PLD 2011 Judgments

P L D 2011 Federal Shariat Court 1

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

Mian ABDUR RAZZAQ AAMIR and others---Petitioners

Versus

FEDERAL GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN and others---Respondents

Shariat Petitions Nos.1/I, 3/I of 2007 and 1/I of 2010.decided on 22nd December, 2010.

(a) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal Shariat Court---Nature---Exclusive jurisdiction conferred by constitutional provisions can neither be curtailed nor regulated by subordinate legislation.

(b) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal Shariat Court---Scope---"Hudood"---Meaning and scope---Determination of meaning and scope of the term "Hudood" as well as the exercise to identify the categories of offences and civil matters regarding the life of Muslims which fall in the ambit of "Hudood" is the sole preserve of Federal Shariat Court.

(c) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal Sharait Court---Scope---All the matters connected with or the steps leading up to the commission of offences covered by "Hudood" ipso facto fall within the jurisdiction of the Federal Shariat Court.

(d) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal Shariat Court---Nature and Scope---Federal Shariat Court, as mandated by Art.203-D of the Constitution, is the only forum to examine any law or provision of law or any custom or usage having the force of law on the touchstone of Injunctions of Islam.

(e) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal Shariat Court to adjudicate upon bail matters in cases covered by "Hudood"-Scope---Adjudication upon bail matters in cases covered by "Hudood" is certainly ancillary to the trial, appellate and revisional jurisdiction and hence cognizable by Federal Shariat Court.

(f) Constitution of Pakistan---

----Art. 203-DD---Re visional and other jurisdiction of Federal Shariat Court---Analysis of Art.203-DD of the Constitution---Exclusive jurisdiction of Federal Shariat Court, mandated by the Constitution, revolves around the term "the enforcement of Hudood".

An analysis of Article 203-DD indicates that:

(i) the Federal Shariat Court has the exclusive jurisdiction to call for and examine the record of;

(ii) any case decided by any criminal court under any law relating to the enforcement of Hudood;

(iii) for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed ' by and as to the regularity of any proceedings of such Court;

(iv) the order under examination by the Federal Shariat Court or challenged before it may be in the nature of grant or refusal of bail by the trial Court;

(v) and the Court may for that purpose call for the record of the case;

(vi) while so doing the Court may suspend execution of the sentence;

(vii) direct release on bail or on his own bond if the accused is in confinement pending examination of record; and further;

(viii) the Federal Shariat Court may, as a result of examination of record pass such order as it may deem fit;

(ix) and may even enhance the sentence subject of course, to notice.

It is, therefore, clear that the exclusive jurisdiction of the Federal Shariat Court, mandated by the Constitution, revolves around the term "the enforcement of Hudood."

(g) Constitution of Pakistan---

----Art. 203-DD--- "Hudood "---Connotatin and significance.

Ayah 187 Surah 2 (al-Baqrah) Holy Quran; Ayah 229 Surah 2 (al-Baqrah) Holy Quran; Ayah 230 Surah 2 (al-Baqrah) Holy Quran; Ayaat 1 through 12, 13 and 14 Surah 4 (An Nisa) of Holy Quran; Ayat 97 Surah 9 (Al Taubah) of Holy Quran; Ayah 112 Surah 9 (At-Taubah) of Holy Quran; Ayah 4 Surah 58 (Al-Mujadalah) of Holy Quran; Ayah 1 Surah 65 (Al-Talaq) of Holy Quran; Ayah 103 Surah 10, Younas of Holy Quran; Ayah 47 Surah 30, Ar-Rum of Holy Quran; Ayah 182, Surah, Al-Aaraf; Ayah 42 Surah 8, Al-Infaal of Holy Quran; Sahih al Bukhari, Kitab al Hudood, Vol. VIII, Hadith No.769; Sahih al Bukhari, Kitab al Hudood, Vol. VIII, Hadith Nos.779, 812, 831, 832, 833, 1744, 1745, 1746; Traditions No.969 and 970 Sunan Abu Daud; Tradition No.1976 Vol. 3, Sunan Abu Daud; Sahih Muslim Jild II, Hadith No.1600; Hadith No.269 in Kitab Salat ul Musafareen; Ayat 112, Sura 3, Ale-Imran of Holy Quran; Ayat 15 Surah 6, Al-Anam; Ayat 32 Surah 17, Bani Israeel and Ayah 43, Surah 4, An Nisa ref.

(h) Constitution of Pakistan---

----Art. 203-DD---Words "relating to the enforcement of Hudood" as used in Art.203-DD of the Constitution---Meaning and connotation.

The words used in Article 203-DD of the Constitution are: "relating to the enforcement of Hudood." Like the words "in respect of" or "with reference to" employed in some statutes, these words have a wider meaning and connotation. The words "relating to" includes all those matters which pertain to the realm of preparation, intention, attempt and all conceivable steps taken towards the commission of an offence. Such steps and actions on fulfilment, have the potential of being covered by the penalty of Hudood if the requisite evidence, prescribed for proof of Hadd, is made available. Short of that proof the action complained of becomes punishable as tazir for an offence which is of the specie of Hadd. Tazir punishment- is in lieu of Hadd and is not the consequence of a separate category of offence.

(i) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal Shariat Court---Scope---Term "enforcement of Hadd" occurring in Art.203-DD of the Constitution---Scope---Zina---Rape---Whether it is a case of consensual extra-marital sexual activity, or incestuous adultery or any related pursuit ancillary and akin to or leading upon extra-marital sexual activity, the investigation, enquiry or trial of such a matter is covered within the scope of the term "enforcement of Hadd" and hence in the exclusive jurisdiction of Federal Shariat Court---Principles.

(j) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal Shariat Court---Scope---Jurisdiction or power conferred by constitutional apparatus can be taken away only through an express constitutional amendment and nothing short of that---Ordinary statute cannot take away powers of a superior court conferred by Constitution---Such a statute is ex facie discriminatory---Principles.

A legal instrument which bars a court from taking cognizance of offences or hearing appeals and revisions not only affects the jurisdiction of the court but seriously jeopardizes the fundamental right of an aggrieved person to have access and recourse to speedy justice. Jurisdiction conferred by a constitutional provision cannot be erased by ordinary piece of legislation. It is an accepted principle of law that jurisdiction of superior court cannot be taken away except by express words. In particular a jurisdiction or power conferred by constitutional apparatus can be taken away only through an express constitutional amendment and nothing short of that. An ordinary statute cannot take away powers of a superior court conferred by Constitution. Such a statute is ex-facie discriminatory.

(k) Constitution of Pakistan---

----Art. 203-DD---"Hudood"---Scope and extent---Term "Hudood" on the civil side includes marital life, the mandatory bridal gift commonly known in Pakistan as Haq-e-Mehr, inheritance, guardianship of person and property of minors and persons with defective legal capacity, marriages (in particular polygamy), divorce including Khula and Ziher.

(l) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal Shariat Court---Scope---Term "Hudood"---Scope---Those offences, whose punishment was either prescribed or left undetermined but it relates to acts forbidden or made cognizable by Holy Quran, Sunnah, Consensus or by subsequent legislative instruments including all those acts which according to the Statute Book of Pakistan are akin, auxiliary, analogous or supplementary to or germane with "Hudood" offences including preparation or abetment or attempt to commit such offences, would, without fail, fall within the meaning and scope of the term "Hudood"-Proceeding arising out of a private complaint, crime report registered with police as F.I.R., information laid before a Magistrate by a person other than a police officer or upon its motion by a judicial officer or judicial proceedings arising out of an interim order or final verdict of acquittal or conviction in relation to an offence covered by the term "Hudood", whether in the form of an appeal, revision or reference, would fall within the jurisdiction of Federal Shariat Court---Legislation in Muslim societies in the uncovered field has been made permissible as is evident from the principle Hablin Min un Naas. enunciated in Ayat 112 of Sura 3 Ale Imran---Word "Habal" does not only mean rope but it also means command and mandate---State is therefore competent to promulgate laws to implement and enforce Injunctions of Islam.

Ayat 112 of Surah 3 Ale-Imram ref.

(m) Protection of Women (Criminal Laws Amendment) Act (VI of 2006)---

----Ss. 11 & 28-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.3---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.19---Constitution of Pakistan, Arts.203-DD, 203-D & 203-A---Repugnancy to the Injunctions of Islam and the Constitution---Introduction of Ss.11 & 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 is an unwarranted inroad in the legislative domain and consequently an unlawful interference to Hudood---Provisions of Ss.11 & 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 is repugnant to the Constitution as well as Injunctions of Islam---Section 3 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.19 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 shall be deemed not to have been repealed and are as valid and essential part of the two Hudood Laws---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with the present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

Section 11 of Woman Protection Act, 2006 has omitted section 3 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Section 3 before repeal read as follows:--

"Ordinance to override other Laws.---The provision of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force."

Section 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 has omitted the similar text contained in section 19 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979. Both the omitted sections had given overriding effect to the provisions of Ordinances VII and VIII of 1979. These were non obstante clauses which had created exceptions. This protective cover to the Hudood Laws of 1979 was further strengthened by Chapter 3A, Part VII of the Constitution which had introduced Article 203-A in the Constitution from 26th May, 1980. Thereafter Article 203-DD in the present form, was incorporated in the Constitution in the year 1982. Section 3 and section 19 of the said two Hadood Ordinances thus acquired constitutional protection which could not have been repealed/omitted or even amended by Act VI of 2006. Moreover the effect of sections 11 and 28 of the Act is to curtail the constitutional jurisdiction guaranteed in Article 203-DD of the Constitution and this step cannot be legally undertaken through ordinary legislation. The effect of constitutional protection can be altered only through constitutional amendment and not otherwise. As a result thereof the introduction of sections 11 and 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 is an unwarranted inroad in the legislative domain and consequently an unlawful interference in the enforcement of "Hudood". Hence it is repugnant to the Constitution as well as Injunctions of Islam. Section 3 of Ordinance VII of 1979 and section 19 of Ordinance VIII of 1979 shall be deemed not to have been repealed and are as valid and essential part of the two Hudood laws.

The declaration relating to Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006); The Control of Narcotic Substances Act, 1997 as well as Anti-Terrorism Act, 1997 shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with this declaration whereafter the impugned provision shall cease to be effective and this judgment of the Federal Shariat Court will be operative as on 22-6-2011. The other items of the Declaration become operative forthwith.

(n) Constitution of Pakistan---

----Arts. 203-DD, 203-A & 203-D---Jurisdiction of Federal Shariat Court in bail matters---Bar of jurisdiction---Power exercised by Federal Shariat Court under the Constitution overrides all laws---Article 203-A of the Constitution states that provisions of Chap.3A of Part VII of the Constitution shall have effect notwithstanding anything even in the Constitution---Matter of bail is related with the offence---Bail is applied for by an accused only when an offence is alleged to have been committed---If an offence is covered by Hudood the trial takes place under the law relating to Hudood---Appeal or revision in such proceedings is therefore within the cognizance of Federal Shariat Court---Order of grant or refusal to grant bail in such offence is therefore part of proceedings of trial of "Hudood" cases and hence cognizable by Federal Shariat Court alone---Order on an application for grant or refusal of bail by Trial Court in all categories of offences within the ambit of "Hudood" is covered by the term proceedings, as employed in Art.203-DD of the Constitution and hence within the scope of the terms "any case", "any criminal court" and "under any law" and therefore can be impugned only before the Federal Shariat Court which has the exclusive jurisdiction in all sorts of matters related with enforcement of "Hudood"---No other court, including a High Court, will, in future, entertain proceeding relating to bail in offences covered by the term "Hudood"---Principles.

Muhammad Rafiq and others v. the State PLD 1980 Lah. 708; Zahoor Elahi v. State PLD 1977 SC 273; Malik Ghulam Jilani v. Government of Pakistan PLD 1967 and Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.

(o) Constitution of Pakistan---

----Art. 203-G---Bar of jurisdiction---Ouster of jurisdiction particularly of a superior court has to be stated in very clear terms---Jurisdiction vesting in a court by virtue of constitutional provisions undoubtedly stands at a higher level and cannot be curtailed by routine legislation---Constitutional bar mandated by Art.203-G of the Constitution needs careful consideration which mandates that "no court or tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the powers or jurisdiction of the court".

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

----Ss. 9, 48, 49 & 51---Anti-Terrorism Act (XXVII of 1997), Ss.25 & 21-D---Constitution of Pakistan, Art.203-DD---Jurisdiction of Federal Shariat Court charged with "Hudood" offences and grant or refusal of bail---Scope---Offences relating to narcotic drugs are within the purview of "Hudood" and consequently an order, final or interim including grant or refusal of bail, passed by any court, special or ordinary, under any law, regarding an offence relating to "Hudood" is within the jurisdiction of the Federal Shariat Court and no other court, including a High Court, has the power to entertain bail matter or an appeal or revision in any such matter---Federal Shariat Court directed . that text of Ss.48 & 49 of Control of Narcotic Substances Act, 1997 has now to be suitably amended to restore jurisdiction of Federal Shariat Court in matters relating to enforcement of "Hudood"-No legal instrument, other than constitutional amendment, can limit or ignore the exclusive jurisdiction of Federal Shariat Court mandated under Art.203-DD of the Constitution---Similarly if an offence of the nature of "Hudood" is tried under Anti-Terrorism Act, 1997 the appeal in all such cases under S.25 of the said Act, or for that matter bail under S.21-D of the said Act shall lie before the Federal Shariat Court and not a High Court---Federal Shariat Court directed that consequently two steps will have to be taken to set the matter right that words "Federal Shariat" shall be substituted for the words "High Court" occurring in Ss.48(i) and 49(i) of Control of Narcotic Substances Act, 1997 and that a rider will have to be put in S.25 of the Anti-Terrorism Act, 1997 to state that appeal in cases relating to Hudood shall lie to the Federal Shariat Court---Any order, interim or final, passed by a Court constituted under Anti-Terrorism Act, 1997, in relation to a Hadd offence, shall be appealable or revisable only before the Federal Shariat Court---Wordings of S.25 Anti-Terrorism Act, 1997 should be suitably amended to make it clear that a High Court shall have jurisdiction in all cases under the Act except "Hudood" matters---Present findings shall become operative after the specified period---Ss.48 & 49 of Control of Narcotic Substances Act, 1997 and S.25 of Anti-Terrorism Act, 1997 are violative of Art.203-DD of the Constitution to the extent that the jurisdiction of the Federal Shariat Court is ousted in matters relating to grant of bail or hearing appeals or ordering transfer of cases from one court to another court in cases registered or charged with "Hudood" offences---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with the present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

(q) Protection of Women (Criminal Laws Amendment) Act (VI of 2006)---

----Ss. 25 & 28---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.14(3)(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(vii)(a)---Constitution of Pakistan, Art.203-DD---Repugnancy to Injunctions of Islam---Lian---Section 25 of the Protection of Women (Criminal Laws Amendments) Act, 2006 has repealed subsections (3) and (4) of section 14, Qazf (Enforcement of Hadd) Ordinance, 1979 and S.28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 adds clause (vii)(a) Lian in S.2 of the Dissolution of Muslim Marriages Act, 1939---Both the interpolations have altered the legal composition of the Institution of Lian which developed on the basis of express injunctions of Holy Quran---Section 14 of Qazf (Enforcement of Hadd) Ordinance, 1979 had in fact given legislative effect to an Injunction of Islam---Effect of repealing subsections (3) and (4) of S.14 of Qazf (Enforcement of Hadd) Ordinance, 1979 is to stifle the operation of an Injunction of Holy Quran relating to the enforcement of "Hudood" which is not only repugnant to the Injunctions contained in Ayaat 44, 45 and 47 of Surah 5 and Surah An-Nur but is also a clear violation of Art.203-DD of the Constitution---Similarly section 28 of Protection of Women (Criminal Laws Amendment) Act, 2006 becomes repugnant to the Quranic Injunctions---Said repeal effected by the Act, is in utter violation of the Injunctions of Islam---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

Ayaat 4 through 9 of Surah 24 An-Nur and Ayaat 44, 45 and 47 of Surah 5 and Surah An-Nur ref.

(r) Constitution of Pakistan---

----Arts. 203-DD & 203-D---Classification of punishments and offences covered by `Hudood'---Term "enforcement of Hudood" as used in Art.203-DD of the Constitution---Analysis---Constitution has created only one forum under the designation of Federal Shariat Court, which has the exclusive jurisdiction (Art.203-D) to examine the question whether any. law is repugnant to the Injunctions of Islam, it is, therefore the domain of the Federal Shariat Court to examine the question of repugnancy of any law to the Injunctions of Islam---Definition of term "Hudood", as may be settled in the light of Injunctions of Islam by the Federal Shariat Court will, therefore, determine the meaning of the term as well as the extent of its jurisdiction---Term "Hadd" means a punishment "ordained by Holy Quran or Sunnah "---Principles.

Ayaat 178, 179, 194, Surah 2 (Al-Baqarah); Ayah 45 Surah 5 (Al-Maidah); Ayah 24 Surah 4, An-Nisa of Holy Quran and Asma Jilani v. Government of Punjab PLD 1972 SC 139 ref.

(s) Constitution of Pakistan---

----Arts. 203-D & 227---Powers, jurisdiction and functions of the Federal Shariat Court---Scope---Term "Hudood" has to be defined in the light of Injunctions of Holy Quran and the Sunnah.

Chapter 3-A of Part VIII of the Constitution, dealing with the Federal Shariat Court, contemplates very vividly that the Federal Shariat Court, shall be guided in its decisions and findings by the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH). Likewise, Article 227 (1) of the Constitution prescribes that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and the Sunnah and further that no law in future shall be enacted which is repugnant to these injunctions. The ultimate role of examining the vires of an impugned legal instrument on the touchstone of Injunctions of Islam is therefore the exclusive preserve of the Federal Shariat Court as mandated by Article 203-D of the Constitution. The Parliament is debarred from enacting a law which is repugnant to the Injunctions of Islam. This reality amounts to a declaration in loud terms that the statute book of Pakistan has to be in conformity with the Injunctions of Islam and consequently the term "Hudood" has, in fact, to be defined in the light of Injunctions as laid down in the Holy Quran and the Sunnah.

(t) Constitution of Pakistan---

----Art. 203-DD---Expression "Hudood"-Meaning and Scope---"Hudood", in the field of law, science, philosophy etc. assumes a wider meaning than the actual dictionary meanings and includes the term `Tazir'---Offences covered by the term Hudood enumerated.

Tashree ul Janai al Islam Vl. 1 at p.119; Ayah 90 Surah 16 of Holy Quran and Dr. Muhammad Aslam Khaki v. Federation of Pakistan PLD 2010 FSC 191 ref.

(u) Constitution of Pakistan---

----Art. 203-DD & 203-G---Enforcement of Hudood---Revisional and other jurisdiction of Federal Shariat Court---Scope---All offences relating to Hudood are within the exclusive jurisdiction of Federal Shariat Court---All matters connected with Hudood would, therefore, automatically be included in the jurisdiction of Federal Shariat Court---Powers conferred by the Constitution upon Federal Shariat Court enumerated.

Article 203-G read with Article 203-DD(2) of the Constitution establishes beyond doubt that all offences relating to Hudood are within the exclusive jurisdiction of Federal Shariat Court. All matters connected with Hudood would therefore automatically be included in the jurisdiction of Federal Shariat Court. This is precisely what is meant by "enforcement of Hudood" as prescribed in Article 203-DD of the Constitution.

It is indeed true that all judicial powers are lodged with the judiciary and wide powers have undoubtedly been conferred by the Constitution upon the Federal Shariat Court which include:-

(a) To administer punitive and remedial justice to and between parties subject to Constitution and law;

(b) To exercise exclusive jurisdiction in matters relating to examination of laws on the touchstone of Injunctions of Islam and in cases relating to Hudood laws;

(c) To exercise the special jurisdiction without further legislative sanction;

(d) To define the scope and extent of its jurisdiction within the parameters identified in Chapter 3-A of Part VII of the Constitution;

(e) To determine the meaning and scope of the undefined terms used in Chapter 3-A of Part VII of the Constitution;

(f) To exercise powers of a civil court in respect of certain matters;

(g) Authority to conduct its proceedings and regulate its procedure in all respects as it deems fit;

(h) To punish its own contempt;

(i) To make rules for carrying out the purposes of Chapter 3-A of Part VII of the Constitution;

(j) Exercising such other jurisdiction as may be conferred on it by or under any law;

(k) To call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood; and

(l) Exclusive authority and the jurisdiction to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in Holy Quran and Sunnah.

(v) Constitution of Pakistan---

----Arts. 203-DD & 227---Offences falling in the ambit of "Hudood"-Jurisdiction of Federal Shariat Court---Scope---Terminology employed in Art.203-DD of the Constitution "any case"; "any Criminal Court" and "under any law "---Scope.

It is necessary for a Judge to know the meaning and the scope of the term law because he is under oath to administer law. He should be clear in his mind that the law under consideration was made by an authority legally competent to makes laws. The Federal Shariat Court has the additional but onerous constitutional responsibility to examine whether the impugned law or provision of law is in accordance with Injunctions of Islam. This authority of the Federal Shariat Court is necessary extension of the mandate given in Article 227 of the Constitution. The notion of legitimacy and efficacy therefore becomes relevant because not only the law making authority should be legally competent but the law should be capable of being enforced according to the Injunctions of Islam and the principles established by the Constitution.

The ouster of jurisdiction of Federal Shariat Court can be accomplished by only one jurisdictional fact: that the act complained of is not covered by the mischief of an offence covered by the term "Hudood". If however the impugned transgression falls in the ambit of "Hudood" then the jurisdiction of Federal Shariat Court cannot be ousted. This element is the key to the question of jurisdiction. It is immaterial whether the offence complained of is mentioned in the four Hudood laws of 1979 or any other law. The issue stands settled by the terminology employed in Article 203-DD any case; any criminal court and under any law. The term any case is relatable to all such offences which might be covered in the definition of "Hudood". All actions which are ancillary or auxiliary or related to or germane to or connected with offences falling in the ambit of "Hudood" are also included in the term any case related with "Hudood". Any case also includes all those cases in which one of the alleged offences is covered by the definition of the term "Hudood". When a matter has been dealt with by the Constitution and it is not subject to any statute then no statute can control or curtail the power conferred upon a superior court by the Constitution.

The State v. Khalid Mahmood PLD 1996 SC 42 ref.

(w) Constitution of Pakistan---

----Art. 203-DD---Exact nature and scope of Art.203-DD of the Constitution---Nature of Art.203-DD is self-executing and is not at all different from the nature of Arts.184 through 190 as well 199,101 and 203 of the Constitution---Article 203-DD confers power upon the Federal Shariat Court to exercise jurisdiction in all cases, pending or decided by any criminal court under any law in relation to the enforcement of "Hudood"-Exclusive powers of judicial nature in relation to matters pertaining to "Hudood", a particular branch of administration of Criminal Justice, have been conferred upon the Federal Shariat Court to (i) call for and examine the record of (ii) any case (iii) decided by any criminal court (iv) under any law relating to enforcement of Hudood---Principles.

Hakim Khan v. Government of Pakistan PLD 1992 SC 595 ref.

(x) Constitution of Pakistan---

----Art. 203-D---Powers, jurisdiction and functions of Federal Shariat Court---Term `law' for the purpose of Art.203-D---Connotation.

Kundah Bibi and 4 others v. Walayat Hussain, Controller of Estate Duty, Government of Pakistan and another PLD 1971 Lah. 360; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Dudlay Corporation (1882) 8 QBD 86 (93, 94) by Brett, L.J. ref.

(y) Constitution of Pakistan---

----Art. 203-DD---Revisional and other jurisdiction of Federal Shariat Court---Contention that revisional power and not appellate power was conferred upon the Federal Shariat Court under Art.203-DD of the Constitution was erroneous---Revisional jurisdiction conferred upon Federal Shariat Court, at constitutional plane, not only encompass at one place the powers that are exercised by an appellate court under different sections of the Criminal Procedure Code but at the same time, in exercise of the same jurisdiction, the Federal Shariat Court in its capacity as the revisional court, has the additional potential of enhancing any sentence if, after examination of the record of any case decided by any criminal court, it is convinced that punishment awarded was scanty; it is for this reason that Art.203-DD of the Constitution conferred revisional jurisdiction alone on the Federal Shariat Court because powers of a revisional court are much wider than that of the powers of an appellate court---Power of Federal Shariat Court to order retrial remains intact under the constitutional provisions because "the Court may pass such orders as it deems fit. "; however in appropriate cases, in order to save time, expense, and harassment the Federal Shariat Court may straightaway convict the accused, if after hearing him, it finds that there is sufficient evidence on record to do so.

Muhammad Babar v. Muhammad Akram and 3 others PLD 1987 FSC 38 ref.

(z) Constitution of Pakistan---

----Art. 203-DD---Revisional jurisdiction of Federal Shariat Court---Scope---"Revision"---Scope in legal parlance---Article 203-DD of the Constitution does not confer appellate jurisdiction simpliciter upon the Federal Shariat Court; it confers revisional and other jurisdiction---Powers vesting in the Federal Shariat Court under Art. 203-DD of the Constitution with regard to any case decided by any criminal court under any law relating to the enforcement of "Hudood" are all inclusive in nature---Statute may or may not confer a right of appeal but the Constitution has provided a permanent remedy for every aggrieved person to invoke revisional jurisdiction of the Federal Shariat Court in appropriate proceedings---Revision is a wider jurisdiction; this is what the head-note of Art.203-DD indicates---Term Revision includes re-examination, re-assessment, careful reading over for correction and improvement---Federal Shariat Court has also to see whether justice, as tempered by kindness, has been done by the Trial Court---Such power of Adl with Ihsan is not prescribed upon any appellate court in the Code of Criminal Procedure---Wide powers have been conferred upon the Federal Shariat Court by way of revisional jurisdiction to do complete justice according to relevant Injunctions of Islam in cases decided by any criminal court under any law relating to the enforcement of Hudood.

Ayat No.90 Surah 16, An-Nahl ref.

(aa) Constitution of Pakistan---

----Arts. 203-DD & 203-D---Revisional jurisdiction of Federal Shariat Court---Significance elaborated.

The term revision is wider in meaning and scope than the term "appeal". The term "revision" also includes revision of statutes which in substance is the re-examination of laws. It is different from an amendment. It implies re-examination and restatement of law. Legislators are often authorized by constitutional provisions to revise and to restate all the statute laws of a general and permanent nature of the State up to a certain date, in corrected and improved form. This legislative function has been conferred on the Federal Shariat Court to undertake examination of laws on the touchstone of the Injunctions of Islam. This is precisely the jurisdiction of the Federal Shariat Court under Article 203-D of the Constitution. The Court at the same time enjoys the jurisdiction under Article 203-D to examine any law on its own motion. There could be cases when the court is called upon to exercise its jurisdiction under both the Articles 203-D and 203-DD in one and the same case. This special type of jurisdiction is enjoyed only by the Federal Shariat Court in the judicial hierarchy of Pakistan.

The absence of the word "appeal" does not in any way limit the widest possible jurisdiction of the Federal Shariat Court conferred upon it by virtue of Article 203-DD of the Constitution which enables it to call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood. In fact very wide powers have been conferred upon the court by virtue of just one Article of the Constitution without enumerating twenty-eight sections in quick succession as has been done .in Chapter XXXI of Part VII of the Code of Criminal Procedure. The Federal Shariat Court would, in view of this constitutional provision, exercise widest possible jurisdiction in cases decided by any criminal court under any law relating to an offence covered by the term Hudood. All the recognized incidents of the term "appeal" have been included in the powers conferred upon Federal Shariat Court by Article 203-DD of the Constitution under the title Revision. The Constitution does not concede such broad based revisional powers to the High Courts. The revisional jurisdiction of a High Court is certainly dependent upon an enabling provision in the Code of Criminal Procedure which can be omitted, altered, substituted, or even restricted by ordinary legislative measure.

The revisional jurisdiction conferred upon Federal Shariat Court by Article 203-DD of the Constitution is not a mere power but is in essence a sacrosanct duty because the said constitutional provision speaks in terms of enforcement of "Hudood".

It is for the purposes of correcting miscarriage of justice, doing substantial justice, removing any illegality or perversity that the Federal Shariat Court has been clothed with vast powers under the title of Revisional Jurisdiction. One of the fundamental object of this jurisdiction is that the Federal Shariat Court would watch carefully that no Injunction of Islam relating' to the enforcement of "Hudood" is violated in any case by virtue of any order or decision by any criminal court exercising power under any law.

