in question having been made under Contract Appointment Policy, 2004, of Government of Punjab, would be `initial recruitment on contract basis' within the meaning of S.8(3) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, read with R.2(d) of Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007, and the same were limited to duration specified in the appointment letter---Such appointments, in no way, could be termed as regular appointments within the contemplation of S.8(4) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, read with Rr.4 and 5 of Punjab Criminal Prosecution Service (Constitution of Service) Rules, 2007---Petitioners got appointment letters on temporary / contract basis without having undergone any test or interview---High Court had rightly held that it was a short term arrangement so as to instantly make Prosecution Department functional and not a permanent dispensation---Petitioners were required to approach Committee for continuing in temporary / contractual appointment or to appear in examination to be conducted by the Public Service Commission for recruitment on regular basis---Such a course could not be termed as depriving them of protection of law guaranteed to them under the Constitution---Employment under public undertakings was a public employment and public property and that the right to life included right to livelihood, which could not hang on to fancies of individuals in authority, nor any fundamental right could be surrendered or waived pursuant to agreement or undertaking but the fact remained that fundamental rights were always subject to certain provisions of law---Initial appointment of petitioners having been made without any test/interview was contrary to principles of fair play, merit and transparency---Person who failed in interview for contractual appointment could not lay valid claim to be recruited against post in question on regular basis---Supreme Court directed that petitioners whose cases were not competently scrutinized/examined they would appear before Recruitment Committee for validation of their temporary/contract appointment subject to language employed in appointment letter---If petitioners opted to appear before Recruitment Committee, which would be constituted to review temporary short term arrangements as per their contract appointment letters, the Committee would dispose of their cases expeditiously---Supreme Court further directed that term of temporary/contract appointment would not exceed a period of one year---If petitioners or others who had appeared in interview before Recruitment Committee, or anyone else who wanted induction in terms of Supreme Court's earlier order dated, 8-1-2010, those petitioners would be at liberty to appear in examination to be conducted by Punjab Public Service Commission for regular appointment---Supreme Court directed Prosecution Department to send requisitions to Punjab Public Service Commission for advertisement of the posts for initial recruitment in accordance with law and rules--Petition was disposed of accordingly.

Abdul Majid Sheikh v. Mushafe Ahmed PLD 1965 SC 208; Secretary to Government of N.-W.F.P. v. Sadullah Khan 1996 SCMR 413; Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724; Collector of Customs and Central Excise v. Abdul Waheed 2004 SCMR 303; Water and Power Development Authority v. Abbas Ali Malano 2004 SCMR 630; Federation of Pakistan v. Gohar Riaz 2004 SCMR 1662; Muhammad Shoaib v. Government of N.-W.F.P. 2005 SCMR 85; Muhammad Zahid Iqbal v. DEO Mardan 2006 SCMR 285; Province of Punjab v. Zulfiqar Ali 2006 SCMR 678; Abdul Salim v. Government of N.-W.F.P. 2007 PLC (C.S.)179; Fuad Asadullah Khan v. Federation of Pakistan 2009 SCMR 412; Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115; Jamal Shah v. Election Commission PLD 1966 SC 1; Mir Ahmad Nawaz Khan Bugti v. Superintendent Jail Lyallpur PLD 1966 SC 357; Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26; Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Ikram Bari v. National Bank of Pakistan 2005 SCMR 100; Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 and Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

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

----Art. 199---Constitutional petition---Maintainability---Locus standi---Contractual appointments---Petitioners were appointed on contract basis, who assailed the act of authorities for advertising posts in question for regular appointments---Plea raised by petitioners was that their services could not be terminated by authorities---Validity---Having accepted conditions of service, petitioners had no locus standi to file Constitutional petitions seeking writs of prohibition and mandamus to authorities to refrain from terminating their services and to retain them on their existing posts on regular basis---High Court had rightly declined to issue any writ against authorities.

A.K. Dogar, Senior Advocate Supreme Court, Ms. Afshan Ghazanfar, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Petitioners (in C.P. No.2199of 2009 and C.Ps.No.146 and 252 of 2010 and C.M.A. No.520 of 2010).

Applicants (in Person).

Shahzadul Haque Qureshi, Advocate, Khurram Shahzad, Syed Akbar Shah and Ijaz Hussain Soomro (in C.M.As. 513, 517, 519 of 2010).

Syed Zahid Hussain Bokhari, P.-G., Punjab and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Dates of hearing: 25th and 26th February, 2010.

P L D 2010 Supreme Court 857

Present: Javed Iqbal, Sayed Zahid Hussain and Muhammad Sair Ali, JJ

ABDUL HAMEED ANJUM and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeal No.1745 of 2002, decided on 29th September, 2009.

(On appeal against the judgment dated 10-5-2001 passed by High Court of Sindh at Karachi in C.P. No.80 of 2002).

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

----Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether civil servants had acquired vested right, and authorities could not withdraw or recall decision of their induction; whether High Court failed to exercise its jurisdiction; as to which of the two High Courts had correctly interpreted legal points involved in the matter; and whether office memorandum dated 25-1-2001 was correctly appreciated by High Court.

Asjad Mahmood v. Federation of Pakistan through Ministry of Finance, Islamabad and 2 others 2002 PLC (C.S.) 1161 ref.

(b) Words and phrases---

----"Expansion"---Meaning.

(c) Words and phrases---

"Likely "---Meaning.

(d) Words and phrases---

----"Consider"---Meaning.

Rana Mahmood Hussain, Officer Grade-II Habib Bank Limited, Sahiwal v. Chairman, National, Industrial Relations Commission, Camp at Lahore and 2 others 2001 PLC 697 and Muhammad Iqbal Khan and another v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 2 others 2003 MLD 98 rel.

(e) Civil service---

----Public functionaries---Relationship of State and its employees---Scope---Relationship of State and its government with its employees is distinct from relationship of any ordinary commercial employer and employee---State and government, in all their powers, functions, operations and obligations act through their employees who thus partake functional and performance characteristics and idiosyncrasies of the State and government---Government and its employees in all their acts, performances and conduct have to be serious, committed and responsible and also in the acts that regulate their inter se relationship---State and government has to be forthright, meaningful, protective and loyal to its employees who in return are obligated to be absolutely committed, faithful, sincere, loyal, honest, diligent and dutiful to their employer---Absence of such elements erode foundational qualities of employer and employee relationship---Promises, representations and commitments made by State and government are always meaningful, serious, credible, responsible, solemn and sombre which correspondingly are so received by its employees in particular and the citizens in general---Such representations, promises, commitments and assurances cannot be pre-textual, meaningless, non-serious, non-commercial, fraudulent or purposeless.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; Messrs M. Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404 and Azra Riffat Rana v. Secretary, Ministry of Housing and Works, Islamabad and others PLD 2008 SC 476 rel.

(f) Civil Servants Act (LXXI of 1973)---

----S. 10---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Deputation---Induction---Terms and conditions of service---High Court or Service Tribunal, jurisdiction of---Determination---Civil servants were transferred to Income Tax department on deputation from other departments and there was an understanding that the civil servants would be inducted in Income Tax Department---Civil servants invoked constitutional jurisdiction of High Court for their induction in Income Tax Department but High Court declined to interfere in view of the bar contained in Art. 212 of the Constitution---Validity---Question of terms and conditions of their service could only flow from determination of their status on induction as officer of Income Tax group---Civil servants were not asking for enforcement of their terms and conditions of service in, their parent departments, they prayed for declaration in their Constitutional petitions that they stood inducted in Income Tax group as per Central Board of Revenue's decision dated 21-7-2000---Civil servants only sought recognition of their identification and status and not enforcement of their terms and conditions of service---Service Tribunal had no jurisdiction in the matter and civil servants had validly invoked extraordinary jurisdiction of High Court under Art. 199 of the Constitution---Question of neither eligibility nor fitness, suitability or otherwise was involved and it was also not a case of disciplinary action or promotion---Civil servants after deputation were trained, examined and given various posts for last sixteen years, who were found eligible, suitable and fit to work in Income Tax group but were not being notified to be inducted in Income Tax group, despite Central Board of Revenue's decision dated 21-7-2000---Terms and conditions of service of civil servants would have arisen only after determination of service that they belonged to---Judgment passed by High Court was set aside and civil servants stood absorbed in Income Tax department---Appeal was allowed.

Punjab Employees' Social Security Institution and others v. Lyallpur Cotton Mills, Ltd and others 2002 SCMR 729 ref.

Inayatullah and others v. Director General and others 2006 SCMR 535; Dr. Ahmad Salman Waris, Assistant Professor Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382' Irshadur Rehman v. Government of Pakistan 1993 PLC (C.S.) 39 and Dr.Mrs. Zahida Mir v. Punjab Public Service Commission 1992 PLC 1010 rel.

(g) Service Tribunals Act (LXX of 1973)---

----S.4---Appeal---Service Tribunal---Jurisdiction, invoking of--Principles-Re-designation of posts---Effect---In absence of final order of departmental authority in respect of terms and conditions of service of civil servant or matter of appointment, Service Tribunal does not have jurisdiction under S.4 (1) of Service Tribunals Act, 1973---Order or notification relating to reorganization or re-designation of various posts having no nexus with terms and conditions of service of civil servant, is also outside the jurisdictional preview of Service Tribunal.

S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612/615; Inayatullah and others v. Director General and others 2006 SCMR 535: Dr. Ahmed Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Irshadur Rehman v. Government of Pakistan 1993 PLC (C.S.) 39 and Dr. Mrs. Zahida Mir v. Punjab Public Service Commission 1992. PLC 1010 rel.

A. H. Pirzada, Senior Advocate Supreme Court and Sikandar Bashir Muhammad, Advocate Supreme Court for Appellants.

Dil M. Khan Alizai, D.A.-G. for Respondent No.1.

Akhtar Ali Mehmood, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2.

Date of hearing: 29th September, 2009.

P L D 2010 Supreme Court 878

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Pervez and Khalil-ur-Rehman Ramday, JJ

SADDAQAT ALI KHAN through L.Rs. and others---Appellants

Versus

COLLECTOR LAND ACQUISITION and others---Respondents

Civil Appeals Nos. 1949 to 1951 of 2002, 268 and 942 of 2009, decided on 22nd March, 2010.

(On appeal against the judgment dated 25-1-2002 passed by Pashawar High Court, Circuit Bench, Abbottabad in R.F.As. Nos.6 to 8 and dated 2-2-2009 and 3-12-2008 passed by Peshawar High Court, Peshawar in W.Ps. Nos. 634 and 856 of 2007).

Per Khalil-ur-Rehman Ramday, J; Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Parvez, JJ agreeing:

(a) Land Acquisition Act (I of 1894)---

----S. 18-Civil Procedure Code (V of 1908), O.XLI, R. 33 & S.151---Supreme Court Rules, 1980, O.XXXIII. R.5---Constitution of Pakistan (1973), Art.187---Compensation to landowners---Benefit which had accrued to the landowners who had filed an appeal in the High Court seeking further enhancement of the compensation vis-a-vis their acquired land could also be extended to the similarly placed landowners who had, however, not filed any such appeal in the High Court---Principles.

Question involved, in the present case was whether the benefit which had accrued to the landowners who had filed an appeal in the High Court seeking further enhancement of the compensation vis-a-vis their acquired land could also be extended to the similarly placed landowners who had, however, not filed any such appeal in the High Court.

Placing reliance on the provisions of Order XLI, Rule 33 of the C.P.C.; section 151 of the C.P.C.; Order XXXIII, Rule 5 of the Supreme Court Rules of 1980 and with a reference also to the provisions of Article 187 of the Constitution, Supreme Court declared that such like non-appealing affected litigants were also entitled to the same treatment which had been offered by the Court to the similarly placed appealing parties.

The basic object behind establishment of courts in a society was never just to administer law but was, in fact, to dispense justice. The ultimate goal sought to be achieved by the courts was thus to do complete justice between the parties and to ensure that the rights were delivered to those to whom they belonged and no hurdles were ever considered strong enough to detract the courts from reaching the said end. Incorporation of provisions such as section 151, C.P.C.; 5.561-A in the Cr.P.C.; revisional powers of wide amplitude exercisable even suo motu under section 115 of the C.P.C. and S.439 of the Cr.P.C. various provisions of the like contained in O. XLI, Rule 4 and O. XLI, Rule 33 of the C.P.C.; the provisions of O.XXXIII, Rule 5 of the Supreme Court Rules of 1980; suo motu powers exercisable under Art.184(3) of the Constitution and provisions of Art.187 of the Constitution were some of the examples which could be quoted as having been made available to the courts at all levels to surmount any impediments which a court might confront in the path of doing complete justice. With respect to the proceedings under the Land Acquisition Act, 1894, that the same are of a rather peculiar nature as in the ultimate analysis what is required to be determined under the said Act is the value of the acquired land. Once the same stands resolved then the Acquiring Authorities become repositories of the said value of land as a trust for the ones who own the same which authorities are then obligated to identify the said persons and to discharge the said trust by paying the same to them.

Once a judicial determination, be it of a point of fact or of a point of law, has been made and if such a determination covers not only the ones litigating before the courts but some others also, then the dictates of justice would command that the benefits accruing from such a determination should not be restricted only to the litigating parties but should be extended even to those who had not indulged in litigation unless there were some extraordinary un-exceptionable reasons to the contrary and that all powers, including the powers inherent in the courts be invoked for the purpose. Such would not only ensure justice for all but would also have the effect of eliminating un-necessary litigation.

In the present case, the only reason which had weighed initially with, the executing Court and finally with the High Court through the impugned judgment, for denying to the non-appealing landowners what had been judicially determined to belong to them, was that they had not filed appeals before the High Court in proper time to seek further enhancement of the amount of compensation like some of their fellow affectees had done.

In view of Order XLI, Rule 33 of the C.P.C., the executing Court which had been approached by the non-appealing landowners was in error in having refused to pay to them the value of their land as finally determined by the High Court. Similar mistake was then repeated by the High Court through the impugned judgment by refusing them the said relief which High Court stood obliged to do complete justice by not depriving the wronged persons of whatever stood granted to their similarly placed fellow affectees. The High Court failed to appreciate that such was a gross discrimination as some of the landowners stood paid much higher price as compared to the others and such a discrimination, injustice and contradiction in terms warranted resolution and it was to meet such like situations that the provisions such as Order XLI, Rule 33 and section 151 of the C.P.C. stood incorporated in C.P.C.

In the present case, the determination of compensation had attained finality and was not in dispute.

Government authorities were adamant in denying to the affectees what rightfully belonged to them and this these authorities were doing by seeking shelter under mere technicalities of law. They failed to realize that government and its various departments and agencies enjoyed a parental status vis-a-vis the subjects and it never behoved a government or its agents to deny to the subjects what stood judicially determined to be belonging to them. The law of limitation may be an impediment, though surmountable, in the way of a court to grant a deserved relief but it would never be a bar in the way of the repository of a trust to discharge his obligations. A person would never qualify as a gentleman if he was to refuse to re-pay a debt only because he had managed to hold on to the same for more than three years. Needless to say that government is expected to be a gentleman--nay, the noblest person in a State. Once, the price of an area of land had been finally and judicially determined, then it is distressing and agonizing to find the government, saying brazenly to its subjects and its words that yes the court had found you entitled to a given amount of compensation but I shall not pay it to you because you did not disgrace me by dragging me to the courts of law. This is, to say the least, not a conduct befitting a gentle and a noble man. The said affectees appear to be petty landowners owning small land-holdings and enrichment of a governmental agencies at the cost of such like poor subjects could never be said to be civilized, moral or. an ethical conduct.

Concerned courts had failed in their duties to ensure justice inasmuch as they had refused to exercise the discretion vesting in them under Order XLI, Rule 33 of the C.P.C. and the other enabling provisions including the provisions of section 151, C.P.C. Consequently, the said affectees had been treated discriminately and that justice had been un-deservedly denied to them and further that the impugned orders and judgments had led to a gross contradiction in terms which warranted rectification.

The Counsel for the official respondents had vehemently argued that since the landowners in these appeals had felt satisfied with the compensation as determined by the Referee Court; since they had not questioned the said determination before any higher forum and had thus acquiesced in the matter and that since the appeals filed by them culminating in the impugned judgment of the High Court were grossly barred by time, therefore, their appeals deserved to be dismissed.

The submissions loose sight of the provision of Order XLI, Rule 33 of the C.P.C. If the said submission of the counsel was to be accepted then the same would lead to ludicrous and absurd results. It would mean that an affected person who had not filed any appeal ever at all, would be entitled to relief in terms of Order XLI, Rule 33 of the C.P.C. but a similarly affected person who does file an appeal, though beyond time, would be thrown out on account of delay in filing the same. Such an interpretation would lead to laughable results and could not be accepted.

The non-appealing landowners were entitled to the relief sought by them initially on the strength of the judgment passed by High Court and subsequently at the hands of the executing Court which was not done. It is the said illegality which deserves to be cured to do complete justice in the matter. Resultantly in view of the said provisions of Order XLI, Rule 33, C.P.C. read with section 151 of the said Code read further with the provisions of Order XXXIII, Rule 5 of the Supreme Court Rules, 1980 and the provisions of Article 187 of the Constitution, Supreme Court accepted the appeals as a result whereof Supreme Court set aside the impugned judgment passed by the High Court and declared that the affected non-appealing landowners, including the present appellants, would be entitled to the same compensation which was determined by the High Court for the kind of land which such landowners owned. In view of the un-reasonable conduct of the official respondents, they were ordered to bear the costs of these appeals which were fixed at rupees one hundred thousand in case of each appeal.

It would be highly un-just and against the established norms of equity, fair-play and good conscience if some of the landowners were allowed compensation for their acquired land at a much higher rate than the others owning similar lands only because the said others had not opted to drag the concerned land acquiring authorities to the courts of law. It was a legal and a moral obligation cast on the said authorities not to grudge payment of compensation to such-like non-appealing landowners according to the rate judicially determined for the land in question. Since it has not been denied that this compensation so assessed had attained finality, therefore, the least that could be said was that the dictates of justice demanded that all the similarly placed landowners be paid compensation according to the said judicial determination irrespective of the fact whether they had or had not approached the courts of law for the purpose. Emphasis is on the fact that the value of the pieces of land in question since judicially settled, stood admittedly and finally determined and there was no longer any dispute about the value of the same. And since coming to the aid of the wronged non-objecting land-owners was a step towards doing justice to them and since it was a rule too well-established by now that the courts would refuse to interfere with an order, even if the same suffered from any illegality, which had refused to perpetuate something which was patently un-just or worked injustice.

Since the two impugned judgments of the High Court, were steps in the advancement of the cause of justice; had the effect of doing justice to the gravely wronged landowners and since interference with these would work in-justice to the affected parties, therefore, the same were not open to exception.

North-West Frontier Province Government and another v. Addul Ghafoor Khan and 2 others PLD 1993 SC 418; Province of Punjab and others v. Col. Abdul Majeed and others 1997 SCMR 1692; M.Sarwar Khan and others v. Government of Pakistan and others 1998 SCMR 2197; Suleman and others v. Land Acquisition Collector and others 1999 SCMR 2009; Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590; Ahmed Khan v. Sattar Din PLD 1981 SC 148; Ghulam Hussain and another v. Faiz Muhammad and 7 others PLD 1991 SC 218; Hameed Akhtar Niazi v. Secretary Establishment 1996 SCMR 1185; Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382; Nawab Syed Raunaq Ali's case PLD 1973 SC 236; Habibullah's case 2005 SCMR 1320 and Land Acquisition Collector's case PLD 2007 SC 620 rel.

2005 SCMR 1320 and PLD 2007 SC 620 distinguished.

Per Rahmat Hussain Jafferi, J, taking different view.

The persons, who had not filed objection before the Collector against the award and had accepted the award passed by the Collector, cannot take benefit of the decree passed in favour of the other landowners of the award, as it reached finality in respect of such landowners. If the above proposition is replied otherwise, sections 18, 20, 21 and second proviso to section 31(2) of the Land Acquisition Act, 1894 would become redundant, which cannot be attributed to the Legislature---Principles.

Muhammad Sarwar Khan v. Government of Pakistan 1998 'SCMR 2197; Suleman v. Land Acquisition Collector 1999 SCMR 2009 and Land Acquisition Collector v. Mian Khan PLD 2007 SC 620 ref.

Per Khalil-ur-Rehman Ramday, J; Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Parvez, JJ agreeing:

(b) Administration of justice---

----Basic object behind the courts in society was never just to administer law but was, in fact, to dispense justice---Ultimate goal sought to be achieved by the courts was thus to do complete justice between the parties and to ensure that the rights were delivered to those to whom they belonged and no hurdles were ever considered strong enough to detract the courts from reaching the said end once a judicial determination, be it of a point of fact or of a point of law, has been made and if such a determination covers not only the ones litigating before the courts but some others also, then the dictates of justice would command that the benefits accruing from such a determination should not be restricted only to the litigating parties but should be extended even to those who had not indulged in litigation unless there were some extraordinary un-exceptionable reasons to the contrary and that all powers, including the powers inherent in the courts be invoked for the purpose---Such would not only ensure justice for all but would also have the effect of eliminating un-necessary litigation.

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

----Ss. 151, 115, O.XLI, R.4 & O.XLI, R.33---Criminal Procedure Code (V of 1898), Ss.439 & 561-A---Supreme Court Rules, 1980, O. XXXIII, R.5---Constitution of Pakistan (1973), Arts.184(3) & 187---Administration of justice---Scope---Basic object behind establishment of courts in a society was never just to administer law but was, in fact, to dispense justice---Ultimate goal sought to be achieved by the courts was thus to do complete justice between the parties and to ensure that the rights were delivered to those to whom they belonged and no hurdles were ever considered strong enough to detract the courts from reaching the said end---Incorporation of provisions such as section 151, C.P.C.; S.561-A in the Cr.P.C.; revisional powers of wide amplitude exercisable even suo motu under section 115 of the C.P.C. and S.439 of the Cr.P.C. various provisions of the like contained in O. XLI, Rule 4 and O. XLI, Rule 33 of the C.P.C.; the provisions of O.XXXIII, Rule 5 of the Supreme Court Rules of 1980; suo motu powers exercisable under Art.184(3) of the Constitution and provisions of Art.187 of the Constitution were some of the examples which could be quoted as having been made available to the courts at all levels to surmount any impediments which a court might confront in the path of doing complete justice---Once a judicial determination, be it of a point of fact or of a point of law, has been made and if such a determination covers not only the ones litigating before the courts but some others also, then the dictates of justice would command that the benefits accruing from such a determination should not be restricted only to the litigating parties but should be extended even to those who had not indulged in litigation unless there were some extraordinary un­exceptionable reasons to the contrary and that all powers, including the powers inherent in the courts be invoked for the purpose---Such would not only ensure justice for all but would also have the effect of eliminating un-necessary litigation.

Per Rahmat Hussain Jafferi, J

(d) Land Acquisition Act (I of 1894)---

----Preamble---Object and scope of Land Acquisition Act, 1894.