Existence of law is not sufficient. It is just one aspect of administration of justice. The emphasis of Holy Quran is- in fact upon enforcing the law. Constitution, in particular, has laid emphasis on "enforcement of Hudood". Chapter 3A of Part VII of the Constitution is the solitary instance where the Constitution speaks in terms of enforcement. This element of enforcement only in relation to Hudood, according to the Constitution, is the exclusive domain of Federal Shariat Court through revisional jurisdiction.

The jurisdiction of the Federal Shariat Court under Article 203-DD not only refers to the power to examine the record of any case pending in a criminal court but also enables it to examine the propriety of any decision or order passed by any criminal court under any law relating to "Enforcement of Hudood". The word any means all, each, and every case pending or decided and each law under which the criminal Court takes cognizance of a matter. The term "any case" used in Article 203-DD is therefore very wide and includes any matter which is within the initial cognizance of the criminal trial court. Any case therefore means any matter under any law connected with the "Enforcement of Hudood".

(bb) Constitution of Pakistan---

----Art. 203-DD---Terms "any case", "any criminal court" and "any law" used in Art.203-DD of the Constitution---Connotation and Scope.

The word "any" has been used four times in Article 203-DD of the Constitution. In clause (1) the words are: "of any case," "any criminal court" and "under any law" while in clause (2) the words used are: "in any case".

The word 'any" as employed in Article 203-DD has been expressed without any qualification. The word any in the context in Article 203-DD would mean: any person, any court or any law under which a trial or proceedings as regards offences relating to Hudood are being held or have been concluded. The word any is wide enough to include every case, covered by the term Hudood or related to Hudood and would also cover situations when any case is sought to be transferred in the manner and circumstances visualized by sections 526 and 528 of the Code of Criminal Procedure. The three terms i.e. "any case", "any criminal court" and "any law" as used in Article 203-DD not only tend to enlarge the amplitude of the, term Hudood but lay emphasis on the fact that all type of proceedings related to offences covered by the meaning and scope of the term Hudood would remain the exclusive preserve of the Federal Shariat Court. There is no earthly reason to exclude any one matter connected with the proceedings under Hudood laws from the jurisdiction of the Federal Shariat Court. Word "any" as used in Article 203 DD is a word of "expansion indicative of width and amplitude sufficient to bring within the scope and ambit of the words it governed, all that could possibly be included in them.

Term criminal court used in Article 203-DD is not restrictive in the sense as mentioned in section 6 of the Code of Criminal Procedure. It means any court exercising criminal jurisdiction under any law of the land relating to an offence in the domain of Hudood. The term criminal court extends to every category of Courts, Tribunals or Authorities competent under any law of the land to try and decide cases in which the offence complained of pertains to Hudood.

Inamur Rehman v. Federation of Pakistan 1992 SCMR 563; Ch. Zahoor Elahi MNA v. The State PLD 1977 SC 273; M. Amjad v. Commissioner of Income Tax and 2 others 1992 PTD 513; N.-W.F.P. v. Muhammad Irshad PLD 1995 SC 281 and Commissioner of Income Tax v. Media Network PLD 2006 SC 787 ref:

(cc) Constitution of Pakistan---

----Art. 203-DD---Extent and scope of the powers bestowed upon the Federal Shariat Court by Art. 203-DD of the Constitution summarized.

Following is the summary of the extent and scope of the powers bestowed upon the Federal Shariat Court by Article 203-DD of the Constitution. The under mentioned issues appear to have been contemplated:

(i) The jurisdiction of the court in respect of enforcement of Hudood;

(ii) The responsibility of the court to satisfy itself as to the correctness, legality and propriety of any finding, sentence or order recorded or passed by any court;

(iii) The power of the court to decide the regularity or otherwise of any proceedings related to enforcement of Hudood;

(iv) The power of the court to direct suspension of any sentence awarded in cases relating to Hudood;

(v) Power of the court to release any accused on bail;

(vi) Power of the court to pass any order it may deem fit in relation to any proceeding related to the enforcement of Hudood;

(vii) Power of the court to enhance any sentence passed by any court in relation to Hudood; and

(viii) Any other jurisdiction conferred on the court by or under any law.

A cursory glance over the contents of Article 203-DD clearly establishes that the framers of Chapter 3A of Part VII of the Constitution perceived a much broader role for the Federal Shariat Court in relation to Hudood. It was an all-inclusive role which is certainly wider than mere customary appellate jurisdiction.

The Constitution has made it certain that the revisional jurisdiction conferred upon the Federal Shariat Court by it is taken out of the scope of ordinary legislative functions of Majlis-e-Shoora. The Constitution conceded not only wide powers to the Federal Shariat Court but it proceeded to protect these powers from the vicissitude of legislative procedure prescribed under Article 70 of the Constitution. Additionally the Constitution proclaimed that Federal Shariat Court shall have such other jurisdiction as may be conferred upon it by or under any law. The consequence of this provision of the Constitution is that the Government or the Legislature has been restrained firstly from omitting any item from the prescribed jurisdiction of Federal Shariat Court in matters relating to Hudood, and secondly the additional power which may subsequently be included in the jurisdiction of the court under sub-Article (3) of Article 203-DD will be of the nature that it cannot be taken away by routine legislative measure. The additional jurisdiction, whenever conferred would be saved by constitutional provision. The Constitution commands in unambiguous terms that Federal Shariat Court shall, to the exclusion of any other court in Pakistan, have exclusive jurisdiction to control, supervise and streamline the process of the enforcement of Hudood under any law by any court or judicial forum. In Article 203-DD the term used is "enforcement of Hudood" and not mere Hudood.

In this context the word enforcement means the action of making sure that people obey the Islamic law relating to Hudood or the result of making sure that people obey the law. The intent of the authors of this constitutional provision is clear. It confers wider powers and jurisdiction on the Federal Shariat Court so that not only the enforcement or implementation of Hudood law is ensured but judicial guarantee is provided to ensure correctness, legality and propriety as well as regularity of proceedings in relation to the enforcement of Hudood as prescribed by Injunctions of Islam in the administration of criminal justice with a. view to protecting Din, Life, Intellect, Progeny and Family as well as the legitimately acquired property of the citizens and the people of Pakistan. The positive law must be aimed at protecting and advancing the objectives of Shariah so as to achieve a correct and proper enforcement of Hudood. Laws have to be implemented in that spirit. The Constitution authorizes the Federal Shariat Court to interfere and exercise its jurisdiction in any case from any criminal court under any law with a view to ensuring the correctness, legality and propriety of such implementation. The word enforcement has been used by the Constitution only in relation to offences relating to or covered by the term Hudood. This is clearly wider expression and includes all those steps which may technically be termed as appellate jurisdiction.

Even if the Parliament were to repeal Prohibition (Enforcement of Hadd) Order No. 4 of 1979, Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), even then the Federal Shariat Court will continue having exclusive jurisdiction, under Article 203-DD, to call for and examine the record of any case decided by any criminal court tinder any law relating to the enforcement of Hudood.

Oxford, Advanced Learner's Dictionary ref.

(dd) Constitution of Pakistan---

----Arts. 203-DD, 203-G & 203-GG---Intent and purport of the Art.203-DD of the Constitution.

The intent and purport of Article 203-DD of the Constitution is to provide a single and a central judicial forum which should have exclusive jurisdiction of ensuring correct, legal, proper and regular enforcement of the laws of Hudood throughout Pakistan. The word "revisional" appearing in the head note of Article 203DD has not been used in narrow and limited sense but it has been used in a broader sense. The right of appeal is conceded to an aggrieved party whereas revision is conferring of power, privilege and discretion upon the court to undertake examination of proceeding of a lower tribunal on the application of an aggrieved person or on its motion. If this Article is read with Articles 203-G and 203-GG, it establishes beyond any shadow of doubt that revisionary power includes the appellate powers in relation to Hudood laws and the enforcement of Hudood vest in the Federal Shariat Court to the exclusion of any other court in Pakistan. The words "any power or jurisdiction in respect of any matter within the power and jurisdiction of the court" in Article 203-G makes it abundantly clear that no court will exercise appellate or revisional jurisdiction in matters relating to enforcement of Hudood except the Federal Shariat Court. The power of a High Court to reverse an order of acquittal into conviction, on appeal, is stipulated only under section 417 of the Code of Criminal Procedure but this power which a High Court enjoys under a legislative instrument is conferred upon the Federal Shariat Court specifically through a superior piece of legislation i.e. the Constitution. The Constitution authorizes the Court to convert an order of acquittal into conviction. The Constitution therefore preserves and consolidates all the legally conceivable powers and jurisdiction in Federal Shariat Court in all matters relating to the enforcement of Hudood which any other court may enjoy collectively as an appellate and revisional court under ordinary law.

Be it the Psalms of David, Gospel of Jesus, Tables of Moses or the Scripture revealed upon Muhammad PBUH, Allah Almighty made His promise abundantly clear that the weak and the oppressed, the meek and the browbeaten shall inherit this earth. Allah was Gracious to those who were oppressed in the land and in His infinite mercy, He made them leaders of humanity and helped them succeed to the resources of this world. The Righteous servants of God, in turn, uphold the guiding principles and permanent values ordained and preserved in the Revelation and come forward to implement the regulations proposed by the Lord Creator. They do not hesitate to implement and enforce the injunctions prescribed by Allah.

Ayaat Nos. 133 and 165 of Surah No.6; Ayaat Nos. 100, 130 and 134 of Surah No.7; Ayah No.14 of Surah No.10; Ayah No. 57 of Surah No.11; Ayaat Nos. 11 and 105 of Surah 21; Ayah No.55 of Surah 24; Ayah No.62 of Surah 27; Ayah No.5 of Surah 28; Ayah No.39 of Surah 35; Ayah No. 26 of Surah 38; Ayah No.38 of Surah 47; Ayah No.7 of Surah 57 and Ayah No.41 of Surah 70 ref.

(ee) Constitution of Pakistan---

----Arts. 203-D & 227---Powers, jurisdiction and functions of the Federal Shariat Court---Foundation and Scope of Art.203-D of the Constitution stated.

The basis of Article 203 D can be traced to Ayaat 59 through 65 of Surah 4, An-Nisa.

A perusal of these Ayaat shows that the following two standards have been identified by Holy Quran for the resolution of disputes, particularly between the citizenry and the State:

(i) The first point of reference is the Word of God;

(ii) The second point of reference is the Sunnah of the Holy Prophet PBUH;

Those who deny this procedure/process are termed hypocrites by Holy Qur'an. The nutshell of Ayah 62 Surah 4, An-Nisa and Ayaat 47 through 52 is that those who do not observe what Allah or His Chosen Messenger PBUH has ordained may fall in the category of Munafiqeen i.e. the hypocrites. This is the situation which a believer would certainly avoid in all circumstances.

The message of the above mentioned seven Ayaat of Surah 4 is restated with full vehemence in Ayaat 43 through 50 of Surah 5, Al-Maida. The nutshell of the Divine verdict in these Ayaat is that those who do not judge between people in accordance with what has been revealed are Disbelievers, Wrong-doers and Evil-livers. It is in this background that Article 203-D and Article 227 of the Constitution of Pakistan has to be understood, appreciated, construed, interpreted and implemented.

Article 203D of the Constitution provides a practical mechanism to:

(a) ensure implementation of the mandate contained in Article 227 of the Constitution that no law shall be enacted which is repugnant to the Injunctions of Islam contained in Holy Quran or Sunnah;

(b) achieve the goal, visualized in clause three of Objectives Resolution that the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah, and

(c) provide machinery at national level not through an ordinary piece of legislation but through the agency of the fundamental law of Pakistan by way of creating a superior court with exclusive jurisdiction to undertake solemn exercise of adapting the Statute Book of Pakistan with Injunctions of Islam.

The reason that a constitutional provision has empowered the Federal Shariat Court to examine laws on the touchstone of Injunctions of Islam can be traced to Ayah 85 of Surah 28, Al-Qasas which proclaims that Allah made the teachings of Holy Quran binding upon the believers. The other reason is furnished by Ayah 23 Surah 3, Ale-Imran, Ayah 105 Surah 4, An-Nisa; Ayaat 44, 47 Surah 5, Al-Maidah; Ayah 114 Surah 6, Al-Anam. All these verses proclaim that people should be judged according to the teachings and principles handed over by Revelation. Still another reasons is that the Holy Quran proclaims itself as FURQAN i.e. Distinguisher. In other words Quran is the litmus test. Human conduct in Muslim societies should not be apposed to the spirit and teachings of the Holy Book.

(ff) Islamic jurisprudence---

----Ijtehad---Role in administration of justice.

. The criteria for resolving conflicts among people at judicial level is best illustrated by the instructions given by Holy Prophet PBUH to Maaz bin Jabel on the eve of his appointment as Governor of Yamen. Decisions were to be given in the light of Injunctions contained in Holy Quran and if no guidance was available in the primary source, the judgment was to be based upon the guiding principles provided by Sunnah and in the absence of any precedent or Injunction available in the above two basic sources, then the judge was to undertake Ijtehad i.e. application of mental faculties to the maximum in resolving the issue without violating the spirit of guiding principles provided by two primary sources: This was the first occasion when the term Ijtehad was employed in the realm of administration of justice by a Companion in the presence of Holy Prophet (PBUH) who approved it whole heartedly. This was the time and occasion when the exercise of Ijtehad for the resolution of disputes received formal sanction. From that point onward Ijtehad played an important role in the evolution of Islamic jurisprudence and the administration of justice.

(gg) Constitution of Pakistan---

----Arts. 203-GG, 189 & 201---Decision of Federal Shariat Court---Nature and scope.

A careful reading of Article 203-GG as well as Articles 189 and 201 of the Constitution indicates that the Federal Shariat Court is not bound even by its own decisions. There is no institutionalized taqlid in so far as this Court is concerned. It is the continuation of the time honoured practice in Muslim societies that the Judges were not bound by previous decision in matters within the ambit of uncovered field. The reason was simple: In the given circumstances of a situation when no legal provision was available to resolve a controversy, an effort to discover a remedy was resorted to by undertaking Ijtehad in the larger interest of Justice. Justice is indeed related to the restoration of rights. Resolution of human problems does not brook a vacuum. A still better view is always possible on account of practical experience gained by all the stakeholders in the administration of justice particularly on account of change of conditions and circumstances. Human thought is not stagnant. Human mind is a dynamic faculty. It progresses and develops by experience. The process of development and evolution is ongoing. This course is not static. Injunctions of Islam do not enjoin negation of movement. Islamic teachings beckon a person to look forward for a better future.

The superior courts, particularly in matters relating to Islamic jurisprudence, are under an obligation to develop law in the light of Injunctions of Islam as laid down in Holy Quran and Sunnah. Exercise of Ijtehad implies that the courts are not bound by one interpretation in the uncovered field for all times to come: Wisdom and saner counsel is the common heritage of humanity. The net result of incorporating Article 203-GG is that any decision of the Federal Shariat Court in exercise of its jurisdiction, is binding on a High Court and on all courts subordinate to such High Court. The trial courts are subordinate to provincial High Courts with the result that the findings of Federal Shariat Court, as regards its jurisdiction over trials relating to enforcement of Hudood as well as its interpretation and decisions shall be binding on provincial High Courts and the courts subordinate to the High Courts.

The phrase "to the extent that it decides a question of law or is based upon or enunciates a principle of law" mentioned in Articles 189 & 201 of the Constitution is conspicuous by omission in Article 203-GG. It therefore means in very clear terms that the ratio as well as dicta in a judgment of the Federal Shariat Court is binding upon the four provincial High Courts as well as all the courts throughout the country as these courts are subordinate to one or the other High-Court. Any judgment, order or decision delivered, passed or given by a High Court or a court subordinate to a High Court, contrary to the decision of Federal Shariat Court will be a judgment per incuriam. High Court has no jurisdiction under section 561-A of the Code of Criminal Procedure and Article 199 of the Constitution in matters which fell within the jurisdiction of Federal Shariat Court. Decision of the High Court in such matters was coram non judice. This jurisdiction of the Federal Shariat Court therefore is exclusive in nature and is not shared by any superior Court/Tribunal created by the Constitution.

Ayah 46, Surah 34, Saba; Zaheer ud Din v. The State 1993 SCMR 1718; Auranzeb v. Massan 1003 CLC 1020 and Hafiz Abdul Waheed v. Mst. Asma Jehangir P1D 2004 SC 219 ref.

(hh) Constitution of Pakistan---

----Art.203-E(a)---Power of review by Federal Shariat Court---Nature and Scope.

This power of review is not subject to any Act of Parliament.

The vast power of review conferred upon the Federal Shariat Court is in effect the acceptance of the principle of IJTIHAD for the development of Islamic Jurisprudence through the agency of this court of original jurisdiction. The objective in conferring this power upon the Federal Shariat Court has it genesis in Ayah 17 Surah 13, Ar-Rad, Holy Qur'an.

The decisions of the Federal Shariat Court are supposed to clean the existing law of any dirt or possible trash.

Hazoor Bux v. Federation of Pakistan PLD 1981 FSC 145 and Federation of Pakistan v. Hazoor Bux and 2 others PLD 1983 FSC 255 ref.

(ii) Constitution of Pakistan---

----Arts. 203-D & 203-C---Creation of Federal Shariat Court---Purpose---Declaration' in Holy Quran conceding the protest of aggrieved person---Administration of justice in Islam---Principles.

The historic opening words of the first Ayah of Surah Mujadilah is very significant as it is the solitary instance in the history of revealed literature where a woman, aggrieved by an inhuman custom, having the force of law, entered a caveat. Her rights as a wife had been suspended unilaterally by oral pronouncement made by the husband. She lodged a protest before Muhammad (PBUH), the head of the nascent Islamic polity, because she knew that Allah through His Apostle had the power to promulgate, amend, change, alter, substitute or even repeal any prevalent rule or custom having the force of law. Her supplication was answered. The prompt revelation proclaimed:

"O protesting lady! Your petition has been heard."

This declaration is preserved in Holy Quran as Ayah No.1 Surah 58, Al-Mujadilah. The following principles of law can therefore be deduced from this very Injunction of Islam:-

(i) Right of protest is conceded to an aggrieved person;

(ii) Every person aggrieved of an inhuman rule, law, custom or practice, having the force of law, has a right to get it reviewed by competent authority;

(iii) The aggrieved person in such a situation should have free access to justice;

(iv) The aggrieved person shall have the right of audience at the time of initiating the complaint;

(v) The Authority is under an obligation to probe into the complaint and may for that purpose undertake examination of any impugned law or practice;

(vi) The Authority must examine the issue and deliver a speaking and an effective order; and

(vii) The Authority, may in the facts and circumstances of the case not only introduce necessary amendments in law but may also provide a remedy to rectify the wrong.

In this view of the matter the creation of Federal Shariat Court is in fact practical realization of the remedy contemplated by Holy Quran for persons aggrieved by anti-people laws and inhuman practices having the force of law. The Federal Shariat Court, in exercise of its jurisdiction under Article 203-D, in fact 'discharges the obligation imposed by Ayah 103 of Surah 3, Ale-Imran because the power todeclare a law to be in conflict or otherwise to the Injunctions of Islam is not only a message to the people to follow what is good and avoid what is wrong. The yardstick to determine what is good or bad according to Muslim belief, is certainly the Revealed principle.

Ayah No.1 Surah 58, Al-Mujadilah ref.

(jj) Constitution of Pakistan---

----Arts. 203-C, 228 & 227---Creation of Federal Shariat Court and composition of Council of Islamic Ideology---Object and Scope.

The creation of the Council of Islamic Ideology and the Federal Shariat Court in due course of time after the .creation of Pakistan, through constitutional apparatus provides technical assistance/ recommendations to the Parliament/Provincial Assemblies before finalizing legislation while the Federal Shariat Court examines, whenever any question arises, any law or provision of law on the touchstone of Injunctions of Islam after a proposed Bill has materialized into an Act. The Council of Islamic Ideology appears to be an adjunct of the Parliament/Provincial Assemblies/President/Governor but it does not provide remedies to general public. The Federal Shariat Court is not part of the legislative wing of the State but it has the potential to provide relief to any person who is aggrieved of or is critical of any legislative measure. This court on the other hand gives personal hearing to a petitioner and undertakes an examination of the question submitted for its consideration. The procedure for invoking jurisdiction of Federal Shariat Court is not only simple but has been made inexpensive as well. Persons desirous of seeking examination of a given law or a provision of law or even custom, having the force of law, may not be permitted an ingress in the premises of legislative bodies to demand review of impugned legal instruments but the Constitution has provided a forum at the federal level to the citizens of Pakistan enabling them to invoke its extraordinary jurisdiction by making an application, without stamp duty and claim examination of any law, on the touchstone of Injunctions of Islam without constraint of period of limitation. The application for examination can be made at any provincial head-quarter or the principal seat of this Court at Islamabad. Once a Shariat Petition is submitted, it cannot be dismissed on the sole ground of absence or death of the petitioner. The Court may proceed with the examination of the impugned law which has been brought to its notice.

The creation of Federal Shariat Court is a natural sequel to Article 227 of the Constitution.

It is therefore abundantly clear that the basic object of creating Federal Shariat Court at the national level was to provide a vigilant and effective forum to oversee that no legal instrument, made enforceable in the Federation, remains de hors the Injunctions of Islam. This particular aspect is in fact the practical realization of the second part of clause (1) of Article 227 of the Constitution of Pakistan which proclaims that no law shall be enacted which is repugnant to Injunctions of Islam. The possibility of a legal provision, being incorporated in a Federal or a Provincial law, which is contrary to one or more Injunctions of Islam, cannot be ruled out because to err is human. The powers vesting in the Federal Shariat Court to examine the provisions of any law in fact provide a speedy and an effective remedy to rectify any error which might creep in while drafting the legal instrument.

The power conferred upon the Federal Shariat Court under Chapter 3A of Part VII of the Constitution is mandatory. The imperative nature of a decision of the court is mentioned in Article 203-G of the Constitution which states that the final decision of the Federal Shariat Court is binding on all the High Courts and on all courts subordinate thereto. This is at par with the obligatory nature of the decisions of the High Court under Article 201 as well as the provision contained in Article 189 which makes the decision of the Supreme Court conclusive and binding on all other courts in Pakistan. This power is therefore more than what is visualized commonly about mandatory statutes. Without even alluding to the power of contempt stipulated for the three above mentioned constitutional courts it is discovered that the intention of legislature was indicated in unequivocal terms by mandating that the order passed by courts have to be obeyed, implemented and acted upon and further that the jurisdiction mandated for these three constitutional courts shall have to be honoured and preserved. Clause (2) of Article 5 of the Constitution states that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan.

Ayah No.1, Surah 58, Al-Majadalah of Holy Quran; Ayah No.17 Surah 13, Ar-Raad of Holy Quran and Ayah 111 of Surah 3, Al-e-Imran ref.

(kk) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----Preamble---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Preamble---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), Preamble---Prohibition (Enforcement of Hadd) Order (4 of 1979), Preamble---Control of Narcotic Substances Act (XXV of 1997), Preamble---Anti Terrorism Act (XXVII of 1997), Preamble---Penal Code (XLV of 1860), Preamble---Constitution of Pakistan, Art.203-DD---Revisional and other jurisdiction of Federal Shariat Court---Scope---Final or interim orders passed or judgments delivered by trial courts exercising jurisdiction on criminal side with regard to offences covered by the term "Hudood", whether mentioned in Offences Against Property (Enforcement of Hudood) Ordinance, 1979; Offence of Zina Enforcement of Hudood) Ordinance, 1979; Offence of Qazf (Enforcement of Hadd) Ordinance, 1979; Prohibition (Enforcement of Hadd) Order, 1979; Control of Narcotic Substances Act, 1997; Anti Terrorism Act, 1997; Penal Code, 1860 or any other law for the time being in force, can be challenged by way of appeal or otherwise only before the Federal Shariat Court and no other court of criminal jurisdiction is competent to entertain and adjudicate upon proceedings connected with Hudood offences---Initiation of proceedings to quash First Information Report or pending criminal proceeding related to Hudood matters are within the exclusive jurisdiction of Federal Shariat Court in view of the mandate of Art.203-DD of the Constitution---Remedy against grant or refusal of bail before or during the trial of any of the above mentioned offences lies before Federal Shariat Court alone and no other court has jurisdiction to entertain any proceedings in such matters---Federal Shariat Court directed that present declaration relating to Protection of Women (Criminal Laws Amendment) Act, 2006, The Control of Narcotic Substances Act, 1997 as well as Anti-Terrorism Act, 1997 shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011---Other items of the Declaration become operative forthwith.

(ll) Protection of Women (Criminal Laws Amendment) Act (VI of 2006)---

----Ss. 11, 28 & 29---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Preamble---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), Preamble---Constitution of Pakistan, Chap.3A, Part VII & Art.203-DD---Powers and jurisdiction of Federal Shariat Court---Vires of statute---Sections 11, 28 and 29 of Protection of Women (Criminal Laws Amendment) Act, 2006 have been found to be violative of Art.203-DD of the Constitution of Pakistan---Overriding effect given to Offence of Zina (Enforcement of Hadd) Ordinance, 1979 and Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 was doubly fortified as the provisions of Chap.3A Part VII of the Constitution, which deal with the powers and jurisdiction of Federal Shariat Court, were mandated to have effect notwithstanding contained in the Constitution---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective, and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

(mm) Control of Narcotic Substances Act (XXVII of 1997)---

----Ss. 48 & 49---Constitution of Pakistan, Chap.3A of Part VII & Art.203-DD---Powers and jurisdiction of Federal Shariat Court---Vires of statute---Section 48 of Control of Narcotic Substances Act, 1997 whereby the High Court has been empowered to entertain and decide appeals arising out of the orders passed by the Special Court as well as the power of High Court under section 49 of the Act to transfer cases, at any stage, from one Special Court to another Special Court are inconsistent with the provisions contained in Chap. 3A of Part VII of the Constitution---Power to entertain appeals against orders passed or judgments delivered by a Special Court established under section 48 of the Act in matters related to Hudood offences and other proceedings including transfer of cases from such court vests in the Federal Shariat Court because offences related to narcotics are covered by the term Hudood---Word "High Court" occurring in these sections shall be substituted with the words "Federal Shariat Court"---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

(nn) Protection of Women (Criminal Laws Amendment) Act (VI of 1006)---

----S. 25---Constitution of Pakistan, Art.203-DD---Repugnancy to Injunctions of Islam---Section 25 of Protection of Women (Criminal Laws Amendment) Act, 2006 is repugnant to Art.203-DD of the Constitution because it makes Lian a ground for divorce and thereby causes additional and uncalled for hardship to the "wife" which is contrary to the principle of Ease (Yusr) enunciated by Holy Qur'an--Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

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

----Sched. Item 2---Constitution of Pakistan, Art.203-DD---Powers and Jurisdiction of Federal Shariat Court---Vires of statute---According to the amendment effected in item 2 of Sched. of Anti-Terrorism Act, 1997 dated 21-8-1997, the Federal Government in exercise of power vesting in it under section 3 of the Anti-Terrorism Act, 1997 authorized the Anti-Terrorism Courts to try some categories of offences relating to Hudood without providing a rider in section 25(i) of the said Act that appeals in cases involving Hudood offence would lie to the Federal Shariat Court---Said amendment in the Schedule without corresponding change in S.25(i) offends the constitutional provision contained in Art.203-DD which confers exclusive jurisdiction upon Federal Shariat Court in cases relating to the enforcement of Hudood---"Any case decided. by any criminal court under any law relating to the enforcement of Hudood" is to be heard and decided by the Federal Shariat Court alone---Such position is therefore travesty of legal constraint imposed by the Constitution---No authority is superior to the Constitution---Constitution has to be upheld at all costs--- Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

(pp) Constitution of Pakistan---

----Art. 203-DD---Revisional and other jurisdiction of Federal Shariat Court---Scope---Categories of offences covered by the term "Hudood" as contemplated by Art.203-DD of the Constitution and tribable exclusively by the Federal Shariat Court under its revisional and appellate jurisdiction.

The following ten categories of offences are inter alia covered by the term Hudood as contemplated by Article 203-DD of the Constitution and hence within the exclusive appellate and revisional jurisdiction of the Federal Shariat Court:

(i) Zina = In all its forms including Adultery, Fornication and Rape.

(ii) Liwatat= Sexual intercourse against the order of nature;

(iii) Qazf= Imputation of Zina;

(iv) Shurb = Alcohlic drinks/Intoxicants/ Narcotics etc;

(v) Sarqa = Theft simplicitor;

(vi) Haraaba = It includes Robbery, Highway Robbery, Dacoity and all other categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code.

(vii) Irtidad= Apostacy. It includes all offences mentioned in Chapter XV of the Pakistan Penal Code, namely: Of Offences Relating to Religion.

(viii) Baghee =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code.

(ix) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because the penalty therein has been prescribed by Nass/Ijma. [Abdul Qadir Audah, has discussed to some extent the scope of Hadd in his treatise Al-Tashree ul Jinai al Islami, Volume 1 at page 119, and

(x) Human Trafficking.

Appeal or Revision against any order, final or interim, passed by any criminal court under any law with regard to proceedings connected with or ancillary to or contributing towards commission of any of the above-mentioned offences, shall not be entertained by any court other than the Federal Shariat Court. Section 338-F of the Pakistan Penal Code has, in very clear words, prescribed that in the interpretation and application of its provisions and in respect of matters ancillary or akin thereto, the court shall be guided by the Injunctions of Islam as laid down in Holy Quran and Sunnah. The determination of what is in accordance with Injunctions of Islam is the sole province of Federal Shariat Court and no other court. Additionally all those matters relating to the Family life of Muslims, for which the term Hadood Allah has been used in Holy Quran are covered in the abmit of Hudood and hence within the appellate and revisional jurisdiction of the Federal Shariat Court.

The term "Enforcement of Hudood" encompasses all categories of offences and matters mentioned above. These offences are included in the scope of the term Hudood wherein the punishments have been prescribed by Holy Quran or Sunnah of the Holy Prophet PBUH and subsequently through legislative measures. Such punishments can be awarded by trial courts duly constituted under law. The term Tazir when applied to any offence which partakes of the nature of Hudood or is ancillary or akin to or contributing towards commission of offences covered by the term Hudood or even where the proof prescribed for establishing Hadd is lacking, would of necessity fall within the ambit of the term Hudood and hence within the jurisdiction of Federal Shariat Court. Consequently all matters within the parameters of Hudood, including offences in which cognizance has been taken in any form as stipulated in section 190 of the Code of Criminal Procedure or under any other law dealing with offences relating to `Hudood', are, for all purposes, enshrined in the jurisdiction of Federal Shariat Court as mandated by the Constitution, which jurisdiction includes, appeal, revision, review, grant or refusal of bail, transfer of cases, calling and examining record of proceedings, and applications to quash proceeding initiated before or during trial and all matters ancillary to such cases, at any stage of investigation, enquiry or trial.

(qq) Constitution of Pakistan---

----Art. 203-D---Powers, jurisdiction and functions of Federal Shariat Court---Scope--- Examination of vires of a statute---Vires of an Act are to be examined in the light of the limitations imposed by the Constitution---However if the court finds a law or a provision of law to be inconsistent with constitutional provisions, it is competent to strike it down to the extent of such inconsistency---Federal Shariat Court is additionally empowered to examine a law on the touchstone of Injunctions of Islam---Court will therefore keep in mind three elements: The legislative competence; the touchstone of Fundamental Rights and the yardstick of Islamic Injunctions---Such an exercise is resorted to not because Judiciary is superior but on account of the fact that: dignity of law and legal principles have to be maintained; that Constitution has to be upheld and enforced; that above all the people of Pakistan have to be enabled to live upto the permanent values and guiding principles enunciated by Islam; and that members of superior judiciary are under oath to do all these things.

(rr) Constitution of Pakistan---

----Preamble, Arts. 2A, 31 & Chap.3A, Part VII & Part IX---Legal presumptions based upon various Injunctions of Islam, the constitutional provisions and the Judge made law enumerated.

Following are the legal presumptions based upon various Injunctions of Islam, the constitutional provisions and Judge-made law:

(i) The sole repository of the authority to interpret legal instrument is the court constituted under the Constitution.

(ii) Members of the superior judiciary are under oath to uphold the Constitution and the law.

(iii) The Preamble, Articles 2A and 31, Chapter 3A of Part VII and Part IX of the Constitution make it incumbent upon the State to create conditions which may enable the Muslim of Pakistan, individually and collectively, to order their lives in accordance with fundamental principles and basic concept of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.

(iv) That Holy Quran prohibits very strictly any extra-marital activity between man and woman and is consequently full of praise for those who shun illicit activity, i.e. those who guard their chastity and private parts. Reference Ayat 35 Sura 33, Al-Ahzab and Ayat 29 Sura 70, Al-Ma'arij.

(v) Human dignity, honour and human life has to be preserved. Laws which protect property of persons have also to be upheld.

(vi) Legal provisions are enacted to establish peace, order and balance in the society both at domestic level and among nations at International level. Reference Ayaat 1 to 6 Sura 83, Al-Taffit; Ayat 38 Sura 2, Al-Baqara; Ayat 55 Sura 24, Al-Noor.

(vii) Wisdom and saner counsel wherever recorded, according to the well known tradition of the Holy Prophet PBUH, is the lost treasure of believers and they are exhorted to acquire it as and when available. In this view of the matter all the legal principles relating to the domain of interpretation of legal instruments, or reflecting permanent values, from any jurisdiction, if not opposed to the letter and spirit of Holy Quran and Sunnah, will be considered part of principles of Islamic Jurisprudence.

(viii) The Court has to be extremely vigilant on the issue of implementation of the Injunctions of Islam because a stern warning has been given to those who cover up the Divine Commandments. Reference Ayah 159, Surah 2, Al-Baqarah:

"Those who conceal anything of the clear teachings and true guidance which We have sent down even though We have made them clear in Our Book, Allah curses such people and so do all the cursers."

(ss) Constitution of Pakistan---

----Arts. 203-DD & 203-D---Re visional and other jurisdiction of Federal Shariat Court---Hudood Offences---Federal Shariat Court declared that all those offences whose punishments are either prescribed or left undermined, relating to acts forbidden or disapproved by Holy Quran, Sunnah, including all such acts which are akin, auxiliary, analogous, or supplementary to or germane with "Hudood" offences as well as preparation or abetment or attempt to commit such an offence and as such made culpable by legislative instruments would without fail be covered by the meaning and scope of the term "Hudood"-Federal Shariat Court directed that present declaration become operative forthwith.

(tt) Constitution of Pakistan---

----Art. 203-DD & Chap. 3A of Part VII---Jurisdiction of Federal Shariat Court under Art.203-DD of the Constitution---Extent---Federal Shariat Court declared that extent of Jurisdiction of Federal Shariat Court in matters relating to the "Hudood" under Art.203-DD is exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal court under any law relating to the enforcement of Hudood and no other court is empowered to entertain appeal, revision or reference in such cases---No legislative instrument can control, regulate or amend said jurisdiction which was mandated in Chap. 3A of Part VII of the Constitution---Federal Shariat Court directed that present declaration become operative forthwith.

(uu) Constitution of Pakistan---

----Art. 203-DD---Revisional and other jurisdiction of Federal Shariat Court in Hudood matters---Scope--- "Proceedings" as used in Art.203-DD of the Constitution---Connotation---Bail, grant or refusal of---Federal Shariat Court declared that an order granting or refusing bail before conclusion of trial in all categories of offences within the ambit of Hudood is covered by the word proceedings, as used in Art.203-DD, and hence within the exclusive jurisdiction of the Federal Shariat Court and can be impugned only in Federal Shariat Court---Federal Shariat Court directed that present declaration become operative forthwith.

(vv) Constitution of Pakistan---

----Art. 203-DD---Offences covered by the term "Hudood" for the purpose of Art.203-DD of the Constitution---Federal Shariat Court declared offences of (1) Zina = Adultery, Fornication and Rape; (2) Liwatat= Sexual intercourse against the order of nature; (3) Qazf= Imputation of Zina; (4) Shurb = Alcohlic drinks/Intoxicants/Narcotics etc; (5) Sarqa = Theft simpliciter; (6) Haraaba = Robbery, Highway Robbery, Dacoity. All categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code; (7) Irtdad= Apostacy; (8) Baghy =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code and (9) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because penalty therein has been prescribed by Nass/Ijnta (10) Human Trafficking as offences covered by the term "Hudood" for the purpose of Art.203-DD of the Constitution---Present declaration in the above four items shall take effect immediately because all the counsel representing the respondents, the jurisconsult as well the amicus curiae, agreed on the said four issues---Said conclusions having been consented to by the parties need nothing more to be done.

(ww) Protection of Women (Criminal Laws Amendment) Act (VI of 2006)---

----Ss. 11 & 28---Constitution of Pakistan, Art.203-DD---Vires of Statute---Federal Shariat Court declared that sections 11 and 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 are violative of Art.203-DD of the Constitution because these provisions annul the overriding effect of Offence of Zina (Enforcement of Hadd) Ordinance, 1979 and Offence of Qazf (Enforcement of Hudood) Ordinance, 1979---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned law in conformity with present declaration whereafter the impugned provisions shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

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

----Ss. 48 & 49---Constitution of Pakistan, Art.203-DD, Chap. 3A, Part VII---Vires of Statute---Federal Shariat Court declared that the portions of Ss.48 & 49 of The Control of Narcotic Substances Act, 1997 whereby the High Court has been empowered to (a) entertain appeals against the order of a Special Court consisting of a Sessions Judge or an Additional Sessions Judge and (b) transfer within its territorial jurisdiction any case from one Special Court to another Special Court at any stage of the proceedings, are violative of the provisions contained in Chap.3A of Part VII of the Constitution because the offences envisaged by the Act are covered by the terra "Hudood"-Both the sections are consequently declared violative of Art.203-DD of the Constitution---Portion which contains the words "High Court" should be deemed to be substituted by the words "Federal Shariat Court" in Ss.48 & 49 of the Control of Narcotic Substances Act, 1997---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned law in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

(yy) Protection of Women (Criminal Laws Amendment) Act (VI of 2006)---

----Ss. 25 & 29---Constitution of Pakistan, Art.203-DD---Repugnancy to Injunctions of Islam---Federal Shariat Court declared that section 25 of the Protection of Women (Criminal Laws Amendment) Act, 2006 is violative of Art. 203-DD of the Constitution as it omits subsections (3) and (4) of section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 with the result that it has adversely effected the operation of Injunctions of Islam relating to Lian; consequently S.29 of Protection of Women (Criminal Laws Amendment) Act, 2006 is also violative of Art. 203-DD as it adds clause (vii)(a) Lian in S.2 of the Dissolution of Muslim Marriages Act, 1939---Said addition in the latter Act also becomes invalid on account of repugnancy with the Injunctions of Islam relating to Lian---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provisions shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011.

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

----S. 25---Constitution of Pakistan, Art.203-DD---Offences in cases relating to Hudood---Vires of statute---Federal Shariat Court declared that S. 25 of the Anti-Terrorism Act, 1997 does not make provision for filing an appeal before the Federal Shariat Court in cases where the Anti-Terrorism court decides a case relating to some of the Hudood offences included in the Schedule as from 21-8-1997; said omission is violative of Art.203-DD of the Constitution---Federal Government should rectify this error by the target date fixed by Federal Shariat Court otherwise the rider to the effect that "but where a private complaint or a First Information Report or information, as stipulated in 5.190 of the Code of Criminal Procedure, relating to an offence falling within the purview of ten categories of Hudood Offences (mentioned in the present judgment), is decided by any court exercising criminal jurisdiction under any law of the land, the appeal therefrom shall lie to the Federal Shariat Court." shall be read at the end of clause (i) of S.25 after omitting the full stops---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and this judgment of the Federal Shariat Court will be operative as on 22-6-2011.

Mian Abdur Razzaq Aamer, Ch. Muhammad Aslam Ghuman and Abdul Latif Sufi for Petitioners.

Sardar Abdul Majeed, Standing Counsel for Federal Government, Mr. Tariq Ali, Advocate for Federal Government, Mr. Muhammad Israr, Advocate on behalf of Sardar Abdul Majeed, Standing Counsel, Syed Hasnain Haider, Advocate for Federal Government and Syed Azmat Ali Bukhari, Standing Counsel for Federal Government/Attorney General, for Federal Government.

Mr. Shafaqat Munir Malik,' Additional Advocate General, Punjab and Ch. Saleem Murtaza Mughal, Assistant Advocate General Punjab for the Punjab Province.

Fareed-ul-Hassan, A.A.G., Sindh for the Sindh Province.

Muhammad Sharif Janjua, Advocate on behalf of Advocate General, N.-W.F.P. and Aziz-ur-Rehman, Advocate on behalf of Advocate-General, Khyber Pakhtoon Khaw for N.-W.F.P./Khyber Pakhtoon Khaw.

Salahuddin Mughal, Advocate General Balochistan, Tariq Ali Tahir, Additional Advocate General Balochistan, Muhmood Raza Khan, Additional Advocate General Balochitan and Muhammad Sharif Janjua, Advocate on behalf of Advocate General Balochistan for Balochistan.

Hafiz Muhammad Tufail and Dr. Muhammad Hussain Akbar, Jurisconsults.

Raja Muqsit Nawaz Khan and Syeda Viquar-un-Nisa Hashmi: Amicus curiae.

Dates of hearing: 29th January. 13th, 25th March, 7th May, 18th November, 2008; 5th, 20th January, 11th February, 2nd April, 2009; 29th March, 19th April, 17th, 26th May, 5th, 6th July, 26th October and 23rd November, 2010.

P L D 2011 Federal Shariat Court 114

Before Syed Afzal Haider, J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE and 4 others---Respondents

Criminal Revision No.17/L of 2009, decided on 7th August, 2009.

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

----S. 540---Power to summon material witness etc.--Object---Object of S.540, Cr.P.C. is to enable the court to arrive at the truth---Technicalities should not stand in the way of a Judge, because the basic duty of the Court is to ascertain real facts and for this purpose evidence through witnesses is the time honourned technique in administration of justice.

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

---Ss. 540 & 265-F---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Penal Code (XLV of 1860), S.380---Enticing or taking away or detaining with Criminal intent a woman and theft---Petition of complainant for inclusion of the name of the DSP (Investigation) as a witness in the Calendar of witnesses had been dismissed by trial Court---Validity---Name of the Police Officer sought to be summoned appeared in the report submitted by the police under S.173, Cr.P.C.---Parties had appeared before the said police officer and no objection was raised before the Investigating Officer regarding his authority, to make a probe into the crime report---Question whether he was competent to investigate or not should be left for the other party to establish through cross-examination---Trial Court would then consider the matter, if the issue was raised before it---Section 265-F had been added in the Code of Criminal Procedure notwithstanding the already existing S.540, Cr.P.C. in order to ensure conducting of a fair trial and in order to achieve said purpose, equal opportunities had been provided both to the accused as well as to the prosecution party to summon the witnesses---However, balance must be struck between the parties and summoning of a witness should not stand in the way of administration of justice---DSP (Investigation) was directed to be summoned as a witness in the case, with direction to trial Court to decide the case in accordance with law---Criminal revision was allowed accordingly.

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

----S. 265-F---Evidence for prosecution---Scope---Section 265-F is quite comprehensive---Clause (7) of S.265-F, Cr.P.C. has granted a right even to accused to apply for summoning of witnesses and production of documents---Balance has to be struck between the parties.

Azmatullah Chaudhry for Petitioner.

Rai Moin-ud-Din and Mehr Liaqat Ali Sanpal for Respondents.

Ch. Abdul Razaq, Deputy Prosecutor-General for the State.

Date of hearing: 7th August, 2009.

P L D 2011 Federal Shariat Court 117

Before Agha Muhammad Rafiq Khan, C.J. Syed Afzal Haider and Shahzado Shaikh, JJ

Mian HAMMAD MURTAZA---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Justice and Parliamentary Affairs, Islamabad and 8 others---Respondents

Shariat Petition No.1/L of 2010, decided on 29th September, 2010.

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

----Ss. 3(1)(2)(3) & 4---Constitution of Pakistan, Art. 203-D---Repugnancy to Injunctions of Islam---Petitioner had challenged Ss.3(1)(2)(3) & 4 of West Pakistan Family Courts Act, 1964 on the ground that same were repugnant to the Injunctions of the Holy Quran and the Sunnah---Main contention of the petitioner was that a woman could not act as a Qazi/Judge or Munsif and was not competent to decide matters between the litigants in respect of Family cases and vice versa and it was asserted that a Muslim Ruler or Head of the State could not appoint a woman as a Qazi/Judge with powers to record evidence of the parties; and decide cases between the litigants--Petitioner despite of opportunity, could not refer to any specific `NASS' from the Holy Quran in support of his plea that a "woman was disentitled to be appointed as Qazi/Judge "---Petitioner had not challenged any specific law and did not refer to any Injunction of Islam under which a female was barred from holding the office of a Judge---Petition was dismissed.

Ayat 34 of Sura Al-Nisa; Ayat 28 Sura 2, Al-Baqra and Ansar Burney v. Federation of Pakistan and others PLD 1983 FSC 73 ref.

Malik Muhammad Rabnawaz Khan for Appellant.

Ms. Salma Malik, Asstt. Advocate-General for Respondents.

P L D 2011 Federal Shariat Court 121

Before Syed Afzal Haider, J.

Mst. ROBINA RASHID---Petitioner

Versus

FARRUKH AMIN and another---Respondents

Criminal Revision No.126/L of 2006, decided on 21st March, 2009.

(a) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)--

----S. 7---Constitution of Pakistan, Art.203-DD---Revision---Maintainability---Private complaint filed by the complainant had been dismissed by Trial Court after preliminary proceedings---Validity---Complainant had categorically stated that her husband had alleged that the complainant liked to meet strangers; that she was "Badchalan" (having evil habits); and that she was "Badkirdar" (of immoral character)---Said words were certainly not uttered in good taste---In ordinary parlance when a husband had employed such a terminology, it certainly would have a sinister significance---Such words would not only constitute evil imputation, but would calculate to hurt the feelings of the wife and to harm the' reputation of a married woman---Complainant had supported the contents of her complaint by cursory evidence---Production of unattested copies at the time of preliminary evidence would not disentitle her to produce attested copies at the trial---Complaint as well as the cursory evidence placed by the complainant on the record had to be considered to determine whether a prima facie case was made out---No deeper appreciation was required at the initial stage---All other points referred to by Trial Court merited consideration only after the evidence of the complainant had been recorded---Case did disclose the commission of an offence---Close relationship of the complainant and witnesses inter se was no bar to the admission of evidence---Revision petition was maintainable under Art.203-DD of the Constitution---Section 417(2), Cr. P. C. was applicable only when an accused had secured acquittal after a trial---Present complaint had been dismissed when the accused were not before the court,--Order of dismissal of complaint under S.203, Cr. P. C. could not be equated with an order of acquittal recorded after holding the trial---Impugned order was set aside and the case was remanded to Trial Court for passing as appropriate order based upon the consideration of the contents of the complaint and cursory evidence of the complainant with the sole object of determining whether a prima facie case was made out or not---Revision petition was accepted accordingly.

Muhammad Munawar v. Kausar Parveen and another 2003 PCr.LJ 1816 distinguished.

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

----S. 203---Dismissal of complaint---Nature and scope---Dismissal of a complaint under S. 203, Cr. P. C. cannot be equated with the acquittal recorded after holding the trial.

Sh. Hamad Danish for Petitioner.

Muhammad Rasheed Chaudhry for Respondent.

Qazi Zafar Iqbal, Addl. P.-G. for the State.

Date of hearing: 19th March, 2009.

P L D 2011 High Court (AJ&K) 1

Before Ghulam Mustafa Mughal, C J

Sahibzada RAJA MUHAMMAD HANIF KHAN and another---Petitioners

Versus

SHARAF DIN and another---Respondents

Civil Revision Nos. 45 of 2010, decided on 3rd June, 2010.

Civil Procedure Code (V of 1908)---

----O. VI, Rr. 1, 4, O. VII, Rr.1, 6, 11 & O. VIII, R.1---Special Relief Act (I of 1877), Ss. 42, 54 & 39---Limitation Act (IX of 1908), S.3---Suit for declaration, perpetual injunction and cancellation of gift­-deed---Plea of fraud, deception, misrepresentation, breach of trust etc.---Rejection of plaint, application for---Object, Scope and application of Os. VI, VII & VIII, C.P.C. ---Plaintiff had alleged that gift-deed in respect of his property got executed by defendant by practising fraud and deception---Defendants filed their written statement along with a separate application for rejection of suit under O. VII, R.11, C.P.C.---Trial Court rejected application filed by the defendants---Validity---Plaintiff in his plaint had not mentioned particulars of alleged fraud and deception, which was mandatory under O. VI, R.4, C. P. C. and its non-compliance would entail dismissal of the plaint---Rules of pleadings as laid down in Os. VI, VII, VIII, C.P.C. were not mere formalities, but had purpose behind them---Object of law of pleadings was that the whole case of the parties should be placed before the court with clarity, so that each of them could be confined to a definite stand---Order VI, R.4, C.P.C. enjoined upon a party that all cases in which fraud misrepresentation, breach of trust, wilful default or undue influence was alleged, the pleadings should contain full particulars by giving details thereof---Forgery, fraud and mis­representation, could not be taken into consideration, unless particulars were set out---Law would protect dignity of everyone by not allowing to plead fraud and forgery against any person in a casual manner---Rules of common sense and fairplay also demanded that charge of fraud should not be allowed to be levelled, unless precise information was supplied to the person against whom it was levelled; so that he could not be taken by surprise---Plaintiff had not bothered to claim exception as contemplated by O. VII, R. 6, C.P.C., which again made it obligatory for the plaintiff to plead exemption in order to satisfy the court as to why the suit had been filed after the period of limitation---Trial Court was supposed to exercise jurisdiction vested in it under O. VII, R.11, C.P.C. and S.3 of Limitation Act, 1908---Impugned orders passed by the Trial Court whereby application for rejection of plaint was dismissed, was recalled---Suit was rejected for having been filed after the statutory period of limitation.

Pak American Commercial (Pvt.) Ltd. through Director v. Humayoun Latif and 7 others PLD 2008 Kar. 540; Ghulam Asghar v. Muhammad Aziz and 2 others 2008 SCR 78; Muhammad Shafi v. Punjab Province through Collector, Vehari and another 1982 CLC 55; Liaquatabad Super Co-operative Market Ltd. v. The Mayor of Karachi and another PLD 1981 SC 613; Mahmood Ali v. Abdul Latif and another 2006 YLR 1090; Abdul Rehman v. Sher Laman and others 2004 CLC 1340; Alam Ali and another v. District Judge Multan and 3 others PLD 1983 Lah. 278; Masooda Abdul Haque v. Messrs Shan-e-Mustafa Productions, Lahore and another 1985 CLC 671; Abdul Mannan Umar v. Industrial Development Bank of Pakistan through Zahid Ahmad, Manager and 2 others 1987 CLC 1214; Noorul Hassan v. Abdul Hameed and others 1997 MLD 432; Ghulam Shabbir's case PLD 1977 SC 75; Mir Ghaus Bakhsh's PLD 1969 Kar. 662; Muhammad Yasin Khan and 4 others v. Azad Govt. and others 1991 MLD 2295; Rahim Dad's case 1992 MLD 2111 and Hakim Muhammad Buta's case PLD 1985 SC 153 ref.

Asghar Ali Malik for Petitioners.

Kh. Maqbool Ahmed Waar for Respondents.

PLD 2011 High Court (AJ&K) 10

Before Ghulam Mustafa Mughal, C J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and others---Appellants

Versus

FARID KHAN and others---Respondents

Civil Appeals Nos.193 and 216 of 2005, decided on 5th April, 2010.

Civil Procedure Code (V of 1908)---

----O. XX, Rr.2 & 3---Land Acquisition Act (I of 1894), Ss. 4, 11, 18, 23, 26 & 54---Acquisition of land---Determination of amount of compensation by Collector---Reference to Referee Court---Enhancement of amount of compensation by Referee Court---Non-­signing of judgment and decree by the Referee Court---Effect---Land was acquired and amount of compensation was determined by the Collector---Landowners being not satisfied with award of Collector referred the matter to Referee Court, which court enhanced the amount of compensation by its order---Referee Court though announced the judgment in open court, however said judgment and decree was not signed by the Referee Judge---Presiding officer was obliged under O.XX, C.P.C. to pronounce the judgment after signing the same in the open court---Neither the interim order revealed about the acceptance or rejection of the Reference, nor same was initialed---Such was a mere opinion and could not be equated with a judgment as contemplated by O.XX, C.P.C. and in such an eventuality the case would be deemed pending before the court---Sections 18 to 26 of Land Acquisition Act, 1894 prescribed a special procedure for inquiry and disposal of an application filed for enhancement of the compensation or otherwise---Judgment in the present case, having been handed down and announced by the Referee Court in violation of provisions of S.26 of Land Acquisition Act, 1894, therefore, Order XX, C.P.C. could not be applied strictly and judgment in question was no judgment in the eyes of law---Appeal was allowed and Reference would be deemed pending before the Referee Judge, who was directed to decide the case afresh after hearing the parties.

Makhan Singh and others v. Wadawa Singh and others AIR 1934 Lahore 763; 1920 Cal 597(1); Firm Gokal Chand Jaagan Nath v. Firm Nand Ram Das-Atma Ram AIR 1938 Privy Council 292 and Nisar Ahmad v. Presiding Officer, Punjab Labour Court No.2, Lahore and another PLD 1976 Lah. 1162 ref.

Sadaqat Hussain Raja and Raja Mushtaq Khan for Appellants.

Ch. M. Ibrahim Zia, Advocate General and Sahabazada Mehmood, Additional Advocate-General, for Respondents.

P L D 2011 High Court (AJ&K) 17

Before Ghulam Mustafa Mughal, C J

MUHAMMAD ANAYAT KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, POONCH, RAWALAKOT AJ&K and another---Respondents

Writ Petition No.572 of 2010, decided on 25th March, 2011.

(a) Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

----Ss. 4, 14 & 18---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Applications for determination of fair rent of the premises and ejectment---Jurisdiction of Additional District Judge to hear appeal against judgment passed by Rent Controller---Applications were consolidated and Rent Controller accepted application for ejectment filed by landlord---Tenant filed appeal against judgment of Rent Controller before Appellate Authority which was dismissed---Order passed by Appellate Authority had been challenged on the ground that Additional District Judge having not been designated as Appellate Authority under Azad Jammu and Kashmir Rent Restriction Act, 1986, had no jurisdiction to, hear and determine the appeal against judgment of Rent Controller---Validity---Section 18 of Azad Jammu and Kashmir Rent Restriction Act, 1986, had provided a complete scheme for hearing and disposal of appeals by conferring powers on the District Judges and Additional District Judges---No notification in that regard was required---Said Act itself had appointed District Judges as Appellate Authority having jurisdiction over the area where rented premises in question was situated---Appeal could be heard by the District Judge himself or he could refer same for disposal to the Additional District Judge---Only embargo was that the Additional District Judge to whom appeal was entrusted, should have jurisdiction over the subject matter of dispute i.e. rented premises---Appeal in the present case was filed before the District Judge, who made over the same to the Additional District Judge concerned for disposal---Appeal having competently been decided by the Additional District Judge, contention of tenant was repelled, in circumstances.

PLD 1965 SC 459; PLD 1983 SC(AJ&K) 204; Khalid Rauf Mir's case 1997 CLC 1830; Mirza Lal Hussain v. Custodian and others 1992 SCR 214; Muhammad Ashraf v. Azad Government and others PLD 1985 SC (AJK) 102 and Muhammad Resham Khan v. Chairman Inspection Team and others 1990 SC 1355 ref.

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

----S. 44----Writ, issuance of---Necessary party---Authority or public functionary, who had passed order against a person, was necessary party and in absence whereof no writ could be issued.

Lt.(R) Muhammad Shabir and 6 other's case 2003 YLR 346 ref.

(c) Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

----Ss. 4 & 14---Tenant filed application for determination of fair rent of the premises, while the landlord filed ejectment application against the tenant---Rent Controller consolidated the applications---Contention of counsel for tenant that application of tenant had not been disposed of, was misconceived, because a consolidated order had been passed on both applications; and mere missing some words from judicial order, which was otherwise liable to be maintained, case could not be remanded for fresh decision.

Barrister Humayun Nawaz Khan for Petitioner.

M. Hanif Minhas for Respondents.

Date of hearing: 25th March, 2011.

P L D 2011 High Court (AJ&K) 23

Before: Ghulam Mustafa Mughal, C.J., Munir Ahmed Chaudhary and M. Tabassum Aftab Alvi, JJ.

Sardar ABDUL QAYYUM NIAZI-Petitioner

Versus

ELECTION COMMISSION OF AZAD JAMMU AND KASHMIR through Secretary, Muzaffarabad and 12 others---Respondents.