Muhammad Sarwar Khan v. Government of Pakistan 1998 SCMR 2197; Suleman v. Land Acquisition Collector 1999 SCMR 2009 and Land Acquisition Collector v. Mian Khan PLD 2007 SC 620 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants (in C.As. Nos. 1949 to 1951 of 2002).

Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.As. Nos. 268 and 942 of 2009).

Shah Khawar, D.A.G. and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.As. Nos. 1949 to 1951/2002).

Abdul Sattar Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Respondents (in C.As. Nos. 268 and 942 of 2009).

Date of hearing: 22nd March, 2010.

P L D 2010 Supreme Court 906

Present: Jawwad S. Khawaja and Khilji Arif Hussain, JJ

BASHIR AHMED---Petitioner

Versus

Mst. TAJA BEGUM and others---Respondents

Civil Petition No.133 of 2009, decided on 22nd April, 2010.

(On appeal from the judgment dated 21-11-2008 of the Lahore High Court, Rawalpindi Bench passed in Civil Revision No.344 of 2008).

(a) Words and phrases---

----"Bashindgan" and "Malikan of Abadi Deh"---Distinction---Term bashindgan not equivalent of malikan---Term bashindgan would mean all those being residents of a village and part of abadi deh---Malikan in an estate could not only be treated as resident of a village.

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

----Art. 185(3)---Petition for leave to appeal---Powers of Supreme Court---Scope---Supreme Court would not act as court of first appeal.

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

----S. 96---Appeal from original decree---Powers of First Appellate Court---Scope---Appellate Court could take a second look at all legal and factual aspects of a case---Appellate Court not only could, but required to reappraise evidence and reach thereby to its own conclusion, which might be different from one arrived at by trial court.

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

---Ss. 100 & 115---Jurisdiction of Appellate Court in second appeal and as revisional court---Distinction---Revisional jurisdiction in material respects was more restricted than appellate jurisdiction under S.100, C.P.C.---Judgment could be assailed in revisional jurisdiction only on basis of grounds set out in clauses (a), (b) & (c) of S.115, C.P.C.

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

----Art. 185(3)---Civil Procedure Code (V of 1908), Ss.96, 100 & 115---Leave to appeal, grant of---Criteria and requirements stated.

As opposed to first and second appeals, provided for in sections 96 and 100, respectively of the C.P.C., the provisions of Article 185(3) of the Constitution do not confer any right on an unsuccessful litigation, to prefer an appeal to Supreme Court. He must seek leave to appeal, and in order to be granted such leave, a petitioner under Article 185(3) is obliged to show something at least equivalent to if not more stringent than what is required by section 100 or 115 C.P.C. It is this requirement which lays down the minimum standard and sets the bar for granting leave to appeal under Article 185(3).

Guidance in laying down criteria for grant of leave to appeal, can, however, be taken from the provisions of section 96 and section 100, C.P.C. One rule which can be safely laid down is that in order to be granted leave to appeal under Article 185(3) of the Constitution, at the very least, the petitioner should satisfy the requirements of section 100 C.P.C.

Counsel must bear in mind the relevant legal provisions and in particular, sections 100 and 115, C.P.C. while considering the advisability of filing a petition under Article 185(3) of the Constitution.

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

----S. 100(1)(b) & (c)---Second Appeal---Jurisdiction of Appellate Court---Scope.

Not all instances of a court's failure to decide an issue will suffer for the purpose of allowing an appeal. It is only a failure to decide material issues, which will enable an aggrieved party to invoke the jurisdiction of an appellate court. The question of materiality, that is, whether or not an issue is of a material nature, will depend upon whether the ultimate decision of the court of first appeal would have been different, if the omitted issue had been determined by it. Thus, in order to succeed in second appeal on ground of cl.(b) of subsection (1) of section 100, C.P.C., an appellant would have to show that the court of first appeal would have reached a different conclusion, had it not failed to decide the issue of law or usage specified in ground (b).

Ground of clause (c) given in subsection (1) of section 100, C.P.C. requires an appellant in second appeal, to show firstly that there has been a substantial error or defect. in procedure and secondly that such a substantial error Could have resulted in an erroneous or defective decision of the case.

Shaukat Aziz Siddiqui, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Muhammad Ilyas Mian, Advocate Supreme Court for Respondent No.3.

Date of hearing; 22nd April, 2010.

P L D 2010 Supreme Court 913

Present: Javed Iqbal, Mian Shakirullah Jan and Muhammad Sair Ali, JJ

Mrs. AFROZ SHAH and others---Petitioners

Versus

SABIR QURESHI and others---Respondents

Civil Petition No.29 of 2009, decided on 3rd June, 2010.

(On appeal against the judgment dated 10-9-2008, passed by the High Court of Sindh in C.P.No.D-1620 of 2007).

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

----O. XXIII, R.1(1), (2), (3) & (4)---Withdrawal of suit conditionally or unconditionally---Principles---Provisions of O.XXIII, R.1(1), C.P.C. allow unconditional withdrawal of the suit or abandonment of part of the claim by plaintiff---Conditional withdrawal for the reasons of formal defect' orother sufficient grounds' with permission to file a fresh suit for the subject-matter of the suit is governed by O.XXIII, R.1(2), C.P.C.---Provision of O.XXIII, R.1(3), C.P.C. provides that where the plaintiff withdraws a suit unconditionally under R.1(1) of O.XXIII, C.P.C. or withdraws from a suit or abandons part of claim, without court's permission under R.1(2) of O.XXIII, C.P.C., he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim---Court has no jurisdiction under R.1(4) of O.XXIII, C.P.C. to permit one of several plaintiffs to withdraw without consent of the others---Suit terminates in both the situations i.e. under R.1(1)(2) of O.XXIII, C.P.C., consequences, however, are different---Under R.1(1) read with R.1(3) of O.XXIII, C.P.C., on an unconditional withdrawal of the suit, the plaintiff loses the right to file a fresh suit on the same subject-matter or claim---Upon withdrawal with leave of the court under R.1(2) of O.XXIII, C.P.C., the plaintiff can institute a fresh suit in respect of the subject-matter of the same suit or claim---In the present case, the plaintiffs initially sought withdrawal of suit with permission to refile the same, but after filing a fresh suit for the part of the suit-land, the original suit was sought to be unconditionally withdrawn under R.1(1), O.XXIII, C.P.C.---Request of withdrawal was contested---Trial Court, without adverting to, dealing with or deciding the objections in the contesting reply and counter affidavit, proceeded routinely and mechanically to dismiss the suit as unconditionally withdrawn by holding objections to be of "no substance"---Trial Court, was supposed to comprehend and consider the objections irrespective of the fact that objector was absent.

?

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

----O. XXIII, R.1(1), (2) & (3)---Withdrawal of suit or abandonment of part of claim---Right and privilege innate in a plaintiff-Scope--Powers and duties of court---Plaintiff's absolute right of unconditional withdrawal of the suit when exercised will be subject to court's superintendence and scrutiny to adjudge upon the equity, propriety, legality and appropriateness of the exercise of such right by the plaintiff---One co plaintiff opting not to withdraw suit had the unqualified right to continue the suit in case of unconditional withdrawal by the other plaintiffs from the suit---In the present case, none had disputed that thirty years litigation culminated into rights, interests, admissions, representations, legal/factual positions and admissions which crystallized into irreversible understandings, orders, consequences, and judgments giving rise to the vested rights and interests of the parties---Such rights, interests and positions were likely to be infringed or even defeated by discontinuance of the suit---Any of the two sets of legal representatives, in the present case, could be the plaintiffs or the defendants and the ultimate beneficiaries of the decree if passed---Such suit, therefore, could not have been unconditionally withdrawn by one set of the plaintiffs---Supreme Court converted the petition for leave to appeal into appeal, allowed the same with costs throughout on specified terms---Principles.

The provisions of law as contained in sub-rule (1) of Rule 1 of Order XXIII, C.P.C. are substantive as well as procedural. These provisions legislatively recognize the right and privilege innate in a plaintiff. He has undisputable, indefeasible and absolute right to file and to withdraw his suit "at any time". It is the privileged domain of the plaintiff to exclusively decide:-

(i)???????? To bring the suit and continue it;

(ii)??????? To withdraw the suit;

(iii)?????? To withdraw the suit unconditionally or conditionally;

(iv)?????? When to withdraw the suit;

(v)??????? Whether to withdraw part of the claim or whole of the claim in the suit; and

(vi)?????? Against which of the defendants to withdraw the suit in case of plurality of the defendants.

The plaintiff thus enjoys the choice of the time and stage of withdrawal as well. A plaintiff is also vested with the right to partly withdraw his claim or wholly as against all or any of the defendants. sub-Rule (3), however, exposes him to two consequences (i) liability to pay costs if awarded and (ii) bar/preclusion to bring a fresh suit on the same cause of action/subject-matter.

No other person or suit party or even the court has such a right or power to withdraw the suit or force a plaintiff to withdraw from the suit. It is in this respect that plaintiff has an unqualified absolute right.

Attached with the absolute and unconditional right to withdraw the suit is the power to exercise such right. The right to withdraw is governed and regulated by the law. Exercise of such right is thus also to be regulated and governed by the principles of law. Power thereto will have to be ceded to the court which is jurisdictionally seized with the control and regulation of the suit and its proceedings. Plaintiffs' absolute right of unconditional withdrawal of the suit when exercised will be subject to courts' superintendence and scrutiny to adjudge upon the equity, propriety, legality and appropriateness of the exercise of this right by the plaintiff.

On exercise of this unqualified right, when a plaintiff requests the court to terminate the suit as withdrawn, it is then that the duty of the court having control of the suit and its proceedings, arises. The court on consideration of the facts, proceedings and stage of the suit applies the test of its `due consideration' to decide whether the plaintiff has exercised his absolute right properly or improperly. And whether suit is to be terminated as withdrawn or is to be continued by rejecting prayer for unconditional withdrawal. Such power of consideration by the court has nexus with plaintiff's absolute right to bring a suit. On suit being brought to it, the court is duty bound to examine the plaint to decide whether the same is proceedable or rejectable for grounds under Order VII, Rule 11, C.P.C. and whether the suit is sustainable or not under the law of limitation or jurisdiction or for diverse reasons provided in the law. Similarly on exercise of the right of withdrawal by a plaintiff, the court is to examine the proprietary, legality and appropriateness of such exercise.?

A vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights.?

Considering the characteristics and the contingencies peculiar to the exercise of a plaintiff's right unconditionally withdraw, limitations have been placed by the courts. These limitations find their genesis in extraordinary situation(s) that may prevail in a case. A plaintiff is absolutely free to stretch his arm, muscle or nose. This freedom ends where plaintiffs' arm, muscle or nose touches the other persons arm, muscle or nose. Flexing the power of withdrawal by the plaintiff ends when it injures or affects or prejudices the vested rights or interests accruing from or gained in or during the suit proceedings by the defendant(s) or the third parties. The law has since been so developed.?

While examining the appropriateness of the exercise of absolute right and un-conditional power of the plaintiff to withdraw a suit, court cannot limit the exercise of such right to circumvent, abridge, scuttle or destroy the right that the law grants to a plaintiff. The Courts, therefore in all such cases recognizing plaintiffs absolute right, abstained from injuncting its exercise in general in cases where none was injured. The object was to regulate the exercise of such absolute right for the balanced administration of justice than to destroy the right. Case-law therefore developed the rule of extraordinary caution parallel with defining the scope of principles on refusing unconditional withdrawal of a suit. Emphasizing the exclusivity of a plaintiff's right, some restrictions, conditions and limitations were placed on the exercise of such right by the courts on case to case basis, in-keeping with the jurisdictional control and the principles of the even administration of justice.?

In the present case, none disputed that thirty years litigation culminated into rights, interests, admissions, representations, legal/factual positions and admissions which crystallized into irreversible undertakings, orders, consequences and judgments giving rise to the vested rights and interests of the parties. Such rights, interests and positions were likely to be infringed or even defeated by discontinuance of the suit. Any of the two sets of legal representatives could be the plaintiffs or the defendants and the ultimate beneficiaries of the decree if passed. The suit therefore could not have been unconditionally withdrawn by the one set of the plaintiffs.?

The petitioners as legal representatives of the original plaintiff had a vested right to contest the cancellation of lease of the whole 250 Acres of the suit-land. The relinquishment of claims by plaintiffs (other set of LRs) over approximately 138 Acres of the suit-land was evidently injurious to the rights of the first set of legal representatives i.e. petitioners etc.' upon whom the estate and heritable rights of deceased (original plaintiff) had devolved along with other set of legal representatives. Their right to prosecution of the suit till final adjudication on merits could not have been ignored by the Trial Court who thus seriously erred at law by routinely dismissing the suit as withdrawn. And so did the Revisional Court and the High Court in upholding the Trial Court's illegal order.?

Cause of action in the original suit was common and joint to all the legal representatives of the original plaintiff against the original defendants. They could prosecute the suit jointly or severally. They could be plaintiffs or defendants having identical right, same cause of action and same interest to obtain the decree. Their claim as well as cause was identical. The transposition of the first set of legal representatives as the plaintiffs did not present any legal impediment. It could be for this reason that one set of legal representatives as the plaintiffs did not oppose the request of other set of legal representatives to be impleaded as the co-plaintiffs. The Trial Court gave no reason for declining request of the first set of legal representatives to be so impleaded and for positioning them as the defendants of the suit.?

Other legal representatives as the plaintiffs had right to be transposed.?

One of the plaintiffs may not have withdrawn the suit. The Trial Court, in the present case, failed in its duty to examine as to which of the plaintiffs had sought unconditional withdrawal of the suit and who had not. A co-plaintiff opting not to withdraw had the unqualified right to continue the suit in case of unconditional withdrawal by the other plaintiffs from the suit.?

Supreme Court, in circumstances, converted the petition for leave to appeal into appeal which was allowed with costs throughout in specified terms.?

Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312; Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; Amjad Rashid Khan Malik v. Mrs. Shahida Naeem Malik and others 1992 SCMR 485; Haji Muhammad Boota and others v. Member (Revenue), Punjab and others PLD 2003 SC 979; Mst. Noor Bhari and others v. Mapal Khan and others 1994 Law Notes 101; Javaid Iqbal Abbasi and Company v. Province of Punjab and 6 others 1996 SCMR 1433; Riaz Malik v. Amina Parkah PLD 1988 Kar. 560; Basudeh Narayan Singh and others v. Shesh Narayan Singh and others AIR 1979 Pat. 73; R. Ramamurthi Aiyar's case AIR 1973 SC 643; Sahibzada Sharyar Khan and others v. Additional District Judge, Bahawalpur and others 2004 CLC 1860; Shamas-ud-Din and 4 others v. Mst. Sitran Begum alias Sitara Begum 1993 MLD 962; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Sheikh Abdul Aziz v. Mirza and 3 others PLD 1989 SC AJ&K 78; Karachi Water and Sewerage Board through Managing Director v. Messrs M.A. Majeed Khan and 2 others 2002 CLC 566; Ghani v. Ude and others AIR (29) 1942 Lah. 153; Haji Shaukat Hussain and 4 others v. Haji Muhammad Bakhsh and 13 others 2004 SCMR 948; Said Alam v. Raja Sohrab Khan 1970 SCMR 639; Uzin Export Import Enterprises v. Union Bank of Middle East Ltd. PLD 1994 SC 95; Rauf B. Kadri v. State Bank of Pakistan and another PLD 2002 SC 1111 and Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590 ref.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Petitioner.

Rasheed A. Rizvi, Senior Advocate Supreme Court for Respondents Nos.1 to 3.

Munir A. Malik, Advocate Supreme Court for Respondents Nos. 5, 7 and 8.

Raja Abdul Ghafoor, Advocate Supreme Court for Respondent No.9.

Mehmood Khan Yousafi, C.L.O. for Respondent No.12.

S. Irtaza Zaidi, Advocate Supreme Court for Respondent No.14.

Nemo for the Remaining Respondents.

P L D 2010 Supreme Court 938

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

NASEEM AKHTAR and another---Applicants-Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.165 of 2007 and Jail Petition No.71 of 2007, decided on 27th April, 2010.

(Against the judgment dated 31-10-2006 passed by Lahore High Court, Lahore in Criminal Appeal No.1514 of 2001, M.R.No.630 of 2001).

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

----S. 345(5)---Constitution of Pakistan (1973), Art.185(3)---Compounding of offence---Petition for leave to appeal---Expressions an appeal is pending' andthe court'---Scope---Expressions an appeal is pending' andthe court' appearing in S.345(5) Cr.P.C. for all intents and purposes of law also mean the petition for leave pending before Supreme Court.

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

----S. 345(5) & (7)---Word no' occurring in subsections (5) & (7) of S.345, Cr.P.C.---Connotation---By use of wordno' in both sub-sections the command of law is in negative form, thus, composition of offence is prohibited and lacking (without) the leave of the Court.

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

----S. 345(5)---Compounding of offence---Expression `leave of the Court'---Object and scope---Object requiring leave from the Court as per clear intention of legislature is neither meaningless nor purposeless and it cannot be construed that while considering compromise plea, even of a compromise which is lawfully entered, by free consent of legal heirs, the Court should act in mechanical manner and allow the same as a matter of course or routine; should sit as a silent spectator or to conduct as a post office simpliciter and affix a judicial stamp upon it; rather it is the duty and prerogative of the Court to determine fitness of case for endorsement and sanction of compromise---In appropriate cases, where compromiser and offender is directly or indirectly beneficiary of crime; the offence is committed or is caused thereof, for an obvious object of grabbing the property of deceased by compromiser, through his offspring who may ultimately benefits himself (the offender) as well, the Court may refuse to give an effect to such a deal, specially coupled with scenario when offence is gruesome, brutal, cruel, appalling, odious, gross and repulsive which causes terror and sensation in the society.

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

---Ss. 302 (b)/34---Criminal Procedure Code (V of 1898), S. 345---Constitution of Pakistan (1973), Art. 185(3)---Reappraisal of evidence---Quadruple murder---Compounding of offence---Motive not proved---Effect---Entire family was killed while asleep for no apparent cause but to avenge refusal of marriage and grapple the property---Accused persons were sentenced to death on each count, who sought permission to compound the offence---Validity--- Prosecution witnesses had given quite accurate account of the incident---Ocular evidence sustained the test of cross examination---Testimonies of eve witnesses, except some insignificant discrepancies, had not been shattered---Eye witnesses had been believed by two Courts below and such appreciation of evidence and conclusions drawn therefrom were not erroneous---Alleged weak or non proof of motive was not fatal to the case of prosecution---Role assigned to and performed by each of the accused had been clearly described by eye witnesses, which when tested on the touchstone of medical evidence was substantially corroborated---Supreme Court declined to bring the case within the ambit of either an unseen occurrence or a case for benefit of doubt to the accused had been made out---Supreme Court declined to grant leave to compromise the offence---Leave to appeal was refused.

M. Javed Aziz Sandhu, Advocate Supreme Court for Applicant-Petitioners.

Mian Asif Mumtaz, D.P.G. for the State. Date of hearing: 27th April, 2010.

P L D 2010 Supreme Court 943

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Tassaduq Hussain Jillani, Ch. Ijaz Ahmed, Tariq Pervez, Asif Saeed Khan Khosa and Khalil-ur-Rehman Ramday, JJ

Malik MUHAMMAD USMAN ACHAKZAI---Appellant

Versus

ELECTION TRIBUNAL BALOCHSITAN, QUETTA---Respondent

Civil Appeal No.68-Q of 2009, decided on 2nd April, 2010.

(On appeal from the judgment/order dated 14-5-2009 passed by High Court of Balochistan Quetta in C.P. No.214 of 2009).

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

----S. 67, proviso---Election petition, disposal of---Period of four months---Scope---Wisdom in fixing period for decision of cases, namely that there should be no uncertainty for the persons, who had been elected or who had challenged election before Tribunal or the Court and after expeditious disposal of the same, they should consume all their energies for welfare of the people to whom they represent, instead of wasting time in pursuing the matters before the Courts---Supreme Court directed Chief Justices of the High Courts to chalk out a programme by assigning work to the Judges for disposal of cases expeditiously without any further delay, in case the same were not decided within the period of four months---Supreme Court directed Election Tribunal to decide the case within the period of four months---Appeal was disposed of accordingly.

Syed Ayyas Zahoor, Senior Advocate Supreme Court for Appellant.

Kamran Murtaza, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Respondent.

P L D 2010 Supreme Court 946

Present: Jawwad S. Khawaja and Khilji Arif Hussain, JJ

ATTOCK REFINERY LTD.---Petitioner

Versus

EXECUTIVE DIRECTOR ENFORCEMENT AND MONITORING DIVISION, S.E.C.P. and another---Respondents

Civil Petition No. 111 of 2009, decided on 21st April, 2010.

(On appeal from the order dated 11-12-2008 of the Lahore High Court, Lahore passed in Commercial Appeal No.4 of 2003).

Companies Ordinance, (XLVII of 1984)---

----Ss. 265(b) & 485(1)---Constitution of Pakistan (1973), Art.185(3)---Order of Security Exchange Commission appointing a firm of Chartered Accountants to investigate affairs of company---Appeal against such order dismissed on basis of proviso to S.485(1) of Companies Ordinance, 1984---Plea of company was that such appointment would affect its reputation---Validity---Investigation would remain pending till making of report by investigator---Conduct of investigation was part of case pending with Security Exchange Commission for investigating affairs of company---Mere appointment of an investigator would not "dispose of the entire case "---Object of proviso to S.485(1) of Ordinance, 1984 was to avoid fragmentary decision and ensure non-occurrence or delay to hamper regulatory role of Commission---Security Exchange Commission had passed such order after due consideration of all circumstances---Company through dilatory tactics had frustrated investigation of its affairs for past nine(9) years---Company itself should have no reluctance in joining investigation, if could explain and answer significant and well founded question raised by the Commission---Such plea could hardly be a ground for rendering redundant provisions of S.265 of Companies Ordinance, 1984---Supreme Court declined to grant leave to appeal in circumstances.

Ali Sibtain Fazli, Advocate Supreme Court for Petitioner.

Afnan Karim Kundi, Advocate Supreme Court for Respondents.

P L D 2010 Supreme Court 949

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Pervaz, JJ

M. NAEEM-UR-REHMAN and another-Petitioners

Versus

STATE BANK OF PAKISTAN and another---Respondents

Civil Review Petitions Nos.177 and 178 of 2004, decided on 7th May, 2010.

(Against the judgment of this Court dated 10-6-2004 passed in Civil Petitions Nos. 505 to 5`6 of 2003).

Supreme Court Rules, 1980---

----O.XXVI, R.1.---Constitution of Pakistan (1973), Art, 188---Review of Supreme Court judgment---Principles---Reversal of conclusion earlier reached by Supreme Court after full consideration of question was not possible in exercise of review jurisdiction---Review could not be granted for merely re-examination of the same arguments---Re-arguing a case on merits as well as additional grounds was beyond the scope of review petition---Mere desire of re-hearing of matter could not constitute sufficient ground for grant of review---Supreme Court declined to review its judgment already passed---Petition was dismissed.