Writ Petition No.1051 of 2011, decided on 1st July, 2011.

Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970---

---Ss. 24-A, 35 & 92---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Cancellation of result of election of whole constituency---Powers of Chief Election Commissioner---Scope---Where serious violation of law or Statutory Rules was established or interference by group of miscreants or supporters of losing candidate on one or two polling stations was alleged; cancellation of election of the whole constituency was not permitted, but where from the available record the result of election was not determinable; then cancellation of result of election of the whole constituency was justified---In the present case polling bags of 65 Polling Stations furnished to the Returning Officer, ;though were received, but same were destroyed before completion of the -result, allegedly by the voters/supporters of contesting candidate; result of 89 Polling Stations had not been received by the Returning Officers and it was not known with whom those Polling bags were lying; parties had registered cases against each other; Returning Officer as well as the local SDM had also registered cases for the disturbance and causing damages to the public property against the petitioner as well as contesting candidates and it could not be said that atmosphere at the Poling Stations concerned was peaceful---Effect---Chief Election Commissioner under provisions of S.24-A of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970, enjoyed vast powers for conducting election justly, honestly and fairly---Such power of the Chief Election Commissioner was not subject to any condition and could be exercised on its own motion---Chief Election Commissioner, in circumstances, had rightly cancelled result of election of the whole constituency---Order passed by the Chief Election Commissioner was maintained and writ petition was dismissed by High Court.

Noorullah Qureshi, Sardar Abdul Sammie Khan and Sardar Habib Zia for the Petitioner.

Kh. Muhammad Naseem for the Official Respondents.

Mushtaq Ahmed Janjua for Respondent No.11.

Sadaqat Hussain Raja for Respondent No.9

P L D 2011 High Court (AJ&K) 31

Before Ghulam Mustafa Mughal, C.J., Munir Ahmad Chaudhry and M. Tabassam Aftab Alvi, JJ

Sardar USMAN ALI KHAN---Petitioner

Versus

CHIEF ELECTION COMMISSIONER, AZAD GOVERNMENT OF THE STATE OF JAMMU AND HASHMIR, MUZAFFARABAD and 5 others---Respondents

Writ Petition No.1012 of 2011, decided on 22nd June, 2011.

(a) Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970---

----Ss. 6, 7, 10(6)(7) & 15(c)---Azad Jammu and Kashmir High Court Procedure Rules, 1984, R.37---Civil Procedure Code (V of 1908), O.I, R.10---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Application for deletion, alteration, amendment or addition in Electoral 'rolls---Respondent in his application to Chief Election Commissioner, alleged that some voters having illegally been registered in his constituency, their names be deleted from the Electoral rolls---Said application was accepted and process of deletion of a large number of voters was started---Petitioner had challenged said order and proceedings, initiated on the application of respondent in writ jurisdiction---Respondent challenged the maintainability of writ petition and contended that petitioner was not an "aggrieved person"---Validity---As petitioner was a candidate .of constituency concerned and in case of deletion of names of voters of said constituency, his interest could be infringed, he was an "aggrieved party"---Even otherwise, it was not necessary for the purpose of invoking writ jurisdiction of the High Court that petitioner must be in possession of a juristic right, so as to qualify him as aggrieved person---Objection raised on behalf of respondent that the petitioner was not an "aggrieved person" or the petition was pre-mature, was repelled, in circumstances.

Dr. Babar Hameed Chohan v. Muhammad Afzal Munir and 2 others 1984 SCMR 537; Din Muhammad Balouch v. The Returning Officer P.S. 77 Assistant Commissioner, Karachi and 35 others 1986 CLC 1386; Lal Babu Hussain and others v. Electoral. Registration Officer and others AIR 1995 SC 1189; Noor-ul-Amin v. Government of the State of Azad Jammu and Kashmir and 2 others PLD 1987 AJ&K(HC) 88; Muhammad Islam v. Abdul Rashid and others 1993 SCR 37 and Ch. Ali Muhammad Chacha v. Azad Government and 4 others 2008 CLC 1648 ref.

(b) Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970---

----Ss. 6, 7, 10(6)(7) & 15(c)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ Petition---Application for deletion, alteration, amendment and addition in Electoral rolls---Respondent in application filed before Chief Election Commissioner had prayed for deletion of names of certain voters from the voters list on the allegation that same had been illegally registered therein---Chief Election Commissioner accepted said application and District Returning Officer in compliance of order of Chief Election Commissioner, started process of deletion of a large number of voters---Under provisions of S.15 of Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, Chief Election Commissioner. could not initiate proceedings on the application of a party, but could exercise suo motu power for the purpose without any application---Application filed by the respondent before the Chief Election Commissioner, was not maintainable---Chief Election Commissioner, in case of any gross error or irregularity in preparation of Electoral rolls, could correct the same while exercising his power under Ss.10(6)(7) & IS of Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970---Before making correction or deletion of any voter's name, an opportunity of hearing to the concerned voter, was the demand of law and justice and principle of 'audi alteram partem' would not be violated---Voter had a right to get entered his vote at any place, if he would adopt the same as place of his ordinary residence.

Muhammad Noorullah Qureshi, Sardar Abdul, Sammie Khan and Syed Shafqat Hussain Gardezi for Petitioner.

Kh. Muhammad Nasim, Asghar Ali Malik and Sadaqat Hussain Raja for Respondents.

Date of hearing: 22nd June, 2011.

P L D 2011 Islamabad 1

Before Iqbal Hameed-ur-Rahman, C J

AFZOONA KAUSAR---Petitioner

Versus

ADDITIONAL DISTRICT MAGISTRATE, ICT, ISLAMABAD and another---Respondents

Writ Petition No.981 of 2011, heard on 6th April, 2011.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1961)---

----Ss. 3 & 16---Constitution of Pakistan, Arts. 9, 10 & 199---Constitutional petition---Preventive detention---Breach of peace---Reasonable material---Sympathies with proscribed organizations---Husband of petitioner was behind the bars since 29-1-2009, and detention order was passed by authorities on 9-1-2011---Plea raised by petitioner was that detention order was illegal as authorities did not have any material to pass detention order against petitioner's husband---Validity---Detention order did not carry reasonable material to detain petitioner's husband further and to curb his liberty which was a fundamental right of every citizen guaranteed under Articles 9 and 10 of the Constitution---Detention order was passed merely on presumptions and apprehensions, which had not been substantiated through specific allegations---Petitioner's husband being behind the bars for the past two years could not be considered as having caused immediate breach of peace within the territorial limits of Islamabad Capital Territory---Grounds of detention order were vague and indefinite which could not entail detention of petitioner's husband under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, on the ground of assumption that he had sympathies with proscribed organizations---Material before detaining authority was not of such nature that a reasonable person would be satisfied to the necessity for making the order of preventive detention---Authorities did not comply with the requirements of law relating to preventive detention---Detention order was passed in a mechanical manner without any reasonable justification and application of mind---High Court declared detention order of petitioner's husband to be passed illegally and the same was set aside---Petition was allowed in circumstances.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs.Amatul Jalil Khawaja PLD 2003 SC 442rel.

Basharatullah Khan for Petitioner.

Ghulam Farooq Awan, Addl. Attorney-General.

Syed Hussain Buhadar Ali, Magistrate (Secretariat), Islamabad.

Date of hearing: 6th April, 2011.

P L D 2011 Islamabad 6

Before Muhammad Anwar Khan Kasi, J

Miss NANCY RUTH BANEY---Petitioner

Versus

DISTRICT JUDGE, ISLAMABAD and another---Respondents

Writ Petition No.854 of 011, decided on 1st April, 2011.

(a) Words and phrases---

----"Adoption"---Defined---Adoption is defined as judicial or administrative act that establishes a permanent legal parent-child relationship between a minor and an adult, who is not already the minor's legal parent and terminates legal parent-child relationship between the adopted child and any former parents.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Adoption of female christian child---Scope---Petitioner adopted minor child and was appointed as her guardian by Guardian Court---Grievance of petitioner was that she wanted to take the minor abroad to her native country for the purpose of immigration and adoption---Validity---After appointment as guardian, petitioner had got every lawful right to keep the child with her after proper consent of minor's real parents---Petitioner wanted to keep the child with her in United States of America and welfare of the minor was also demanded her better care and treatment---There was no Inter-country Adoption between Pakistan and United States of America, the minor would enter United States of America on immigration visa and be adopted over there according to the United States laws---Child after going through all the process of guardianship should be permitted to accompany her lawful guardian, especially when the parents had also no objection to the removal of minor to a foreign country in connection with adoption--- Muslim laws were different but the minor was a christian and her parents had given the permission---High Court permitted the petitioner to take the minor to United States of America for the purpose of immigration and adoption---Petition was allowed in circumstances.

AIR 1984 SC 469 and 2005(3) KLT 57 ref.

Barrister Faisal Khan Toru for Petitioner.

Barrister Ehsan Qazi for parents of the minor.

Date of hearing: 31st March, 2011.

P L D 2011 Islamabad 10

Before Iqbal Hameed-ur-Rahman, C J

HASHAAM SAEED and another---Petitioners

Versus

NATIONAL UNIVERSITY OF COMPUTER AND EMERGING SCIENCES (NU-FAST) through Director and another---Respondents

Writ Petition No.5059 of 2010, heard on 30th March, 2011.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Educational institution---Examination---Unfair means---Petitioners/students were found involved in using unfair means to change their grades, therefore, University authorities suspended them for one semester---Validity---Petitioners were student of respondent university who allegedly managed fraud/cheating in order to get better scoring in their results---Petitioners had allegedly committed an abominable act and were rightly tackled by University authorities---In academic matters University authorities were the best judges to interpret rules and regulations framed by University authorities---Courts were required to avoid to interpret the same unless case of grave injustice was made out, otherwise it would become difficult for Universities to run their affairs---High Court declined to interfere in the decision taken by authorities against petitioners---Petition was dismissed in circumstances.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 ref.

(b) Educational institution---

----Conduct of students---Conduct---Educational institutions/ universities are deemed to be the pillars of ethics, morality, discipline and grace of society---Students of institutions should prove themselves to be honest, fair and obedient of rules and regulations.

Board of Intermediate and Secondary Education v. Hafiz Ahmad Sufyan PLD 2004 SC 25 rel.

Sheikh Riaz-ul-Haq for Petitioners.

R.D. Chaudhry for Respondents.

Date of hearing: 30th March, 2011.

P L D 2011 Islamabad 14

Before Iqbal Hameed-ur-Rahman, C J

LIAQUAT ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, ISLAMABAD and 8 others---Respondents

Writ Petitions Nos.317 and 357 of 2010, heard on 31st March, 2011.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 2(g) & 17(9)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Striking off defence---Default in payment of monthly rent---Tenancy was established through attorney of landlady but after revoking of power of attorney, the tenant did not pay any rent to landlady---Rent Controller struck off the defence of tenant and passed eviction order in favour of landlady, which order was maintained by Lower Appellate Court---Validity---Very basis of lease agreement was revoked on 7-8-2006 and thereafter, rent of the premises was required to be paid by tenant to landlady---On non-payment of rent to landlady, Rent Controller rightly passed the order for eviction of tenant in accordance with S.17(9) of Islamabad Rent Restriction Ordinance, 2001---Demised shop was not leased out by landlady to the tenant and no written consent of landlady was also available on record, in order to maintain the tenancy in favour of tenant---As the demised shop was not rented out by the landlady to the tenant, therefore, the tenant could not seek any relief on the basis of the tenancy executed by a person who, prima facie, was not the landlord of demised shop---High Court declined to interfere in the concurrent findings of facts of two courts below which were arrived at after proper appreciation of material available on record---Petition was dismissed in circumstances.

2005 CLC 792; 1990 MLD 2217; 2009 SCMR 893; 1994 SCMR 1507; PLD 1971 Quetta-10; 1968 SCMR 734; 1986 CLC 1378 and 2009 SCMR 837 distinguished.

Khuda Bakhsh v. Muhammad Sharif 1974 SCMR 279 rel.

(b) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 2 (g) & 17 (9)---Civil Procedure Code (V of 1908), O. I, R. 10--- Ejectment petition--- Necessary party--- Tenancy was created by a person who was general power of attorney of the landlady and his power of attorney had been revoked prior to his creating tenancy in favour of the tenant--- Plea raised by tenant was that the attorney was a necessary party to ejectment proceedings--- Validity--- After revocation of general power of attorney, he was neither landlord nor tenant in eviction petition--- Previous attorney had no authority to lease out the premises, hence, he being a stranger, if had executed any lease agreement in respect of demise shop, was rightly not taken into consideration by Rent Controller---Status of the tenant was that of an unauthorized tenant---Tenancy created through a stranger could not be enforced by legal means, thus such tenant in the premises could not press any legal right and court could not come forward for his rescue.

Messrs Noorani Travels, Karachi v. Muhammad Hanif and others 2008 SCMR 1395 and Taj Muhammad and others v. Ali Hassan Manghi and others 1987 SCMR 565 rel.

(c) Constitution of Pakistan---

----Art.199---Constitutional petition---Concurrent findings of facts by the courts below--- Substitution of findings---Scope---High Court under Art.199 of the Constitution has no jurisdiction to substitute its own findings in place of concurrent findings of the courts below.

Raham Dil v. Province of Punjab 1999 SCMR 1060 rel.

Muhammad Umer Riaz for Petitioner (in W.P.No.317 of 2010).

Mrs. Robina Shaheen for Petitioner (in W.P.No.357 of 2010).

Shahzad Shaukat for Respondents.

Date of hearing: 31st March, 2011.

P L D 2011 Islamabad 25

Before Iqbal Hameed-ur-Rahman, C J and Riaz Ahmad Khan, J

SHUJA KHAN BALUCH---Petitioner

Versus

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

Writ Petition No.260 of 2011, heard on 12th April, 2011.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 12 & 23---Transfer of property---Embargo on 'transfer' and 'freezing' of property---Distinction---If accused person owns property, which is not in the knowledge of Chairman NAB or Accountability Court and the same is transferred during pendency of inquiry or investigation, then transfer of such property is void and such transfer of property also amounts to an offence under S.23 of National Accountability Ordinance, 1999---If property belonging to accused is in the knowledge of Chairman NAB and inquiry is initiated, then Chairman NAB is obliged to act under S.12 of National Accountability Ordinance, 1999, and pass an order for freezing of that property.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 12 & 23---Constitution of Pakistan, Art.199---Constitutional petition---Non-freezing of property---Presumption---Transfer of property---Auction-purchaser, right of---Property in question was sold through auction, in execution of decree passed by Banking Court and petitioner was the auction-purchaser---Grievance of petitioner was that authorities refused to transfer the property in his name due to embargo placed by National Accountability Bureau under S.23 of National Accountability Ordinance, 1999---Plea raised by the authorities was that any transfer of property in question would be void under S.23 of National Accountability Ordinance, 1999---Validity---Chairman NAB was in the knowledge of property in question but no order under S.12 of National Accountability Ordinance, 1999, was passed for freezing of the same---As no order was passed to freeze the property, so presumption would be that NAB authorities knew that the property did not belong to accused or for the reasons best known to them, they did not want to take any action regarding the property---In absence of freezing order in field regarding property in question, it could not be said that the property was under investigation by NAB authorities---Chairman NAB had the authority to pass any order in respect of property of accused as long as the Court had not taken cognizance of the case but the moment Court took the cognizance of any matter under National Accountability Ordinance, 1999, then Chairman NAB would become functus officio and only Accountability Court could pass any order regarding property of accused---No order was passed by Accountability Court in respect of property in question, therefore, Chairman NAB had no authority to place any embargo on transfer of property in question---Capital Development Authority being custodian of record was under obligation to transfer the property in the name of auction-purchaser in accordance with law and rules---High Court directed the authorities to transfer the property in question to the name of petitioner in accordance with law and rules---Petition was allowed in circumstances.

Asad Iqbal Siddiqui for Petitioner.

Syed Wajid Ali Gillani for Respondents No.1.

Ch. Sultan Mansoor, DPGA, NAB for Respondent No.2.

Khawaja Manzoor Ahmed for Respondent No.3.

Date of hearing: 12th April, 2001.

P L D 2011 Islamabad 30

Before Iqbal Hameed-ur-Rahman, C J

JAVAID AHMED---Petitioner

Versus

MUHAMMAD IMRAN MALIK and 3 others---Respondents

Writ Petition No.1719 and C.M.As. Nos.1231 and 1550 of 2009, heard on 6th April, 2011.

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----S.17---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant--- Statement of attorney---Choice of landlord---Scope---Landlord sought ejectment of tenant on the ground of bona fide personal need and default in payment of monthly rent---Rent Controller dismissed the ejectment application on the ground that neither bona fide personal need was proved nor tenant was defaulter---Lower Appellate Court allowed the appeal filed by landlord and passed eviction order---Plea raised by tenant was that landlord did not appear himself in witness box and he had another premises which he could use for himself---Validity---Landlord in order to prove personal bona fide need could get examined his attorney and there was no compulsion that he must have appeared in witness box---It was the prerogative of landlord to choose premises for his personal need and no direction in respect thereof could be given to landlord---Interference of High Court in extraordinary jurisdiction could only be made when glaring misreading or non-reading of any material floated on the file---Such fact was missing and petitioner failed to point out any misreading or non-reading of evidence or any irregularity committed by Lower Appellate Court---High Court declined to interfere in the judgment passed by Lower Appellate Court--- Petition was dismissed in circumstances.

Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 ref.

Malik Muhammad Ramzan v. M/s General Iron Stores and another 1995 SCMR 1125 and National Tubewell Construction Corporatin Ltd. v. Tariq Rahim (Advocate) and another NLR 1991 Civil 366 rel.

(b) Affidavit---

----Affidavit attached with proceedings cannot be given much weight when deponent has not faced the test of cross-examination.

Zaheer Ahmed Qadri for Petitioner.

Zafar Ali Shah for Respondents Nos. 1 and 2.

Date of hearing: 6th April, 2011.

P L D 2011 Islamabad 36

Before Iqbal Hameed-ur-Rahman, C J

FAISAL ZAFAR MALIK---Petitioner

Versus

AJMAL BUKHARI, DEPUTY COMMISSIONER, CDA, ISLAMABAD and 3 others---Respondents

Writ Petition No.1878 of 2011, decided on 13th June, 2011.

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

---S. 36-A(2)---Islamabad Residential Sectors, Zoning (Building Control) Regulations, 2005, Reglns. 2.17.3 & 2.17.4---Constitution of Pakistan, Art.199---Constitutional petition---Non-conforming use of residential building by tenant---Imposition of penalty by Deputy Commissioner due to such use of building by tenant---Validity---Tenant had not denied non-conforming use of rented building---Deputy Commissioner had rightly imposed impugned penalty in exercise of his powers under Reglns. 2.17.3 & 2.17.4 of Islamabad Residential Sectors, Zoning (Building Control) Regulations, 2005---Impugned order was not suffering from any legal infirmity---High Court dismissed constitutional petition in limine.

Mian Tahir Iqbal for Petitioner.

Date of hearing: 13th June, 2011.

P L D 2011 Islamabad 40

Before Muhammad Anwar Khan Kasi and Riaz Ahmad Khan, JJ

MUHAMMAD YOUSAF---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.303 and 315 of 2005, heard on 8th June, 2011.

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

----S. 9(c)---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Both prosecution witnesses stated that in consequence of search of the bus in question, 6-Kgs charas in the shape of sleepers rusty green stitched with packing Cellophane and garda (raw) charas 18-Kgs in the shape of sleepers rusty green stitched with packing Cellophane was recovered and taken into possession along with the bus; that recovered charas was made into two sealed parcels in two bags and another bag of garda charas was also made into a sealed parcel and that 10 grams of charas and 10-grams of garda was separated for chemical analysis and made into sealed parcels separately---In presence of such assertion, the contention of counsel for accused, was plausible and convincing that samples were not taken from each sleeper which discrepancy, could not be taken lightly as stringent sentences had been provided under the Control of Narcotic Substances Act, 1997, if offences charged against accused within any component of S.9 of the Act were proved---Control of Narcotic Substances Act, 1997 had to be construed strictly and relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, were to be followed strictly in the interest of justice, otherwise it would be impossible to hold that total commodity recovered from the possession of accused, was charas--Presumption in the given circumstances of the case was, that sample was not taken out from each sleeper and presumption would be that recovered substance was not the whole charas---Accused, in circumstances, deserved remission in sentence---While maintaining conviction under S.9(c) of the Control of Narcotic Substances Act, 1997, their sentences were reduced to one already undergone by them---Benefit of S.382-B, Cr.P.C., would remain intact.

Muhammad Hashim v. The State PLD 2004 SC 856 rel.

B.H. Shah and Raja Aftab Ahmad for Appellant.

Malik Ishtiaq Ahmad, Standing Counsel for the State.

Date of hearing: 8th June, 2011.

P L D 2011 Islamabad 43

Before Riaz Ahmad Khan, J

NATIONAL HIGHWAY AUTHORITY through General Manager Construction---Appellant

Versus

Messrs HAKAS (PRIVATE) LIMITED through Managing Director---Respondent

F.A.O. No.189 of 2010, heard on 6th June, 2011.

Arbitration Act (X of 1940)---

---Ss. 15 & 39---Modification of award---Powers of the court---Scope---Court under S.15 of the Arbitration Act, 1940, had power to modify the award, provided it appeared that a part of the award was upon a matter not referred to arbitration and such part could be separated from the other part and did not affect the decision. on matter referred or where the award was imperfect in form, or contained any obvious error which could be amended without affecting such decision or where the award contained a clerical mistake or an error arising from an accidental slip or omission---Court could not enter into the merits of the case and could not assume the power and authority of the arbitrator---Appreciation of evidence was entirely an authority of the arbitrator, but if there was an error on the face of record such error could be rectified---Court could suo motu modify or correct the award, notwithstanding that the objections were barred by limitation---Court could modify the award, even after period of limitation, provided the modification did not require evidence and did not change the decision of the arbitrator---Where the modification in the award changed the decision of the arbitrator, such modification was liable to be set aside.

1991 CLC 66; 1999 CLC 1698; 1999, CLC 1777; 2002 SCMR 1662 and 1986 CLC 2362 ref.

2002 SCMR 1662 rel.

Ali Razaq for Appellant.

Barrister Sardar Ijaz Ishaq and Syed Akbar Javed Shah for Respondent.

Date of hearing: 6th June, 2011.

P L D 2011 Karachi 1

Before Muhammad Athar Saeed and Munib Akhtar, JJ

ROSHNI TELEVISION, Messrs Direct Media Corporation (Private) Ltd. through Chief Executive Officer---Appellant

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and 16 others---Respondents

M.A. No.2 of 2010, decided on 6th October, 2010.

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

---S. 30-A---High Court (Lahore) Rules and Orders, Vol. V, Ch. 3-B, R.1---Constitution of Pakistan, Art. 202--Appeal to Sindh High Court---Disposal of such appeal by a Single Bench or Division Bench of Sindh High Court---Scope---Till framing of new Rules by Sindh High Court under Art. 202 of the Constitution, High Court (Lahore) Rules and Orders as they stood on 1-7-1970 would continue to apply to Sindh High Court at least on its appellate side---Subsequent amendments made by Lahore High Court in High Court (Lahore) Rules and Orders including Ch.3-B of Vol. V thereof would not apply to Sindh High Court except those made by High Court of Sindh and Balochistan---According to R.1(iv) of Chap.3-B of Vol. V of High Court (Lahore) Rules and Orders, where statutory provision creating a right of appeal to High Court itself expressly provided for number of Judges, who were to hear and dispose of appeal, then such provision would prevail---In absence of such provision, appeal other than arising under C.P.C., or Divorce Act would be heard by a Single Bench, which could refer same to a Division Bench---Appeal arising under S.30, Pakistan Electronic Media Regulatory Authority Ordinance, 2009 would be heard by a Single Judge---Principles.

Sindh High Court Bar Association v. Federation of Pakistan and others PLD 2009 Kar. 408 rel.

Chief Executive for Appellant (in person).

Kashif Hanif for Respondents.

S. Mohsin Imam for Respondent No.3.

Irfan Ahmed Memon for Respondent No.5.

Habib ur Rehman as Amicus Curiae.

PLD 2011 Karachi 6

Before Zahid Hamid, J

Mrs. ZAHIDA KHAN---Petitioner

Versus

Mst. GULNAZ QURESHI through Attorney and another---Respondents

Constitutional Petition No.629 and C.M.A. No.2949 of 2009, decided on 7th September, 2010.

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

----S. 15---Civil Procedure Code (V of 1908), S. 11---Ejectment petition---Personal bona fide need of landlord---Dismissal of first ejectment petition for non prosecution or as withdrawn after increase in rent---Filing of second ejectment petition on such ground on arising of new/fresh situation after five years of dismissal of first ejectment petition---Principle of res judicata would not attract to such second petition.

Abdul Mehdi v. Mrs. Abdul Hakim 1990 MLD 2182 and Sh. Maula Bakhsh and another v. Fazal Din and another PLD 1982 SC 201 ref.

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

----S.15---Ejectment petition---Personal bona fide need of landlady---Landlady living in, U.S.A. pleaded that she wanted to return to Pakistan and occupy her own house; and that whenever she with her family came to Pakistan during summer or winter vacations, they were forced to live in the house of her father---Validity---Tenant had no right to fix schedule of landlady as at what time her coming to Pakistan and living in demised premises would be favourable for her---Tenant had no right to claim that in first phase landlady should abandon her house in America and come to Pakistan languish here and there and then prosecute case of eviction against him---If landlady did not come to Pakistan to permanently settle here, even then she could not be deprived of intermittently using of demised premises on her regular visits to Pakistan---Sindh Rent Premises Ordinance, 1979 or its S. 15 was not exclusively designed for landlords' living in Pakistan permanently---As admitted by tenant, demised premises was the only accommodation available with landlady in Pakistan---In absence of evidence of tenant to the effect that political situation in USA for Muslim immigrants was favourable for them, statement of landlady corroborated by her father about her personal need could not be doubted---Ejectment petition was accepted in circumstances.

Mst. Ahmedunnisa and others v. Mst. Parveen Siraj 1985 SCMR 2012 ref.

Chambers 21st Century Dictionary; Munir Ahmed Naulakha and others v. Ch. Muhammad Din and others PLD 2006 SC 422; Javed Khalique v. Muhammad Irfan 2008 SCMR 28; Fazal Khursheed v. S. Agha Jawed Raza 1993 MLD 2183; Allies Book Corporation through Legal Heirs v. Sultan Ahmed and others 2006 SCMR 152s; Javed Khalique v. Muhammad Irfan 2008 SCMR 28 and Qaumi Foundation v. Asad Anees Ansari 1997 CLC 33 rel.

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

----S. 15(2)(vii)---Word "use" finding mention in S. 15(2)(vii) of Sindh Rented Premises Ordinance, 1979---Connotation---Sindh Rented Premises Ordinance, 1979 or its S. 15 was not exclusively designed for landlords' living in Pakistan permanently---Word "or" used between words "occupation or use" in S. 15(2)(vii) of the Ordinance was disjunctive---Word "use thus, did not place any fetter on requirement of a premises by landlord to limit same to continuous, constant or permanent user only---Principles.

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

----S. 15---Ejectment petition---Ground of running of school in the demised Premises by tenant---Validity---Landlady when purchased demised premises, a school was running therein, which position continued thereafter---Landlady's right to seek eviction on such ground would be deemed to have been waived in circumstances.

Abdul Rehman for Petitioner.

Abdul Wajid Wyne and Khalil ur Rehman for Respondent.

P L D 2011 Karachi 16

Before Bhajandas Tejwani, J

RASHID AHMAD---Petitioner

Versus

MUHAMMAD SHABBIR and 3 others---Respondents

Constitutional Petition No.4/S of 2010, decided on 13th April, 2010.

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

----Ss. 2(f), 15 & 19---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---New landlord---Entitlement---During pendency of ejectment petition, despite selling the premises, previous owner had been pursuing ejectment proceedings---Rent Controller passed eviction order against tenant and lower appellate Court maintained the same---Validity---New owners were not `landlords' in terms of S.2(f) of Sindh Rented Premises Ordinance, 1979, when alleged default was committed by tenant and they had no right to recover monthly rent---Right to recover rent started from the date of change of ownership when new owners acquired title in the property and thereafter they would be entitled to approach the concerned Rent Controller to evict tenant, when he committed default in payment of rent payable to new owner and not for a period for which they were not even entitled to recover the rent---Landlord seeking ejectment of his tenant had to go through mandatory procedure prescribed under the provisions of section 19 of Sindh Rented Premises Ordinance, 1979---New owner did not pass through such procedure as the tenant had not committed default in payment of rent to then, therefore, they could not avail benefit of default, if any, committed by tenant during ownership of previous owner, without having recourse of law and procedure---No express covenant, clause or stipulation in conveyance deed executed by previous owner existed in favour of new owners, authorizing them to recover arrears of rent or prosecute litigation initiated by previous owner on the ground of default nor there was any separate assignment of authorization from previous owner---In absence of such authorization or assignment, action of new owners for ejectment of tenant could not sustain, therefore, order of eviction passed by two Courts below was without lawful authority and was set aside---Petition was allowed in circumstances.

Ghulam Ghaos v. Muhammad Yasin 2009 SCMR 70 and Abdul ul Zahir v. Jaffer Khan, 2010 SCMR 189 distinguished.

Naeem Suleman for Petitioner.

Hussain Bux Sario and Miss Farah Naz Qazi for Respondents.

P L D 2011 Karachi 22

Before Aqeel Ahmad Abbasi, J

Mrs. SHAHNAZ SHUJA and 2 others---Plaintiffs

Versus

PROVINCE OF SINDH through Secretary, Home Department, Government of Sindh and 3 others---Defendants

Suit No.597 and C.M.As. 7897, 8062 of 2010, decided on 30th July, 2010.

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

----S. 42---Civil Procedure Code (V of 1908), O.XXIII, R. 3---Qanun-e-Shahadat (10 of 1984), Art. 124---Suit for declaration---Plaintiffs as wife and children of "S" claimed their respective shares as per inheritance in suit property which belonged to "S" whose whereabouts stated to be not known for last eight years despite lodging F.I.R. and publishing news regarding his kidnapping---Joint application under O.XXIII, Rule 3, C.P.C., by plaintiffs, mother and brother of "S" for decreeing suit---Validity---Mother in written statement had denied entitlement of brother of "S", but not those of plaintiffs---Suit property was still standing in name of "S"---No impediment appeared in granting such application---Suit was decreed in favour of plaintiffs and mother of "S" for being entitled to their respective shares as per Shariah in suit property without prejudicing right and interest of any third party therein.

Mumtaz Ali Qureshi for Plaintiffs.

Qazi Majid Ali for Defendant No: l.

Asghar Malik for Defendant No.2.

Shamshad Ali Qureshi for Defendants Nos.3 and 4.

PLD 2011 Karachi 24

Before Shahid Anwar Bajwa and Irfan Sadat Khan, JJ

MUHAMMAD AFAQ SHAMSI and 8 others---Petitioners

Verses

NATIONAL ACCOUNTABILITY BUREAU through Chairman NAB and 4 others---Respondents

Constitutional Petition No.D-1683 of 2010, decided on 1st October, 2010.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(r) & 25---Criminal Procedure Code (V of 1898), S.265-K---Contract Act (IX of 1872), S.62---Constitution of Pakistan, Art.199---Constitutional petition---Wilful default---Execution Court allowed judgment debtor company to pay outstanding amount in instalments to decree holder bank by restructuring the original agreement while adjourning execution sine die---During pendency of reference filed by National Accountability Bureau against company for wilful default, application filed under S.265-K, Cr. P. C. in Accountability Court was dismissed notwithstanding the certificate issued by decree-holder bank to the effect that instalments were being paid by the company in accordance with the new agreement regularly---National Accountability Bureau contended that once investigation was initiated and accused person offered to return the assets, it was the discretion of the Chairman, National Accountability Bureau to refer the case to court for approval or not, and that payment had to be made to the National Accountability Bureau and that payment to the bank would not absolve the company from its criminal' liability---Validity---National Accountability Bureau's plea that payment made by the company directly to the bank would not constitute a valid discharge of obligation was not maintainable---New agreement restructuring the loan was accepted by the court adjourning the execution application sine die---Quarterly instalments were being paid in accordance with the new agreement, company therefore, could not be said to have committed wilful default as defined in S.5(r) of National Accountability Ordinance, 1999---New agreement was novation of the original contract between the company and the bank and once an agreement had been novated, rights and obligations under the original agreement stood extinguished under S.62 of Contract Act, 1872 and were replaced by rights and obligations under the novated contract---`Novation' amounted to supplanting of a contract and not variation of its terms---Occurrence of default, wilful or otherwise, would flow from the new agreement and not from any prior instrument---Proceedings in Accountability Court were stayed by the High Court and were ordered to stand quashed if entire payment had been made in accordance with new agreement failing which the National Accountability Bureau could apply the Accountability Court to revive proceedings for wilful default.

Chairman, National Accountability Bureau and another v. Muhammad Irshad Khan 2008 SCMR 1012; Muhammad Asif Margoob Siddiqui v. Pakistan through Secretary of Law and Parliamentary Affairs Islamabad and 3 others 2008 MLD 1734; Syed Murad Ali Shah and others v. Government of Sindh through Home Secretary and 7 others PLD 2002 Kar. 464; Darayus Cyrus Minwala v. Natinoal Accountability B.P. No.D-259 of 2010 and Mst. Khatoon Begum v. Mst. Barkatunnisa Begum and 6 others PLD 1987 Kar. 132 rel.

PLD 1978 SC 220 ref.

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

----S. 62---Novation of contract---Effect---Once an agreement had been novated, rights and obligations under the original agreement stood extinguished under S.62 of Contract Act, 1872 and were replaced by rights and obligations under novated contract---Novation amounted to supplanting of a contract and not variation of its terms.

Khalid Imran for Petitioners.

M. Ramzan, Deputy Director, State Bank of Pakistan for Respondent No.2.

Behzad Haider and Muhammad Riaz, Senior Prosecutor NAB for Respondent No. 3.

Date of hearing: 19th July, 2010.

P L D 2011 Karachi 32

Before Sarmad Jalal Usmany, C. J., and Zahid Hamid, J

MUHAMMAD IQBAL---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Home Department and 2 others---Respondents

Constitutional Petition No.D-1450 of 2009, decided on 6th October, 2010.

Transfer of Offenders Ordinance (XXXVII of 2002)---

----Ss.6 & 9---Criminal Procedure Code (V of 1898), Ss.401 & 402-C---Constitution of Pakistan, Art.199---Constitutional petition---Conviction and sentence abroad---Transfer of accused to Pakistan---Remission in sentence, claim for---Petitioner/accused who was convicted for offence abroad, was sentenced to imprisonment for life---After serving sentence for more than five years abroad,. petitioner, who after fulfilment of all conditions of S.6 of Transfer of Offenders Ordinance, 2001 was transferred to Pakistan under S.9 of said Ordinance and was handed over to Inspector General (Prison) in Pakistan to complete his sentence awarded to him by foreign court---Petitioner claimed his release from jail in view of remissions granted to him from time to time---Petitioner had earned remissions of eight months, twenty days and he served the sentence including the remissions for a period of six years, one month and twenty seven days and his un-expired period of sentence was allegedly 18 years 10 months and 3 days for Jail 'Roll---Petitioner who was repatriated to Pakistan in 2009 after serving 5 years sentence abroad, if he had served said term of sentence in Pakistan, he would have earned till date at least normal remissions commensurate more or less with the remissions earned by him in Pakistan---Petitioner, in circumstance, was entitled to considerable allowance of reduction in sentence---Since the petitioner could be deemed to have served a sentence of more than seven years in prison including remissions granted, his sentence was reduced to the sentence already undergone by him---Petitioner was ordered to be released, in circumstances.

Imran Ali v. Province of Sindh and others 2007 PCr.LJ 1364; Muhammad Hanif v. The State PLD 2002 Lah. 200; Arifullah v. The State 2005 PCr.LJ 1061; Liaquat Ali v. The State 1999 PCr.LJ 1852; Abdul Ghani and others v. The State and others 2001 PCr.LJ 2027 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 ref.

Javed Iqbal Burqi for Petitioner.

Nafees Usmani, A.A.-G. along with Ishaq, Assistant Jail Superintendent.

None present for DAG and APG.

P L D 2011 Karachi 37

Before Irfan Saadat Khan, J

MUHAMMAD ZAFAR SIDDIQUI and 2 others---Plaintiffs

Versus

MUHAMMAD QAMAR SIDDIQUI and another---Defendants

Suit No.1600 of 2009, decided on 12th October, 2010.

Partition Act (IV of 1893)---

----S.4---Civil Procedure Code (V of 1908), O.XX, R.12---Partition among co-sharers---Principle---Recovery of mesne profits---Plaintiffs were co-sharers in suit property who sought partition of the same and also sought recovery of mesne profits from defendants for using the property in excess of their share---Validity--Plaintiffs and defendants were co-owners to the extent of 50% of property, there was nothing on record to show that there was any other claimant to the suit property---No rebuttal on the part of defendants, being available on record, therefore, no exception to judgment directing preparation of preliminary decree could be taken---Entitlement of plaintiffs to suit property was established, therefore, partition and division of property could not be denied, unless it was shown that such property was incapable of division and partition---Once it was established and Court had come to the conclusion that person was entitled to any right or share in the property and he was being deprived of use of such right or share in the property by other person, then the owner, who was out of possession or enjoyment, such person was entitled to claim those profits actually received by the person in unlawful possession or enjoyment of such part thereof---Plaintiff were entitled to mesne profit to the extent of their shares/right or interest in the property---Plaintiffs had filed a chart of determination of mesne profits but that could not be considered as a positive evidence led by plaintiffs without certainty as to the actual income or benefit derived by plaintiffs in enjoyment of the suit property---Decree in terms of O.XX, R.12, C.P.C., was ordered to be prepared and after holding such inquiry as could be necessary, the final decree could be prepared---High Court directed that no mesne profit could be calculated beyond the period of three years from the date of filing of suit---Suit was decreed accordingly.

PLD 1994 SC 874; PLD 1978 SC 89 and PLD 1986 Pesh.19 ref.

Ms. Nahid Naz for Plaintiff.

Nemo for Defendant.

Date of hearing: 7th October, 2010.

P L D 2011 Karachi 41

Before Sarmad Jalal Osmany, C.J. and Zahid Hamid, J

Engr. K.M. ASGHAR---Petitioner

Versus

PROVINCIAL CHIEF, HBFS, KARACHI and 2 others---Respondents

C.P. No.D-2166 of 2009, decided on 21st October, 2010.

House Building Finance Corporation Act (XVIII of 1952)---

----S. 24---Constitution of Pakistan, Art.l99---Constitutional petition---Loan, grant of---Words "or by such guarantee as may be prescribed"-Scope-Age of borrower-Grievance of petitioner was that despite fulfilling all requirements, House Building Finance Corporation (HBFC) was not giving him loan to construct his house---Contention of Corporation was that petitioner was in advance age and guarantor was his daughter who was a housewife and did not have enough sources of income---Validity---Petitioner was ready to mortgage and assign his right, title and interest in the land and construction raised thereon in favour of Corporation----Investment sought from Corporation was a sum of Rs.15,00,000 which would be fully secured---Loan could not be withheld by Corporation on the ground that guarantee being submitted was lacked in any aspect as the word "or" before the words "by such guarantee as may be prescribed" was to be interpreted disjunctively and, therefore, no guarantee was required at all---Petitioner's daughter having inheritable right in the subject property, who had sufficient means had come forward to give the guarantee for repayment of the loan---Other requisite instructions laid down under the Scheme launched by the Corporation for beefing up the credibility of guarantor such as age limit and capacity of guarantor as to sufficient income was only in nature of subordinate instructions and did not matter when the condition of proper assignment of land with the construction as envisaged by the main statute had been met---High Court directed the Corporation to process the application of petitioner to the extent of loan applied for---Petition was allowed accordingly.

Petitioner (in person):

Khurshid Ahmed Qureshi for Respondent No.1 (HBFC).

Mian Khan Malik DAG for Federation of Pakistan.

P L D 2011 Karachi 48

Before Amir Hani Muslim and Syed Hassan Azhar Rizvi, JJ

SALIM BHALLO---Petitioner

Versus

LEARNED COURT OF DISTRICT AND SESSIONS JUDGE, SOUTH; KARACHI and another---Respondents

Constitutional Petition No.1358 of 2009 converted into Criminal Miscellaneous Application No.312 of 2010, decided on 11th October, 2010.

Foreigners Act (XXI of 1946)---

---Ss. 3(2), 13 & 14---National Database and Registration Authority Ordinance (VIII of 2000), Ss.11 & 30---Criminal Procedure Code (V of 1898), Ss.265-K & 561-A---Constitution of Pakistan, Art.199---Constitutional petition---Violation of restrictions imposed on foreigners in Pakistan---Trial Court dismissed accused's application for acquittal under S.265-K, Cr.P.C.---Accused contended that National Database and Registration Authority had cancelled his Pakistan Origin Card (POC) without issuing any show-cause notice to him---Accused further contended that court was not competent to take cognizance of any .offence punishable under S.30 of National Database and Registration Authority Ordinance, 2000 unless the National Database and Registration Authority had lodged complaint in writing to the Federal Investigation Agency or notify the same in official Gazette---Validity---Investigating Officer failed to show any order of cancellation of Pakistan Origin Card (POC) of accused by the National Database and Registration Authority which was neither the complainant nor had been shown as witness in the calendar of witnesses---Accused's petition, in circumstances, was converted into criminal miscellaneous application under 5.561-A, Cr.P.C. and proceedings against him before the Trial Court were quashed.

Jawaid Ahmed Chattari for Petitioner.

Shahab Sarki, Standing Counsel with Inspector FIA M. Anwar (present in person).

Shafi Muhammad Memon, Addl. A.-G. Sindh. Muhammad Riaz Senior Prosecutor NAB.

Syed Israr Ali, Deputy Director FIA, Investigatin Officer, Hasan Askari, Inspector FIA and Javed Iqbal Inspector FIA are present in person.

Salahuddin Ahmed for Complainant/Intervener.

Date of hearing: 29th September, 2010.

P L D 2011 Karachi 52

Before Sajjad Ali Shah and Nisar Muhammad Shaikh, JJ

KHIZAR HAYAT and another---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Jail Appeal No.8 of 2007, decided on 12th May, 2010.

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

----S. 7(e)-Kidnapping for ransom---Appreciation of evidence---Kidnapping---Proof---Benefit of doubt---Defence version, unconvincing---Effect---Trial Court convicted accused under S.7(e) of Anti-Terrorism Act, 1997, and sentenced them to imprisonment for life---Validity---None of the prosecution witnesses deposed to have seen accused or anybody else while kidnapping or taking away victim child with intention to kidnap him---None of the witnesses deposed that the person who was repeatedly demanding ransom on mobile phone from father of victim child was one of the two accused persons---None of the recovery witnesses deposed about recovery of victim child from the possession of accused persons---Prosecution could not claim to have proved its case against accused beyond any reasonable doubt nor recovery in question could be said to have been proved against accused in absence of evidence of any recovery witness---Defence plea of accused carried no legal force as such version if found to be unconvincing could not lead to conviction of accused and case against accused still required to be proved by prosecution---Both the accused could not be denied or deprived of benefit of doubt created in their favour which could not be proved by prosecution beyond any shadow of doubt---Conviction and sentence awarded to accused were set aside and both accused were acquitted of the charge---Appeal was allowed in circumstances.

1999 SCMR 1220; 2006 SCMR 1139; PLD 2008 SC 513; 1990 MLD 1023; PLD 1963 SC 17; 1992 SCMR 196 and 1995 SCMR 1345 ref.

Haq Nawaz and 2 others v. The State PLD 1983 Lah. 682; Ali Sher v. The State and 3 others PLD 1980 SC 317; Noorul Haq v. The Stae 1992 SCMR 1451 and Zaheeruddin v. The State 1993 SCMR 1628 rel.

Irfan Ahmed Usman for Appellants.

Zafar Ahmed Khan Additional Prosecutor-General for the State.

Date of hearing: 17th March, 2010.

P L D 2011 Karachi 62

Before Sajjad Ali Shah and Nisar Muhammad Shaikh, JJ

ABDUL ZAHIR alias ZAHIR SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 240 of 2008 and 8 of 2009, decided on 27th April, 2010.

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

----Ss. 9(c), 20, 21 & 22---Recovery of narcotics---Appreciation of evidence---Sentence---Quantum---Minor discrepancies---Effect---False implication---Non-obtaining of search warrant---On arrest of one accused small quantity of heroin was recovered from him and on his pointation 7 kilograms of heroin was recovered from co-accused---Trial Court convicted both the accused for possessing 7 kilograms of heroin and were sentenced to seven years of imprisonment---Plea raised by accused was that raid was conducted without obtaining search warrant---Validity---Evidence of complainant was corroborated by evidence of two recovery witnesses, whose evidence also got support from F.I.R., arrest of accused, recovery of narcotics and report of Chemical Analyzer, which was positive---Some discrepancies and contradictions appeared in evidence of prosecution witnesses but the same did not appear to be of such nature to vitiate trial or create doubt in prosecution case, as the evidence adduced by prosecution was consistent on material particulars and inspired confidence---Defence of accused that they were falsely implicated in the case was not substantiated by relevant evidence as huge quantity of heroin could not be planted upon accused in absence of any enmity or dispute---Provisions of Ss. 20, 21 and 22 of Control of Narcotic Substances Act, 1997, were directory in nature, therefore, non-compliance thereof would not be a ground for holding trial to be bad in law---Evidence adduced during trial was properly appreciated by Trial Court and the same did not warrant any interference by High Court---On the basis of material brought on record of Trial Court, both the accused were rightly found guilty and were accordingly convicted---Sentence awarded to the accused from whose possession 7 kilograms of heroin was recovered was maintained by High Court but the accused from whose possession only small quantity was recovered, his sentence was reduced under S.9 (b) of Control of Narcotic Substances Act, 1997 to three years' imprisonment---Appeal was disposed of accordingly.

Tila Muhammad v. The State 2003 PCr.LJ 1379; Sana Gul v. The State 2004 MLD 290 and Rais Khan v. The State 2005 PCr.LJ 76 distinguished.

Mst. Jeejal and another v. The State 2005 MLD 1261; Shafiullah v. The State 2007 YLR 3087 and Ejaz Mahmood v. The State PLD 1993 FSC 25 ref.

Zafar v. The State 2008 SCMR 1254 and Muhammad Akram v. The State 2007 SCMR 1671 rel.

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

----S.25---Recovery of narcotics---Police witnesses---Scope---Police employees of Anti-Narcotics Force are also competent witnesses like any other and their testimony cannot be discarded merely on the ground that they are police employees.

Abdul Rashid v. The State 2009 SCMR 306; Zafar v. The State 2008 SCMR 1254 and 2008 SCMR 742, 1254, 1414 and 1616 and 2009 SCMR 306 rel.

A.Q. Halepoto for Appellant (in Cr.A.No.240 of 2008)

Ashfaq Hussain Rizvi, Special Prosecutor ANF (in Cr.A. No.240 of 2008).

Muhammad Shaft Khan for Appellant (in Cr.A. No.8 of 2009).

Muhammad Ali Waris Lari, Special Prosecutor ANF (in Cr.A. No.8/2009).

Date of hearing: 24th February and 10th March, 2010.

P L D 2011 Karachi 70

Before Bhajandas Tejwani and Nisar Muhammad Shaikh, JJ

THE STATE through ADVOCATE-GENERAL SINDH---Appellant

Versus

TAJ MUHAMMAD---Respondent

Special Criminal Acquittal Appeal No.143 of 1999, decided on 11th March, 2010.

Penal Code (XLV of 1860)---

----Ss...302, 324, 393, 398, 34---Anti-Terrorism Act (XXVII of 1997), Ss.7(i)(a) & 25 (4)---Qanun-e-Shahadat (10 of 1984), Art.22---Criminal Procedure Code (V of 1898), 5.417---Qatl-e-amd, attempt to commit Qatl­e-amd and dacoity---Appeal against acquittal---Identification parade---Delay---Effect---Non-mention of description of accused in F.LR.---Accused shown to prosecution witnesses---Complainant assailed acquittal of accused by Trial Court on the ground that accused had been rightly identified by prosecution witnesses during identification parade---Validity--Picking of accused by prosecution witness in identification parade before Magistrate was of no significance as the witness claimed to have had already seen the accused earlier at the time of his arrest---Even otherwise prosecution witnesses could have seen only partial glimpse of face of culprit and that too at a time when they were in the state of terror, therefore, identification test held after two months of such occurrence was not of much value---Simple identification of accused in delayed identification parade was not material especially when no specific role of accused in commission of crime was described during that identification parade---Trial Court had appraised relevant evidence available on record by making threadbare examination of each relevant piece of evidence, supported by reasons based on record and no prosecution evidence, incriminating in nature was misread or omitted from consideration or not appraised in its true perspective---Judgment of acquittal was unexceptionable and did not suffer from any factual or legal infirmity and the same was based on fair and legal appreciation of evidence on record with sound reasons---Judgment of acquittal did not call for interference by High Court as double presumption of innocence was attached to the accused---Complainant failed to show that findings of Trial Court were perverse, illogical, artificial, ridiculous or based on mis­reading of evidence leading to miscarriage of justice---Appeal was dismissed in circumstances.

Akhtar Rehana, Addl. Prosecutor-General for the State.

Muhammad Shafiq for Respondent.

Date of hearing: 11th March, 2010.

P L D 2011 Karachi 78

Before Ms. Rukhsana Ahmed, J

S.A.H. ENTERPRISES Inc.---Plaintiff

Versus

EXPORT PROCESSING ZONES AUTHORITY through Secretary---Defendant

Suit No.1057 and C.M.A. No.10957 of 2010, decided on 10th November, 2010.

Export Processing Zones Authority Ordinance (IV of 1980)--

----S. 2---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54--- Interim injunction, grant of---Restraining order---Plaintiff was an industrial undertaking and sought restraining order against authorities with regard to his exporting poly-bags made from Polyethylene Vinyl Acetate (P.E.V.A.) sheets into "Tariff Area" and to foreign country---Validity---Environmental Protection Agency after inspection observed that there was no health hazards noted inside the factory during its visit---Environmental Consultants conducted Environmental Audit, read ambient air quality and environmental Management Plan of factory and a certificate was issued giving clearance in favour of plaintiff---Plaintiff did not commit any irregularity in manufacture/production of bio-degradable poly bags for utilizing the same in packing of its products by maintaining and remaining within the eco friendly system as recommended / provided under the law---High Court restrained the authorities from interfering in the right of plaintiff to export, poly-bags made from Polyethylene Vinyl Acetate (P.E. V.A) sheets into the "Tariff area" and to foreign country---Application was allowed in circumstances.

Umer Soomro for Plaintiff.

Khawaja Naveed Ahmed for Defendant.

P L D 2011 Karachi 83

Before Muhammad Athar Saeed and Munib Akhtar, JJ

MUHAMMAD ZAHID through Legal Heirs---Appellants

Versus

Mst. GHAZALA ZAKIR and 7 others---Respondents

H.C.A. No.127 of 1996 and C.M.As. Nos.988 of 1996, 140 of 1997, 1954 of 1998, decided on 12th November, 2010.

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

---O. XX, R. 13--Law Reforms Ordinance (XII of 1972), S.3-Intra-Court Appeal--Administration suit--Maintainability---Scope---Gift in favour of legal heir--Plaintiff claimed that property in question was gifted in her name by deceased in his life time, therefore, it did not stand in his name at the time of his death and could not be questioned in administration suit-Plea raised by defendant was that since gift in question related to a matter that was among the heirs, validity of 8ift could be determined in administration. suit---Validity--Nature of administration suit was limited, inasmuch as it was intended only to settle issues and matters among the sharers-When such considerations were balanced, the proper test to establish whether the determination lay within the scope of an administration suit or beyond which was: if determination did not disturb inter se position of sharers and affect all sharers equally, then the question would lie outside the scope of administration suit-If however, determination affected and upset inter se position of sharers and might give one or more of the heirs advantage over the others, then the question would lie within the scope of administration suit and it was immaterial whether alienation sought to be challenged was by way of registered instrument or otherwise---Preliminary decree passed by Trial Court was set aside and case was remanded to Trial Court for a decision on the issues pertaining to gift of property in question made in favour of plaintiff by the deceased in his lifetime---Intra-Court Appeal was allowed accordingly.

Ghazala Zakir v. Muhammad Khurshid and others 1997 CLC 167; Muhammad Younus Qureshi and others v. Mrs. Feroze Qureshi and others 1982 CLC 976 and Yusuf v. Zubeda and others 1984 MLD 590 dissented.

Ghulam Jilaniand others v. Abdul Kadir and others 1996 CLC 1847 and Muhammad Bibi and others v. Abdul Ghani and others PLD 1975 Kar. 979 approved.

Syed Mehdi Hussain Shah v. Shandoo Bibi and otters PLD 1962 SC 291 distinguished.

Ayesha Bai and another v. Shahida and others PLD 1981 Kar. 177 and Dr. Zia ur Rehman Khan and another v. Dr. Atiq-ur-Rehman PLD 2009 Lah. 641 ref.

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

----O.XX, R.13---Administration suit---Maintainability---Necessary ingredients.

Test to determine a suit as administration suit is in the form of following propositions:

(a) when question is whether a property forms part of estate of deceased and determination of this question involves a person who is stranger to the estate, then question should be determined by means of separate proceedings;

(b) proposition (a) is subject to qualification that if question is also whether stranger is sharer in estate, then matter comes within the scope of administration suit;

(c) when determination of aforesaid question involves a person who is sharer in estate, then question comes within the scope of administration suit and this is so regardless of whether the sharer claims through or under the deceased (e.g., by way of a gift or sale from the latter) or in his own right;

(d) it is immaterial whether or not property in question stood in the name of deceased at the time of his death and it is likewise immaterial whether any alienation was by way of registered instrument or otherwise.

Asghar Ali v. Zohrabi and others 2000 MLD 122 and Tahira Parveen and others v. Saba Jamil and others 2008 CLC 484 ref.

Shafaat Hussain for Appellant.

Abid S. Zuberi for Respondent.

P L D 2011 Karachi 99

Before Gulzar Ahmed and Imam Bux Baloch, JJ

NOMAN ABID---Petitioner

Versus

STATION HOUSE OFFICER, CLIFTON, KARACHI and 3 others---Respondents

C.P. No.D-3170 of 2010, decided on 25th November, 2010.

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

---Ss. 341, 347, 440, 441, 447, 506, 144, 145, 148 & 149--Criminal Procedure Code (V of 1898), Ss.22-A & 25---Constitution of Pakistan, Arts.199 & 16---Wrongful restraint, wrongful confinement to extort property or constrain to illegal act, mischief committed after preparation made for causing death or hurt, criminal trespass, criminal intimidation, joining unlawful assembly armed with deadly weapon, knowing that it has been commanded to disperse, rioting armed with deadly weapon, offence committed by member of unlawful assembly in prosecution of common object---Constitutional petition---Freedom of assembly---Ex-officio Justice of Peace disallowed petitioner's application for registration of case against principal and students of a private school for holding demonstration in front of petitioner's house against proposed construction of high-rise building near the school---Validity--Right to hold demonstration was conferred on every citizen as a fundamental right under Art.16 of the Constitution which provided that every citizen should have the right to assemble peacefully and without arms subject to any reasonable restrictions imposed by the law in the interest of public order--Holding of demonstration and freedom of assembly were essential elements in a democratic set-up; such right had to be construed liberally-Right to assemble peacefully was a sacred and inalienable right which could not be abridged or construed or termed an offence of unlawful assembly---Right guaranteed under the Constitution could not be translated as a crime as the same would amount to denial of such right undermining the ideas of civil liberty, freedom of expression and freedom of assembly-Exercise of fundamental right by the citizens could not justifiably be made ground for registering F.I.R. against them---Demonstration in question was held in exercise of right of freedom of assembly in terms of Art.16 of the Constitution---Constitutional petition was dismissed.

Muhammad Bashir v. Station House Officer PLD 2007 SC 539 and Naseem Ahmed v. District and Sessions Judge PLD 2005 Kar. 285 ref.

(b) Constitution of Pakistan---

----Arts. 16 & 199---Freedom of assembly---Scope of Art.16 of the Constitution---Right to hold demonstration was conferred on every citizen as a fundamental right under Art.16 of the Constitution which provided that every citizen should have the right to assemble peacefully subject to any reasonable restriction imposed by law in the interest of public order---Holding of demonstration and freedom of assembly were essential elements in democratic set-up; such right had to be construed liberally---Right to assemble was a sacred and inalienable right which could not be abridged or construed as offence of unlawful assembly.

Muhammad Bashir v. Station House Officer PLD 2007 SC 539 and Naseem Ahmed v. District and Sessions Judge PLD 2005 Kar. 285 ref.