Muhammad Hussain v. Zohra Bibi PLD 1990 SC 924; Manzoor Hussain v. Zohra Bibi PLD 1990 SC 924; Muhammad Sarwar v. Asad Hakim 1983 SCMR 177; Jalal v. Nazir Ahmad 1980 SCMR 320; Abdul Hamid Saqfi v. Service Tribunal of Pak 1988 SCMR 1318; Ali Khan v. Shahzaman 1980 SCM1 332; Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 504; Maqbool Ahmad Tabassam v. State 1980 SCMR 907; Nawab Bibi v. Hamida Begum 1968 SCMR 104; Mohd Hayat v. Government of West Pakistan 1968 SCMR 107; Muhammad Najeebullah v. Government of Pakistan 1968 SCMR 768; Muhammad Ghaffar v. State 1969 SCMR 12; Ghulam Fatima v. Settlement Commissioner 1969 SCMR 5; Ghulam Fatima v. Settlement Commissioner 1969 SCMR 247; Feroz Din v. Allah Ditta 1969 SCMR 10; Dewan Jairamadass and others v. Syed Niamat Ali and others 1983 SCMR 330; Akbar Ali Bukhari v. State Bank of Pakistan 1981 SCMR 518; Basharat Khan v. The State 1984 SCMR 1033(1); Muhammad Nazir v. State 1979 SCMR 89; Kalal Khan v. Misri Khan, 1979 SCMR 347; Saghir Ali v. Mehar Din 1968 SCMR 729; Master Tahilram v. Lilaram 1970 SCMR 622; Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner Pakistan 1968 SCMR 800; Rehmatullah v. Abdul Majid 1968 SCMR 838; Hassan Din v. Claims Commissioner 1968 SCMR 1047(2); Qamar Din v. Maula Bakhsh 1968 SCMR 1042(1); Muhammad Akram v. State 1970 SCMR 418; Muhammad Akram v. State 1970 PCr.LJ 909; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741; Rizwan Co-operative Society Ltd. Custodian of Evacuee Property 1978 SCMR 449; Farzand Ali v. Mohd Arif 1979 SCMR 281 and Rashiduddin Qureshi v. State 1979 SCMR 99 rel.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioner (in C.R.P. No.177 of 2004).

Petitioner in Person (in C.R.P. No.178 of 2004).

Khalid Anwar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 1 & 2 (in both cases).

Date of hearing: 10th March, 2010.

P L D 2010 Supreme Court 952

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

Mst. MEHMOODA BEGUM---Appellant

Versus

Syed HASSAN SAJJAD and 2 others---Respondents

Civil Appeal No.1661 of 2003 and Civil Petition No.3193 of 2003, decided on 6th May, 2010.

(On appeal from the judgment dated 11-11-2003 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in RFAs Nos.120 and 121 of 2001).

Specific Relief Act (I of 1877)---

----Ss. 12 & 22---Contract Act (IX of 1872), S.55---Specific performance of agreement---Discretion, exercise of---Time as essence of contract---Principle---Devaluation of currency---Defendant neither denied execution of agreement to sell nor receipt of earnest money but denied specific performance of the agreement due to delay caused by plaintiff in concluding the agreement as in the meantime prices of property had considerably risen---Validity---Time was not always essence of contract, performance whereof depended on various factors such as attending circumstances, unforeseen eventualities and intention of the parties, which was to be ascertained from the contents of agreement executed between the parties---Supreme Court was competent to consider the conduct of parties to agreement and circumstances attending to its execution, if specific performance would give an unfair advantage to plaintiff over defendant then the same should be refused---Supreme Court modified judgment and decree passed by High Court and directed the plaintiff to pay a sum of Rs.30,00,000 as additional consideration in view of devaluation in currency and rise in price of property irrespective of its location---Appeal was dismissed.

Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1; Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39; Abdul Karim v. Muhammad Shafi 1973 SCMR 225; Ali Muhammad v. Shah Muhammad PLD 1987 Lah. 607; Bank of Bahawalpur, Ltd. v. Punjab Tanneries, Wazirabad Ltd. PLD 1971 Lah. 199, Sree Lal v. Hariram AIR 1926 Cal 181; M. Imamuddin v. Bashir Ahmad 1989 CLC 2309; Mohammad Taqi v. Muhammad Anwar Khan Ghauri 1983 CLC 1085; Nazir Hassan v. Ijaz Ahmad Khan 1981 SCMR 684; Nawab Meah v. Ezazuddin Ahmed PLD 1962 Dacca 655; Hari Krishna v. K.C. Gupta AIR 1949 All. 440; Mir Hashmat Ali v. Birendra Kumar Ghosh PLD 1965 Dacca 56; Sadiq Hussain v. ANUP Singh AIR 1924 Lah. 151 and Jethalal N. Modi v. Bachu AIR 1945 Bom. 481 rel.

Gulzarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Respondent No.1 (in person in both cases).

Ex Parte: Respondents Nos. 2 and 3.

Date of hearing: 12th January, 2010.

P L D 2010 Supreme Court 959

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

MUHAMMAD AFZAL KHAN DHANDLA and 3 others---Petitioners

Versus

ELECTION TRIBUNAL and others---Respondents

Civil Petitions Nos.242 and 243-L of 2008 and Civil Appeals Nos.705 and 706-L of 2009, decided on 26th April, 2010.

(On appeal from the judgment/orders dated 31-1-2008 and 3-7-2008, passed by Lahore High Court, Lahore in W.Ps. Nos. 12230 and 12231 of 2007 and Election Petition Nos. 226 and 260 of 2008 respectively).

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

----Ss.52 & 63---Criminal Procedure Code (V of 1898), S.512---Constitution of Pakistan (1973), Arts.185(3) & 199---Election dispute---Constitutional petition before High Court---Maintainability---Time barred appeal---Factual inquiry---Returning Officer, jurisdiction of---Petitioners filed objections to nomination papers of respondents alleging that respondents were involved in criminal cases and were also absconders in a criminal case---Petitioners could not substantiate their objections with evidence, during scrutiny of nomination papers, therefore, objections were set aside---Petitioners filed petition before Election Tribunal which was dismissed for non-compliance of mandatory provisions of S.63 of Representation of the People Act, 1976, and appeal filed against the order of Tribunal was dismissed being barred by limitation---Petitioners also invoked constitutional jurisdiction of High Court with regard to acceptance of nomination papers of respondents, which petition was also dismissed---Validity---Criminal case on the date when nomination papers were filed by respondents was not surely shown/established to Returning Officer as being pending, particularly, in the circumstances when according to petitioners' own assertion the case had not then crossed investigation stage---Petitioners were also not able to place before Returning Officer or even before High Court any order of court which declared the respondents to be proclaimed offenders---High Court had considered such aspect of the matter in its judgment exegetically and had rightly held that such order at the level of investigation agencies in terms of S.512 Cr.P. C. was not legally passed---All objections taken by petitioners entailed detailed inquiry into the matter and could not be subjected to limited "summary proceedings" of Returning Officer---Petitioners had ample opportunity of challenging the election of respondents through election petitions on the grounds raised before Returning Officer and even the same was so done, which petitions were dismissed for lack of observing provisions of S.63 of Representation of the People Act, 1976, regarding non-verification and that order was assailed in belated appeals---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736 and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644 ref.

Syed Iftikahr Hussain Gillani, Senior Advocate Supreme Court, Ch. Muhammad Akram, Advocate-on-Record and M. Sher Cheena, Advocate Supreme Court for Petitioners (in both petitions).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Abdus Sattar Chughtai, Advocate Supreme Court for Respondent No.3.

Shahzad Shoukat, Advocate Supreme Court and Syed Zubair Ahmed, Asstt. Controller (Comp.), University of Punjab for Respondent No.4.

Nemo for Respondents Nos. 1 and 2.

Syed Iftikahr Hussain Gillani, Senior Advocate Supreme Court, Ch. Muhammad Akram; Advocate-on-Record for Appellants (in both appeals).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos. 2-4.

Date of hearing; 12th April, 2010.

P L D 2010 Supreme Court 965

Present: Nasir-ul-Mulk and Mian Saqib Nisar, JJ

MUHAMMAD WALI KHAN and another---Petitioners

Versus

GUL SARWAR KHAN and another---Respondents

Civil Petition No.179-P of 2009 and Civil Appeal No.20-P of 2009, decided on 12th April, 2010.

(On appeal from the judgment dated 16th January, 2009 of the Peshawar High Court, Peshawar passed in Revision No.226 of 2008).

(a) Pleadings---

----No person can be allowed to prove his case beyond the scope of his pleadings.

Binyameen and 3 other v. Chaudhary Hakim and another 1996 SCMR 336; Mst. Salima Bibi v. Mst. Halima Bibi 1994 SCMR 1858; Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469 and Hakim Ali v. Muhammad Salim and another 1992 SCMR 46 rel.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----Ss.13 & 20---Joint owner---New plea---Pleadings---Scope---Suit filed by per-emptor was decreed in favour of plaintiff by Trial Court as well as by Lower Appellate Court---High Court in exercise of revisional jurisdiction partly dismissed the suit on the ground that vendees were co-sharers in the joint holding of land in question---Plea raised by vendees was that mutation of their being joint owners in Khata was admitted in evidence without any objection---Validity---Vendees never took up the defence of having purchased share in Khata and due to such reason no issue was framed---Such plea of being owners in joint Khata was never part of appeal or grounds of revision, therefore, only for such reason that vendees were able to produce in evidence a mutation could not be any advantage to them for claiming share on the basis of S.20 of North West Frontier Province Pre-emption Act, 1987---Though the mutation was admitted in evidence by Trial Court without any objection from vendees but the evidence which was brought on record by a litigant, even not subjected to objection by the opposing side and was outside the purview of his pleadings, the same could not be looked into by the court, rather should be ignored---High Court could not consider the mutation in question and grant relief to vendees which was not within the parameters of their defence---High Court committed grave illegality in exercise of its jurisdiction and the judgment could not be sustained in law---Supreme Court set aside the judgment and decree passed by High Court in favour of vendees---Appeal was allowed.

M. Amin Khattak, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record for Petitioner (in C.P.No.1790-P of 2009).

Mazullah Khan Barakandi, Advocate Supreme Court and Mir Adana Khan, Advocate-on-Record for Respondent (in C.P.No.1790-P of 2009).

Mazullah Khan Barakandi, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Appellant (in C.A. No.20-P of 2009).

M. Amin Khattak, Advocate Supreme Court for Respondent (in C.A. No.20-P of 2009).

Date of hearing: 9th April, 2010.

P L D 2010 Supreme Court 969

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

MUHAMMAD ABBASI---Petitioner

Versus

S.H.O. BHARA KAHU and 7 others---Respondents

Civil Petition No.100 of 2010, decided on 9th February, 2010.

(On appeal from the order dated 23-12-2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in I-C.A. No.216 of 2009).

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

----Art.199---Constitutional petition---Alternate remedy---Scope---Where alternate remedy is more convenient, beneficial and likely to set the controversy at naught completely, jurisdiction under Art.199 of the Constitution cannot be exercised.

Riaz Ahmad v. Inspector of Police, Baseerpur 1991 PCr.L.16; Abdul Hamid Khan Ackakzai v. Election Commissioner 1989 CLC 1833; Abdul Razzaq & Co. v. Asstt. Collector of Customs 1986 CLC 2559; Standard Vacuum Oil Co. v. Trustees. PLD 1961 Dacca 289; Lutf-un-Nisa v. Deputy Commissioner Dacca PLD 1964 Dacca 132; PLR 1963 Dacca 944; S.M.Wali Ahmed Chowdhury v. Mahfuzal Haq Chowdhury PLD 1957 Dacca 209 and S.M. Wali Ahmed v. Mahfuzal Haq 8 DLR 429 rel.

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

----Art. 199---Constitutional petition---Adequate and efficacious remedy---Determination---It is bounden duty of High Court to examine question as to whether alternate remedy is adequate and efficacious remedy by considering the merits of each case and further to dilate upon the question as to whether such remedy would be more efficacious, beneficial or it would cause hardship to the petitioner.

Atta Muhammad v. Assistant Political Agent PLD 1990 Quetta 30; Muhammad Naseem v. N.-W.F.P. 1990 CLC 1693; Khadim Hussain v. District Council, Lyallpur PLD 1976 Lah. 1044; Gul Ahmed Textile Mills Ltd. v. Collector of Customs (Appraisement) 1990 MLD 126; Pak. Metal Industries v. Asstt. Collector 1990 CLC 1022; Allah Wasaya v. Tehsildar/A.C. Ist Grade 1981 CLC 1202; Syed Riaz Hussain Zaidi v. Muhammad Iqbal PLD 1981 Lah. 215; Abdul Hafeez v. Chairman, Municipal Corporation PLD 1967 Lah. 1251 rel.

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

----Ss. 379/427/447/506/511---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Criminal Procedure Code (V of 1898), S.249-A--Constitution of Pakistan (1973), Arts, 185(3) & 199---Theft, damage to amount, criminal trespass and criminal intimidation etc.---Constitutional jurisdiction---Alternate and efficacious remedy---Quashing of proceedings---Charge not framed---Opinion of police---Accused sought quashing of proceedings under Constitutional jurisdiction, before High Court but the same was declined due to availability of alternate remedy under S.249-A, Cr.P.C.---Plea raised by accused was that as charge was then not framed by Trial Court, therefore, alternate remedy was not available---Validity---Challan had already been submitted and cognizance was taken by Trial Court, therefore, alternate remedy as provided under S.249-A, Cr.P.C. would be more efficacious, appropriate and beneficial---Question of guilt or innocence could not be decided by High Court in exercise of constitutional jurisdiction as such function fell within the jurisdictional domain of court concerned, by whom the entire evidence was to be scrutinized which could not be done in exercise of constitutional jurisdiction---Opinion of police could not be considered as sacrosanct and ultimately it was for the Court concerned to decide for question of guilt or innocence of accused in accordance with law---Invocation of constitutional jurisdiction where alternate remedy was provided which was convenient and beneficial could not be made---Order passed by High Court declining to quash the proceedings was well based and did not warrant interference---Leave to appeal was refused.

The State v. Ashiq Ali Bhutto 1993 SCMR 523; Siddiq Ahmed v. Estate Officer, Government of Pakistan PLD 1957 Kar. 887; Siddiq Ahmad v. Estate Officer, Government of Pakistan PLR 1958 (1) W.P. 711; Jeshingbhai v. Emperor AIR 1950 Bom.363; Bagram v. State of Bihar AIR 1950 Pat.387; Harnam Singh v., The State of Punjab AIR 1953 Punj.176; Badri Prasad v. President, Dist. Board, Mirzapur AIR 1952 All 681; R.R. Ranade v. State of V.P. AIR 1952 Him Pra 35; V.Nagalingam Servai and others AIR 1952 Mad.834; S.T.O. Co. v. State of M.P. AIR 1952 Nag.353; Ramani Kanta v. Gauhati University AIR 1951 Assam 163; Gopeshwar Prasad v. State of Bihar AIR 1951 Pat.570; Quaid Cap House v. Sect. Divl. Evacuee Trust PLD 1980 Kar.261; Pakistan Metal Industries v. Asst. Collector C.E. and Customs 1990 CLC 1002; Messrs Shahid Agency v. Collector Customs (Appr.) 1989 CLC 1938; Amar Lal v. Board of Intermediate & Secondary Ed.1986 CLC 1848; Wazir Ahmad v. S.H.O. Police Station 1990 PCr.LJ 2006; Wazir Ahmad v. S.H.O. P. Station Mehlioob Kalhoro 1990 PCr.LJ 2006, Allah Dost v. Muhammad Alam PLD 1987 Quetta 235; Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCMR 810; Ghulam Rasool v. Returning Officer PLD 1985 Kar. 315; Ghulam Rasool v. Returning Officer PLD 1985 Kar.126; Golden Industries Ltd. v. Province of Sindh PLD 1983 Kar.76; Lipton (Pakistan Ltd. Karachi v. Govt. of Sindh PLD 1977 Kar. 714 and Malik Abdur Rahim v. Anayatullah Khan NLR 1992 CLJ 1 ref.

Syed Zafar Ali Shah, Advocate Supreme Court for Petitioner.

Nemo for Respondents Nos. 1 to 6 and 8.

Abdul Rehman Khattak, Respondent No.7 (in Person).

Date of hearing: 9th February, 2010.

P L D 2010 Supreme Court 976

Present: Nasir-ul-Mulk and Rahmat Hussain Jafferi, JJ

MUHAMMAD KHAN---Appellant

Versus

ABDUL MAJID and others---Respondents

Civil Appeal No.1568 of 2003, decided on 19th April, 2010.

(Against judgment dated 14-11-2001 of the Lahore High Court, Multan Bench, Multan passed in R.S.A. No.94 of 1981).

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

----S. 12---Colonization of Government Lands (Punjab) Act (IV of 1912), S.10---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider, whether discretion for not allowing specific performance of agreement was properly and judicially exercised because while doing so the conduct of respondent who did not inform petitioner about conferment of proprietary rights and instead of calling upon him to perform his part of agreement he exchanged the land with other respondents and the suit was filed promptly within few days of the exchange in question when petitioner came to know about the same.

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

----S. 15---Unperformed part of agreement was large---Specific performance, grant of---Pre-condition---Specific performance can be granted of such small part on the condition that plaintiff relinquishes his claim to further performance, including a claim for compensation for the deficiency or for the loss or damage sustained by him through default of defendant---Two conditions are required to be fulfilled in respect of relinquishment of rights; firstly the plaintiff should relinquish his claim to further performance and secondly the relinquishment should be towards claim for compensation for deficiency or for the loss or damage sustained by him because of the fault of defendant---Plaintiff before taking benefit of S.15 of Specific Relief Act, 1877, must assert and prove such two conditions.

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

----Ss.15 & 17---Unperformed part of agreement was large---Relief of compensation in terms of money---Specific performance, grant of---Defendant along with his minor brother and two sisters was owner of suit-land and entered into agreement to sell the same on his behalf and on the behalf of his brother and sisters without any authority---Suit for specific performance of agreement was dismissed by Trial Court and Lower Appellate Court as well as High Court maintained the findings of Trial Court---Validity---Condition of relinquishment of all claims to further performance or right to compensation etc, as provided in S.15 of Specific Relief Act, 1877, in letter and spirit were neither alleged nor proved or attracted in peculiar facts and circumstances of the case hence the bar contained in S.17 of Specific Relief Act, 1877, would be operated---Agreement could not be specifically enforced as the parties had agreed that in case defendant was unable to obtain consent of co-owners, plaintiff would be compensated---Supreme Court declined to interfere in the judgment passed by the High Court---Appeal was dismissed.

Imam Din v. Muhammad Din AIR 1926 Lah. 136; Pokhar Das v. Mela Ram AIR 1927 Lah. 773(1); Abdul Rehman v. Noor Ahmad PLD 1974 BJ 25; Dinesh Chandra v. Satchidananda AIR 1972 Orissa 235; Ranga Reddi v. Pitchi Reddi AIR 1915 Mad. 37; Mary Joseph v. T.M.H. Moosa & Co. AIR 1959 Mad. 86; Anwar Ahmad v. Nafis Bano 2005 SCMR 152; Abdul Haque v. Shaukat Ali 2003 SCMR 74 and Salihu Rowther v. Sultan Moideen AIR 1937 Mad. 597 ref.

Gulzarin Kiani, Advocate Supreme Court for Appellant.

M. Ramzan Khalid Joia, Advocate Supreme Court for Respondents.

Date of hearing: 19th April, 2010.

P L D 2010 Supreme Court 983

Present: Javed Iqbal, Muhammad Sair Ali and Anwar Zaheer Jamali, JJ

Syed AIZAD HUSSAIN and others---Petitioners

Versus

MOTOR REGISTRATION AUTHORITY and others---Respondents

Civil Petitions Nos. 366-L, 753-L and 811-L of 2010, decided on 26th May, 2010.

(On appeal from judgment of Lahore High Court, Lahore dated 24-12-2009, passed in W.Ps. Nos.17301 and 16050 of 2008).

(On appeal from judgment of Lahore High Court, Lahore dated 3-5-2010, passed in W.P.No.8971 of 2010)

(a) Interpretation of statutes---

----Law should be saved rather than destroyed and for such purpose courts, as far as possible, should lean in favour of upholding constitutionality of legislation.

(b) Interpretation of Constitution---

----Legislative enactment---Presumption---Judicial approach---Scope---There is presumption in favour of constitutional validity of legislative enactment, unless ex facie it is violative of some constitutional provision---In doing so, judicial approach should be dynamic rather than static, pragmatic and not pedantic, and elastic rather than rigid.

Elahi Cotton Mills Pvt. Ltd. v. Federation of Pakistan PLD 1997 SC 582 rel.

(c) Interpretation of statutes---

----Provincial statute---Scope---Legislative bodies, for enactment of provincial laws, have independent powers, leaving no room for comparison on the yardstick of discrimination.

(d) Punjab Finance Act (I of 2008)---

----S. 6---Constitution of Pakistan (1973), Arts, 25 & 185 (3)---Tax on imported luxury vehicles, vires of---Doctrine of discrimination---Applicability---Petitioners were owners, occupants or keepers of imported motor cars falling within the ambit of such taxing provision---Plea raised by petitioners was that it was discriminatory nature of tax on naming it as "Luxury tax"---Validity---Classification made under S.6 of Punjab Finance Act, 2008, was based on rational criteria of engine capacity of motor cars with specific exemption provided to certain categories of motor cars in S.6(3) of Punjab Finance Act, 2008---As such the taxing legislation could not be termed as violative of S.25 of the Constitution, nor use of title "Luxury tax" had any material significance to help the petitioners---Supreme Court declined to interfere in the judgment passed by High Court and imposition of Luxury tax was maintained---Leave to appeal was refused.

Sayphire Textile Mills Ltd. v. Govt. of Sindh PLD 1990 Kar. 402; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026; Charaujit Lal v. Union of India AIR 1951 SC 410; Harjina & Co. v. Islamic Republic of Pakistan 1993 SCMR 1342; Raja Industries Ltd. v. Government of Punjab 1999 MLD 3141; Express Hotels Pvt. Ltd. v. State of Gujarat AIR 1989 SC 1949; A.B. Abdul Kadir v. State of Kerala AIR 1976 SC 182; Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan 1993 SCMR 1905 and Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 ref.

(e) Interpretation of statutes---

---Moral ground---Scope---Effect of statute, once made in accordance with law, cannot be diluted on such account.

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

---Art. 185(3)---Petition for leave to appeal---Condonation of delay---Unaware of passing of judgment---Petitioner sought condonation of delay on such ground---Validity---Such ground for condonation of delay was neither plausible nor satisfactory---Delay was not condoned.

Saud Nasrullah Cheema and Malik Naveed Suhail, Advocates Supreme Courts for Petitioners (in C.P.No.366-L of 2010).