Muhammad AnwarTariq for Petitioner.

P L D 2011 Karachi 102

Before Gulzar Ahmed and Imam Buz Baloch, JJ

Messrs KADRIAH-I LTD. through duly Constituted Attorney---Appellant

Versus

M. V. "SPLENDOUR" through Owner, and 2 others---Respondents

Admiralty Appeal No. 3 of 2010, decided on 13th November, 2010.

Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)---

----Ss. 3 & 4---Admiralty suit for arrest of defendant-ship---Agreement for sale of plaintiff's ship with owner of defendant-ship---Sale of ship by plaintiff to another person for non-compliance of obligations by owner of defendant-ship under such sale agreement---Plaintiff's suit for damages against owner of defendant-ship on account of its such default pending in a court abroad---Filing of such suit by plaintiff for having suffered damages on account of such default by owner of defendant-ship---Maintainability---Action in rem under S. 3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980 was permissible only against a delinquent or defaulting ship---Plaintiff's claim neither arose out of any of conditions nor of a nature provided in S. 3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980 upon or against a ship owned or possessed by defendant---Plaintiff's claim for damages suffered on account of such default by defendant was not covered by provisions of S. 3(2) of Ordinance, thus, could not be enforced in rem against defendant-ship---Suit being not maintainable was dismissed.

M.V. Elisabeth and others v. Harwan Investment and Trading (Pvt.) Ltd. 1993 Supp (2) SC Caess 433) and Atlantic Steamer's Supply Company v. M.V. Titisee and others PLD 1993 SC 88 ref.

Messrs V.N. Lakhani and Company v. M.V. Lakatoi Express and 2 others PLD 1994 SC 894 rel.

Dr. Farogh Naseem for Appellant.

P L D 2011 Karachi 108

Before Faisal Arab, J

Mst. UZMA REHMAN---Appellant

Versus

PUBLIC-AT-LARGE-Respondent.

Miscellaneous Appeal No.33 and C.M.A. No.2589 of 2009, decided on 21st January, 2010.

Succession Act (XXXIX of 1925)---

----Ss. 371 & 384---Grant of Letter of Administration---Jurisdiction---Scope---Deceased husband of applicant who was residing at place, K had left movable and immovable properties at K as well as at place K---Earlier, a succession certificate was granted on application filed at place K however application for grant of Letters of Administration for immovable property left by the deceased at place L was dismissed on ground that property in question was situated at place L and applicant should approach the court having jurisdiction---Under S.371 of Succession Act, 1925 jurisdiction lay with the court where the deceased ordinarily resided---In the present case succession certificate had already been granted by the court at place K which established that the deceased resided at place K at the time of his death---No justification was available for the court at place K to dismiss the application for grant of Letter of Administration in respect of the property left by the deceased at place L---Impugned order was set aside and court was directed to proceed, with the matter accordingly.

Muhammad Akbar Awan for Appellant.

P L D 2011 Karachi 109

Before Gulzar Ahmed and Imam Bux Baloch, JJ

ABDUL JABBAR---Appellant

Versus

FOREIGN EXCHANGE OPERATIONS DEPARTMENT, STATE BANK OF PAKISTAN, KARACHI and 2 others---Respondents

Criminal Appeals Nos.108 to 111 of 2010, decided on 25th November, 2010.

Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 12(1) & 23-B(4)---Failure to make payment of exported goods, contravention of terms of authorization by authorized export dealer---Appreciation of evidence---Accused's plea that failure in payment of exported goods resulted from closure of trade and borders between Pakistan and the foreign country was belied by his own visit to said foreign country---Export proceeds were not repatriated as per undertaking of the accused making him liable to penalty under S.24-B(4) of Foreign Exchange Regulation Act, 1947---Appeal was dismissed in circumstances.

Muhammad Younus v. State Bank of Pakistan and another 2003 CLD 1129 rel.

Faisal Shehzad Malik for Appellant.

Masood Anwar Ausaf for Respondents Nos. 1 and 2.

Amir Malik for Respondent No.3.

P L D 2011 Karachi 112

Before Irfan Saadat Khan, J

Syed ANWAR ADIL SHAH---Applicant

Versus

Syed QAMAR-UZ-ZAMAN SHAH---Respondent

Civil Revision Application No.144 of 2009, decided on 26th November, 2010.

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

----O. XL, R.1---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Plaintiff was in use of property in dispute since 2006 and had filed suit for specific performance of agreement and permanent injunction on the ground that defendant had failed to execute sale-deed---Defendant filed application under 0.XL, R.1, C.P.C. for the appointment of Receiver in respect of the disputed property---Trial Court allowed application and appointed Receiver with direction to the Receiver to maintain all accounts of the money under proper intimation to the court---Plaintiff filed appeal which was allowed by the appellate court and application for appointment of Receiver was dismissed---Validity---Disputed property was in use of the plaintiff since 2006 and it would not just and convenient to dispossess plaintiff from the property on the ground of some unfounded, unproven facts and mainly on the basis of some vague allegations---No material was brought on record for proving the allegations levelled by the defendant to substantiate his averments---Defendant had failed to establish that the disputed property, which was given by him to the plaintiff after the sale agreement, was in any danger of being dissipated, wasted or there was strong apprehension of manifest peril to the said property except by levelling allegation that some trees were being cut or the plaintiff was constructing a children playground on the disputed property of which neither any evidence nor any material was produced either before the Trial Court or before High Court---High Court dismissed petition and observed that the suit between the parties was pending adjudication and while deciding the same the Trial Court would not be influenced by the present order and would pass an independent order keeping in view the facts and circumstances of the case on merits.

2004 MLD 1624; 1993 CLC 1606; 1988 CLC 1567 and PLD 2004 Kar. 269. ref.

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

----O. XL, R.1---Receiver, appointment of---Object---Receiver was generally appointed to preserve the subject matter of litigation which was pending adjudication till the rights of the parties were finally determined---Main object behind appointing a Receiver was to safeguard the interest of the contesting parties as well as the property, however; a party giving such application had to first make out a prima facie case.

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

----O. XL, R.1---Receiver, appointment of---Scope---Appointment of Receiver did not mean final determination of the rights of the parties---Court had the discretion to appoint or not to appoint a Receiver, however, such discretion had to be exercised judiciously by following the norms of the law to protect the rights of the citizens.

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

----O. XL, R.1---Receiver, appointment of---Scope---Appointment of Receiver was the harshest remedy provided under the law which would tantamount to dispossessing a person, who was already in possession of the said property.

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

----O. XL, R.1---Interpretation of O.XL, R.1, C.P.C.---Words `just and convenient" used in O.XL, R.1, C.P.C. had to be interpreted depending upon the facts of each case---Such word denote convenience of the party and not that of the court.

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

----O. XL, R.1---Receiver, appointment of---Scope---Appointment of Receiver being a quite harsh step, this power available to the court, was to be exercised only when a person would establish a special equity in his favour and made a case of exceptional circumstances.

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

----O. XL, R.1---Receiver, appointment of---Where a person failed to establish that there existed specific instances of (alleged) wastage, mismanagement, misappropriation and manifest peril, the courts usually refuse to appoint Receiver until and unless a case was made out by the person urging for such action, depending upon the facts of each case.

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

----O. XL, R.1---Receiver, appointment of---Discretion of court---Scope---Discretion to appoint or not to appoint a Receiver was to be exercised judiciously keeping in view the attending circumstances of each case---Where such circumstances were wanting, Receiver could not be appointed, as same would not be `just and convenient" in view of the facts of the case.

Aftab Ahmed Shaikh for Applicant.

Nemo for Respondent.

P L D 2011 Karachi 117

Before Irfan Saadat Khan, J

Master ABDUL BASIT and another---Plaintiffs

Versus

Dr. SAEEDA ANWAR and another---Defendants

Suit No.997 of 2002, decided on 27th September, 2010.

(a) Fatal Accident Act (XIII of 1855)---

----S. 1---Limitation Act (IX of 1908), Arts. 36 & 115---Suit for compensation and damages---Limitation---Death of patient due to professional negligence of doctor---Signing of consent by patient for conducting his operation by the doctor---Death of patient on 19-12-2000 and filing of such suit on 23-9-2002---Validity---Discharging duty by a doctor in an improper manner would constitute an act of `misfeasance'---In absence of contract between parties, period of limitation under Art. 36 of Limitation Act, 1908 would be two years from date of act of misfeasance---In presence of contract between parties, period of limitation under Limitation Art. 115 of Act, 1908 for claim of compensation for breach of contract would be three years from date of such breach---Suit filed on 23-9-2002 within two years after death was in time.

Sajid Ahmed Ansari v. Agha Khan University Hospital PLD 2008 Kar. 80 ref.

(b) Fatal Accidents Act (XIII of 1855)---

---S. 1---Pakistan Medical and Dental Council Ordinance (XXXII of 1961), S. 32---Suit for compensation and damages---Death of patient due to wrongful acts, gross negligence and carelessness in professional duties of doctors---Proof---Lady Doctor after examining gallbladder of deceased not properly functioning advised for his immediate operation in her hospital through a Professor/Doctor---Such hospital was not having proper operation theatre, pre and post operation facilities, competent and trained staff to look after such type of patients---Professor/Doctor had operated patient on advice of Lady Doctor without caring that patient was already suffering from jaundice and knowing that in such cases operations were not conducted---Professor had not attempted to go through patient's record, but had carried out operation in a post haste manner---Patient had died on account of a fistulae developed due to Professor's/Doctor's negligence and mishandling during operation---Inquiry Board constituted by Ministry of Health had found both such Doctors to be negligent in performing their professional duties while operating the deceased---According to report of the Board, Lady Doctor as Senior Medical Officer in a Government Hospital was running a private clinic and hospital---Report of the Board stated that no general anesthesia was given to deceased prior to operation and only spinal anesthesia was given to her, which was a fatal negligence committed by doctors---Life of deceased was in danger due to development of fistulae, for which Professor/Doctor had advised husband of deceased that she needed re-operation, which showed that there was something wrong in the operation---Tests taken after operation showed abnormality of bilirubin, alkaline and phosphate presence in ascetics---Ultra-sound of whole abdomen showed enlargement of liver and spleen of deceased, but no heed was paid thereto by doctors---Doctors had not taken any positive step to cure ailment caused to deceased due to their negligence nor had cared to conduct more tests, but kept on falsely informing husband of deceased that there was no need to worry---Record showed that Professor/Doctor had never visited deceased after operation, but her husband contacted him at each occasion---Lady Doctor seeing condition of deceased deteriorating day, to day took her to Government Hospital and got her admitted there for ICU treatment, when deceased had reached to a point of no return and could not survive there due to low condition as a result of septicemia---Evidence on record showed that defendants- doctors were responsible for mismanaging case of deceased and had failed to perform their duty in a conscientious manner---Report of Medical Board showed that Lady Doctor had mismanaged deceased and was responsible for wrong doings and mismanagement at her hospital apart from her professional gross negligence---Lady Doctor was debarred from filing written statement as she did not receive notice of court, but had abused bailiff of court---Deceased had lost life due to gross negligence and carelessness committed by defendants/Doctors in their professional duties---Defendants were liable to pay damages in sum of Rs.10 Million each and pay Rs. one lac each to legal heirs of deceased, while Lady Doctor was liable to pay to husband of deceased Rs. 3,65,000 as medical expenses incurred by him---High Court decreed the suit on such terms while directing Pakistan Medical and Dental Council to take necessary actions against defendants-doctors.

1999 YLR 904; 2003 YLR 3099; 2003 SCMR 1701 and 2001 SCMR 1700 ref.

Mst. Rahat Ali v. Dr. Saeeda Rehman 2002 CLC 96 rel.

(c) Tort---

----Damages for professional negligence of doctor/surgeon---Burden of proof---Principles stated.

Normally the burden is upon the party, who alleged negligence to prove it by producing evidence in support of the allegations, but the said burden shifts to the other side, if it is proved that required care was not taken while discharging professional duties and responsibilities, which were required to be undertaken.

In cases of professional negligence, the doctors/ surgeons have to show that they have taken care and precautions not only to save the life of the patient they are dealing with, but there was no negligence on their part.

It is a fact that prior to operation legal heirs/ guardian of each patient are required to give a consent in writing to the hospital for carrying out necessary treatment including surgery. This, however, does not permit the hospital/doctor to act negligently and carelessly.

Apart from various rules of the hospital, the implied agreement between the patient and the doctor is that a doctor in discharging of his duties is required to take all due care and caution to save the life of the patient.

A professional like a doctor and surgeon owes great duty to their patients and should exercise all due care, take necessary precautions, give proper attention while extending any advice, treatment or when operating upon. Generally the courts are slow in attributing negligence on the part of professionals like doctors and surgeons, but if it is established through cogent evidence that the said person had failed to take precaution, due care and attention or had acted carelessly and negligently, then in such cases strict action have to be taken against such delinquent persons.

Burden to prove that no negligence has been committed by the person lies upon his shoulders to prove his innocence and to prove that he has neither been negligent nor failed to take proper or normal care of patient.

(d) Tort---

----Damages for professional negligence of doctor/surgeon, claim of---Compensation, determination of---Test stated.

It is not possible to lay down any formula or yardstick by which it can be measured or translated in terms of money. However, attending circumstances, age, sex, nature, intensity, duration, resulting pain are some of the relevant considerations for determining fair and reasonable compensation for such loss or suffering.

Muhammad Shahid Qadeer for Plaintiffs.

Nemo for Defendants.

Date of hearing: 14th September, 2010.

P L D 2011 Karachi 132

Before Muhammad Ali Mazhar, J

Messrs RABBIYA ASSOCIATIES through Proprietor---Plaintiff

Versus

Messrs ZONG (CHINA MOBILE) through Director and 3 others---Defendants

Suit No.1513 of 2009 and C.M.A. No.9691 of 2009, decided on 15th December, 2010.

(a) Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2008---

----Regln. 5---Antenna installation---Principle---All antennas installed by operators should conform to standards as laid down in ICNIRP's (International Commission on Non-Ionizing Radiation Protection) Guidelines of year, 1998.

(b) Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2008---

----Regln. 10---Antenna installation---Pakistan Telecommunication Authority, responsibility of---Scope---Very important responsibility of inspection has been left at the discretion of Pakistan Telecommunication Authority, in the larger public interest and to implement Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2008, in letter and spirit---Provision of inspection should be made a mandatory provisions which should be carried out prior installation and post installation---Prior inspection gives clear idea as to location of proposed installation and plan, whereas post inspection proves the observance or non-observance of regulations on the part of operator.

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

----Ss. 42 & 54---Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2008, Reglns. 5 & 10---Pakistan Environmental Protection Act (XXXIV of 1997), Ss. 4 (1), 5 & 6 (1)---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Interim injunction, grant of---Installation of antenna---Recommendations---Plaintiff company claimed that in spite of handing over the project to residents' association, it was still owner of the building and no antenna could be installed at roof top without its permission---Validity---Such claim of plaintiff could only be decided after leading evidence---Plaintiff also claimed damages in the suit which also required evidence---Plaintiff did not raise single ground that installation of antennas/towers were harmful to human health but such plea was only taken during arguments---According to pleadings, plaintiff failed to make out any prima facie case for injunction and also failed to show any right over roof top which had been violated or infringed upon by defendants--- Balance of convenience also did not lie with plaintiff and there was also no question of any irreparable loss as plaintiff had already claimed damages on the ground that defendant allowed installation of antenna on roof top without permission of plaintiff--High Court observed that all civic agencies including City District Government and Cantonment Board should frame their rules and regulations for installation of BTS/Antennas/F.M. Towers---Regulations should contain proper procedure for grant of `No Objection Certificate' not for obtaining fees only but to verify/check and examine stability of building/structure of proposed location through their own engineers and architects with further provision of inviting objections in newspapers through public notices from general public ad residents of buildings of proposed location of installation---Pakistan Telecommunication Authority (PTA) was asked to amend/modify its existing Protection from Health Related Effects of Radio Base Station Antennas Regulations, 2008, with mandatory provision that no antenna/tower/BTS should be installed without prior inspection of the location and site by PTA and no simple reliance be made on compliance certificate but immediately upon furnishing compliance certificate, PTA should undertake post inspection of the site and if any violation was found, then there must be a provision to impose fines including cancellation of licence but after issuing show-cause notice and personal hearing---Efforts should be made by PTA in view of advisory report of Ministry of Information and Technology for sharing of infrastructure e.g. quick roll out and sharing of costs between operators etc. as according to report, it was stated that worldwide in all mature markets need for such kind of sharing had been realized and several countries had system in place where either sharing was mandatory or a third party provided necessary tower co-location to all cellular mobile operators---Such would be laudable effort of PTA for mitigating environmental and health related effects of cellular base station antennas---Environmental Protection Agency established under section 5 of Pakistan Environmental Protection Act, 1997, ought to ensure that BTS/mobile phone towers/antennas were installed after environmental impact assessment in accordance with National Environmental Quality Standards established by Federal Agency under section 6(1)(e) of Pakistan Environmental Protection Act, 1997, and approved by' Council---Application was disposed of accordingly.

Shehia Zia v. WAPDA PLD 1994 SC 693 fol.

Mafizuddin Khan v. Jadu Paramanik PLD 1960 Dacca 103; Abdur Rehman Mobashir v. Syed Amir Ali Shah Bukhari PLD 1978 Lah. 113 and Dr. Nazir Ahmed Chaudhary v. Federation of Pakistan and others C.P. No. D-844 of 2004 ref.

(d) Words and phrases---

----Public interest---Connotation---Expression public interest in common parlance means an act beneficial to general public---Action taken in public interest necessarily means an action taken for public purpose and further leads general social welfare or regard for social good and predicating interest of general public in matters where regard to social good is of the first moment.

Raza Muhammad Raza with Fazal-ur-Rahman for Plaintiff.

Moinuddin, Advocate for Defendant No.1.

Kashif Hanif for Defendant No.2.

Salim Salam Ansari and Mukhtar Ahmed for Defendant No.3.

Masood Anwar for Defendant No.4.

Junaid Farooqui for Faisal Cantonment Board.

P L D 2011 Karachi 151

Before Muhammad Athar Saeed and Muhammad Ali Mazhar, JJ

ASADULLAH MIRBAHAR and another---Appellants

Versus

Mrs. AYESHA MUZAHIR through Attorney and 9 others---Respondents

High Court Civil Appeal No.264 and C.M.As. Nos. 8588, 7334 in Civil Suit No.1090 of 2010, decided on 28th February, 2011.

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

----O. XXXIX, Rr. 1, 2 & O. XL, R. 1---Interim injunction and appointment of receiver--Object and scope---Relief granted by appointment of receiver pendente lite bears in many respects 'a close analogy to that by temporary injunction---Both provisions are essentially preventive in their nature being properly used only for prevention of future injury rather than for the redress of past grievances---Both have one common object insofar as they seek to preserve the res or subject-matter of litigation unimpaired, to be disposed of in accordance with future decree or order of Court.

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

----O. XL, R. 1--Receiver---Status---Receiver appointed under O. XL, R. 1 C.P.C. is ordinarily an impartial and indifferent person between parties to a cause, appointed by Court to receive and preserve property in litigation---Receiver is officer of Court through whom equity takes possession of property, preserves it from waste and destruction, secures and collects proceeds and ultimately disposes them of according to rights and priorities of those entitled thereto.

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

----O. XL, R. 1---Sindh Government Land (Cancellation of Allotments, Conversion and Exchange) Ordinance (III of 2001), S. 4(2)---Specific Relief Act (I of 1877), Ss.42 & 54---Receiver, appointment of--Administration of justice---Preserving of property---Restraining order, violation of---Plaintiff claimed to be owner in possession of suit land and her grievance was that defendants were bent upon to dispossess her--Trial Court initially only passed injunction order but defendants dispossessed the plaintiff and were continuously raising construction in spite of restraining order, therefore, Trial Court appointed receiver to protect the property from encroachment and land grabbers---Validity---Effect of appointment of receiver by Trial Court was not to prejudice the case of any party but the only object was to maintain the situation intact during pendency of the suit---Controversy between parties and their rights to land in question could only be decided or finally determined after leading evidence by parties in support of their case---High Court did not find any illegality or irregularity in the order passed by Trial Court and receiver of suit property was rightly appointed for proper supervision and to save the land from further encroachment and illegal construction---High Court maintained the order of appointment of receiver passed by Trial Court---Appeal was dismissed in circumstances.

Smt. Vanibai v. Republic of Pakistan and others PLD 1970 Kar. 42; M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54; Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan Mokal PLD 1975 Lah. 492 and Mst. Ghulam Zainab v. Mst. Tahira Sultana PLD 1977 Lah. 830 distinguished.

Saeed ur Rehman v. Ehsanullah Khan Afridi PLD 2007 Kar. 527 rel.

Zubaida K. Jamali for Appellants.

Rasheed A. Razvi and Haq Nawaz Talpur for Respondent No.1.

Qadir Bux Umrani, Official Assignee.

Nemo for the Remaining Respondents.

P L D 2011 Karachi 163

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

GULSHAN-E-EAISAL, COOPERATIVE HOUSING SOCIETY, LTD. through Secretary---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 5 others---Respondents

Constitution Petition No.D-394 of 2010, decided on 3rd January, 2011.

(a) Sindh Cooperative Housing Authority Ordinance (V of 1982)---

---Ss. 6 & 7---Administrator, appointment of---Jurisdiction--Once an order under S.6 of Sindh Cooperative Housing Authority Ordinance, 1982, has been passed, Administrator or Managing Committee can be appointed only by the Authority not by Government or by Chairman of the Authority or by Secretary to Provincial Government.

(b) Sindh Cooperative Housing Authority Ordinance (V of 1982)---

----Ss. 6, 7 & 14---Sindh Cooperative Housing Authority Rules, 1986, R.4---Cooperative Societies Act (VII of 1925), S. 22---General Clauses Act (I of 1897), S.24-A---Constitution of Pakistan, Art.199---Constitutional petition---Inquiry--Reasons, recording of---Appointment of Administrator--Inquiry was initiated against petitioner society and an Administrator was also appointed to conduct the affairs of petitioner society---Plea raised by petitioner was that there were no reasons given by competent authority in its order for appointment of Administrator--Validity-1f competent authority had appointed Inquiry Officer and he after conducting inquiry submitted his report and competent authority "merely agreed with the report of Inquiry Officer, the authority was not required to record separate reason as to why it agreed with the report of Inquiry Officer---Mere fact that competent authority agreed with report of Inquiry Officer meant that reasons recorded by Inquiry Officer became reasons for which competent authority decided to make decision---If competent authority had disagreed with Inquiry Officer, then it was duty bound to record its reasons---Petitioner society was taken over by Administrator and it was requirement of law under S.14 of Sindh Cooperative Housing Authority Ordinance, 1982, to hold election of office bearers within a period of one year---High Court directed the authorities to give opportunity to petitioner to submit its reply to show-cause notice and thereafter decide upon it in accordance with law---High Court further directed the authorities that subject to such decision, election of the society should be held within a period of one year from the date of order assailed before High Court and after election affairs of the society be handed over to newly elected office bearers---Petition was disposed of accordingly.

Province of Sindh v. Public at Large, PLD 1988 SC 138; Yousaf Muneer Shaikh and others v. Election Commission of Pakistan and others 2004 CLC 123; Karachi Cooperative Housing Societies. Union Ltd. v. Government of Sindh and another 2003 YLR 1513; Liaquat Ali v. Government of Sindh through Secretary, Home Department and another PLD 1973 Kar. 78; The Ismailia Garden Cooperative Housing Society Ltd. and 2 others v. Province and Government of Sindh through Chief Secretary and 5 others 1992 CLC 2088; Messrs Noorani Traders, Karachi through Managing Partner v. Pakistan Civil Aviation Authority through Airport Manager, Karachi PLD 2002 Kar. 83; Federation of Pakistan and others v. Tapir Latif 2007 SCMR 152 and Haji Abdullah Khan and others v. Nisar Muhammad Khan and others, PLD 1965 SC 690 ref.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Fishermen's Cooperative Society Ltd. and 7 others v. The Registrar, Cooperative Societies, Sindh, Hyderabad and 3 others 1998 CLC 1285 and Ram Kumar v. State of Haryana AIR 1987 SC 2043 distinguished.

Rasheed A. Rizvi for Petitioner.

Zubair Hashmi for Respondent No.5.

Abrar Hasan for Respondent No.6.

P L D 2011 Karachi 177

Before Shahid Anwar Bajwa and Tufail H. Ibrahim, JJ

MUHAMMAD MASOOD BUTT and 3 others---Petitioners

Versus

S.M. CORPORATION (PVT.) LTD. and 5 others---Respondents

Constitutional Petition No.D-197 of 2010, decided on 24th December, 2010.

(a) Constitution of Pakistan---

----Art. 19-A--Right to information---Article 19-A of the Constitution is attracted when a particular information is of public importance--Regulations and restrictions imposed by law, absence of--Effect--Absence of regulations and restrictions could not render such right as nugatory, but same would still be available to citizens--Principles.

Article 19-A of the Constitution indicates that every citizen has been conferred a right to have access to information in all matters of public importance, however, subject first to regulations and secondly to reasonable restrictions by law. Non-framing of the regulations cannot have effect of rendering .the right guaranteed by Article 19-A as nugatory. Therefore, even if no regulations are framed, this right is available to all the citizens. In the absence of regulations and in the absence of restrictions, task will be thrown to the court to determine whether request for information in a particular case or denial of information in a particular case is reasonable or an order without lawful authority or not. But the Article does not stop here, it further says that it must be in "matters of public importance". Therefore, it must be a matter in which public at large or at least a substantial section of population is interested.

Article 19-A is attracted when a particular information is of public importance.

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

----Ss. 290 & 305---Constitution of Pakistan, Arts. 19-A & 199---Non­-declaration of dividend by a private limited company for a long time---Constitutional petition by shareholders for giving direction to company to provide them information in respect of different matters, affairs and accounts of company---Maintainability---Article 19-A of the Constitution would attract when information sought was of public importance--Information sought regarding operation of company was of no significance to 99.9% of people of Pakistan---Rights of shareholders including their right to information and dividend were regulated under Companies Ordinance, 1984 providing them complete remedy--Writ could not be issued in case of a company not owned/controlled by Government--Shareholders had not pointed out violation of their fundamental right---High Court dismissed constitutional petition for being not maintainable.

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

Muhammad Mohsin Butt and others v. Muhammad Inayat Butt and others 2005 CLD 747; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 and Gujrat Punjab Bus Ltd. and others v. Mian Muhammad Ashraf-Pugganwala and others PLD 1960 (W.P.) Lah. 609 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition by a company not owned/ controlled by Government---Maintainability---Writ could not be issued in case of such company.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 and Gujrat Punjab Bus Ltd. and others v. Mian Muhammad Ashraf Pugganwala and others PLD 1960 (W.P.) Lah. 609 rel.

Rasheed A. Akhund for Petitioner.

Kashif Paracha for Respondents Nos. 1, 2 and 4.

Zubair Hashmi for Respondents Nos. 5 and 6.

Date of hearing: 10th December, 2010.

P L D 2011 Karachi 183

Before Irfan Saadat Khan, J

Syed GHULAM HYDER SHAH alias UMAZ SHAH and 4 others---Appellants

Versus

Mst. BIBI AMIRUNNISSA - and 4 others---Respondents

Second Appeal No.12 Of 2007, decided on 3rd January, 2011.

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

----S. 201---Death of an attorney or executant of power of attorney---Effect---Power of attorney, if not for consideration, would vanish and could not be acted upon---Principles.

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

----S. 215---Transfer of principal's property by attorney in favour of a person closely related to both principal and attorney---Validity---Such transfer could be challenged only by principal himself and none else--Principles.

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

----S. 42-Transfer of Property Act (IV of 1882), S. 54---Contract Act (IX of 1872), S. 17----Sale of immovable property---Sale consideration, inadequacy of---Effect---Such inadequacy could not be made ground for declaring transaction invalid without showing fraud have been played by transferee.

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

----Ss. 54 & 122---Sale and gift of immovable property---Marz-ul-Maut, doctrine of--Applicability---Such doctrine would come into picture in case of gift, but not sale.

1991 SCMR 1181; 2006 SCMR 930 and Muhammad Bashir and others v. Mst. Walayat Begun and others PLD 1967 Lah. 391 rel.

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

----O. III, R. 1--Filing of suit by plaintiff on 26-3-1999 through attorney---Execution of power of attorney by plaintiff in favour of attorney on 16-9-1999--Effect---Attorney was not duly authorised on plaintiffs behalf on date of signing plaint and filing suit---Suit was not competently presented on 26-3-1999.