Muhammad Azhar Siddique, Advocate Supreme Court for petitioners (in C.Ps. Nos.753-L and 811-L of 2010).

Saeed Yousaf Khan, Addl. A.-G., Punjab for Respondents (in all cases).

Date of hearing: 26th May, 2010.

P L D 2010 Supreme Court 993

Present: Muhammad Sair Ali, Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

MUHAMMAD ATTIQUE---Appellant

Versus

JAMI LIMITED and others---Respondents

Civil Appeal No.772 of 2005, decided on 4th June, 2010.

(On appeal from the judgment dated 21-4-2005 of the Lahore High Court, Lahore passed in E.F.A. No.110 of 2003).

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

----Preamble---Special Law---Scope---Financial Institutions (Recovery of Finances) Ordinance, 2001, is a special law, therefore, every provision contained therein has to be strictly construed and meticulously adhered to.

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

----S. 19(2)---Execution of decree---Procedure---Executing Court, under S.19(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, has to choose mode of execution in accordance with the provisions of Civil Procedure Code, 1908, or any other law for the time being in force or in such manner as the Banking Court may at the request of decree holder considers appropriate----Once the Executing Court has chosen the mode provided in Civil Procedure Code, 1908, then it cannot be permitted to divert that mode at subsequent stage without conscious application of mind.

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

----S. 19---Civil Procedure Code (V of 1908), O.XXI, Rr.66 & 67 (2)---Execution of decree---Schedule of sale (auction of property), non-issuance of---Failure to publish notices in newspapers---Judgment debtor assailed auction proceedings on the ground that the same were conducted in violation of mandatory requirements of O.XXI, Rr.66 and 67(2), C.P. C.---Judgment debtor filed objections against auction of mortgaged property which objections were rejected by Executing Court---High Court remanded the matter to Executing Court for deciding objections afresh---Validity---Not only requirements of O.XXI, R.66, C.P.C. were not complied with but also schedule of sale of mortgaged properties was not published in any newspaper, as required under O.XXI, R.67 (2), C.P.C.---Though Banking Court/Executing Court ordered for sale through publication but notice of sale was not published in any newspaper and further notice of proclamation of sale was also not served upon the judgment debtor---Banking Court without satisfying itself whether such notices were published in any newspaper in a mechanical manner accepted the bid of auction purchaser without realizing that its preceding order was not complied with and no notice was issued to judgment debtor---Executing Court was duty bound to have satisfied itself that its previous order had been implemented and mandatory notices had been issued to judgment debtors and published in newspapers---Supreme Court declined to interfere in the remand order passed by High Court---Appeal was dismissed.

Ghulam Abbas v. Zohra Bibi and another PLD 1972 SC 337; Muhammad Ikhlaq Memon v. Zakaria Ghani and others PLD 2005 SC 819; Messrs East Yarn Trading Company and 2 others v. United Bank Limited and 2 others 2007 CLD 1555; Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 distinguished.

Mst. Hamida v. Muhammad Zaman and another 1991 SCMR 109; Messrs Chawla International v. Habib Bank Limited and others 2003 CLD 956; Messrs Chaudhary Weaving Factory and 2 others through Partner v. National Bank of Pakistan through Vice-President/General Attorney and another 2005 CLD 1445; Mst. Asma Zafarul Hassan v. Messrs United Bank Ltd. and another 1981 SCMR 108; Md. Umar v. Moti Chand and others; AIR 1952 Pat. 244; Rehmat Ali through Legal Heirs and 10 others v. Allah Bachayo 2004 SCMR 1957; Mst. Nur Begum and another v. Settlement and Rehabilitation Commissioner, Multan and 2 others 2003 SCMR 50.1; Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Captain PQ Chemical Industries (Pvt.) Ltd. v. Messrs A.W. Brothers and others 2004 SCMR 1956; Murugappa Naicker v. Thayammal AIR 1923 Mad. 82 and Union of India and others v. M/s. Bhimsen Walaiti Ram AIR 1971 SC 2295 ref.

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

----S. 19---Civil Procedure Code (V of 1908), O.XXI, R.68---Execution of decree---Auction of immovable property---Mandatory period of 30 days---Auction was assailed on the ground that it was held before expiry of 30 days from the date when notice was affixed on Court House---Validity---Sale in question was liable to be declared void ab inito due to violation of mandatory requirements of O.XXI, R.68 C.P. C. that no sale could take place till expiration of at least 30 days in the case of immovable properties, calculated from the date on which copy of proclamation was affixed on Court House of the Judge ordering the sale---Copy of sale notice was affixed on Court's Notice Board on 6-2-2002, whereas the auction was held on 28-2-2002, much before expiry of 30 days---Sale was set aside in circumstances.

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

----S. 19(4)---Civil Procedure Code (V of 1908), O.XXI, Rr. 66, 67 & 68---Limitation Act (IX of 1908), Arts. 166 & 181---Execution of decree---Court sale by auction---Objection petition---Limitation---Judgment debtor assailed execution proceedings on the ground of collusion between Court Auctioneers and auction purchaser and also on the ground that mandatory provisions of O.XXI, Rr.66, 67 and 68 C.P.C. and S.19 (4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, were not complied with---Plea raised by auction purchaser was that objection petition was barred by limitation---Validity---Application to set aside the sale as void, was filed in time as provision of Art. 181 of Limitation Act, 1908, was attracted---Application was rightly filed in circumstances.

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

----S. 19(4)---Civil Procedure Code (V of 1908), O.XXI, Rr.66, 67 & 68---Limitation Act (IX of 1908), Art.166---Sale through court auction-Execution of decree---Objection petition---Limitation---Computation of period of limitation---Principle---Bid in auction is in the nature of offer which does not mature into a contract till its acceptance---Auctioneer acts as an agent of seller to accept the bid, a concluded contract comes into being the moment bid is accepted either by a word of mouth or in any other customary method like fall of hammer at public auction---If auctioneer is not vested with power to accept bid and that power is with another authority (i.e. court in a matter), the contract/sale comes into being when bid is accepted by that authority---For the purpose of Art. 166 of Limitation Act, 1908, time starts to run from the date of the highest offer is accepted by the court.

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

----O. XXI, Rr.84, 89, 90, 91 & S.65---Sale through court auction---Transfer of title---Principle---In auction proceedings title in property is not transferred in favour of the highest bidder at the time when auction is held and offer is forwarded to court for acceptance---Court sale for immovable property under O.XXI, R.84, C.P.C. is subject to proceedings under O.XXI, Rr.89, 90 and 91 C.P.C., as a result of which sale may either be set aside or confirmed---Once sale is confirmed, S.65 C.P.C. provides that ownership right in immovable property is deemed to have vested in succeeding bidder retrospectively from the date when auction was held.

Hamid Khan, Senior Advocate Supreme Court for Appellant.

Sh. Zamir Hussain, Senior Advocate Supreme Court for Respondents.

Date of hearing: 10th May, 2010.

P L D 2010 Supreme Court 1004

Present: Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair Ali, JJ

PEARL CONTINENTAL HOTEL and another---Appellants

Versus

GOVERNMENT OF N.-W.F.P. and others---Respondents

Civil Appeal No.240 of 2005, in C.P. No.2720 of 2004, decided on 20th July, 2010.

(On appeal against the judgment dated 28-3-2005 passed by Peshawar High Court, Peshawar in Writ Petition No.650 of 2003).

(a) North-West Frontier Province Finance Ordinance (XXIII of 2002)---

----Ss. 4 & 5---North-West Frontier Province Finance (Amendment) Ordinance (VII of 2003), S.4---North-West Frontier Province Hotel Tax Rules, 2003, R.4---Constitution of Pakistan (1973), Arts.128 & 185(3)---Leave to appeal was granted by Supreme Court to consider; whether North-West Frontier Province Hotel Tax Rules, 2003 were framed by Provincial Government with competent authority because S.5 incorporated in North-West Frontier Province Finance Ordinance, 2002, was not laid before Provincial Assembly for making the same as Act of Provincial Assembly, within the period of three months from its promulgation as per Art. 128 of the Constitution; whether North-West Frontier Province Finance (Amendment) Ordinance, 2003, was protected under Constitution (Seventeenth Amendment) Act, if so, to what effect; whether Rule 4 of North-West Frontier Province Hotel Tax Rules, 2003, was promulgated beyond the scope of section 4 of North-West Frontier Province Finance Ordinance, 2002, if so, same being ultra vires the Ordinance, deserved to be struck down; and whether High Court had correctly interpreted expression used in section 4 of North-West Frontier Province Finance (Amendment) Ordinance, 2003, namely "lodging units available at the rate of 5% of room rent per lodging unit per day".

(b) West Pakistan Finance Act (I of 1965)---

----Ss. 12 & 18 (3)---North-West Frontier Province Finance (II of 2000), S. 6---North West-Frontier Province Finance Ordinance (XXIII of 2002), Ss.4 & 5---North-West Frontier Province Finance (Amendment) Ordinance (VII of 2003, S. 4---North-West Frontier Province Hotel Tax Rules, 2003, R.4---Hotel tax---Vires of maximum charges for lodging unit in a Hotel---Absence of machinery provisions---Rebated room rents---Effect--- "Room rent per lodging unit per day "---Connotation---Authorities sought recovery of Hotel Tax under S.4 of North-West Frontier Province Finance Act, 2002, from appellant/ hotel---Plea raised by appellant/hotel was that charging section did not permit tax on room rent calculated for the year on the basis of the highest charges received for a lodging unit for a day---Appellant/hotel further contended that charging section limited imposition of tax to 50% of available lodging units and not on the maximum number of lodging units---Validity---Where assessment and recovery of tax was made in good faith and strictly in accordance with law and re-exercise thereto would have been futile, courts refused to interfere because of inadequacy or error in or absence of machinery provisions or procedure---Connotation of "room rent per lodging unit per day" in the statute could therefore, only be the standard and declared "room rent" printed in hotel literature and afforded at the counter to lodgers and customers to the contract for---No other meaning could be ascribed for the purposes of hotel tax---Behind the counter, management or owner of a hotel, using commercial or personal discretion, might charge a customer rebated or negotiated room rent at 3/4th, '1/2th, 1/4th, 1/8th, 1/10th or nil of the standard declared room rent---On the same logic a hotel in good season and good days, might charge room rent higher than the declared rent---Such discretion or accommodation might be normal or abnormal, ordinary or extra-ordinary and commercial or non-commercial practice but it could neither be standardized as a rule nor could it be effectively/evenly regulated by taxing authorities---Such practice patently non-transparent, uneven and optional could not provide the requisite equal, just, balanced, fair and reasonable parametrical basis for levy and collection of tax---Concept of maximum count of lodging units or maximum charges for room rent of a lodging units was illogical, in-apt and in conflict with the provisions of S.4 of North-West Frontier Province Finance Ordinance, 2002---If there was 100 lodging units in a hotel, tax could only be charged on room' rent of 50% of lodging units and not on fifty one lodging units or more---Framers of rules in their over-anxiety to extract maximum tax, superfluously added the term "maximum" with the number of lodging units as well as the charges thereon---Defined and fixed basis of tax under S.4(1) of North-West Frontier Province Finance Ordinance, 2002, was changed by rule 4 of North-West Frontier Province Hotel Tax Rules, 2003, to a variable basis, which over-stretched and over-bloated itself beyond the scope of parent statute---Supreme Court declared Rule 4(1) of North-West Frontier Province Hotel Tax Rules, 2003, as ultra vires the provisions of S.4 of North-West Frontier Province Finance Ordinance, 2002 and Rules 4(2) and (3) of North-West Frontier Province Hotel Tax Rules, 2003, as ultra vires the law along with any other provisions in the Rules which were inconsistent or conflicting with or repugnant to and deviative of the law---Assessment made by the authorities was set aside by Supreme Court and authorities could initiate fresh proceedings for assessment and collection of tax on hotels for the period of 1-7-2002 to 13-9-2003---Appeal was allowed.

West Punjab Province v. K.B. Amir-ud-Din and others PLD 1953 Lah. 433 and Muhammad Younas v. Chairman Municipal Committees, Sahiwal and others PLD 1984 Lah. 345 rel.

Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd. Peshawar and others 2003 SCMR 370 and The Chairman, Railway Board, Lahore and others v. Messrs M. Wahabuddin and Sons PLD 1990 SC 1034 ref.

(c) Interpretation of statutes---

----Taxing statute---Machinery provisions---Applicability---Machinery provisions where provided, have to be construed liberally and in the manner aiding realization of proper tax and to prevent avoidance of tax---Where such provisions not provided for but tax recovery is made as per law, the omission of machinery may not be considered as fatal to tax recovery but where law is disregarded or breached or violated in assessing or recovering tax, non-existence of recovery provisions cannot be ignored.

(d) Interpretation of statutes---

----Taxation statute---Ambiguity---Principle---In case of ambiguity or uncertainty, taxing statutes should be interpreted to obtain, certainity, coherence and even applicability of provisions demanding interpretation---Unambiguous and express provisions of taxing statutes be enforced literally without demur, stretch or restriction.

Messrs Yousuf Re-Rolling Mills v. The Collector of Customs and another PLD 1989 SC 232 and Messrs Al-Hamza Ship Breaking Company and others v. Government of Pakistan through Secretary, Finance and Economic Affairs (Revenue Division), Islamabad and others 1996 PTD 347 rel.

(e) Interpretation of statutes---

----Taxing statute---Scope---It cannot be read into a taxing statute, what has not been provided therein.

(f) North-West Frontier Province Finance Ordinance (XXIII of 2002)---

----S. 4---Words "available" and "room rent"---Connotation---Word "available" in a hotel does not demand a given or fixed number of lodging units always in a hotel---Hotel management may on a future date discard, reduce or increase lodging units during a year as a policy---Similarly "room rent" may on commercial considerations be changed but its increase or decrease and be so adopted, declared and displayed as the standard room rent for a particular period.

Syed Naeem Bukhari, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants.

Masood Kausar, Advocate Supreme Court, Syed Arshad Hussain, Advocate Supreme Court along with Zia-ur-Rehman, A.-G., N.-W.F.P. for Respondents Nos. 1 to 4.

Date of hearing: 20th January, 2010.

P L D 2010 Supreme Court 1021

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Tassaduq Hussain Jillani, Ch. Ijaz Ahmed, Tariq Parvez, Asif Saeed Khan Khosa Khalil-ur-Rehman Ramday, JJ

NAZAR HUSSAIN and another---Petitioner/Appellant

Versus

THE STATE---Respondent

Criminal Petition No. 426 of 2009 along with Criminal Appeal No. 383 of 2009 & Human Right Cases Nos. 3200-G, 3742-P, 3928-P, 3887-P, 9778-P of 2009, decided on 11th August, 2010.

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

----Arts. 45 & 48---President's powers to grant remission in respect of offences---Object and scope---Powers/actions of the President under Art.45 of the Constitution are part of his "functions" and are to be exercised in accordance with the advice of the cabinet or the Prime Minister---Manner of exercise of various powers of the President is spelt out in Art.48 of the Constitution; exercise of the power by the President under Art.45, would not fall within the ambit of Art.48(2) of the Constitution---Principles.

The Head of the State is vested with similar powers in almost all Constitutions of the World as provided in Article 45 of the Pakistan Constitution.

Every country recognizes and has, therefore, provided for this power to be exercised as an act of grace in proper cases. Without such a power of clemency to be exercised by some department or functionary of government, a country would be most imperfect and deficient in its political morality and in that attribute of deity whose judgments are always tempered with mercy. The pardoning power is founded on consideration of the public good and is to be exercised on the ground of public welfare, which is the legitimate object of all punishments, will be as well promoted by a suspension as by an execution of the sentences. It may also be used to the end that justice be done by correcting injustice, as whereafter discovered facts convince the official or board invested with the power that there was not guilt or that other mistakes were made in the operation or enforcement of the criminal law. Executive clemency also exists to afford relief from undue harshness in the operation or enforcement of criminal law. Acts of leniency by pardon are administered by the executive branch of the government in the interest of society and the discipline, education and reformation of the person convicted. A pardon is granted on the theory that the convict has seen the error of his ways, that society will gain nothing by his further confinement and that he will conduct himself in the future as an upright, law-abiding citizen.

The power under Article 45 of the Constitution being a constitutional power, is not subject to any limitations or conditions that may be found in the Pakistan Penal Code or the Code of Criminal Procedure. The exercise of the discretion by the President under Article 45 is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial process, apart from specific or special cases where relief is by way of grace alone, as for instance to celebrate an event or when a new President or Prime Minister is installed, where relief or clemency is for the honour of the State.

If a sentence is commuted, it has the effect of substituting the sentence imposed by the court with that of the President or the Federal Government or the Provincial Government as the case may be. It does not, however, wash off the guilt or alter the judgment. If commutation order has been passed during the pendency of the appeal of the convict, the court can still decide about the guilt or innocence of the accused.

The manner of the exercise of various powers of the President is spelt out in Article 48 of the Constitution. Article 48(1) provides that in the exercise of his "functions", the President shall act in accordance with advice of the Cabinet (or the Prime Minister). But this is qualified by proviso stipulated therein and to Sub-Article (2).

The powers/actions of the President under Article 45 of the Constitution are part of his "functions" and are to be exercised in accordance with the advice of the Cabinet or the Prime Minister.

Sub-Article (2) of Article 48 of the Constitution relates to the discretionary powers of President in which he is empowered to act, but there is no reference to the discretion of the President in Article 45 of the Constitution. Thus in the exercise of the powers under the latter provision, he has to act on the advice of the Prime Minister or the Cabinet. The exercise of the power under this provision, therefore, would not fall within the ambit of Article 48(2) of the Constitution.

The Rules of Business framed under Article 99 of the Constitution categorize list of cases requiring orders of the President on the advice of the Prime Minister and Item No. 25 pertains to the powers of the President under Article 45 of the Constitution.

The Constitution makers deemed it proper to embed this provision in the Constitution so as to place it at a higher pedestal than any other legislative or administrative Act or instrument. However, it needs to be emphasized that all public power which includes the constitutional power is a public trust and has to be exercised bonafidely, for public good and welfare. The considerations for public welfare may, inter alia, include discipline, education, reformation and equity.

Abdul Malik and others v. The State and others PLD 2006 SC 365; Shah Hussain v. The State PLD 2009 SC 460; American Jurisprudence 2nd Edn. P.5; Corpus Juris Secundum Vol. 67-A; Bhai Khan v. The State PLD 1992 SC 14; Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84; State of Punjab v. Joginder Singh AIR 1990 SC 1396; R.V. Boyes (1861) 1 B&S 311 ref.

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

----S. 382-B---Constitution of Pakistan (1973), Arts. 45, 9 & 25---Refusal by the court to allow remissions of pre-sentence custody period to convict who had been granted benefit of S.382-B, Cr.P.C. amounted to depriviation of his liberty and was violative of the fundamental right of "right to life" enshrined in Art.9 of the Constitution---Supreme Court deprecated the denial of remissions to a category of convict prisoners for the pre-sentence period, as arbitrary devoid of reasonable classification and declared the same violative of Art.25 of the Constitution.

Shah Hussain's case PLD 2009 SC 460 ref.

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

----Art. 45---Policy framed by Government of Pakistan, Ministry of Interior vide No.D-2792/2009-DS(Admn), August, 2009---Grant of remission to convicts---Policy of remissions formulated by Government of Pakistan, Ministry of Interior in August, 2009 is neither arbitrary nor discriminatory and is rather based on an intelligible differentia which is permissible and is therefore, not violative of Art.25 of the Constitution and law laid down by Supreme Court in the case Shah Hussain v. The State PLD 2009 SC 460---Observations made by Supreme Court in Shah Hussain's case (PLD 2009 SC 460) qua the inclusion of convicts under the National Accountability Ordinance, 1999 were directed by Supreme Court to be treated as per incuriam.

PLD 2007 Kar. 139 ref.

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

----Art. 45---Prisons Act (IX of 1894), S.59---President's power to grant remissions in respect of offences---Such power of the President is unfettered by any subordinate legislation---Said power, being a constitutional dispensation, the remissions, reprieve or pardon granted under Art.45 of the Constitution shall prevail in the event of a conflict between the Rules framed and an order passed under Art.45 of the Constitution--Principles.

Abdul Malik's case PLD 2006 SC 365 and Shah Hussain v. The State PLD 2009 SC 460 fol.

Salmond on Jurisprudence 12th Edn. By P.J. Fitzgerald; Indian Supreme Court 1980 Cr.LJ 1440; Maru Ram v. Union of India (1981) 1 SCC 107 and State of Punjab and others v. Joginder Singh and others (1990) 2 SCC 661 ref.

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

----Arts. 45 & 25---Prisons Act (IX of 1894), S.59---Policy framed by Government of Pakistan, Ministry of Interior vide No.D-2792/2009-DS (Admn.) August, 2009---President's power to grant remissions in respect of offences---Classification---Scope---Classification made by the competent authority on the basis of intelligible differentia qua accusations/nature of offences or on the basis of law or rules reflecting the same, is permissible and would not be derogatory to the Constitution-Principles.

Classification is permissible provided the same is backed by law, rules or is based on reasonable differentia. For the exercise of authority under Article 45 of the Constitution, classification of convicts on the basis of accusation is permissible as the President may, inter alia, like to grant remissions to those who are not accused of heinous offences and may refuse it to those accused of serious or terrorism related offences. In the remission policy as formulated by Government of Pakistan, Ministry of Interior in August, 2009 a class of convicts involved in "heinous crimes" have been excluded from the benefit of remissions. Most of these exclusions are backed by law, rule or an intelligible differentia. The classification is reasonable and applies equally to convicts/prisoners similarly placed. This differentia is not hit by equality clause of the Constitution.

A classification made by the competent authority on the basis of intelligible differentia qua accusations/nature of offences or on the basis of law or rules reflecting the same, is permissible and would not be derogatory to the Constitution.

Jibendra Kishore Achharyya Chudhry v. Province of East Pakistan PLD 1957 SC 9; Waris Meah v. State PLD 1957 SC 157; Bazal Ahmed Ayyubi v. The West Pakistan Province PLD 1957 Lah. 388; Zain Noorani v. Secretary of National Assembly of Pakistan PLD 1957 Kar. 1; Malik M. Usman v. State PLD 1965 Lah. 229; East and West Steamship v. Pakistan PLD 1958 SC 41; F.B. Ali's case PLD 1957 SC 506; Fauji Foundation's case PLD 1983 SC 457; I.A. Suherwani's case 1991 SCMR 1041; Abdul Wali Khan's case PLD 1976 SC 57; Aziz Begum's case PLD 1999 SC 899; Shirin Munir and others v. Government of Punjab PLD 1990 SC 295; Government of Baluchistan v. Azizullah Memon PLD 1993 SC 341; Saleem Raza v. The State PLD 2007 Kar. 139 and Government of A.P. and others v. M.T. Khan (2004) 1 SCC 616 ref.