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

----Ss. 39 & 42---Contract Act (IX of 1872), S. 215---Suit for declaration and cancellation of sale-deed---Sale of property by principal through his attorney---Suit by legal heirs during lifetime of principal to challenge such sale---Maintainability---Only principal in his lifetime could challenge such sale, but not his legal heirs---If legal heirs of principal were of the view that attorney had deprived their father of his property as he was a person of unsound mind, then they or any one of them could have filed suit on his behalf as his next friend for cancellation of sale-deed---Legal heirs or any one of them had no legal character or right to file present suit, which was not maintainable.

2003 SCMR 783; PLD 2005 SC 418; 2010 SCMR 810; PLD 1975 SC 624; PLD 1%7 Lah. 391; 1969 SCMR 531; 1983 CLC 261; 1980 SCMR 339; 1980 CLC 1167; 2002 SCMR 85; 1997 SCMR 1811; 2009 SCMR 114; 2006 SCMR 930; PLD 2008 SC 389; PLD 1971 Kar. 553; PLD 1975 Kar. 819; PLD 1989 SC 568; 2007 CLC 1372; 2000 SCMR 90; PLD 1974 SC 22; PLD 1994 SC 291; 2007 CLC 589; PLD 2006 SC 777; 2007 YLR 53; 2007 YLR 2689 and PLD 2001 SC 906 ref.

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

---Ss. 100 & 101---Second appeal would not be competent on any other ground except those mentioned in S. 100, C.P. C.

Haji Sultan Ahmed through L.Rs. v. Naeem Raza and others 1996 SCMR 1729 rel.

Hassan Mehmood Baig for Appellants.

Ajaz Ali Hakro for Respondents Nos. 1 and 2.

Allah Bachaya Soomro, A.A.-G. for Respondents Nos. 3 and 5.

Nemo for Respondent No. 4.

Date of hearing: 25th October, 1st, 8th and 29th November, 6th and 13th December, 2010.

P L D 2011 Karachi 196

Before Ahmed Ali M. Shaikh, J

ABDUL ALEEM KHAN---Petitioner

Versus

TABINDA NASEER QAZI and another---Respondents

Constitutional Petition No.S-920 of 2010, decided on 10th February, 2011.

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

----S. 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on ground of Khula'--Restitution of dower amount---Defendant in constitutional petition had impugned judgment of Family Court whereby the court had dissolved the marriage between the parties by way of Khula'---Plaintiff in her suit for dissolution of marriage had categorically stated that she had developed hatred for the defendant; and that it was not possible for her to live with him within the limits prescribed by Almighty Allah; and she was not even ready to reconcile with him as she had suffered mental torture at the hands of defendant---Plaintiff who was a doctor by profession, could not be compelled to live with the defendant as his wife against her wishes---Family Court, in circumstances, while passing impugned judgment and decree had not committed any illegality---Once the Family Court came to the conclusion that wife was entitled for Khula' it must pass such decree in her favour---Decision regarding the restoration of mutual benefits, would have to be taken in the light of facts of each case; and would have the effect of only creating a civil liability-lithe contention of defendant that Khula' could not be granted without restitution of dower and other benefits were accepted, then destitute wife, who was found otherwise entitled to Khula', would stand deprived of the right simply because of her incapacity to return the benefits, which would be highly unfair and against the spin' of law and justice---Petition was dismissed.

Syed Matanat Moazzam Bukhari v. Dr. Afra Saeed and 2 others 2010 CLC 58; Aurangzeb v. Mst. Gulnaz and another PLD 2006 Kar. 563 and Mst. Shamshad Begunn v. Abdul Haque alias Nawaz and 2 others PLD 1977 Kar. 855 ref.

Naveed Ali for Petitioner.

Syed Masroor Ahmed Alvi assisted by Miss. Nazia Hanif Bux for Respondent No.1.

P L D 2011 Karachi 199

Before Ahmed Ali M. Shaikh, J

WAJID---Applicant

Versus

THE STATE---Respondent

Bail Application No.217 of 2011, decided on 23rd February, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl-e-amd---Bail, grant of---Further inquiry---Name of accused, no doubt appeared in the F.I.R. as one of the culprits who launched murderous assault at the complainant party, but no specific role was attributed to the accused---Prosecution witnesses did not implicate accused as one of the assailants in their respective statement under S.161, Cr.P.C.---Counter versions of the same incident, one given by the complainant and other by accused---Case of counter versions arising from the same incident, one given by the complainant in the F.I.R. and other by opposite party, was covered for grant of bail on the ground of further inquiry as contemplated under S.497(2), Cr.P.C. for the reason that question as to which version was correct was to be decided by the Trial Court which was supposed to record evidence; and also appraise the same in order to come to a final conclusion in that regard---Case of accused requiring further inquiry, accused was released to bail, in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 ref.

Said Muhammad Khan for Applicant.

Muhammad Iqbal Awan, A.P.G. Sindh for the State.

P L D 2011 Karachi 201

Before Gulzar Ahmed and Imam Bux Baloch, JJ

NOOR MUHAMMAD KAKA---Applicant

Versus

THE STATE through Director General, NAB, Karachi---Respondent

Criminal Revision No.184 of 2010, decided on 21st January, 2011.

National Accountability Ordinance (XVIII of 1999)---

---S. 18-Criminal Procedure Code (V of 1898), Ss.244, 544 & 435--Constitution of Pakistan, Art.10-A-Cognizance of offence on reference---Imposition of expenses for summoning of prosecution witness--Fair trial--Applicant had called in question order passed by Accountability Court whereby court imposed expenses of Rs.20,000 for summoning prosecution witness--Validity--Burdening accused with expenses, could lead to defeat the ends of justice for accused who could be incapable of paying or unwilling to pay---In either case result would be that the witness would not be called and accused would be prejudiced to his trial--Such did not appear to be the policy of law which guaranteed to an accused a right of fair trial which was an inviolable right of accused as envisaged under Art.10-A of the Constitution---Trial Court had travelled beyond its jurisdiction by imposing costs of Rs.20,000 for further cross-examination of witness--Impugned order. was set aside to the extent of imposing of expenses of Rs.20,000 to the applicant-Trial Court could direct the NAB authorities to pay the expenses of witness, if it would think fit in the circumstances of the case.

Dr. Manzoor Hussain and others v. The State 1969 PCr.LJ 336 and United States Shipping Board v. The Ship "St. Albans" AIR 1931 PC 189 ref.

Abdul Salam Memon for Applicant.

Muhammad Aslam Butt, DPG, NAB for Respondent.

P L D 2011 Karachi 204

Before Maqbool Baqar, J

MUHAMMAD ISLAM and 5 others---Applicants

Versus

Messrs REAL BUILDERS through Shaikh Muhammad Sadiq and others---Respondents

Civil Revision No.214 and C.M.As. Nos.708, 709 of 2010, decided on 7th February, 2011.

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

---Ss. 52, 195 & Sched. Sixth, Item 64(2)---Sindh Buildings Control Ordinance (V of 1979), S.4---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.42---Interim injunction, grant of---Nature of plot, change of--Development Authority converted residential plot of defendant into commercial and allowed him to raise commercial building---Plea raised by plaintiff was that the Development Authority was not vested with any power to convert residential plot into commercial---Trial Court and Lower Appellate Court declined to grant interim injunction against raising of construction by defendant---Validity---Plot in question was residential plot situated in residential area---It was only Local Government, under Sched. Sixth, Item 64(2) of Sindh Local Government Ordinance, 2001, that was competent to vary or alter terms and conditions of lease of subject plot--Such change of nature of plot was to be made after giving reasonable notice to occupants/owners of other properties in neighbourhood, who were likely to be affected---Functions, administration and financial management of offices of Local Government, including higher Housing and Physical Planning Department, under S.52 of Sindh Local Government Ordinance, 2001, stood entrusted to Taluka Municipal Administration---Development Authority of the city concerned was appointed under S.4 of Sindh Building Control Ordinance, 1979, to regulate planning, quality of construction and buildings control, prices charged and publicity made for disposal of buildings and plots by builders and societies and demolition of dangerous and dilapidated buildings within its jurisdiction---None of the various provisions of Sindh Buildings Control Ordinance, 1979, empowered the Development Authority of the city to convert the status of any plot---Conversion of plot in question from residential to commercial and approval of building plan by the Development Authority were without jurisdiction, illegal and void ab initio---Building plan in question affected the rights and privileges of plaintiffs and would degrade the environment, cause congestion and other nuisance, block air and light enjoyed by plaintiffs---High Court in exercise of revisional jurisdiction set aside the orders passed by Trial Court and Lower Appellate Court and restrained the defendant from raising any further construction on the subject plot and interim injunction was allowed--Revision was allowed in circumstances.

Ardeshir R. Cowasiee and others v. C.D.G.K. and others 2008 CLC 1166; Jawad Mir Muhammadi: and others v. Haroon Mirza and others PLD 2007 SC 472 and Mrs. Alba D'SA and others v. Mrs. Naheed Pabani and others 2008 YLR 738 ref.

Jhamat Jethanand for Applicants.

Aijaz Ali Hakro for Respondents Nos.1(i), (iii).

Shoukat Ali Jaffery for Respondent No.2.

Bahadur Ali Baloch for Respondent No.3.

P L D 2011 Karachi 212

Before Muhammad Athar Saeed and Muhammad Ali Mazhar, JJ

DARAKHSHAN JAHAN and others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Services and General Administration and 3 others---Respondents

Constitutional Petitions Nos.D-39 and D-41 of 2011, decided on 23rd February, 2011.

(a) Constitution of Pakistan---

----Art. 199 (5)---Constitutional jurisdiction---Orders of High Court---Scope---All judicial orders passed by High Court can be challenged in accordance with the Constitution or law but all non judicial or administrative orders of High Court are protected under Art.199 (5) of the Constitution.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Entry test---Mistake of authorities---Petitioners appeared in entry test conducted by National Testing Services (NTS) held by High Court for the appointments of Civil Judges/Judicial Magistrates---Grievance of petitioners was that duration of test written on question paper was 120 minutes but at the time of test the time given was only 60 minutes, which was illegal---Validity---Officer of NTS was not able to satisfy High Court as to why their own recommendation or pattern of paper with proportionate time duration was not adhered to---Only unpersuasive reply was that the NTS was asked by Provincial Selection Board to prepare a tough paper to be answered in sixty minutes---Minutes of meeting produced before High Court did not substantiate such contention and the only direction was that the paper should be answerable in sixty minutes---Provincial Selection Board never asked NTS to set the paper for 100 questions answerable in 60 minutes only---It was the sole responsibility of NTS to ensure that a reasonable qualitative test paper was to be prepared which could be answered by a reasonably intelligent person within sixty minutes---NTS failed to properly discharge their assignment and also deviated and diverged from their own style and pattern of NAT hosted on their website---High Court directed Member Inspection Team of High Court to issue fresh admit cards to petitioners and all other candidates, who failed in preliminary test and further directed to provide them a fair opportunity to appear and attend next preliminary test without charging admission fee and against the same application forms submitted by them for the test in question---Constitutional petition was allowed accordingly.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 distinguished.

Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315; The Administrative Committee v. Muhammad Wasim Abid and others Appeals Nos.394-K & 395-K of 2010; Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632; Asif Saeed v. Registrar Lahore High Court and others PLD 1999 Lah. 350 and Kaleem Arshad Khan's case 2004 PLC (CS) 1558 ref.

Abid S. Zuberi alongwith M. Umer Lakhani and Salahuddin Gandapur for Petitioners (in C.P.No.D-41 of 2011).

Altaf Hussain Addl. Member Inspection Team-I, M. Imran Khan, Chief Coordinator South Karachi for Respondent No.4(NTS).

Wasique Ahmed Kehar for Petitioner (in C.P. No.D-39 of 2011).

Naveed Ali Khokhar, Advocate.

Saifullah, A.A.G. Sindh.

Date of hearing: 4th February, 2011.

PLD 2011 Karachi 226

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

Dr. MUHAMMAD ALI THALHO---Petitioner

Versus

CHIEF ELECTION COMMISSIONER, ISLAMABAD and 5 others---Respondents

Constitutional Petition No. D-2286 of 2010, decided on 7th December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Prayer for giving directions to Government to frame law or policy regarding medical fitness, and retirement age of public representatives and executives---Validity---Such petition was based on factual controversy, medical assumption and presumption, which could not be determined under constitutional jurisdiction of High Court---Petitioner had not challenged any order or raised any point of law for determination---Petitioner had not alleged violation of fundamental rights in such petition---Legislature had exclusive jurisdiction to legislate, amend and/or strike down any law---Government had exclusive authority to frame policies according to their priorities and requirements in accordance with the Constitution---Duty of superior court would be to interpret such laws and policies, but not to enact laws or challenge wisdom of legislature in making a particular law, if same made competently without transgressing constitutional limitations---High Court dismissed such petition in circumstances.

The State v. Zia-ur-Rehman and others PLD 1973 SC 49 and Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 rel.

Khalid Rajpar for Petitioner.

P L D 2011 Karachi 228

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

Dr. FAROOQUE ALI ANSARI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Health and others---Respondents

Constitutional Petition No. D-2465 of 2009, decided on 25th February, 2011.

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

----Ss. 13 & 28---National Council for Homeopathy---Disqualification of Member of such Council or removal of name of Homeopath Practitioner from register/list---Powers of Council and Federal Government---Scope---Action against Homeopath Practitioner could be taken by such Council, while action against such Member could be taken by Federal Government---Principles.

Section 13 Unani Ayurvedic and Homeopathic Practitioners Act, 1965 empowers the Federal Government to take action against a Member of the Council. And section 28 confers jurisdiction on the Council to take action against the Homeopath Practitioner. Under section 13 of the Act at any time it appears to the Federal Government that a Member of the Council has failed to exercise or has exceeded or abused any power conferred upon him as a Member of a Council, the Federal Government after due notice and on being satisfied that such failure, excess or abuse has adversely affected the efficient conduct of such Member in achieving the objectives of this Act, may disqualify such delinquent from membership of the Council or the Committee or Examining Body as the case may be. Whereas under section 28, it is prerogative and domain of the Council to direct removal of the name of the Homeopathic Practitioner from the Register or list of the Homeopath Practitioners, who is (i) either convicted of a cognizable offence or (ii) who after due inquiry, if necessary, has been found guilty of misconduct or in the opinion of the Council offence or misconduct discloses moral turpitude such as to render him unfit for the practice of his profession.

Muhammad Nishat Warsi for Petitioner.

Nazar Akber, D.A.-G. for Respondents.

Date of hearing: 25th February, 2011.

P L D 2011 Karachi 232

Before Syed Hasan Azhar Rizvi, J

Syed IFTIKHAR HUSSAIN JAFRI---Plaintiff

Versus

Mrs. SHAMSHAD BEGUM and 2 others---Defendants

Suit No.177 of 2003, decided on 28th February, 2011.

(a) Islamic Law---

----Inheritance---Hanafi Law---Categories of heirs stated.

Heirs, according to Hanfi Law, are mainly sharers, residuaries and distant kindred. Sharers are those heirs whose shares are specified in Holy Qur'an, expounded by the Holy Prophet (peace be upon him) and Ijma-ul-Ummat. They are also called Zavil Furuz or Dhawai-al-Furud.

Sharers are twelve in number; (1) father, (2) true grandfather, (3) husband (4) wife or wives, (5) mother, (6) true grandmother or true grandmothers, (7) daughter or , daughters (8) son's daughter or son's daughters, (9) uterine brother or uterine brothers (10) uterine sister or uterine sisters, (11) full sister or full sisters, and (12) consanguine sister or consanguine sisters.

After having satisfied claims of funeral expenses, debts of the deceased and will, if any, sharers will first get their prescribed shares arid the residue will be distributed amongst residuaries. As regards shares, there is not much difference between Sunnis and Shias.

After sharers, residuaries get the residue; they may be one or many. The nearer in degree excludes the more remote.

According to classical Hanafi Jurists, following is the order of inheritance;

(i) Sharers;

(ii) Residuaries;

(iii) Return to sharers by blood if there is no residuary;

(iv) Distant kindred;

(v) Person in whose favour paternity has been acknowledged by deceased;

(vi) Legatee for the whole of property;

(vii) Bait-ul-Maal.

(b) Islamic Law---

----Inheritance---Hanafi Law and Shia Law---Deceased leaving behind his real son and step brother---Entitlement of step brother in inheritance of deceased brother---Scope---Step brother of deceased in both sects in presence of real son of deceased would not be entitled to any share in property of deceased.

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

----S. 218---Civil Procedure Code (V of 1908), S.11---Probate Courts, decisions of---Rule of res judicata would apply to such decisions.

AIR 1956 Nag. 209 rel.

(d) Islamic Law---

----Paternity--Proof---Dispute over custody of minor son pending between spouses during their lifetime---Compromise between spouses signed before Appellate Court showing living of minor son with deceased father---Disposal of family appeal by Appellate Court on basis of such compromise---Validity---Inference could be raised from such compromise that minor was real son/heir of deceased spouses.

1956 Nag. 209 and Mst. Hajiani Khatija Bai and & others v. Haji Dawood and 11 others 2003 MLD 828 ref.

Khalid Imran for Plaintiff.

Syed Shahanshah Hussain for Defendant No.1.

Masood Ghani for Akhter Hussain for Intervenor.

PLD 2011 Karachi 240

Before Muhammad Ali Mazhar, J

PAKISTAN REFINERY LIMITED---Plaintiff

Versus

MASKATIYA INDUSTRIES (PVT.) LIMITED---Defendant

Suit No.1094 of 2008, decided on 7th December, 2010.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Constitution of Pakistan, Art.189---Suit for declaration and permanent injunction---Interim injunction, application for---Judgment passed on such application by Single Bench of High Court affirmed by Division Bench of High Court---Judgment of Supreme Court passed with consent of parties setting aside both impugned judgments of High Court and remanding. case to Single Bench of High Court to decide such application afresh---Effect---Supreme Court in its judgment had not decided any question of law, thus, same would have no binding effect---Such judgment of Division Bench after having been set aside by Supreme Court had lost its efficacy and binding effect---Single Bench of High Court while deciding such application would not be bound by such judgment of Division Bench---Principles.

2009 MLD 1100; PLD 2009 Kar. 315; Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223; Suleman Mala v. Karachi Building Controlling Authority 1990 CLC 448; Afroz Ilahi v. K.M.C. and others 1990 MLD 828; Mst. Khalida v. Raja Muhammad Khurshid Khan 2008 CLC 1570; Mrs. Halima Tahir v. Naheed 2004 MLD 227; Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145; Messrs Sandal Dye Stuff Industries Ltd. v. Federation of Pakistan 2000 CLC 661 and Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 ref.

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

----Ss. 42, 54 & 55---Civil Defence Act (XXXI of 1952), S.2---Civil Defence (Special Powers) Rules, 1951, R.10---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Constitution of Pakistan, Art.23---Suit for declaration, permanent and mandatory injunction and damages---Pakistan Refinery Limited (PRL) classified as Key Point Installation 1-A---Key Point Installation 1-A being an installation in proximity of 200 yards whereof no structure could be raised without prior permission of Key Point Intelligence Division (Inter Services Intelligence)---Construction of private factory in close proximity of PRL without permission of KPID---Temporary injunction to restrain such construction, application for---Validity---Plaintiff in suit had not pleaded that in case of refusal of KPID to grant permission to defendant, what would be its effect, whether plaintiff would compensate defendant or acquire defendant's properly at market price with or without compensation---Question as to whether defendant's factory was within 200 yards of PRL, could be decided only after framing of issues---Further question requiring decision would be as to whether entire installation of PRL would be considered as Key Point Installation A-1 or only its terminals---High Court directed its Nazir to measure actual distance between PRL and defendant's factory---High Court allowed defendant to raise boundary wall on suit plot at his own risk to protect same from encroachment, but restrained him from constructing factory thereon---High Court framed issues and directed parties to address arguments thereon for the involving law points.

Rashid Anwer for Plaintiff.

Muneer A. Malik and Haider Waheed for Defendant.

P L D 2011 Karachi 257

Before Muhammad Tasnim, J

HABIB BANK LIMITED---Plaintiff

Versus

BAHJANI SCRAP TRADING COMPANY LLC and 2 others---Defendants

Suit No.B-162 of 2010, decided on 14th February, 2011.

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

----Ss.13 & 44 A---Limitation Act (IX of 1908), Art. 117---Foreign judgment---Execution---Scope---Upon obtaining foreign judgment by plaintiff, three courses are open to such plaintiff, firstly he can obtain execution of foreign judgment by proceeding under S.44-A, C.P. C., if the country from which decree has been obtained is United Kingdom or any reciprocating territory and in that case, plaintiff can outrightly obtain execution of the decree from District Court of concerned district of Pakistan and plaintiff need not file suit even and need not go through procedure prescribed for trial of suit---Secondly plaintiff can file suit in Pakistan on the basis of foreign judgment treating it as cause of action--In adopting second course, if conditions prescribed in S.13 C.P.C. are fulfilled, the judgment is conclusive between parties and otherwise it is res judicata between them and such Courts in Pakistan are bound by its findings---Such suit is to be filed within the period of six years from the date of that judgment as provided under Art.117 of Limitation Act, 1908---Third course against foreign judgment is that plaintiff can file suit on the original cause of action as it does not come to an end after passing of foreign judgment but remains intact until and unless that foreign judgment is satisfied---If conditions mentioned in S.13 C.P.C. are not satisfied, then the decree remains open to collateral attack in Pakistan.

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

----S. 9---Qanun-e-Shahadat (10 of 1984), Art. 96---Civil Procedure Code (V of 1908), S.13---Recovery of finances---Foreign judgment---Certified copies and its translation---Plaintiff company filed recovery suit against defendant in a foreign country, where finance was availed and was to be repaid, the suit was decreed in favour of bank by foreign court-On the basis of judgment and decree passed by foreign Court, plaintiff filed suit against defendant in Pakistan for recovery of decretal amount---Validity---There was nothing in S.13 C.P.C. which had effect of excluding provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001, or to sit on a foreign judgment in appeal---Plaintiff had filed suit on the basis of foreign judgment treating it as cause of action, which the plaintiff could do under the law---High Court did not find any illegality in the form of suit and the suit was maintainable in banking jurisdiction as provided under Financial Institutions (Recovery of Finances) Ordinance, 2001---Plaintiff bank had filed certified copies of foreign judgment and its translation duly attested by the Consulate General of Pakistan was also brought on record, as required under Art.96 of Qanun-e-Shahadat, 1984---Defendant did not file application for leave to defend the suit and there was nothing on record to rebut the claim of plaintiff---Suit was decreed in favour of plaintiff in circumstances.

Habib Bank Ltd. v. Messrs Virk House Trading Company Ltd. 2009 CLD 451; United Bank Limited v. Naeem Ullah Malik and others 2009 CLD 1459; Popat Virji v. Damodar Jairam AIR 1934 Bombay 390; Emirates Bank Intl. Limited v. Messrs Osman Brothers and others 1990 MLD 1779 and Abdul Ghani v. Haji Saley Muhammad PLD 1960 Kar. 594 rel.

Mian Nazir Ahmed v. Abdur Rashid Qureshi 1986 CLC 1309; Ganguli Engineering Ltd. v. Smt. Sushila Bala Dasi and another AIR 1957 Cal. 103; Messrs Kadir Motors (Regd.), Rawalpindi v. Messrs National Motors Ltd., Karachi and others 1992 SCMR 1174 and T. Zubair Limited and 2 others v. Judge, Banking Court No.III, Lahore and another 2000 CLC 1405 ref.

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

----S.14---Foreign judgment---Scope---Such judgments are presumed to be pronounced by court of competent jurisdiction within the contemplation of S.14, C.P.C.

Muhammad Jamshid Malik for Plaintiff.

Nemo for Defendants.

P L D 2011 Karachi 268

Before Mushir Alam, C J and Syed Hasan Azhar Rizvi, J

H.Dr. AMJAD IQBAL BHATTI---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Health, Islamabad and 3 others---Respondents

Constitutional Petition No.D-1616 of 2009, decided on 24th February, 2011.

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

---Ss. 28, 39 & 41---Constitution of Pakistan, Art.199---Constitutional petition---Misconduct---Using of word "doctor"---Code of ethics---Repeated violations---Effect---Petitioner was registered Homoeopathic Medical Practitioner and instead of representing himself as "Homoeopathic Doctor", he was using word "Doctor" in advertisements made by him---Authorities, after issuing show-cause notice to the petitioner, cancelled his registration---Validity---Petitioner admitted to have got published incriminating advertisement without permission of Advertisement Committee of Ministry of Health, which act fell within the mischief of "misconduct"---Contention of petitioner, however, was that no inquiry was conducted in the matter, which was repelled by High Court---Petitioner was still holding out to be a Doctor in various advertisements placed by him in various newspapers subsequent to filing of petition, which act constituted an independent offence and should be dealt with by authorities strictly in accordance with S.39(2) and other provisions of Unani Ayurvedic and Homoeopathic Practitioners Act, 1965---Where there was adamancy and recurrence of misconduct and repeated violation of Code of Ethics, it aggravated the wrong---High Court directed National Council for Homoeopathic and Federal Government to take strict view of the matter and in addition to hold inquiry where circumstances so warrant, at the same time, could also initiate criminal prosecution under section 41 of Unani Ayurvedic and Homoeopathic Practitioners Act, 1965, before competent Court of law---High Court in exercise of Constitutional jurisdiction declined to interfere in the action taken by authorities---Petition was dismissed in circumstances.

(b) Administration of justice---

----Guilt, admission of---Effect---Invariably in cases where a person admits guilt or misconduct, express remorse, tenders apology and assures not to repeat the wrong or misconduct complained to the authority concerned and so also courts of law do take a lenient view of the matter---In case charge or allegation is contested and is ultimately established, then such delinquent may lose sympathetic consideration or any leniency on the part of the authority or the Court.

Aftab Ahmed Khan for Petitioner.

Nazar Akber, DAG for Respondents.

Date of hearing: 24th February, 2011.

P L D 2011 Karachi 275

Before Amir Hani Muslim and Irfan Saadat Khan, JJ

Messrs EUROCONSULT PAKISTAN (PVT.) LTD. through Accounts Manager---Petitioner

Versus

PROVINCE OF SINDH through Secretary and 8 others---Respondents

Constitutional Petition No. D-341 of 2010, decided on 30th November, 2010.

Sindh Public Procurement Rules, 2010---

----Rr. 68 & 74---Constitution of Pakistan, Art. 199---Constitutional petition---Consultants, selection of-Short listing---Procedure---Authorities had to select consultants for a project funded by World Bank and after proper advertisement three companies were short listed for final selection---Petitioner company was a consulting company and its grievance was that short listing was not done on 'the basis of subjective evaluation---Validity---It was the requirement of World Bank that while selecting consultants, the highest standard of ethics during selection and execution of the contract had to be followed---Names of companies short listed by authorities were accepted by World Bank, who was donor of the project---Transparency of selection which was based on factual examination could not be challenged by way of invoking Constitutional jurisdiction of High Court---Authorities had adhered to the provisions of Rr.68 & 74 of Sindh Public Procurement Rules, 2010---Request for expression of interest published in internet had taken care of the parameters, as provided in Sindh Public Procurement Rules, 2010, and High Court did not find any illegality---Petitioner failed to make out any case for interference by High Court in exercise of Constitutional jurisdiction---Petition was dismissed in circumstances.

Syed Muhammad Saulat Rizvi for Petitioner

Allah Bachayo Soomro, Addl. A.G. for Respondent No.1.

Noorul Haq Qureshi for Respondent No.3.

Abdul Sattar Kazi for Respondent No.9.

P L D 2011 Karachi 281

Before Muhammad Tasnim, J

Mst. ILYAS BEGUM---Plaintiff

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY---Defendant

Suit No.1114 of 2005 and C.M.A. No.237 of 2009, decided on 21st February, 2011.