Ch. Afrasiab Khan, Advocate Supreme Court for the Petitioner (in Crl.P. 426 of 2009).

Arshad Ali Chaudhry, AOR for the Appellant (in Crl.A. 383 of 2009).

Amicus Curiae: Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Zulfiqar Khalid Maluka, Advocate Supreme Court.

Shah Khawar, D.A.G., Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record (on behalf of A.G. Sindh), Naveed Akhtar, Addl. A.G. N.-W.F.P., Muhammad Raza, Addl. A.G. Balochistan, Saeed Yousaf, Addl. A.G. Punjab, Raja Shahid Mehmood, D.P.G. Punjab for the State.

Dates of hearing: 1st and 2nd April, 2010.

P L D 2010 Supreme Court 1048

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

NAZIR HUSSAIN and others---Appellants

Versus

MUSHTAQ AHMAD through Legal Heirs and others---Respondents

Civil Appeal No.2772 of 2001, decided on 9th June, 2010.

(On appeal against the judgment dated 6-11-2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in R.S.A. No.19 of 1998/BWP).

Punjab Pre-emption Act (I of 1913)---

----S. 21---Right of pre-emption---Inheritable right---Scope---Appellants were successors-in-interest of pre-emptor who died during the pendency of pre-emption suit and High Court dismissed the suit on the ground that right of pre-emption was a personal right and the same did not survive death of pre-emptor---Validity---Appellants failed to point out any provision of law of pre-emption as existing in province of Punjab i.e. Punjab Pre-emption Act, 1913, which was relevant law at the time when sale in question had been pre-empted by pre-emptor and which would have declared that right to claim possession through pre-emption would survive the pre-emptor but he could not do the same and rightly so because no provision existed in Punjab Pre-emption Act, 1913, which had so provided---Right of pre-emption being heritable, the situation in province of Punjab was at par with the one obtaining in Balochistan because to that extent even in province of Punjab no codified law existed---Supreme Court declined to take exception to the judgment passed by High Court and the same was maintained---Appeal was dismissed.

Malik Ghulam Nabi and others v. Member Board of Revenue and others PLD 1990 SC 1043; Khuda Yar v. Ghulam Muhammad 1999 SCMR 1808; Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478 and Muhammad Younus v. Khushal 1989 SCMR 69 ref.

Ch. Muhammad Anwar Bhinder, Advocate Supreme Court for Appellants.

G.N. Gohar, Advocate-on-Record for Respondents.

Date of hearing: 9th June, 2010.

P L D 2010 Supreme Court 1052

Present: Iftikhar Muhammad Chaudhry, C.J., Nasir-ul-Mulk and Tariq Parvez Khan, JJ

KASHIF AMIR---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.371 of 2008, decided on 30th June, 2010.

(On appeal from the judgment dated 26-8-2008 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.205 of 2006).

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

----S. 9(c)---Transportation of narcotics---Driver of the vehicle to be responsible---Person on driving seat of the vehicle shall be held responsible for transportation of the narcotics, having knowledge of the same, as no condition or qualification has been made in S.9(6) of the Control of Narcotic Substances Act, 1997, that the possession should be an exclusive one and can be joint one with two or more persons---When a person is driving the vehicle, he is incharge of the same and it would be under his control and possession, hence whatever articles lying in it would be under his control and possession.

Muhammad Noor v. The State 2010 SCMR 927 and Nadir Khan v. State 1988 SCMR 1899 ref.

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

----S.29---Presumption from possession of illicit articles---Burden of proof---Once the prosecution has, prima facie, established its case, then under S.29 of the Control of Narcotic Substances Act, 1997, burden shifts upon the accused to prove contrary to the plea of prosecution.

Ismaeel v. The State 2010 SCMR 27; Muhammad Arshad v. The State 2007 SCMR 1378; Mst. Taj Bibi v. The State 2007 SCMR 1591 and Ikram Hussain v. The State 2005 SCMR 1487 ref.

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

----Ss. 9(c) & 29---Constitution of Pakistan (1973), Art.185(3)---Transportation of Narcotics---Accused being driver of the vehicle was incharge of the same and all the articles lying therein would be under his control and possession---In the present case from the secret cavities of the car 193 packets of "Charas" and 5 packets of opium weighing one kilogram each, were recovered on search---Samples had been drawn from all the packets---Accused had not challenged the recovery of the "Charas" and Opium before any court---Case of accused that he was innocent as he had no knowledge about the transportation of the narcotics in the car by concealing the same in the especially designed cavities did not inspire confidence---Prosecution had established the guilt of accused---Accused had failed to discharge his burden by proving to the contrary in term of S.29 of the Control of Narcotic Substances Act, 1997---Prosecution case against accused, thus, stood proved---Leave to appeal was declined to accused accordingly.

Muhammad Noor v. The State 2010 SCMR 927; Nadir Khan v. State 1988 SCMR 1899; Ismaeel v. The State 2010 SCMR 27; Muhammad Arshad v. The State 2007 SCMR 1378; Mst. Taj Bibi v. The State 2007 SCMR 1591 and Ikram Hussain v. The State 2005 SCMR 1487; Syed Karim v. Anti Narcotics Force PLD 2003 Kar. 606; Ali Muhammad v. State 2003 SCMR 54; Naseer Ahmad v. The State 2004 SCMR 1361 and Hashim v. The State PLD 2004 SC 856 ref.

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

----S. 9(c)-Transportation of narcotics---Non-taking of samples from the whole lot of recovered narcotics---Question with regard to non-collection of the samples from the whole lot of recovered narcotics would arise in those matters where a challenge has been made that the recovered item is not narcotics.

Ali Muhammad v. State 2003 SCMR 54 ref.

Mian Muhammad Hanif, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-On-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 30th June, 2010.

P L D 2010 Supreme Court 1058

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Khalil-ur-Rehman Ramday, JJ

BAHADUR YAR JANG COOPERATIVE HOUSING SOCIETY LTD.---Appellant

Versus

FEROZE SHAMSI and others-Respondents

Civil Appeal No.131-K of 2009, decided on 7th April, 2010.

(On appeal against the judgment dated 27-2-2006 passed by High Court of Sindh, Karachi in C.P. No.D-288 of 2006).

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

----S. 3(c)---Member of Cooperative Society---Status---Member, under S.3(c) of Cooperative Societies Act, 1925, is neither absolute nor un­qualified with full rights and( privileges and his membership is subject not only to rules but even to bye-laws of concerned society.

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

----Ss. 3(c), 17-B & Preamble-Cooperative Societies Rules, 1927, R.4---Cooperative societies---Object and scope---Transfer of interest in Housing Society---Members, aright of-Bye-laws of Society---Appellants were aggrieved of the order passed by High Court, whereby provisions of S.17-B of Cooperative Societies Act, 1925, had given overriding effect over Cooperative Societies Rules, 1927 and Bye-laws of the Society---Validity---Philosophy culminating in Cooperative Societies Act, 1925, was to encourager people to voluntarily come together for attainment of common economic and social interests and for achieving better standards of living on self-help basis and on the basis of mutual assistance; it had, therefore, been left to the discretion of persons, so joining hands for the object, to decide the kind of persons, that they would like to join hand, with, so that that the common interest could be better achieved and it was for such reason that unlike some other laws, Cooperative Societies Rules, 1927, acknowledged restricting and limiting of membership on the basis of tribes, castes and occupations etc. because homogeneity of educational, and social background were considered as factors aiding cooperation whereas heterogeneity could impede the same---Provisions of Ss.17-B and 3(c) of Cooperative Societies Act, 1925, had themselves made grant of membership by cooperative society subject to rules framed under Cooperative Societies Act, 1925, and also to bye-laws framed by the concerned society---As the bye-laws of the society in question envisaged conferment of restricted membership, therefore, neither the relevant rules nor the bye-laws in question were ultra vires of Cooperative Societies Act, 1925---High Court' was in error in holding that conferment of qualified membership on a person owning immovable property in a society was invalid---Judgment passed by High Court was set aside---Appeal was allowed.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court for Appellant.

Syed Amjad Hussain, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents Nos. 1-3.

Yousuf Leghari, A.G. Sindh with Syed Hussain Shah, D.D.O. (Cooperative Department, Sindh) for Respondents No.4-5.

I.M. Zaidi, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.6;

Date of hearing: 7th April, 2010.

P L D 2010 Supreme Court 1066

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

Rana AFTAB AHMAD KHAN---Petitioner

Versus

MUHAMMAD AJMAL and another---Respondents

Civil Petition No.712-L of 2010, decided on 12th May, 2010.

(On appeal from the judgment dated 29-4-2010 passed by the Lahore High Court, Lahore in W.P. No.8595 of 2010)

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

----Preamble---Election disputes---Scope---Representation of the People Act, 1976, is a comprehensive code on the subject of "Election" which provides in detail and encompasses the wholesome process of election by prescribing a thorough mechanism thereto a specific methodology for resolution of disputes arising in connection therefrom.

Election Commission of Pakistan through Secretary v. Javaid Hashmi and others PLD 1989 SC 396 ref.

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

----Ss. 11 & 42---Election process-Stages-Pre-polling and post-polling disputes---Scope---Election process can broadly be divided into two segments, one the period between the date of nomination of candidates till the day before polling, which can be termed as a pre poll stage---Second stage starts on the day of polling and terminates with the declaration of result of election, such stage can be signified as a post poll stage---At pre poll stage the significant disputes which may arise in relation to election, are about valid nominations of candidates, inter alia involving the questions about their qualifications/disqualifications; the other issues may be regarding polling scheme, deputing polling staff etc. and/or by violations of any election laws/rules or instructions given by Election Commission, which may be committed by the official responsible for the conduct of election and/or by candidates or their supporters in the course of election campaign---Such can also be true for other illegalities, corrupt and illegal practices.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction in all cases cannot be invoked as a matter of right, course or routine, rather such jurisdiction has certain circumventions which the Court is required to-keep in view while exercising its extraordinary discretionary powers---Conditions mentioned in Art. 199 of the Constitution are meant for the purposes of regulation of the Courts' jurisdiction and availability of "other remedy" is one of such limitation.

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

----Arts. 62(f), 185(3) & 199---Constitutional jurisdiction of High Court---Declaration to character of candidate---Scope---Factual controversy---Educational credential---Genuineness, determination of---Nomination papers of respondent were accepted by Returning Officer and after election he was declared as returned candidate---Petitioner assailed candidature of respondent before High Court in exercise of Constitutional jurisdiction---Validity---High Court rightly refused to interfere in its Constitutional jurisdiction, when an appropriate, efficacious and adequate alternate remedy available to petitioner had not been availed by him without any justification--High Court in such cases was not bound to issue writ, especially when there was no material on record to eminently and conclusively establish inherent lack of candidate's qualification so that he could be hit by Art.62(f) of the Constitution---To hold a person lacking honesty, being not sagacious; righteous; Ameen and non profligate, in other words to declare the candidate a fraud, cheat and dishonest etc. which could be a stigma on his face entailing great immense and innumerable legal and social consequences and repercussions, and the same was not justified without there being an adjudication made by Court of competent jurisdiction to hold him carrying such a "vice "---Declaration, determination and adjudication of a person falling within the mischief of Art. 62(f) of the Constitution in appropriate cases could also be possible through the medium of Returning Officer or appeal arising therefrom but it could not be done straight away in Constitutional jurisdiction, when there was a factual controversy involved---Petitioner failed to establish to the satisfaction of Supreme Court if SANAD of respondent was adjudged to be bogus by any competent forum and thus his nomination papers on the basis of the same could have been necessarily rejected by Returning Officer and if not by him, High Court should have interfered in the matter---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Ahad Sharif alias Muhammad Ahad and another v. Javed Tariq and others, 2006 SCMR 1356; Nawabzada Iftikhar Ahmed Khan Bar v. Chief Election Commissioner, Islamabad and others passed by this Court in C.P. No.287 of 2008 dated 25-3-2010; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Mehmood Ahmad Butt and another v. Returning Officer, Union Council No.159/04 Kamoke, District Gujranwala and 2 others 2008 SCMR 736; Ghulam Mustfa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A.158 Naushero Feroze and others 1994 SCMR 1299 ref.

The Presiding Officer v. Sadruddin Ansari and another PLD 1967 SC 569; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 rel.

Ali Akbar Qureshi, Advocate Supreme Court for Petitioner.

Ashtar Ausaf Ali, Advocate Supreme Court for Respondent No.1.

Mazhar Ali Ch. D.A.-G. and Saeed Yousaf Khan, Addl. A.G.Pb. (On Court's Notice).

Date of hearing: 12th May, 2010.

P L D 2010 Supreme Court 1080

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez Khan, JJ

FAISAL ALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.79 of 2006, decided on 4th August, 2010.

(On appeal from the judgment dated 20-10-2003 passed by the Lahore High Court, Lahore in Criminal Appeal No.138 of 1997).

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

----S. 302---Juvenile Justice System Ordinance (XXII of 2000), S.2(b)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court only to the extent of sentence for safe criminal administration of justice.

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

----S.302---Sentence---Age of accused---Quantum of punishment---Youth of accused alone does not constitute such an extenuating circumstance as would justify imposition of lesser penalty prescribed by law.

Harnamun v. Emperor AIR 1928 Lah. 855; Maghar Singh Naghar Singh and others v. Emperor AIR 1941 Lah. 220; The State v. Tasiruddin PLD 1962 Dacca 46; Sher Hassan v. The State PLD 1959 SC (Pak.) 480 and Ghulam Hyder v. The State (1970 PCr.LJ 1052). rel.

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

---S.302---Death penalty---Element of intention--Repeating of blows---Effect---Plea raised by accused was that penalty of death did not commensurate with gravity of offence as it was not a premeditated murder and element of intention was lacking which was sine qua non for imposition of capital punishment---Validity---Three successive blows were inflicted by accused on the chest of deceased and no other evidence was required to establish the factum of intention---Intention did not imply or assume existence of some previous design or fore-thought and it was proved from the acts of accused and circumstances of the case---Plea of accused was repelled by Supreme Court.

Maunawar Ali v. The State 2001 SCMR 614 and Zafar v. State 1999 SCMR 2028 rel.

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

----S. 302---Juvenile Justice System Ordinance (XXII of 2000), S.2(b)---Re-appraisal of evidence---Minor age of accused-Proof--Certificate issued by Registration department---Dates of birth of other brothers of accused---Conviction and sentence of death awarded to accused by Trial Court was maintained by High Court---Plea raised by accused was that he was minor at the time of offence, therefore, capital punishment could not be awarded-Validity---Certificate as furnished on behalf of accused could not be considered as admittedly accused was more than 20 years of age and no objection regarding factum of age was raised before police, Trial Court as well as High Court---Even no such point was incorporated in memorandum of appeal preferred before High Court and such plea was an after-thought, which could not be substantiated and raised to frustrate judgments of Trial Court and High Court, as the judgments were well based and did not warrant interference---Certificate issued by Director General of Registration, Ministry of Interior was of no use to accused wherein a futile attempt had been made to show the date of birth of accused as 6-5-1977, to make him a "child" for taking benefit as provided in S.2(b) of Juvenile Justice System Ordinance, 2000---Contents of the certificates showed that date of birth of accused had been shown 6-5-1977, while his brother was born on 4-1-1978 and another brother on 2-11-1978, which did not appeal to reason and logic and appeared to be incorrect---No benefit could be extended in favour of accused for tender age which did not constitute mitigating circumstance---Deceased was killed in brutal and callous manner and hence question of any leniency did not arise--Trial Court had examined entire evidence with diligent application of mind, determination whereof had been kept intact by High Court, which was well based and did not warrant interference---Appeal was dismissed.

Muhammad Saleem v. The State 2001 SCMR 536; Din Muhammad v. the State 1985 SCMR 625; Abdullah v. Shaukat 1988 SCMR 370; Muhammad Hanif v. The State 1994 SCMR 1152; Hukamdin v. The State 1994 SCMR 2134; Noor Muhammad v. The State 1988 SCMR 1640; Mushtaq Ahmed v. The State 1988 SCMR 165; Muhammad Siddiq v. the State PLD SC 1079 and Zulfiqar v. State 1995 SCMR 1668 ref.

Malik Waheed Anjum, Advocate Supreme Court for Appellant.

Muhammad Siddique Khan Baloch, D.P.G. for the State.

Raja Abdul Ghafoor, Advocate Supreme Court for the Complainant.

Date of hearing: 14th April, 2010.

P L D 2010 Supreme Court 1089

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez Khan, JJ

Haji NASIR MEHMOOD---Appellant

Versus

Mian IMRAN MASOOD and others---Respondents

Civil Appeal No.47 of 2010, decided on 4th August, 2010.

(On appeal from the judgment, dated 3-2-2010 passed by the Lahore High Court, Lahore (Election Tribunal) in Election Petition No.147 of 2008).

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

----S. 99(cc)---Bachelor's degree---Recognition---Higher Education Commission, role of---Scope---Degree which is not recognized by Higher Education Commission is worthless like a piece of paper and such degree cannot be equated to that of a "Degree" because every degree is subject to recognition which provides sanctity to a degree---Degree which is not recognized by Higher Education Commission cannot be declared as a valid "degree"---Words "Bachelor's degree" as used in section 99(cc) Representation of the People Act, 1976, means a degree which is valid one and recognized by Higher Education Commission---Question of recognition does fall within the jurisdictional domain of Higher Education Commission---Validation of a degree depends upon its recognition---Higher Education Commission is not an alien entity in such like matters.

Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law Justice and Human Rights Division Islamabad, C.P. No. 1 of 2008; Sana Ullah Khan v. District Returning Officer PLD 2005 SC 858; Maulana Abdullah v. Returning Officer and others 2003 SCMR 195; Munir Ahmed v. Returning Officer 2008 CLC 1111 and Rao Tariq Mehmood v. Election Commission of Pakistan PLD 2003 Lah. 165 rel.

(b) Higher Education Commission Ordinance (LII of 2002)---

----S. 10(1)---Powers and functions of Higher Education Commission---Scope---Higher Education Commission may determine equivalence and recognition of degrees, diplomas and certificates awarded not only by institutions within the country but as well as the institutions functioning abroad.

Sana Ullah Khan v. District Returning Officer PLD 2005 SC 858 rel.

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

----Ss.99(cc)---Higher Education Commission Ordinance (LII of 2002), S.10(1)---Bachelor's degree---Recognition and validation---Non­-availability of record---Effect---Bachelor's degree held by appellant was declared by Election Tribunal as unrecognized and invalid---Validity---Validity of degree was always subject to verification, which could only be made on the basis of record and according to report of university authorities, the same was not available---Even if it was presumed that the degree was issued to appellant, even then the question was as to whether the same was genuine or otherwise---Genuineness of degree could not be ascertained in vacuum and there must be some base for making verification, which at all was not available---Visionary leadership could not. be emerged and the matter of genuineness of degree was more fundamental and involved a crucial issue of trust---Supreme Court commented that nothing good could be expected out of such fakers who not only betrayed the confidence of voters of their constituency but cheated them in a shameless manner-Such persons could not watch legitimate interest of people with a dead conscience which never pricked while defrauding the nation---Such persons deserved exemplary punishment so that such shameful instances could not be repeated---Supreme Court directed the Election Commission to initiate criminal proceedings against appellant---Supreme Court also directed the appellant to return all salaries and allowances received by him as a Member of Assembly and in case of failure, the salaries would be recovered as arrears of land revenue---Criminal wastage of tax payers' money could not be allowed---Burden to prove a valid, genuine and bona fide qualifications was upon the appellant, which could not be discharged---Supreme Court declined to interfere in the judgment passed by Election Tribunal---Appeal was dismissed.

Abdul Sattar Lalika v. Sajid Ahmed and another 2003 MLD 459; Sanaullah Khan v. District Returning Officer PLD 2005 SC 859; Muhammad Nasir Mahmood v. Federation of Pakistan PLD 2009 SC 107; Samiuddin Qureshid v. Collector of Customs PLD 1989 SC 335; Samar Pervaiz v. Board of Intermediate and Secondary Education PLD 1971 SC 838; Abdul Hameed v. Municipal Committee PLD 1973 Lah. 339; Shah Jahan Begum v. Baloch PLD 1975 Lah. 390; Begum Shamsunnehar v. The Speaker, East Pakistan Provincial Assembly PLD 1965 SC 120; Fazlul Quader Chowdhry v. Muhammad Abdul Haque PLD 1963 SC 486; A.M. Khan Leghari v. Government of Pakistan PLD 1967 Lah. 227 and Yusuf Ali v. Province of East Pakistan PLD 1958 Dacca 138 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellant.

Wasim Sajjad, Senior Advocate Supreme Court for Respondent No.1.

Nemo for Respondents.

Date of hearing: 4th March, 2010.

P L D 2010 Supreme Court 1109

Before Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

BANK OF PUNJAB an another---Petitioners

Versus

HARIS STEEL INDUSTRIES (PVT.) LTD. and others---Respondents

Constitutional Petitions Nos.20 to 27, 39 and 45 of 2009, H.R. Cases Nos. 20424-P, 20982-P of 2009 and, 19465-P of 2010, C.M.A. No.1703 of 2010 in Constitutional Petition No.39 of 2009, decided on 1st September, 2010.

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

----Arts. 184(3), 199, 24 & 9---Supreme Court Rules, 1980, O.XXXIII, R.6---Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Maintainability---Scope---Matter in the present case, related to one of the gravest financial scams in the banking history of Pakistan as a result of which the Bank stood cheated of an enormous amount of around eleven billion rupees which amount of money in fact belonged to around one million innocent depositors including depositors of small amounts of money whose life savings and property had come under serious threat casting thus an obligation on the Supreme Court to move in to protect and defend the right of property of such a large section of the population i.e. about one million depositors and customers of the Bank which right of property stood guaranteed to them by Art.24 and Art.9 of the Constitution and it was in view of the facts and circumstances that the Bank had felt compelled to approach Supreme Court under Art. 184(3) of the Constitution read with O.XXXIII, R. 6 of the Supreme Court Rules, 1980 through Constitutional petition---Held, Supreme Court was possessed of powers to make any order of the nature mentioned in Art.199 of the Constitution, if in the opinion of Supreme Court, a question of public importance relating to the enforcement of any of the Fundamental Rights was involved in the matter---What was at stake was not only a colossal amount of money/property belonging to at least, one million depositors i.e. a large section of the public but what was reportedly at stake was also the very existence of the Bank which could have sunk on account of the mega fraud in question and with which would have drowned not only the said one million depositors but even others dealing with the said Bank---What had been sought from Supreme Court was the protection and defence of the said public property; it was thus not only the right of Supreme Court but in fact its onerous obligation to intervene to defend the said assault on the said fundamental right to life and to property of the said public.?

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

----Arts. 184(3) & 199---Criminal Procedure Code (V of 1898), S.23-A(6)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Scope---Matter, in the present case, related to one of the gravest financial scams in the banking history of Pakistan as a result of which the Bank stood cheated of an enormous amount of around eleven billion rupees which amount of money in fact belonged to around one million innocent depositors holding small amounts of money whose life savings and property had come under serious threat causing thus an obligation on Supreme Court to move into to protect and defend the right of property of such a large section of population---Contention was that Supreme Court had no jurisdiction to control investigation of a criminal case and the -reasons offered in support of the contention was that such a control over the investigation of criminal case by Supreme Court could be prejudicial to the accused---Validity---Held, approach of a court of law while dealing with criminal matters had to be dynamic keeping in view the facts and circumstances of each case and also the surrounding situation obtaining in the country---In view of the facts and circumstances of the present case, it would have been felonious and unconscionable on the part of Supreme Court if it had refused to intervene to defend the fundamental rights of such a large section of the public and leaving it only to the concerned officials of the NAB who had done nothing at all in the matter for almost two years who had remained only the silent spectators of entire drama and had only witnessed the escape of the accuse- persons to foreign lands; it was to check and cater for such kind of gross negligence nonfeasance and malfeasance that the framers of the Constitution had obligated the High Court under Article 199 and Supreme Court under Art.184(3) of the Constitution to intervene in the matter exercising their power to review administrative and executive actions---Such was then what the Constitution had expected of Supreme Court through its Art.184(3) and this was exactly what Supreme Court had done---Role was also carved for the courts by addition of subsection (6) in S.22-A of the Cr.P.C.---In the given facts and circumstances of the case petitioner's approach to Supreme Court and Supreme Court's response thereto was perfectly constitutional and legal---Contentions were repelled in circumstances. ?

Khawaja Nazir's case AIR 1945 PC 18 distinguished.

Advocate-General Sindh v. Farman Hussain and others PLD 1995 SC 1; Zahid Imran and others v. The State and others PLD 2006 SC 109 and Mubashir Hasan's case PLD 2010 SC 265 ref.

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

----Ss. 4(1)(1) & 154---Constitution of Pakistan (1973), Art.184(3)---Investigation---Fair investigation---Necessity.

Investigation means nothing more than collection of evidence. It is evidence and evidence alone which could lead a court of law to a just and fair conclusion about the guilt or innocence of an accused person. It is, therefore, only an honest investigation which could guarantee a fair trial and conceiving a fair trial in the absence of an impartial and a just investigation would be a mere illusion and a mirage. It is, hence, only a fair investigation which could assure a fair trial and thus any act which ensures a clean investigation which is above board, is an act in aid of securing the guaranteed right and not in derogation thereof.?

(d) National Accountability Ordinance (XVIII of 1999)---

----S. 6(b)(c)---Appointment of Chairman and Deputy Chairman of National Accountability Bureau---Principles.?

Khan Asfand Yar Wali's case PLD 2001 SC 607 ref.

(e) National Accountability Ordinance (XVIII of 1999)---

----S. 6(c)---Appointment of Deputy Chairman as Acting Chairman of National Accountability Bureau---Conditions---Held, Provisions of S.6(c), National Accountability Ordinance, 1999 permit a Deputy Chairman to act as the Chairman NAB only when the Chairman is available but is temporarily absent or is temporarily unable to perform functions of his office e.g. on account of illness etc. and the said provision did not allow a Deputy Chairman to act as the Chairman when the said office was vacant.?

(f) National Accountability Ordinance (XVIII of 1999)---

----S. 6(b)(c)---Appointment of Chairman of National Accountability Bureau---Failure of competent authority to make appointment of Chairman while Deputy Chairman was acting as Chairman---Provisions envisaging appointments of acting incumbents are a mere stopgap arrangement meant to cater for emergencies and such-like provisions can never be allowed to be used to circumvent the law relating to the making of a regular appointment to such an office or to be used as a substitute for a regular appointment or to be abused to put an unqualified person to hold a post which the law does not permit to hold---Deputy Chairman could assume acting charge of the office of the Chairman only when a Chairman existed but was absent or was for some reasons unable to perform functions of his office and not when the office had become permanently vacant---Supreme Court declared that the assumption of the office of acting Chairman NAB by the Deputy Chairman was illegal and it was therefore, directed that a regular appointment to the vacant office of Chairman NAB be made in terms of section 6 of the National Accountability Ordinance, 1999---Competent authority was allowed thirty days' time for the purpose. ?

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

(g) Interpretation of statutes---

----Intention of the legislature---Duty of court---Where the intention of the legislature was clear and the object for which law had been enacted was patent and evident the courts were not allowed to interpret such a law in a manner which could impede or defeat the object for which such law had been enacted.?

(h) Administration of justice---

----What was not permitted by law to be achieved directly could not be allowed to be achieved indirectly.?

Madden v. Nelson 1889 AC 626 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 and Haji Muhammad Boota and others v. Member (Revenue) Board of Revenue Punjab and others PLD 2003 SC 979 ref.

(i) National Accountability Ordinance (XVIII of 1999)---

----S. 8---Appointment of a person as Prosecutor-General of National Accountability Bureau who had already held the said office for a term of three years---Law and principles--Held, in view of the meanings of the word "Non-Extendable"; in view of an emphatic pre fixation of negative before the word "Extendable"; in view of the fact that the said word "Non-Extendable" was a considered and a specific insertion in the provision in question through an amendment, in view of the fact that no interpretation was permissible which could have effect of defeating the clear intention and object of the legislature and finally in view of the fact that what could not be achieved directly could not be allowed to be accomplished indirectly, the fresh appointment of a person as the Prosecutor-General Accountability could not be sustained on account of section 8(a)(iii) of the National Accountability Ordinance, 1999 because said person had already held the said office for a "Non-Extendable" term of three years---Consequently, the appointment of said person as the Prosecutor-General of National Accountability Bureau was not legally tenable---Supreme Court declared and directed that the appointment of said person as the Prosecutor-General, National Accountability Bureau was unlawful and of no legal effect and he shall cease to hold the said office forthwith.?

Al-Jehad Trust's case PLD 1996 SC 324; Principles of Statutory Interpretation by Gru Prasanna Singh, Tenth Edn. 2006; Mian Muhammad Nawaz Nawaz Sharif N. President of Pakistan and others PLD 1993 SC 473; Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979; Oxford English Dictionary; Mehram Ali's case PLD 1998 SC 1445; Imtiaz Ahmed Lali's case PLD 2007 SC 369 and Madden v. Nelson 1889 AC 626 ref.

Kh. Haris Ahmad, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners (in C.P. No.20-27 and 39 of 2009).

Nemo for Petitioners (in C.P. No.45 of 2009).

Maulvi Anwar-ul-Haq, Attorney-General for Pakistan (On Court Notice).

M.S. Khattak, Advocate-on-Record along with Haris Afzal for Respondents (in C.P.No.22 of 2010)

Nemo for Respondents (in C.Ps. Nos. 23, 24, 25, 26 and 27 of 2010).

Irfan Qadir, P.G. NAB and Akbar Tarar, Addl. P.G. NAB. for NAB.

Raja Abdul Ghafoor Advocate Supreme Court/Advocate-on-Record for State Bank.

Nemo for Foreign Office.

Nemo for F.I.A.

Ch. Khadim Hussain Qaiser, Addl. A.G. and Hassan Akhtar Dy. Secretary, Home for the Government of Punjab.

Date of hearing: 7th July, 2010.

P L D 2010 Supreme Court 1151

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Muhammad Sair Ali; Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Parvez Khan, Mian Saqib Nisar, Asif Saeed Khan Khosa, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

SINDH HIGH COURT BAR ASSOCIATION---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

C.M.A. No.2981 of 2010 in Constitutional Petition No.9 of 2009, decided on 15th October, 2010.

(Reports alleging that Government is considering withdrawal of the Notification of Restoration of Judges dated 16-3-2009).

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.6---Application for bringing into the notice of the Supreme Court about the events going on for the last, few days i.e. the reports published in print media and also aired on electronic media, that the Government of Pakistan was contemplating to withdraw notification/executive order dated 16-3-2009 restoring the Chief Justice of Pakistan and other Judges of the Supreme Court of Pakistan and Chief Justices and Judges of High Courts---Held, Judges of the superior judiciary had never been sacked/deposed in pursuance of the Proclamation of Emergency, the Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007, and appointment of Mr. Justice Abdul Hameed Dogar as Chief Justice of Pakistan was unconstitutional, as the office of Chief Justice of Pakistan never fell vacant on 3-11-2007---Executive order passed was an, acknowledgement of the factual and legal position, i.e. that the order passed by the then President was unconstitutional and void ab initio---If the said order was attempted to be withdrawn, same would be tantamount to throttling one of the important pillars of the State, namely, the judiciary, thereby subverting the Constitution in terms of Article 6 of the Constitution particularly in view of the fact that matter had finally been clinched/decided in view of the judgment in Sindh High Court Bar Association's case (PLD 2009 SC 879)---No functionaries of the Government, including the head of the State or head of the Government or any of their other functionaries could take any steps for withdrawing the executive order/notification of restoration of Judges, which otherwise was non-existent in view of the said judgment of the Supreme Court---Supreme Court, in circumstances, directed that all the constitutional and State functionaries and administrative heads in the country to ensure that no action qua initiation of proceedings concerning withdrawal of the executive order (order of "restoration of Judges") dated 16-3-2009, status whereof had already been determined by Supreme Court in its judgment in Sindh High Court Bar Association's case (PLD 2009 SC 879), was taken, intentionally or otherwise, by any of the functionaries as noted hereinabove, and all the constitutional and administrative heads/functionaries were restrained/refrained from doing so; that the Government of Pakistan/Prime Minister to conduct an inquiry through an appropriate responsible functionary that if the statement of the former that no such action was being contemplated, was true, then how said news in the print and electronic media was spread, and who was responsible for the same because it was the primary duty of the Government to look into it and unearth such persons who were taking such steps or spreading such news, which were causing panic, sensation and anguish throughout the country; that members of the Bar Associations throughout the country were agitating the matter; that senior representatives had appeared in Court and had taken serious exception to the steps, which the Government was reportedly contemplating to take in this behalf; that the Attorney General for ,Pakistan, to communicate immediately the present order of the Supreme Court to all concerned, and send compliance report to the Registrar of Supreme Court in the course of the day and that this report must be placed before the Supreme Court on, the next date of hearing---No statement from the office of the Chief Executive/Prime Minister, denying the news items published in the print media and aired on the private TV channels had been placed before the Court---Case was adjourned for 18-10-2010, enabling the authorities/functionaries to put up report and statements, if desired.?

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 quoted.

Moulvi Anwarul Haq, Attorney General for Pakistan and Mushtaq Ahmed Malik, Chairman PEMRA (on Court Notice)

Qazi Muhammad Awnar, Senior Advocate Supreme Court, President, Supreme Court Bar Association; Malik Manzoor Hussain, Vice-President, Supreme Court Bar Association; Ahsanuddin Sheikh, Addl. Secretary, Supreme Court Bar Association; Sanaullah Zahid, Finance Secretary, Supreme Court Bar Association; Mian Abdul Quddus, President Lahore High Court Bar Association; Syed Zulfiqar Abbas Naqvi, President High Court Rawalpindi Bench Bar Association; Khan Afzal, Member, Executive Committee, Pakistan Bar Council; Malik Ghulam Mustafa Kandwal, Member, Punjab Bar Council; Malik Waheed Anjum, President, District Bat Association, Rawalpindi and Jan Muhammad, Advocate Supreme Court (Voluntary appeared).

Date of hearing: 15th October, 2010.

P L D 2010 Supreme Court 1161

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Parvez Khan, Mian Saqib Nisar, Asif Saeed Khan Khosa, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

SINDH HIGH COURT BAR ASSOCIATION---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

C.M.A. No.2981 of 2010 in Constitutional Petition No.9 of 2009, decided on 18th October, 2010.

(Reports alleging that Government is considering withdrawal of the Notification of Restoration of Judges dated 16-3-2009).

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), Arts.189 & 190---Civil Miscellaneous Application for bringing into the notice of the Supreme Court about the events going on for the last few days i.e. the reports published in print media and also aired on electronic media, that the Government of Pakistan was contemplating to withdraw notification/executive order dated 16-3-2009 restoring the Chief Justice of Pakistan and other Judges of the Supreme Court of Pakistan and Chief Justices and Judges of High Courts---Vide order dated 15-10-2010 of the Supreme Court (PLD 2010 SC 1151), while disposing of Civil Miscellaneous Application to the extent of the matter of withdrawal of executive order/notification vis-a-vis restoration of Judges dated 16-3-2009 final order was passed and directions were issued to the effect that all the constitutional and State functionaries and administrative heads in the country to ensure that no action qua initiation of proceedings concerning withdrawal of the executive order (order of "restoration of Judges") dated 16-3-2009, status whereof has already been determined by Supreme Court in its judgment in Sindh High Court Bar Association's case (PLD 2009 SC 789), is taken, intentionally or otherwise, by any of the functionaries as noted hereinabove, and all the constitutional and administrative heads/functionaries were restrained/refrained from doing so---Attorney General for Pakistan had stated that in compliance with the order of the Supreme Court dated 15-10-2010 whereby he was required to communicate immediately the said order to all concerned, he had served the same upon 105 constitutional and State functionaries and administrative heads and also had already sent the compliance report to the Registrar---Matter was postponed to enable the authorities/ functionaries to put up report and statements, if desired---As far as reference to the statement pertained to the denial issued by the Chief Executive/Prime Minister was concerned, although the matter was finally disposed of, but to know about the desire of the concerned functionaries, the matter was refixed---Attorney General for Pakistan had categorically stated that no one had desired to submit a statement---Held, as the case had been disposed of by a binding order in terms of Art. 189 read with Article 190 of the Constitution, therefore, it was up to the concerned authorities/functionaries to submit the statement or not.

Moulvi Anwarul Haq, Attorney General for Pakistan and Mushtaq Ahmed Malik, Chairman PEMRA (On Court notice).

Qazi Muhammad Anwar, Senior Advocate Supreme Court Bar Association; Sanaullah Zahid, Finance Secretay, Supreme Court Bar Association; Malik Ghulam Mustafa Kandwal, Member, Punjab Bar Council; Syed Zulfiqar Abbas Naqvi, President, High Court Rawalpindi Bench Bar Association, Hashmat Ali Habib, Advocate Supreme Court/Member, Executive Committee, Lahore High Court Bar Association; Malik Waheed Anjum, President, District Bar Association, Rawalpindi; Khan Muhammad and Raja Muhammad Anwarul Haq Advocates Supreme Court (Voluntary appeared).

Date of hearing: 18th October, 2010.

P L D 2010 Supreme Court 1165

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Rahmat Hussain Jafferi, Tariq Parvez Khan, Mian Saqib Nisar, Asif Saeed Khan Khosa, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

NADEEM AHMED, ADVOCATE and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 11-15, 18-22, 24, 31, 35, 36, 37 and 39-44 of 2010, C.M. Appeal No.91 of 2010, HRC Nos. 20492-P and 22753-K of 2010, C.M.As.1599, 1859, 1959 and 2681 of 2010 and Civil Petition No.1901 of 2010, decided on 30th September, 2010.

(On appeal from the order of Peshawar High Court dated 16-6-2010 passed in W.P.No.1581 of 2010).

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

----Arts. 175-A, [as inserted by Constitution (Eighteenth Amendment) Act, 2010] 1, 17, 17(4), 27, 38, 45, 46, 48, 51, 58(2)(b), 62, 63, 63-A, 91, 106, 148, 175, 177, 193, 209, 219, 226, 260 & 267-A & 184(3)---Constitutional petitions before Supreme Court under Art.184(3) of the Constitution---Vires of Art.175-A of the Constitution---Contentions of the petitioners were that Art.175-A (as inserted by Constitution (Eighteenth (Amendment) Act, 2010 was violative of one of the salient features of the Constitution i.e. independence of judiciary; that the judicial independence had nexus with the appointment process; that it was unworkable and impracticable inasmuch as the nominations made by the Judicial Commission were subject to scrutiny by the Parliamentary Committee which was empowered to confirm and forward the nominations of the Commission to the President for appointment under clauses (12) and (13) of Article 175-A; that the Parliamentary Committee had been given veto powers and even a unanimous recommendation made by the Judicial Commission could be vetoed by six out of eight members selected from the Parliament; that the insertion of Art.175-A was a product of mala fides; that the process of appointment of Judges would have an adverse effect on judicial, independence as it was likely not only to make the appointment process political but would- even otherwise affect its structural insularity which was an essential element of judicial independence; that Supreme Court had power of judicial review of constitutional amendments, if the basic structure/features or the core values had been tinkered with---Petitioner prayed for striking down the provisions under challenge, the concept of basic structure was pressed into service and it was maintained that the principle of substantive limits on the power to amend the Constitution had become a part of constitutional law in several liberal democracies and that the basic structure of the Constitution of Pakistan was even acknowledged by Supreme Court in Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) and Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) and even in Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263) but the Supreme Court did not deem it proper to make it a touchstone to strike down a' constitutional provision and that these judgments, needed re-visiting---Validity---Supreme Court declined to express its opinion on the merits of the issues and arguments addressed and deferred to the Parliamentary opinion qua Art.175-A on reconsideration by it in terms of the present Order of the Supreme Court and the issue of appointment process of Judges of the Superior Courts introduced by Art.175-A of the Constitution, inter alia, in the light of the concerns/reservations expressed and observations/ suggestions made and observed that Supreme Court would thereafter decide all petitions adverting to all the issues raised therein---Notwithstanding the pendency of petitions, the constitutional provisions under challenge had come into effect---Prior to the Constitution (Eighteenth Amendment) Act, 2010, several appointments of Additional Judges had been made in various High Courts and the issue of fresh appointments was likely to come up in near future, in these circumstances and till such time these petitions were decided, Article 175-A had to be given judicial enforcement by way of a construction which was in consonance with the other constitutional provisions underpinning judicial independence---Supreme Court held that Art.175-A shall be given effect to in the manner that in all cases of an anticipated or actual vacancy a meeting of the Judicial Commission shall be convened by the Chief Justice of Pakistan in his capacity as its Chairman and the names of candidates for appointment to the Supreme Court shall be initiated by him, of the Federal Shariat Court by the Chief Justice of the said Court and of the High Courts by the respective Chief Justices; that the Chief Justice of Pakistan as head of the Judicial Commission shall regulate its meetings and affairs as he may. deem proper; that the proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained; that the Parliamentary Committee shall send its approval of recommendations of the Judicial Commission to the Prime Minister for onward transmission to the President for necessary orders; that if the Parliamentary Committee disagrees or rejects any recommendations of Judicial Commission, it shall give specific reasons and the Prime Minister shall send copy of the said opinion of the Parliamentary Committee to the Chief Justice of Pakistan and the same shall be justiciable by the Supreme Court---All cases of fresh appointments of Judges of the Supreme Court, of the Federal Shariat Court, of the High Courts and of Additional Judges of the latter Courts shall be processed forthwith under Article 175-A---To enable the Parliament to proceed and re-examine the matter in terms of the observations made above, petitions were adjourned to a date in the last week of January, 2011---Registrar of Supreme Court shall send a copy of order of the Court to the Chairman Senate, the Speaker of the National Assembly, Advisor to the Prime Minister/Chairman of the Special Committee of the Parliament for Constitutional Reforms and to the Secretary Law and Justice, Human Rights Division of Pakistan.

Relevant portion of the order of the Supreme Court is reproduced in verbatim:

"We have considered the submissions made and have held extensive deliberations qua all the Articles under challenge. The Court at this stage would not like to express its opinion on the merits of the issues raised and arguments addressed and would rather, in the first instance, defer to the parliamentary opinion qua Article 175A on reconsideration by it in terms of this order. We would thereafter decide all these petitions adverting to all the issues raised therein.

The Court is conscious that it is a creation of the Constitution which envisages, inter alia, a structure of governance based on trichotomy of powers in terms of which the functions of each organ have been constitutionally delineated keeping in view the seminal concept of separation of powers. The political sovereign i.e. the people, being trustees of a "sacred" trust in the distribution of powers under the Constitution, did not make Judges supreme arbiters on issues purely political. But they wanted the Judges to do "right to all manner of people according to law, without fear or favour, affection or ill-will" (Oath under the Constitution). While examining the vires of Article 175A of the Constitution and its judicial enforcement, we are mindful of the mandate of the oath of office, its constraints and the fundamental principles which underpin judicial independence in the constitutional scheme envisaged by the founding fathers. Judicial independence is one of the core values of our Constitution because it is inextricably linked with the enforcement of fundamental rights [Article 184(3) and Article 199 of the Constitution] and the rule of law. Accordingly an exalted position to this value, the Constitution in its very Preamble laid down that, "the independence of the judiciary shall be fully secured". The judiciary has not been made part of the Executive or the Legislature (Article 7), its separation from the executive was made a constitutional command [Article 175(3)] and right to "fair trial" is acknowledged as one of the fundamental rights (Article 10A). To further buttress this objective, the process of appointment of Judges (Article 177) and their removal (Article 209) was kept insulated from legislature and the opinions of the Chief Justice of Pakistan and Chief Justices of High Courts were given weight which now stand judicially defined by this Court in "Al-Jehad Trust" case (PLD 1996 SC 324). Judiciaries in all democratic setups are vulnerable to the power of legislatures to create, alter or impair judicial structures including the mode of appointing, removing and remunerating the Judges. In our country, like in some others as well, this power is tampered with constitutional guarantees that restrict legislative control over the judiciary. The Parliament was conscious of this scheme, because other than inserting Article 175A, it did not amend any other provision on which is built the edifice of judicial independence or the provisions relating to the functions of judiciary. Only the appointment process has been changed and the avowed objective seems to be to strike a balance between judicial independence and democratic accountability/parliamentary oversight.

It was maintained by the learned counsel appearing for the Federation that the Parliament was motivated by higher considerations of liberal democracy, the rule of law and the independence of judiciary in passing the Eighteenth Amendment. Notwithstanding these noble objectives, serious apprehensions have been expressed that this provision may compromise judicial independence which require serious consideration. Following aspects of Article 175A, according to the petitioners, are likely to disturb the overall constitutional scheme qua judicial independence and the balance sought to be achieved through it, may be tilted in one way. Because:

(i) The Chief Justice of Pakistan is pater familias i.e. the head of judiciary. His opinion under the unamended provision was held by this Court in Al-Jehad Trust case (PLD 1996 SC 324)] to have primacy in the consultative process .initiated by the President for appointment of Judges. But under the newly inserted provision, the consultative process has been done away with and the Chief Justice has just one vote in the Judicial Commission whose recommendations can be rejected by the Parliamentary Committee.

(ii) The Law Minister and Attorney-General who represent the Executive have been made members of the Judicial Commission with weightage equal to judicial members.

(iii) In the Parliamentary Committee in the name of parliamentary oversight, the Committee has been given the power to reject the recommendations of the Judicial Commission which would be tantamount to granting veto powers to it.

(iv) Four out of eight members of the Parliamentary Committee, though members of the Parliament are nominees of the Chief Executive i.e. the Prime Minister. The inclusion of the executive members in the afore-referred bodies has not only minimized the role of the judiciary in the appointment process but is likely to politicize the entire exercise and thereby impinge on the constitutional guarantees provided to ensure its insularity and to restrict the legislative and executive control over it.

(v) The issues of elevation of a Chief Justice of a High Court or Judge of the said Court to the Supreme Court, if brought before the Parliamentary Committee and discussed is likely to be violative of Article 68 of the Constitution, which stipulates that:

"No discussion shall take place in [Majlis-e-Shoora (Parliament)] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties."

(vi) There is a serious omission in clauses (9) & (10) of Article 175A as in the event of dissolution of the National Assembly, the composition of the Parliamentary Committee would be incomplete and there is no provision in pari materia to the third proviso to clause (2B) of Article 213 of the Constitution which stipulates that, "When the National Assembly is dissolved and a vacancy occurs in the office of the Chief Election Commissioner, the Parliamentary Committee shall comprise the members from the Senate only and the foregoing provisions of this clause shall, mutatis mutandis, apply."

Most of the petitioners who had challenged Article 175A of the Constitution raised serious issues regarding the composition of the Judicial Commission and Parliamentary Committee and veto power given to the latter. It was contended that there was a well known practice, when the unamended provision was in vogue that Chief Justice would consult most senior Judges of the Supreme Court before finalizing the recommendations. Instead of bringing any drastic change, the said practice should have been formalized. It was, therefore, suggested during arguments that to ensure that the appointment process is in consonance with the concept of independence of judiciary, separation of powers and to make it workable, Article 175A may be amended in following terms:--

(i) That instead of two most senior Judges of the Supreme Court being part of the Judicial Commission, the number should be increased to four most senior Judges.

(ii) That when a recommendation has been made by the Judicial Commission for the appointment of a candidate as a Judge, and such recommendation is not agreed/agreeable by the Committee of the Parliamentarians as per the majority of 3/4th, the Committee shall give very sound reasons and shall refer the matter back to the Judicial Commission for reconsideration. The Judicial Commission upon considering the reasons if again reiterates the recommendation, it shall be final and the President shall make the appointment accordingly.

(iii) That the proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained. "?

"Advisor to the Prime Minister (Chairman of the Special Committee of the Parliament for Constitutional Reforms) while speaking on the floor of the National Assembly reiterated to resolve not to alter the core values of the Constitution when he said:

"Madam Speaker! Before f go into the details of this Article, let me once again reiterate that one of the essential purposes rather two or three of the essential purposes which made up the basis for these constitutional reforms was to ensure that the fundamental principles of the Constitution are not altered."

He was conscious of the apprehensions which some may have about the provision when at a subsequent occasion he stated that under the new system (Article 175A), a name for appointment as a Judge shall originate from the Chief Justice of. Pakistan. Even learned Attorney-General for Pakistan in his written submission affirmed this and stated, "the names of the recommendees will be initiated in the Judicial Commission by the Hon'ble Chief Justice of Pakistan in consultation with the other members/Hon'ble Judges of the Commission" and that "in case of rejection of nomination by the Parliamentary Committee, the said Committee shall have to state reasons which shall be justiciable." But such fair concessions, it was argued, were not enough to fully allay the reservations expressed regarding this provision.

In view of the arguments addressed by the learned counsel, the criticism made with regard to the effect of Article 175A on the independence of judiciary and the observations made in paragraphs-8, 9 & 10 as also deferring to the parliamentary mandate, we would like to refer to the Parliament for re-consideration, the issue of appointment process of Judges to the superior courts introduced by Article 175A of the Constitution, inter alia, in the light of the concerns/reservations expressed and observations/suggestions made hereinabove. Making reference to the Parliament for re-consideration is in accord with the law and practice of this Court as held in Hakim Khan v. Government of Pakistan (PLD 1992 SC 595 at 621).

This is for the first time ever in our national, judicial and constitutional history that such a serious challenge has been thrown by, a cross section of society including some premier Bar Associations of the country to a legislation which was no ordinary piece of legislation 'but was a constitutional amendment. By making this unanimous reference to the Parliament for re-consideration, we did not consider the sovereignty of the Parliament and judicial independence as competing values. Both the institutions are vital and indispensable for all of us and they do not vie but rather complement each other so that the people could live in peace and prosper in a society which is just and wherein the rule. of law reigns supreme. We can also not lose sight of the fact that we, as a nation, are passing through testing times facing multidimensional challenges which could be best addressed only through measures and methods where societal and collective considerations are the moving and driving force. We had two options; either to decide all these petitions forthwith or to solicit, in the first instance, the collective wisdom of the chosen representatives of the people by referring the matter for re-consideration. In adopting the litter course, we are persuaded primarily by the fact that institutions may have different roles to play, but they have common goals to pursue in accord with their constitutional mandate."?

"Notwithstanding the pendency of petitions, the constitutional provisions under challenge had come into effect. Prior to the Constitution (Eighteenth Amendment) Act, 2010, several appointments of Additional Judges had been made in various High Courts and the issue of fresh appointments was likely to come up in near future. In these circumstances and till such time these petitions were decided, Article 175A had to be given judicial enforcement by way of a construction which was in consonance with the other constitutional provisions underpinning judicial independence. While doing so we take note of the fair stand taken by Chairman of the Special Committee of the Parliament for Constitutional Reforms and the. Attorney-General for Pakistan to which reference has been made in Para-12 above and hold that Article. 175A shall be given effect to in the manner as under:--

(i) In all cases of an anticipated or actual vacancy a meeting of the Judicial Commission shall be convened by the Chief Justice of Pakistan in his capacity as its Chairman and the names of candidates for appointment to the Supreme Court shall be initiated by him, of the Federal Shariat Court by the Chief Justice of the said Court and of the High Courts by the respective Chief Justices.

(ii) The Chief Justice of Pakistan as head of the Judicial Commission shall regulate its meetings and affairs as he may deem proper.

(iii) The proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained. The Parliamentary Committee shall send its approval of recommendations of the Judicial Commission to the Prime Minister for onward transmission to the President for necessary orders. If the Parliamentary Committee .disagrees or rejects any recommendations of Judicial Commission, it shall give specific reasons and the Prime Minister shall send copy of the said opinion of the .Committee to the Chief Justice of Pakistan and the same shall be justiciable by the Supreme Court.

All cases of fresh appointments of Judges of the Supreme Court, of the Federal Shariat Court, of the High Courts and of. Additional Judges of the latter Courts shall be processed forthwith under Article 175A.

To enable the Parliament to proceed and re-examine the matter in terms of the observations made above, these petitions are adjourned to a date in the last week of January, 2011.

The Registrar of Supreme Court shall send a copy of order of the Court to the Chairman Senate, the Speaker of the National Assembly, Advisor to the Prime Minister/Chairman of the Special Committee of the Parliament for Constitutional Reforms and to the Secretary Law and Justice, Human Rights Division of Pakistan."?

Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869; Wukala Mahaz Barai Thafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Al-Jehad Trust's case PLD 1996 SC 324 and Hakim Khan v. Government of Pakistan PLD 1992 SC 621 ref.

(b) Parliament---

----Sovereignty of Parliament and Judicial independence cannot be considered as competing values---Both the Institutions are vital and indispensable for the people and they do not vie but rather complement each other so that people could live in peace and prosper in a society which was just and wherein rule of law reigns supreme---Institutions may have different roles to play, but they have common goals to pursue in accord with their constitutional mandate.?

(c) Independence of Judiciary---

----Sovereignty of Parliament and independence of judiciary---Not to be considered as competing values---Both the Institutions are vital and indispensable for the people and they do not vie but rather complement each other so that people could live in peace and prosper in a society which was just and wherein rule of law reigns supreme---Institutions may have different roles to play, but they have common goals to pursue in accord with their constitutional mandate.?

Muhammad Akram Sheikh, Senior Advocate Supreme Court, M.A. Zaidi, Advocate-on-Record assisted by Barristers Sharjeel Adnan, Sh., Natalia Kamal, Sajeel Shehryar, Ahmed Kamran, M. Ishaque Shah, Hafiz Muhammad Naeem and Ms. Sameen Khan, Advocates for Petitioner (in Const. P.1.1 of 2010).

Muhammad Ikram Ch., Senior Advocate Supreme Court, Arshad Ali Chaudhary, Advocate-on-Record assisted by Syed Masood Hussain, Ch. Muhammad Bashir, Mudassar Ikram Ch. and Shoaib Shahid, Advocates for Petitioner (in Const. P. No.12 of 2010).

Barrister Zafarullah Khan, Senior Advocate Supreme Court for Petitioner (in Const. P.13 of 2010 and C.M. Appeal No.91 of 2010).

Hamid Khan, Senior Advocate Supreme Court, Rashid A. Rizvi, Senior Advocate Supreme Court, Ahmed Awais, Advocate Supreme Court and M.S. Khattak, Advocate on Record assisted by Waqar Rana Sikandar Khan and Taimur Inayat Malik, Advocates for Petitioner (in Const. P. Nos. 14, 18, 35, 36, 37 and 39 of 2010).

M.A. Ghaffarul Haq, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner (in Const.P. No.15 of 2010).

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and Arshad Ali Chaudhry,, Advocate-on-Record for Petitioner (in Const. P.No.19 of 2010).

A.K. Dogar Senior Advocate Supreme Court for Petitioner (in Cosnt. P. No.20 of 2010)..

Sardar Khan Niazi (in person) for Petitioner (in Const. P.21 of 2010).

Shahid Orakzai (in person) for Petitioner (in Const.P.22 of 2010 and C.P. No.1901 of 2010).

M. Kowkab Iqbal, Advocate Supreme Court in person (in Const. P.24 of 2010)

Habib-ul-Wahab-ul-Khairi, Advocate Supreme Court in person (in Const.P.31 of 2010).

Dr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court (in person), Barrister Mian Gul Hasan Aurangzeb, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record assisted by Sikandar Bashir Mohmand, Advocate Supreme Court, Hamid Ahmed, Saleha Hyat and Barrister Abdul Sattar Pirzada, Advocates for Petitioner (in Const. P.No.40 of 2010).

Muhammad Aslam Khaki, Advocate Supreme Court in person (in Const. P. No.41 of 2010).

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record assisted by Zahid Hussain Malik, Advocate for Petitioner (in Const. P. No.42 of 2010).

Zulfiqar Ahmed Bhutta, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner (in Const. P.No.43 of 2010).

Rasheed A. Rizvi, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in Const.P.No.44 of 2010).

Nemo for Applicant (in HRC No.20492-P of 2010).

Nemo for Applicant (in HRC No.22753-K of 2010)

Moulvi Anwar Haq, Attorney General for Pakistan, assisted by Salman Faisal, Syed Ali Mustafa Gillani and Shafaq Mohsin, Advocates, Yousaf Leghari, A.G. Sindh with Raja Abdul Ghafoor, Advocate-on-Record, Dr. Salahuddin Mengal, A.G. Balochistan, Mahmood Raza, Addl. A.G. Balochistan, Khawaja Haris Ahmed, A.G. Punjab, Ch. Khadim Hussin Qaiser, Addl. A.G. Punjab assisted by Raza Qureshi, Barrister Syeda Maqsooma Zahra Bokhari, and Kh. Issam Bin Haris, Advocates and Asadullah Khan Chamkani, A.G. KPK and Syed Arshad Hussain Shah, Addl. A. G. KPK on Court Notice.

Wasim Sajjad, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate on Record assisted by Idrees Ashraf, Barrister Ali Hassan Sajjad, Barrister Qamar Hassan Sajjad and Ms. Sambara Arbab Mungrani, Advocates for Federation of Pakistan (in Const. P.Nos. 11, 14 and 40 of 2010).

Sardar Muhammad Ghazi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Federation of Pakistan (in Const.P. No.12 of 2010).

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record assisted by Ms. Shazia Yasin Hashmi and Usman Ibrahim Satti, Advocates for Federation of Pakistan (in Const. P. Nos. 13, 19, 35 and C.M. Appeal No.91 of 2010).

Barrister Bacha Khan, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Federation of Pakistan (in Const. P.No.15 of 2010).

K.K. Agha, Addl. AGP and Mehmood A. Sheikh, Advocate-on-Record for Federation of Pakistan (in Const.P. Nos. 18, 21, 22, 37, 39 and 42 of 2010).

Ch. Nasrullah Warraich, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Federation of Pakistan (in Const. P. Nos.24 and 41 of 2010).

Salahuddin Gandapur, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Federation of Pakistan (in Const. P.No.31 of 2010).

Iftikhar-ul-Haq Khan, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Federation of Pakistan (in Const. P.No.35 of 20101).

Mushtaq Masood, Naeem Masood, Advocates Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Federation of Pakistan (in Const.P. No.36 of 2010)

Iftikhar Ahmed Mian, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Federation of Pakistan (in Const. P.No.39 of 2010).

Khurshid Ahmed Sodi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record (in Const.P. No.43 of 2010).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Shaukat Hussian, Advocate-on-Record (absent) for the Government of KPK (in Const.Ps. Nos. 13, 15, 20 and 24 of 2010).

Shahid Hamid and Abid Aziz Sheikh, Advocates Supreme Court assisted by Shujaat Ali Khan, Asstt. A.G. Punjab, Tahir Mahmood Khokhar and Ms. Aysha Hamid, Advocates for the Government of Punjab (in Const. Ps. Nos.14, 18, 35, 36 and 37 of 2010).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court in person (in C.M.A. No.1599 of 2010).

Salman Akram Raja, Advocate Supreme Court assisted by Syed Shahab Qutub, Waqas Mir, Ms. Aneesa Agha, Wasif Majeed, Ms. Sahar Bandial, Mian Bilal Ahmed and Malik Ghulam Sabir, Advocates for Applicant (in C.M.A. Nos. 1859 and 1959 of 2010).

Dr. Syed A.S. Pirzada in person (in C.M.A. No.2681 of 2010).

Dates of hearing: 24th to 31st May, 1st to 3rd, 7th to 10th June, 5th to 8th, 12th to 15th, 19th to 22nd, 26th to 29th July, 2nd to 5th, 9th

to 12th, 16th to 19th and 23rd to 25th, 30th, 31st August and 1st, 2nd, 6th, 7th, 27th to 30th September of 2010.

P L D 2010 Supreme Court 1186

Present: Iftikhar Muhammad Chaudhry, C. J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

Mst. BANORI---Appellant

Versus

JILANI through Legal Heirs and others---Respondents

Civil Appeal No.511 of 2010, decided on 10th August, 2010.

(On appeal from the judgment dated 14-4-2G10 of he Peshawar High Court, D.I. Khan Bench, passed in C.R.No.249 of 2004).

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

----S. 115---Limitation Act (IX of 1908), S.12(2)---Constitution of Pakistan (1973), Art.185(3)---Revision application---Dismissal of such application by High Court for being time-barred after denying benefit of S.12(2) of Limitation Act, 1908 to the applicant---Supreme Court granted leave to appeal to consider question as to whether benefits envisaged by S.12(2) of Limitation Act, 1908 would be available to a party filing such application.

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

----S. 115---Limitation Act (IX of 1908), S.12(2)---Revisional jurisdiction of High Court---Scope---Applicability of provision of S.12(2) of Limitation Act, 1908 to revision application---Scope---Revisional jurisdiction being a supervisory power was meant to correct jurisdictional errors, illegalities and irregularities creeping into decision of subordinate courts---Revisional court could suo motu discharge such obligation, for which law had not prescribed any time limit---Person seeking such correction in decision of subordinate courts could lay information before revisional court through an application to be filed within 90 days along with copies of pleadings, documents and impugned order---Subordinate court would be bound to supply such person on his application and at his expense within three days copy of its decision sought to be revised---Revisional court would then be bound to decide such application within six months and except in exceptional cases without calling for record---Conscious imposition of burden on subordinate court through second proviso to S.115, C.P.C. to provide copy of its decision sought to be revised within three days could not be brushed aside as unwanted surplusage as same would amount to doing offence thereto---Duty of courts, inter alia, would be to give effect to legal provisions and not to make them ineffective---In view of time limits prescribed in second proviso to S.115, C.P. C. for various steps in matter of such application, question whether provisions of S.12(2) of Limitation Act, 1908 were or were not attracted thereto, would not be relevant-Principles.

From provision of S.115, C.P.C. it transpires that this revisional power conferred on the High Court was essentially a supervisory power to correct jurisdictional errors, illegalities and irregularities creeping into the decision of the courts subordinate to the High Courts. It would also be noticed that since this revisional power was meant to ensure dispensation of justice which was unpolluted by legal infirmities, therefore, the High Court was commanded to exercise control and superintendence over the courts subordinate to it unfettered by any technicalities e.g. some aggrieved person approaching the court for the purpose of even by constraints of limitation of time.

The power under section 115 of the C.P.C. was basically a power exercisable suo motu. Therefore, no restriction whatsoever was placed on the sources from which the information regarding any error, illegality or irregularity of the kind mentioned in S.115, C.P.C. could reach the High Court. Resultantly, nothing stopped even the parties to a its from laying any such information before the High Court and this is then what permitted even private persons from filing applications in the High Courts which gradually came to be known a REVISION PETITIONS. And since no limitation of time regulated the said matter, therefore, such a revision petition could, in theory, be filed even after months and years of a decision taken by a subordinate court. The record of the proceedings in question would then be called by the High Court and, not infrequently, when such revision petitions were filed with respect to decisions relating to interlocutory matters, the proceedings in the main suit also got stayed on account of summoning of record resulting in inordinate though avoidable delays in dispensation of justice.

It was to eliminate, such-like delays that through the Ordinance No.X of 1980, a proviso was added to provisions of section 115 of the C.P.C. which provisions had been, through the Law Reforms Ordinance No.XII of 1972 re-numbered as subsection (1) because three other subsections were also added to the said section 115, C.P.C. The said proviso which then became the proviso to subsection (1) of section 115, C.P.C. provided that where information laid before the High Court leading to the exercise of revisional jurisdiction arose out of an application filed by some person, then such person would be bound to furnish copies of the pleadings, of the documents and the order of the subordinate court along with such an application and further that the High Court would then decide the fate of such an application without calling for the record of the concerned subordinate court.

No limitation of time was, however, prescribed even through the said proviso added in the year 1980 within which such an application could be filed in the High Court.

A further effort was made in the year 1992 to avoid delays in the decision of civil cases and it was through Act VI of 1992 that a further proviso was added which finally prescribed that any such application filed by a person seeking revision of some decision would have to be filed in the High Court within 90 days of the making of the decision sought to be revised and through a further amendment introduced by Act XIV of 1994 it was further provided in the said second proviso that the concerned subordinate court would provide a copy of the decision sought to be revised within 3 days of the passing of the same and finally that the High Court would finally decide such an application within 6 months of the making thereof.

A perusal of the said provisions would reveal as under:--

(a) that the jurisdiction conferred by section 115, C.P.C. is essentially a supervisory jurisdiction of superintendence and control meant to ensure correction of illegalities and irregularities found in the decisions of the courts subordinate to the revisional court;

(b) that in the discharge of its said obligation, the revisional court had not been placed at the mercy of the parties to a lis or of some other person and was required to act even suo motu;

(c) that no law prescribed any limit of time for such a court within which such an error could be rectified; .

(d) that there was, however, no bar on any person, laying, through an application any information before the revisional court about any such error, illegality or irregularity in any of the decisions of the subordinate courts and seeking correction thereof;

(e) that a person making such an application had, however, been bound to do so within ninety days of the decision sought to be revised;

(f) that such a person was required to furnish, along with the said application, copies of the pleadings and other documents and of course a copy of the order being questioned;

(g) that the subordinate court making the decision which is sought to be revised, was bound to supply a copy thereof within three days of the making of the same;

(h) that the revisional court was then required to dispose such an application within six months and that also, except in exceptional cases, without calling for the record.

These provisions of section 115, C.P.C. thus appear to be a complete code vis-a-vis the invoking and exercise of revisional jurisdiction. Confining to the matter of applications seeking exercise of revisional power, suffice it to say that the said provisions prescribe the form of application to be filed; the documents required to be furnished with such an application; the period of time within which such an application could be made; the obligation of the court making the decision in question to supply a copy thereof; the period of time within which such a copy was to be supplied; such an application to be decided without calling for the record of the subordinate court except in exceptional situations and finally the period of time within which such an application was to be disposed.

The provisions of section 115, C.P.C. after the addition of the two provisions, give a complete scheme including the time limits prescribed for various steps in the matter of applications which could be filed invoking the revisional jurisdiction. Therefore, the question whether the provisions of section 12(2) of the Limitation Act, 1908 were or were not attracted in the case of such applications, was not relevant.

The first proviso to section 115, C.P.C. was added through an amendment made in the year 1980. The second proviso was inserted in the year 1992 and the portion in question casting an obligation on the subordinate court to provide a copy of the decision in question within three days was added through an amendment in the year 1994. This command was thus a conscious and a considered insertion in the said provision and brushing the same aside as an unwanted surplusage and in fact annulling and rendering the same as futile and nugatory, was, to say the least, doing offence to the said legal provision.

The duty of the courts of law, inter alia, was to give effect to the legal provisions and not to make them ineffective.

The impression that the said was a useless .and an unworkable provision was also not correct. It is true that a subordinate court may be passing tens of orders qualifying as revisable decisions every day involving tens of parties but then the impression that every such court was required to arrange copies of every such decision or case decided and then to run after all the parties to provide them with the same irrespective of the fact whether such a party did or did not want to seek revision thereof, was misplaced. A bare reading of the said two provisos would demonstrate that it would be a person aggrieved of such a decision who would make an application questioning the same and it would thus only be such a person who would be entitled to be supplied with a copy thereof within the said prescribed time.

A conscious imposition of such a burden on a subordinate court would be further evident from another circumstances available in law. A perusal of the provisions of rule 20 of Order XX of the C.P.C. would demonstrate that the one drafting the said obligation and the one introducing the same in the said second proviso knew that under the scheme envisaged by the C.P.C., any one desirous of obtaining a copy of a judgment was required to make an application for the purpose and it was then that the same was supplied to him at his expense. And that the court being obliged to supply a copy of a judgment to a party was a concept of the Criminal Procedure Code which was alien to the C.P.C. Reference may be made to the provisions of section 371, Cr.P.C. Importing a concept foreign to the C.P.C. and adding the same to it, could not have been without a purpose nor could the same have been an un-considered act on the part of the law-maker. The same, therefore, deserves the respect which would be due to it.

Supreme Court held that:--

(a) any person seeking revision of a decision made by a subordinate court could do so through an application to be filed by him for the purpose;

(b) such an application was required to be accompanied by the copies of the pleadings, other documents and by a copy of the order sought to be revised;

(c) such an application was to be filed within ninety days of the decision in question;

(d) it was the obligation of the concerned subordinate court to provide a copy of such a decision to such a person within three days of the making of the said decision;

(e) since no one could be allowed to suffer on account of an act of a court, therefore, the time taken by the concerned court in providing such a copy to such a person after being informed for the purpose would be excluded from the said period of ninety days;

(f) the revisional court was expected not to call for the record of the subordinate court for the disposal of the matter except in exceptional cases for reasons to be recorded in writing;

(g) the revisional court was then required to dispose the matter within six months; and finally

(h) the requisite respect was required to be shown to the said legal obligations and effect was required to be given to them.

The courts of law can never be a party to putting legal provisions to disuse or to discard the same. It is one of the obligations of every court to give effect to each and every provision of each and every law.

Punjab Road Transport Corporation v. Muhammad Iqbal Lodhi 2003 CLC 1539 Not approved (partially).

Province of Punjab v. Muhammad Farooq PLD 2010 SC 582 rel.

(c) Interpretation of statutes--

----Duty of courts to give effect to legal provisions, but not to make them ineffective---Principles.

The duty of the courts of law, inter alia, is to give effect to the legal provisions and not to make them ineffective.

The courts of law can never be a party to putting legal provisions to disuse or to discard the same. It is one of the obligations of every court to give effect to each and every provisions of each and every law.

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

----S. 115---Limitation Act (IX of 1908), S.12(2)---Constitution of Pakistan (1973), Art.185(3)---Revision application---Dismissal of such application by High Court for being time-barred---Validity-'--High Court had not taken step to find out whether command contained in second provision to S.115, C.P.C. regarding supply of copy of impugned decision by subordinate court within three days had been complied with, and if so, when was same supplied to applicant---High Court had not even examined and considered that if copy of impugned decision had not been supplied to applicant within prescribed three days, then what was to be effect thereof---Supreme Court remanded case to High Court for its decision afresh.

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

----S. 115, first & second provisos---Object of proviso first and second to S.115, C.P.C. is to eliminate delay in dispensation of justice and obtaining copy of impugned decision---Principles.

Two provisos added to section 115, C.P.C., were extraordinary provisions incorporated to eliminate or at least to minimize delays in dispensation of justice. It was to avoid delays caused in the process of obtaining copies of decisions that the courts were asked to provide such copies within three days. Summoning and retention of subordinate courts' record by the revisional courts was another factor contributing towards such delays. As a cure, the applicants were ordered to furnish copies of the requisite record along with the applications submitted by them and the courts were asked to decide these applications without calling for the subordinate courts' record unless that availability of such record with the revisional court was indispensable on account of reasons to be recorded in writing. Fixing of outer limit of time for filing of applications invoking revisional jurisdiction and also fixing of time for final disposal of these applications, were also wrung of the same ladder.

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

----S. 115, first and second provisos---Revision application not accompanied by commanded documents and record---Not entertainable---Supreme Court emphasized subordinate courts to show required respect to provisions of S.115, C.P.C. by following them in letter and spirit---Supreme Court, in order to ensure that due respect was given to the provisions of S.115, C.P. C. directed that copies of the present judgment shall be sent to Registrars of all High Courts who would place the same before the Chief Justices of the High Courts and also circulate them to all the Judges of the subordinate courts within their respective jurisdiction for compliance.

To show the required respect to S.115, C.P.C. by following the same in letter and spirit, Supreme Court directed that copies of present judgment shall be sent to the Registrars of all the High Courts who would place the same before the Chief Justices of the High Courts and also circulate them to all the Judges of the subordinate courts within their respective jurisdictions so that it is ensured:

(a) that steps are taken, in accordance with law, to order the applicants under section 115, C.P.C. to supply copies of the pleadings and documents where these pending applications were not accompanied by the same;

(b) that steps are then taken again in accordance with law, to return the records to the subordinate courts where the same had been summoned otherwise than through specific orders passed by the revisional courts or where the same had been requisitioned not for indispensable reasons recorded in writing by the revisional courts;

(c) that in future, no applications filed under section 115, C.P.C. are entertained unless accompanied by copies of the commanded documents and record;

(d) that every subordinate court provides a copy of the decision sought to be revised to the person who so seeks, within the prescribed three days; and finally -

(e) that the revisional courts decide such-like applications within six months and do so without calling the subordinate court record unless it was indispensable to summon such a record.

Muhammad Younis Bhatti, Advocate Supreme Court for Appellant.

Shah Khawar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 10th August, 2010.

P L D 2010 Supreme Court (AJ&K) 1

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

Messrs AMEEN GENERAL ENTERPRISES through Managing Director and others---Appellants

Versus

AZAD JAMMU AND KASHMIR GOVENRMENT through Chief Secretary, Muzaffarabad and 3 others---Respondents

Civil Appeals Nos.7 and 12 of 2006, decided on 11th August, 2008.

(On appeals from the order of High Court dated 2-3-2006, in Civil Appeal No.41 of 2004)

(a) Arbitration---

----Claim for defamation was not covered by terms of construction agreement between the parties---Arbitrator or Court could not record award or a decree in respect of any claim not covered by terms of agreement between parties and not referred to arbitrator by court---Such claim of contractor was rejected in circumstances.

Government of N. W. F. P. v. Aziz-ur-Rehman 1991 MLD 422; Amin Jute Baling Co. Ltd. v. Aminpur Union Cooperative Multipurpose Society Ltd. PLD 1961 Dacca 102; Muhammad Iqbal v. P.I.D.C. 2000 CLC 876; M. Aslam Amin v. Muhammad Ali Khan 1995 CLC 1795; Messrs Muhammad Amin Muhammad Bashir v. Messrs Khairpur Textile Mills Ltd. 1985 CLC 1398; Maj. (Retd.) Humayun Akhtar v. Pakistan Defence Officers Housing Authority PLD 2002 Kar. 427; Muhammad Ashraf v. Syed Ghulam Murtaza and others 1992 MLD 1063 and Muhammad Rashid v. Noor Muhammad Khan 2002 CLC 749 ref.

(b) Administration of justice---

----Courts would not recognize somersaults and u-turns by parties while pleading or defending a lis in court.

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

----Preamble, Ss. 17, 30 & 31---Arbitrator, arbitration proceedings and award---Nature and object---Judgment in terms of award---Material essential to be considered by Court stated.

The whole purpose of the Arbitration Act is to provide a domestic Tribunal for settlement of disputes by and between the parties and provide expeditious relief, unhampered by rules of procedure laid down in the Civil Procedure Code and the Evidence Act. In this view of the matter Arbitration proceedings are in fact conciliatory in nature and the Arbitrator in fact is a person in whom the parties repose their confidence. Award filed by an Arbitrator is, therefore, an amicable settlement of disputes between the parties which has to be honoured by the Court unless it suffers from any defect provided by the Arbitration Act. Even if the objections are not filed the Court under the provisions of the Arbitration Act is bound to determine the validity or otherwise of the award on facts and impartial conduct of the Arbitrator subject to the legal obligation to protect the award unless the same suffers from an apparent illegality or any other legal flaw floating on the very surface of the award. Section 17 of the Arbitration Act deals with delivering the judgment according to the award after being satisfied that there is no cause to remit the award or any of the matters referred to arbitration for consideration or to set aside the award. Section 30 of the Arbitration Act deals with setting asiding the award recorded by the Arbitrator on grounds only: (i) if the Arbitrator has committed misconduct; (ii) the award has been made after issue of order by the court superseding the arbitration or after arbitration proceedings becomes invalid under section 35; and (iii) the award has been invalidly procured or is otherwise invalid.

Section 31 deals with the jurisdiction and provides that all the questions regarding validity of award and other matters referred therein including the filing of application, shall be decided by a Court. This section in fact excludes the jurisdiction of any other court except the court in which the award has been filed.

A combined reading of these provisions makes it abundantly clear that in spite of legal sanctity attached to the award filed by the Arbitrator, the court is legally bound to consider the controversy, procedure and proceedings conducted by the Arbitrator, the pleadings and the evidence produced by the parties and reasons for awarding a claim or disallowing the same.

(d) Arbitration---

----Compensation, claim for---Construction agreement between the parties providing cases in which Contractor was entitled to compensation---Validity---Arbitrator or Court in such cases would determine on whose foot shoe fits.

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

----S. 30---Award, setting aside of---Award made by arbitrator upheld by Courts below after considering huge record consisting of more than 400 letters and correspondence---Validity---Supreme Court declined to declare such award as invalid.

Messrs Umar Khan v. Chief Engineer Roads and Buildings Government of Balochistan Quetta 2002 CLC 492; Messrs Joint Venture KG/Rist through D.P. Giesler G.M., Bongard Strasse 3, 4000, Dusseldorf-30, Federal Republic of Germany, c/o 15-Shah Charagh Chambers, Lahore and 2 others v. Federation of Pakistan through Secretary Food, Agriculture and Coop: and another PLD 1996 SC 108; S.G. Rayon Mills (Pvt.) Ltd. v. Fida Hussain and Associates 2002 CLC 353; Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393; Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65; Messrs Abdullah Traders through Partner Mukhtar Ahmed v. Trading Corporation of Pakistan Ltd. through Chairman, Attorney, Principal Officer and 2 others 1999 CLC 2047 and Wah Cement Company Employees Management Group, Wah and another v. State Cement Corporation of Pakistan (Private Ltd. through its Chairman) and 3 others 2004 MLD 835 ref.

GOA, DAMAN & DIU Housing Board v. Ramakant V.P. Darvotkar 1992 PSC 771; Province of Balochistan through Secretary Irrigation and Power Department, Government of Balochistan, Quetta v. M/s. Tribal Friends Company Loralai through General Manager PLD 1986 Quetta 321 and Azad Government of the State of Jammu and Kashmir v. Brig. Muhammad Aslam Khan PLD 1981 AJ&K 71 rel.

Raja Muhammad Hanif Khan for Azad Government and others.

Muhammad Yaqoob Khan Mughal for Contractor Firm.

Date of hearing: 26th June, 2007.

P L D 2010 Supreme Court (AJ&K) 29

Present: Muhammad Reaz Akhtar Chaudhry, C.J. and Khawaja Shahad Ahmed, J

Ch. MUHAMMAD RIASIT and another---Appellants

Versus

MUHAMMAD ASGHAR and another---Respondents

Criminal Appeal No.48 of 2007, decided on 17th December, 2009.

(On appeal from the order of the Shariat Court dated 30-8-2007 in Criminal Miscellaneous No.30 of 2007).

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

----Ss. 426 & 497---Bail---Grant and refusal of bail---Principles---Distinction---Held, there was difference between the principles for grant or refusal of bail to a convict person and a person who had not been convicted or was yet under trial---Presumption of innocence existed in favour of a person, who was facing the trial and not yet convicted by the Trial Court---Unless and until a person was not convicted, the presumption of innocence was in his favour---The moment a person was convicted by a competent court of law, he would lose the initial presumption of innocence in his favour---Person, convicted in non-bailable offence by competent court of law, would normally not be entitled to bail---Person who was convicted, would not normally be released on bail, unless and until some other extraordinary circumstances were found---Bail was a concession which was meant for those noble and respectable persons who had been roped into a case falsely; and the evidence against whom was not reliable and sufficient---In a case when the conviction had been recorded, the appellate court should be more alert and cautious while suspending the sentence and allowing the concession of bail---Court should not take it lightly and adopt it as routine, otherwise it would be engender of encouragement to vandalism---If in such like cases concession would be allowed without any solid and cogent reasoning, then the lachrymose maledictions of poor victims would ruin the courts.

Muhammad Murad v. The State 1986 PCr.LJ 64 ref.

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

----S. 426---Penal Code (XLV of 1860), Ss.324, 337-A(ii) & 448---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Attempt to Qatl-i-amd and house trespass---Suspension of sentence--Guiding principles---Very strong grounds were required for the suspension of sentence; there must be strong and cogent reasoning, through which it could be ascertained that the conviction would not sustain---No doubt it was the entire discretion of the court, but the discretion had to be exercised judiciously by considering the relevant facts without entering into or commenting upon the merits of case---When the contention raised required consideration of merits, the Appellate court would refrain from entertaining such contention---In the present case accused was convicted by the Trial Court and no extraordinary circumstances had been shown by the Shariat Court while allowing concession of bail to him---Counsel for accused also could not point out such extraordinary circumstances on the basis of which it could be said that he was entitled for suspension of sentence---Sentence awarded by a court should not be taken lightly or suspended in a routine, but there must be some cogent and solid reasons for suspension of sentence---Court was not to suspend the sentence just in routine---Lower court should suspend the sentence only after considering whether the convict had a prima facie case and conviction was likely to be set aside in appeal---Appellate court should not embark upon the re-appreciation of entire evidence, but should confine its consideration only to the extent of infirmities of the judgment of the Trial Court and should ensure that the conviction could not be sustainable under law---Appellate court by reading the judgment of the Trial Court and the memorandum of appeal could tentatively reach to the conclusion that the conviction of accused was not likely to be sustained upon the reasonings advanced in the judgment of the Trial Court and such was discoverable without deeper and close scrutiny of evidence---Nothing like such was stated in the case, rather Shariat Court had given such remarks which were not permissible; he had conducted the meticulous appreciation of evidence, court should have refrained from reappraisal of evidence and discussion on merits, while in the case Shariat Court had re-appreciated the evidence and discussed the merits of the case---Appeal was accepted and order of the Shariat Court was set aside.

Bashir Ahmad v. Zulfiqar and another PLD 1992 SC 463 and Muhammad Murad v. The State 1986 PCr.LJ 64 ref.

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

----S. 426---Suspension of sentence pending appeal---Scope---Powers conferred upon appellate court under S.426, Cr. P. C. to suspend the sentence, pending the hearing of appeal, were not wider than me powers to release a person on bail during the trial, because when a person was convicted, then he would not be entitled to avail the benefit of initial presumption of innocence---When a person was convicted, then he had to prove before the court that prima facie the sentence awarded to him by the Trial Court would be set aside---While considering an application for suspension of sentence, the discretion had to be exercised judicially by considering the relevant facts without commenting on the merits of the case---If the contentions raised required consideration of merits, the appellate court should refrain from entertaining such contentions---Court could not enter into re-appreciation of evidence, which could be considered at the time of appeal.

Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18 ref.

Abdul Majeed Mallick for Appellants.

Ch. Muhammad Taj for Respondent No. 1.

Raja Fazal Hussain Rabbani, Additional Advocate-General for the State.

Date of hearing: 7th December, 2009.

P L D 2010 Supreme Court AJ&K) 37

Present: Muhammad Reaz Akhter Chaudhry, C.J. and Muhammad Azam Khan, J

ABDUL AZIZ---Appellant

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 2 others---Respondents

Civil Appeal No.8 of 2006, decided on 17th December, 2009.

(Op appeal from the judgment and decree of the High Court dated 5-12-2005 in Civil Appeal No.56 of 2005).

(a) Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18 & 23---Acquisition of land---Determination of compensation---Essentials---Where the land was compulsorily acquired, the return proposed to be given in lieu of land to the owner was compensation, not the market value---Various matters had to be considered under S.23 of the Land Acquisition Act, 1894 while determining the compensation of acquired land---Market value was one of such factors to be considered by the Collector or the court---Word "compensation" had a very wide meanings-'Compensation' would mean counter balancing, rendering of equivalent, requital, weighing one thing against another, but it did not mean weighing copper against gold---One could not be compensated without requiring equivalent money---Market value of the land at the time of notification under S.4 of Land Acquisition Act, 1894 was merely one of the modes for determining the compensation and was not absolute yardstick for the assessment of compensation, but various matters had to be considered while determining the compensation---Fundamental duty of the court was to assess the potential value of the property---Factor regarding determination of the market value of land was restricted only to the time of issuance of notification or any period prior to it, but could also relate to the period in future---Schedule of average price of 3 years or even for one year was not the only criterion for determining the amount of the compensation, but the other material brought on regard was also quite relevant---Mere one year's average price of the land in the same vicinity or mere classification, nature and kind of land could be taken as relevant consideration, but not as an absolute one---Where the lands were not transferred through mutual negotiation, but under the power of State conferred upon it and the land owners were deprived of their land, then they were entitled to maximum possible benefits---Courts had to be liberal and generous in fixing the quantum of compensation based on different consideration so that neither the landowner was deprived of his due right nor the acquiring agency was unduly burdened in the transaction---While assessing the market value of the land, the land should not be valued merely by reference to use for which it was being made at the relevant time, but also the use for which it could reasonably be put in future---In the present case while determining the compensation of land, the potential value of the land had not been considered by the courts below---Land in question was situated near the road in populated area---Future value of the land had also not been considered by the courts below---Judgments of the courts below were set aside and enhanced compensation was fixed accordingly.

M. Salimullah and others v. Province of West Pakistan and another PLD 1960 (W.P.) Lah. 450; Malik Khizar Hayat Khan Tiwana v. Punjab Province PLD 1955 Lah. 88; Jibendra Kishore's case PLD 1957 SC 9; Province of Sindh v. Ramzan and others PLD 2004 SC 512; Malik Aman's case PLD 1988 SC 32; Land Acquisition Collector Abottabad v. Muhammad Iqbal 1992 SCMR 1245; Pakistan Burmah Shell's case 1993 SCMR 1700; Murad Khan's case 1999 SCMR 1647; Nisar Ahmed and others v. Collector Land Acquisition Sawabi and others PLD 2002 SC 25; Faiz Akbar Khan and others v. Azad Government and others 1996 SCR 132; Fazal-ur-Rahman v. General Manager, SIDB PLD 1986 SC 158; Cedar Rapids Manufacturing and Power Co. v. Locoste (1914) AC 569; Water and Power Development Authority Lahore v. Qamar-ud-Din 1992 CLC 258 and Government of Pakistan v. Muhammad Shafi Khan and 4 others 2000 YLR 3058 ref.

(b) Words and phrases---

----"Compensation" had a very wide meanings-'Compensation' would mean counter balancing, rendering of equivalent, requital, weighing one thing against another, but it did not mean weighing copper against gold.

Ch. Muhammad Sabir for Appellant.

Raja Fazal Hussain Rabbani, Additional Advocate-General for Respondents.

Date of hearing: 7th December, 2009.

P L D 2010 Supreme Court (AJ&K) 47

Present: Syed Manzoor Hussain Gilani, A.C.J. and Ch. Muhammad Ibrahim Zia, J

Haji NAZEER AHMED---Petitioner

Versus

Raja MUHAMMAD SAEED KHAN and 11 others---Respondents

Civil Review Petition No.4 of 2007, decided on 4th May, 2010.

(In the matter of review. from the judgment of this Court dated 9-1-2007 in Civil Appeal No.92 of 2005).

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

----S. 42-D---Azad Jammu and Kashmir Supreme Court (Powers of Review) Act, 1980, S.2---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XLVII, R.1---Powers of review by Supreme Court---Scope---Supreme Court was empowered to review its judgment, if there was some mistake or error apparent on the face of record or `for any other sufficient reason "---Words "any other sufficient reason" had empowered the Supreme Court to review its judgment without any hesitation, if the court was satisfied that the conclusion drawn in the judgment or order under review was not legal or just one; and the same could cause injustice to the legal rights of any party---In such a case for doing, complete justice and being the apex Court, for enunciation of principle of law to be followed by other courts, review was justified---Scope of review, in civil cases, was wider than the criminal cases; in a civil case, if a mistake or error apparent on the face of record or any other sufficient reason was discovered which called for review, then review jurisdiction could be exercised for avoiding injustice, but that would depend upon the facts and circumstances of each case---In the present case, appreciation of important, cogent documentary evidence was not discussed in the judgment under review; rather the judgment was totally silent in that regard, which had clearly proved that said cogent evidence remained unattended by the court---Such would depict that the material evidence was not considered and appreciated while delivering the judgment under review which was a sufficient reason for acceptance of review petition---Review petition was allowed.

Zafar Iqbal v. Allotment Committee of Municipal Committee Mirpur and others 1994 SCR 157; Rashida Awan v. District Education Officer and 8 others 2007 SCR 406; Abdul Qadir and 2 others v. Abdur Rehman and 5 others 1999 SCR 323; Ghulam Akram and 5 others v. Syed Shabbir Hussain Shah and 10 others PLD 1986 SC)AJ&K) 56; Managing Director Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Suba through Legal Heirs v. Fatima Bibi through Legal Heirs 1996 SCMR 158; Messrs M.Y. Malik & Co. and 2 others v. Messrs Spendlours International 1995 SCMR 922; Commerce and Industries Corporatin Pakistan (Private) Limited v. China Natinal Machinery and Equipment Import and Export Corporation (Beijing) 2000 CLC 962; Aksar Ali and 2 others v. Fazal Karim and 11 others 1982 CLC 1309; Mst. Miraj Bibi's case 1997 SCMR 1892 and Syed Shehbaz Hussain's case 1977 SCMR 197 ref.

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

----Ss. 118 & 119---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Transaction of exchange---Requirements---To make a transaction an exchange, mandatory legal requirement was to mutually transfer ownership of one thing for ownership of another thing and if it was proved that the ownership of a thing was not transferred to another person, then it could not be called "exchange "---For a valid exchange there must be mutual transfer of "ownership" of property by two persons---Where a deed showed transfer of property by one of the parties only and not by the other, the transaction could not be regarded as "exchange "---Other requirements for valid exchange, as per S.119 of the Transfer of Property Act, 1882, were registration of the document and transfer of the possession---Where through the alleged exchange deed properties were never exchanged, no exchange, practically was effected, in circumstances--Same was declared as `sale-deed'.

(c) Words and phrases---

----"Apparent", defined and explained.

(d) Words and phrases---

----"Appear on face", defined and explained.

(e) Proof---

----Quantum of proof in civil cases was different as compared to criminal cases---In civil cases only preponderance of probability was to be seen to record finding in favour of parties as compared to criminal cases where offence was to be established beyond reasonable doubt---In a civil case the court had to see cumulative effect of all the material placed on record and if such material would create preponderance of probability in favour of party, that must win the case.

Aksar Ali and 2 others v. Fazal Karim and 11 others 1982 CLC 1309 and Ghulam Muhammad and another v. Muhammad Ashraf and 2 others PLD 1981 SC(AJ&K) 118 ref.

(f) Azad Jammu and `Kashmir Right of Prior Purchase Act (1993 B.K.)---

----S. 6---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(3)---Suit for pre-emption---Sale price, determination of---Plaintiff who claimed preferential right of prior purchase, had claimed that suit land had been sold in consideration of Rs.2,00,000 and same was the market value of the land---Other side had not admitted said fact---Value of the land situated in the same locality in a gift deed; had been entered as Rs.2, 80, 000---No specific issue was framed for determination of the sale price, but part of relevant issue was to the effect as to whether the land was sold for Rs.2,00,000---Parties were alive on that issue---Framing of separate issue in that regard in circumstances, was not essential, and remand of the case for that purpose would be wastage of time, specially so when the parties had already consumed a lot of time in litigation---Value of suit property as given in the exchange deed had been entered as Rs.2, 80, 000, Supreme Court ordered accordingly.

Haji Nazir Ahmed Petitioner (in person).

M. Tabassum Aftab Alvi for Respondent No.1.