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

----O. I, R. 10(2)---Limitation Act (IX of 1908), S.22---Specific Relief Act (1 of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Allotment of plot to intervenor on 15-9-1976 by Housing Authority and its transfer in plaintiff's name on 20-3-1978---Cancellation of plot from plaintiffs name by Housing Authority vide letter dated 26-5-2005---Suit filed on 3-9-2005 by plaintiff against. Housing Authority for declaring such cancellation as illegal and restraining the Authority permanently from creating any third party interest in suit plot---Application by intervener on 13-1-2009 for joining him as party in. suit alleging his signatures on transfer document in favour of plaintiff to be forged---Validity---Housing Authority after transferring suit plot in plaintiffs name vide order dated 20-3-1978 had forwarded its copy to intervener---Mutation of suit plot was effected in plaintiff's favour on 30-7-1980 and since then was holding same in his own right---Intevener had not brought anything on record to show that he had taken steps before Housing Authority in respect of suit plot between period from 1976 till issuance of impugned . letter by Authority on 26-5-2005---Intervener in his application had neither given specific date of knowledge about pendency of suit nor offered any explanation for making such application in year 2009---Intervener had filed such application beyond period of limitation---Plaintiff in suit had prayed for declaring impugned letter to be illegal and for issuance of direction to Housing Authority to execute lease in respect of suit plot in his favour---Necessary or proper parties to proceedings would be those persons whose interest in suit was under challenge and without their presence suit could not be decided on merits---No fruitful result would be achieved by adding intervener as party as point involved in suit could be decided without his presence---Intervener was, thus, neither a necessary nor proper party to be joined in suit---Evidence of parties had been recorded and matter had riped for final arguments, thus, impleading intervener as party at such stage would cause prejudice to plaintiff---Such application was dismissed in circumstances.

Sheo Prasad v. Mt. Parkash Rani and others AIR (30) 1943 Oudh 164; Mt. Bas Kuar v. Gaya Municipality and others AIR 1939 Patna 138; Secretary of State v. Dhirendra Nath Roy and others AIR 1934 Calcutta 187; Ramprasad Dagaduram v. Jijaykumar Motilal Hirakhanwala and others AIR 1967 SC 278; Hayat and others v. Amir PLD 1982 SC 167; Muhammad Ashraf and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1985 SC (AJ&K) 102; Khayuaban-e-Iqbal (Pvt.) Ltd. and others v. Mustafa Haji Muhammad 1996 CLC 1758; Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 SCMR 170 and Messrs Mona Lisa Fruit Juice Industries Ltd. v. Government of Sindh and others 1998 MLD 9 ref.

Altaf Parekh v. Delments Construction Company 1992 CLC 700 and Waseem Haroon v. Abdul Shakoor Tabbani and another 2006 MLD 605 rel.

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

----O. I, R.10(2)---Necessary or proper party to proceedings---Scope---Necessary or proper parties to proceedings would be those persons whose interest in suit was under challenge and without their presence suit could not be decided on merits---Principles.

The examination of provisions of Order I, Rule 10, C.P.C. shows that necessary party is one who ought to have been joined and in whose absence no effective adjudication can take place or decree passed while proper party is the party whose presence is necessary before the Court in order to completely and effectually adjudicate upon and settled all questions involved in the suit. Only those persons are necessary or proper parties to the proceedings whose interests are challenged in the suit and without their presence the suit could not be decided on merits. If the dispute in a suit can effectually be adjudicated upon in absence of a person such person is not a necessary party to be impleaded in the suit. Mere fact that person may, by some chance, became interested, in claiming property adversely to plaintiff is no ground for his being so impleaded because that would necessitate importation of facts not formed in the suit.

Ramprasad Dagaduram v. Jijaykumar Motilal Hirakhanwala and others AIR 1967 SC 278; Hayat and others v. Amir PLD 1982 SC 167; Muhammad Ashraf and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1985 SC (AJ&K) 102; Altaf Parekh v. Delments Construction Company 1992 CLC 700; Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 SCMR.170 and Messrs Mona Lisa Fruit Juice Industries Ltd. v. Government of Sindh and others 1998 MLD 9 ref.

Khayuaban-e-Iqbal (Pvt.) Ltd. and others v. Mustafa Haji Muhammad 1996 CLC 1758 and Waseem Haroon v. Abdul Shakoor Tabbani and another 2006 MLD 605 rel.

Sardar Muhammad Arif Khan for Plaintiff.

Raja Sikandar Khan Yaser for Defendant.

Nazar Hussain Dhoon for Intervenor.

P L D 2011 Karachi 291

Before Syed Hasan Azhar Rizvi, J

EXECUTION APPLICATION BY MUHAMMAD ARMED: In the matter of

Execution Application No.4 and C.M.A. No.345 of 2010, decided on 7th March, 2011.

Civil Procedure Code (V of 1908)--

----O. XXI, R. 58---Execution proceedings---Sale of attached property---Objection petition---Objector's plea that attached properly was owned by her and could not be sold in execution of decree passed against judgment­-debtor---Decree-holder's plea that objector being a house-lady had no source of income; and that judgment-debtor used to purchase properties benami in names of others to avoid his liabilities---Validity---Registered document produced by objector showed that attached property was in her name and she purchased same long before filing of suit against judgment­-debtor---At stage of execution, such question could not be gone into as to who had provided funds to objector to purchase such property---Objection was allowed and such property was released from attachment in circumstances.

Sohail Farooq Sheikh v. The State 2009 MLD 375; Mst. Saeeda Begum v. Small Business Finance Corporation and another NLR 2003 Civil 136 and Asghar Ali v. Abdul Hussain and 3 others PLD 1977 Kar. 217 ref.

Muhammad Ilyas Khan Tanoli for the Decree-holder.

Atif Awan for Applicant.

PLD 2011 Karachi 293

Before Munib Akhtar and Nisar Muhammad Shaikh, JJ

Syed JEHANGIR ALI and others---Petitioners

Versus

DISTRICT COORDINATION OFFICER, HYDERABAD and others---Respondents

Constitutional Petitions Nos.D-333 to 335 of 2010, decided on 3rd March, 2011.

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

----Ss. 1(2), 116(1) & Second Sched., Part I, Entry No.10---Constitution of Pakistan, Art.l99---Constitutional petition--Shopping Centre located within area of Cantonment owned by Zila Council---Enhancement of rent of shops in such Centre through Notification issued by Zila Council in exercise of its powers under S.116 of Sindh Local Government Ordinance, 2001 read with Entry No.10 of Part-I of Second Sched. thereof---Validity---Sindh Local Government Ordinance, 2001 by virtue of S.1(2) thereof would not apply to areas notified as Cantonments under Cantonments Act, 1924 in relation to matters covered thereunder---Sindh Local Government Ordinance, 2001 divided Province into "local areas" and set up "Councils" for each area---Jurisdiction of a Council being territorial would extend to its local area and would not extend and could not be extended to any other area---Rights of a Council as owner of a property being distinct and separate from its statutory powers as a Council---Ownership of a property by a Council would not confer jurisdiction on such Council to exercise powers outside its territorial limit---Council could exercise powers under S.116(1) of Sindh Local Government Ordinance, 2001 only in relation to lands or buildings within its local area and not otherwise---High Court declared impugned notification to be without lawful authority and of no legal effect.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Impugned order or action without jurisdiction or lawful authority---Constitutional petition in such case would be Maintainable.

Hasan Mehmood Baig for Petitioners.

Aslam Pervez Khan for Respondent.

Muhammad Azeem Panhwar, State Counsel.

P L D 2011 Karachi 297

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

Mst. SANAM BABY and 2 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary, Health Department and 11 others---Respondents

Constitutional Petition No.D-292 of 2010, decided on 9th March, 2011.

Sindh Permanent Residence Certificate Rules, 1971---

----R. 8---Constitution of Pakistan, Art. 199---Constitutional petition---Admission in Medical College on basis of Permanent Residence Certificate (PRC)---Petitioner having got admission on self-finance basis alleged respondents to have acquired PRCs on basis of fraud and misrepresentation---Validity---Appeal filed by petitioner at directions of High Court before Sindh Permanent Residence Certificate Appellate Committee had been dismissed---Petitioner without exhausting alternate remedy available under law against decision of Appellate Authority had simply filed objections thereagainst in pending constitutional petition---Appellate Authority after conducting proper inquiry into such matter had dismissed appeal for want of proof by passing a speaking order---Petitioner in garb of such petition wanted to expel respondents from merit list and place himself up in merit list and get amount of self-finance scheme refunded---High Court dismissed constitutional petition in circumstances.

Miss Wardah Salman v. Government of Sindh 2000 CLC 1189; Syed Muzaffar Ali Jafri v. The Commissioner, Hyderabad Division 1984 CLC 1352; Miss Mehrun Nisa Balouch v. Appellate Committee 1978 SCMR 439; Mehboob-ul-Hassan Khan v. Dow University of Health Sciences PLD 2008 Kar. 49; Miss Naseem Kausar Arbab v. Government of Pakistan PLD 1972 Kar. 563; Muhammad Saleem Khan v. Principal, Ayub Medical College 1986 CLC 1425 and Waheed Ahmed Khan v. Principal Sindh Medical College 2004 MLD 1722 ref.

Muhammad Nadeem Arif v. Inspector General of Police, Punjab Lahore 2010 PLC (C.S.) 924 distinguished.

Muhammad Khalid Hayat for Petitioners.

Ali .Bin Adam Jafri for Respondents Nos. 4 and 5.

Muhammad Ahsan Rao for Respondents Nos. 7, 9, 10 and 12.

Suresh Kumar for Respondent No.11.

Sher Muhammad K. Shaikh, Addl. A.G. for Official Respondents.

P L D 2011 Karachi 304

Before Maqbool Baqar, J

GUANGDONG OVERSEAS CONSTRUCTION GROUP COMPANY LTD. through General-Manager---Plaintiff

Versus

CREEK MARINA PRIVATE LIMITED and 2 others---Defendants

Suit No.701 and C.M.As.4358, 4359 of 2008, decided on 12th March, 2011.

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

----S. 22---Both parties to the contract under a common mistake---Effect---Doctrine of estoppel by convention' Applicability---Scope.

In terms of section 22 of the Contract Act, a contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact.

When the parties to a contract are both under a common mistake as to the meaning or effect of it and thereafter embark on a course of dealing on the footing of that mistake, thereby replacing the original terms of the contract by a conventional basis on which they both conduct their affairs, then the original contract is replaced by the conventional basis. The parties are bound by the conventional basis. Either party can sue or be sued upon it just as if it had been expressly agreed between them. When the parties to a transaction proceed on the basis of an undefying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have conducted the dealings between them, neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the court will give the other such remedy as the equity of the case demands.

The existence of the LOA depended on the acceptance and the signature of the plaintiff and no matter what the defendant would have represented, the plaintiff would have known whether the LOA existed or not, and the plaintiffs' case is hit by the doctrine of 'estoppel by convention' whereby the plaintiff and defendant are stopped from claiming that the guarantees are void due to a mistake of fact, as in terms of the said doctrine where the parties to a transaction have acted on the agreed assumption that a state of facts can, for the purpose of that transaction, be regarded as true, the parties are precluded from denying the truth of those assumed facts, in case where it would be unjust to allow them or only one of them to do so.

Where the parties have established by their construction of their agreement or their apprehension of its legal effect a conventional basis and on that basis they have regulated their subsequent dealings and it would be unjust or unconscionable if one of the parties resiled from that convention and further that the party who is sought to be estopped must have contributed in some active way towards the creation or continuance of the mistaken basis on which the parties thereafter conducted their dealings, so that it would be unconscionable to allow him to resile from the stance he had taken, which had to a certain extent influenced the other party to behave as it did applicable with full force.

Amalgamated Investment and Property Co. Ltd. (in liquidazion) v. Texas Commerce International Bank Ltd. [1981] 3 All ER 577 and Bank of Scotland v. Wright and another 1991 BCLC 244 fol.

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

----S. 22---Party to contract cannot be said to be mistaken about the existence of an instrument if its existence requires the signature of the said party.

(c) Estoppel by convention---

----Applicability---Scope---In terms of doctrine of estoppel by convention where the parties to a transaction have acted on the agreed assumption that a state of facts can, for the purpose of that transaction, be regarded as true, the parties are precluded from denying the truth of those assumed facts, in case where it would be unjust to allow them or only one of them to do so.

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

----Ss.126, 127 & I28---Specific Relief Act (I of 1877), S.53---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---'Letter of credit', 'unconditional bank guarantee' and 'performance bond'/guarantee---Scope---Grant of ad interim injunction or interference by Court---Principles.

In case of a letter of credit and an unconditional bank guarantee, the Court would generally be reluctant to grant an ad interim injunction, restraining a bank from honouring its contractual obligation. However, in exceptional cases, where refusal to grant an ad interim injunction, will perpetuate fraud or injustice, which should be apparent from the material on record, the Court may grant an ad interim injunction.

With regard to the performance bond, the same stands entirely on different footing than the bank guarantee and unless and until the Court prima facie finds that the default was on the part of the defendants, it would not be just and proper to allow its encashment as the encashment depends on the commission of default.

Performance guarantee stands on footing similar to an irrevocable letter of credit, the bank which gives performance guarantee must honour that guarantee according to its terms. It is not concerned in the least with the relations between the parties to the main contract and as to whether the contractor has performed his contracted obligation or not, nor .with the question whether the contractor is in default or not. The bank must pay according to the terms of the guarantee all demands, and if so stipulated, without proof or condition and that the only exception is a case of clear fraud of which the bank has notice. There is an absolute obligation upon the banker to comply with the terms and conditions, as enumerated in the guarantee and to pay the amount stipulated therein irrespective of any dispute between the parties to the main contract, as to whether the goods supplied are up to the specification or not. The bank guarantee should be enforceable on its own terms and that realization against the bank guarantee would not affect or prejudice the case of the contractor, if ultimately the dispute is referred to arbitration and further that the contract of bank guarantee is an independent contract between the bank and party concerned and is to be worked out independently of the dispute arising out of the work agreement between the parties to the work agreement and, therefore, the extent of the dispute and claim or counter-claims were matters extraneous to the consideration of the question of enforcement of the bank guarantee. Where the bank had undertaken to pay the stipulated sum, at any time, without demur, reservation, recourse, contest or protest, and without any reference to the contractor, no interim injunction, restraining payment under the guarantee could be granted bank guarantee is an autonomous contract and imposes an absolute obligation on the bank to fulfil the terms and the payment on the bank guarantee becomes due on the happening of a contingency on the occurrence of which the guarantee becomes enforceable.

In the absence of special equities and the absence of any clear fraud the bank must pay on demand, if so stipulated and whether the terms are such must be found out from the performance guarantee, as such. Unqualified terms of guarantee could not be interfered with by the Courts irrespective of the existence of dispute.

In case of confirmed bank guarantees/ irrevocable letters of credit the Court will not interfere unless there is fraud and irretrievable damages are involved in the case and the fraud has to be an established fraud.

The Court cannot interfere in the matter of encashment of confirmed bank guarantees/irrevocable letters of credit, unless there is fraud and irretrievable injustice involved in the case and fraud has to be an established fraud.

Irretrievable injustice which was made the basis for grant of injunction really was on the ground that the guarantee was not encashable on its terms.

There should be prima facie a case of fraud and special equities in the form of preventing irretrievable injustice between the parties. Mere irretrievable injustice without a prima facie case of established fraud is of no consequence in restraining the encashment of bank guarantee.

A bank issuing a guarantee, is not concerned with the underlying contract between the parties to the contract. Unless there is an allegation of fraud, the Courts will not interfere. A bank guarantee is ordinarily a contract quite distinct from the underlying contract and gives rise to a separate cause of action.

Bank issuing a guarantee is not concerned with the underlying contract between the parties to the contract. The duty of bank under a performance guarantee is created by the document itself. Once the documents are in order, the bank giving the guarantees must honour the same to make payment. Ordinarily, unless there is an allegation of fraud or the like, the Courts will not interfere directly or indirectly to withhold payment, otherwise trust in commerce, internal and international, would be irreparably damaged. But that does not mean that the parties to the underlying contract cannot settle their dispute with respect to allegations of breach by resorting to litigation or arbitration as stipulated in the contract.

The remedy arising ex contract is not barred and the cause of action for the same is independent of enforcement of the guarantee.

Where the special circumstances and/or special equities which had been pleaded were that there was a serious dispute on the question as to who had committed breach of the contract, that the contractor had a counter-claim, that the disputes between the parties had been referred to the arbitrators and that no amount could be said to be due and payable by the contractor till the arbitrators declared their award, these factors were not sufficient to make this an exceptional case justifying interference by restraining from enforcing the bank guarantees.

When the guarantor had bounded itself to pay the amount of guarantee upon service of notice without recourse or reference to the company or any other person, neither prima facie case was made out nor was balance of convenience in favour of the company.

Courts must give effect to the covenants of the bank guarantees, the performance guarantees, for the smooth performance of the contracts. The guarantees are independent contracts and the bank authority must construe them, independent of the primary contracts. They should encash them notwithstanding any dispute arising out of the original contract between the parties.

Unless and until the Court prima facie finds that the default was on the part of the contractor, it would not be just and proper to allow encashment of the performance guarantee/bond, is binding.

In the present case the plaintiffs have committed defaults in performance in terms of their obligations towards defendant, so much so, that they have even failed to mobilize themselves adequately to undertake and carry out the project works as required of them and neither are there any special equities nor any fraud committed by the defendants, it will not be just and proper to restrain the defendants from encashing the subject guarantees. However, since no payment has been made under mobilization advance guarantee and the defendant has submitted that they are not seeking encashment of said guarantee the same shall not be encashed.

Pakistan Engineering Consultants v. P.I.A.C. 1989 SCMR 379 distinguished.

Shipyard K. Damen International v. Karachi Shipyard and Engineering Work Ltd. PLD 2003 SC 191 fol.

Pakistan Engineering Consultants v. P.I.A.C. 1993 CLC 1929; Messrs Jamia Industries Ltd. v. Pakistan Refinery Ltd. Karachi PLD 1976 Kar. 644; U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. IT 1987 (4) SC 406; National Thermal Power Corporation Limited v. Flowmore Private Ltd. and another (1995) 84 Comp. Cas. 97; Larsen & Toubro Ltd. v. Maharashta State Electricity Board and others (1996) 85 Comp. Cas.; United Commercial Bank Ltd. v. Bank of India (1982) 52 Comp. Cas. 186: (1981) 2 SC 766; U.P. Cooperative Federation Ltd. Singh Consultants and Engineers (P) Ltd. (1989) 65 Comp. Cas. 283; (1988) 1 SCC174; General Electric Technical Services Company Inc. v. Punj. Sons (P) Ltd. (1992) Comp. Cas. 624; (1991) 4 SC 230; Elian & Rabbath v. Matsas and Matsas, (1966) 2L Lloyd's List Law Reports 495; Svenska Handelbarrken v. Indian Charge Chrome, (1994) 1 SC 502, 523-524, 526-27; (1994) 79 Comp. Cas. 589, 616-617, 620; UCO Bank v. Bank of India 1901 (3) SCR 300 at 325; Contax (India) Ltd. v. Vinmar Impex Inc. JT 1986 SC 174; 1986 (4) SC 136; U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd., JT 1987 (4) SC 405; National Grid Company PLC v. Government of Pakistan, Private Power and Infrastructure Board, Minister of Water and Power 1999 SCMR 2367; Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311; Heavy Mechanical Complex Pvt. Ltd. Taxlia v. Attock Industrial Products, Rawalpindi PLD 2003 SC 295; Shipyard K. Damen International v. Karachi Shipyard and Engineering Work Ltd. PLD 2003 SC 191; Ardeshir Covasjee v. Karachi Building Control Authority 1999 SCMR 2883 and Pakistan Engineering Consultants v. P.I.A.C. 1989 SCMR 379 ref.

Bilal A. Khawaja for Plaintiff.

Arshad Tayabally and Azizur Rehmabn for Defendants.

P L D 2011 Karachi 352

Before Syed Hasan Azhar Rizvi, J

Messrs SEA GOLD TRADERS through Managing Partner---Plaintiff

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 2 others---Defendants

Suit No.598 of 1997 and C.M.A. No.869 of 2009, decided on 18th March, 2011.

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

----O. VII, R.11---Rejection of plaint---Documents, looking into---Principles---Plaint can be rejected in suit when court in addition to memo of plaint can look into admitted/disputed documents such as regards of previous litigations---Reading of plaint for purpose should not be formal but practical, meaningful, realistic and rational, so as to regarding correct conclusion from pleadings rather than giving the same artificial and fanciful meaning---Court while doing such exercise has to keep in mind true spirit of such provision.

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

----O. VII, R. 11---Rejection of plaint---Previous litigation---Consideration---Parties had been in litigation since long and it was admitted position that earlier suit filed by plaintiff against defendant before High Court for damages was withdrawn on the basis of consent decree dated 25-9-1994---Consent decree was challenged and the same was set aside on 18-5-2001, by High Court---Plaintiff had already filed suit on 3-5-1997, within the period of three years whereas defendant challenged the consent decree dated 25-9-1994 in suit passed by High Court---Defendant sought rejecting of plaint under O.VII, R.11, C.P.C.---Validity---Unless evidence of parties was recorded issue involved in the matter could not be resolved effective---High Court declined to reject the plaint under O.VII, R.11, C.P.C. as the same was not maintainable---Application was dismissed in circumstances.

2002 MLD 19; 1981 SCMR 878; 2000 CLC 63; 1999 YLR 991 and 1999 YLR 436 ref.

Ali Mumtaz Shaikh for Plaintiff.

Badar Alam for Defendants.

P L D 2011 Karachi 357

Before Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J

ABDUL SABOOR---Petitioner

Versus

VICE-CHANCELLOR, KARACHI UNIVERSITY and another---Respondents

Constitution Petition No.2995 and Misc. No.11924 of 2010, decided on 9th March, 2011.

University of Karachi Act (XXV of 1972)---

----Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Direct admission in Ph.D. Law---Petitioner holding LLM Degree in Law seeking admission in Ph.D Law without appearing in entry test---Validity---Admission Committee of University comprising of Dean, Faculty of Law (a retired Judge of High Court), its Chairman (a retired Judge of High Court) and two others after deliberate discussion had decided that candidates seeking such admission had to clear written test of two hours---Object of passing entry test for such admission was to bring scholars of international repute capable to complete research and development programs with excellence in academics---Direct admission would not mean that candidate having degree such as M.S./M.Phil./M.Pharm. and LLM would not fulfil other criteria including test, interview, academic record, general pro forma as recommended by University---Petitioner had filed constitutional petition just after announcement of result of entry test, wherein he appeared, but failed---Petitioner had availed opportunity of entry test without objecting thereto at relevant time---High Court dismissed constitutional petition for being misconceived and afterthought.

Abbadul Husnain for Petitioner.

Moin Azhar Siddiqui for Respondent No.1.

Rizwan Ali Dodani, Standing Counsel.

P L D 2011 Karachi 362

Before Muhammad Athar Saeed and Munib Akhtar, JJ

Messrs FOSPAK (PRIVATE) LTD. through Chief Executive---Appellant

Versus

FOSROC INTERNATIONAL LIMITED and another---Respondents

High Court Appeal No.229 and C.M.A. No.1895 of 2010, decided on 18th April, 2011.

(a) Admission---

----Determination of the nature of relationship between the parties under agreement---Plaintiff's admission in plaint that he was appointed as an agent of defendant through agreement---Defendant alleging plaintiff to be licencee under agreement---Validity---Such admission would hardly be determinative of relationship between parties---Duty of court would be to examine agreement and determine its true legal nature.

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

----S. 202---Agent having an interest in property of agency---Agreement expressly conferring a right on either party to terminate such agency---Validity---Such right would not be limited to one party, rather same would apply equally to both the parties.

Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd. 2005 CLD 1805 rel.

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

----S. 202---Provision of S.202 of Contract Act, 1872, applicability of---Essential conditions to be fulfilled stated.

For section 202 of the Contract Act, 1872 to apply, the following three conditions must be fulfilled; (a) there must be an agency; (b) the subject matter of the agency must be some property; and (c) the agent must himself have an interest in such property. Thus, for section 202 to apply, the court must ask itself the following sequential questions: (a) is the contract in the nature of agency? If so, (b) does the agent himself have an interest in such property? A negative answer to any one of these questions would negative the application of section 202. For proper understanding of section 202, it is crucial to keep in mind the word "himself", as used therein. The section requires that the agent must "himself" have "an interest in the property" which forms the subject of the agency. In other words, the "interest" of the agent with which the section is concerned must be an interest that he has in his own right or capacity, i.e., a capacity other than that of simply being the agent. The point is reinforced by the concluding words of the section: if the agent "himself" has such an interest, then the agency cannot (in absence of an express provision) be terminated to the prejudice of "such" interest. The word "such" obviously relates back to the nature of the interest that the agent must have, which is an interest in his own right, and not simply an interest on account of his position as agent.

The agent must "himself" have an interest in the property concerned and the property must be the subject matter of the agency. Both these conditions must be fulfilled for section 202 to apply. If the agent does have an interest in his own right in the property, but the property is not the subject-matter of the agency, then the section can have no application. If the agent has made heavy investments (by way of setting up an office or factory, etc.), that in and of itself does not bring the matter within the ambit of section 202. The agent does have an interest in his own right in the property (it is, after all, the result of investments made by him) but the property is not the subject-matter of the agency.

Muhammad Arif Effendi v. Egypt Air 1980 SCMR 588; Bolan Beverages (Pvt.) Ltd. v. PepsiCo Inc. and others PLD 2004 SC 860; Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd. 2005 CLD 1805; Universal Trading Corporation (Pvt.) Ltd. v. Beecham Grop PLC and another 1994 CLC 726; HCA 145 of 1993; Dalchand v. Seth Hazarimal and others AIR 1932 Nag. 34; Vishnucharya v. Ramchandra (1881) 5 Born 253; Abdul Rahim v. Mukhtar Ahmad and others 2001 SCMR 1488 and Hajran Bibi and others v. Suleman and others 2003 SCMR 1555 rel.

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

----S. 202---"Interest" of agent "himself" in property being subject-matter of agency contract---Scope and nature of and test for determining such interest illustrated.

The scope and nature of the "interest" in the property that section 202, Contract Act, 1872 seeks to protect is wider than an interest in property in conventional sense. This is clear from the illustrations to the section. Thus, it is obvious in illustration (a) that the agent B has no interest in the immoveable property in the conventional sense. However, he owed some money by the principal A. The latter appoints B as his agent to sell the property and gives B authority to pay himself out of the sale proceeds in respect of the money owed to him. Now the debt owed by A to B is in B's own right or capacity; it is not on account of B's position qua agent. This is the "interest" that B has in the property that is the subject matter of agency, and this is an interest that he "himself" has. The agency (or more precisely, the "interest") is therefore protected under section 202. The importance of the agent "himself' having an interest in the property can be seen if the facts of illustration (a) are slightly altered. Suppose, the agent was not owed any money by the principal, but the latter simply agreed that the agent could reimburse himself out of the sale proceeds of the property for his commission as agent. Here, the agent does have an interest in the property, but it is not an interest in his own right it is simply an interest qua his position as agent. Such a situation is not protected by section 202.

Similarly, if a person agrees to sell his immoveable property to another, and pending finalization of the transaction, executes a power of attorney in favour of the buyer in respect of the property, the power of attorney would not be revocable, and would be protected by section 202.

One test for determining whether the agent "himself" has an interest in the property or his interest is only on account of his capacity as agent is to ask whether the basis of the interest existed and/or can exist independently of the agency contract. In other words, the question is whether the basis on which the "interest" is being claimed exists, or could or would exist, or would have existed, even if there were no agency contract. If the answer to this question is in the affirmative, then the "interest" is such as may be protected by section 202, if not, then the interest is only the agent's capacity as such, and is not protected by the section. In the two illustrations to section 202, the basis existed independently of the agency contract, and would exist even there were no agency. It is thus, protected under section 202.

Dalchand v. Seth Hazarimal and others AIR 1932 Nag. 34; Vishnucharya v. Ramchandra (1881) 5 Born 253; Abdul Rahim v. Mukhtar Ahmad and others 2001 SCMR 1488 and Mst. Hajran Bibi and others v Suleman and others 2003 SCMR 1555 rel.

Rasheed A. Rizvi for Appellant.

Taha Ali Zai for Respondent.

P L D 2011 Karachi 382

Before Tufail H. Ebrahim, J

Mst. SHADAB PERVEZ---Petitioner

Versus

Mst. AMBREEN PERVEZ and another---Respondents

C.M.A. No.442 in S.M.A. No.21 of 2011 and C.M.A.No. 443 in S.M.A. No.22 of 2011, decided on 2nd May, 2011.

Succession Act (XXXIX of 1925)---

----Ss. 218, 278 & 372---Sindh Chief Court Rules (OS), Rr.393 & 407---Succession certificate and letter of administration, grant of---Deceased having left legal heirs including a minor---Prayer for issuance of such certificate and letter to an officer of court to obtain details of properties of deceased, sell same and distribute sale proceeds thereof amongst legal heirs according to Shariah---Validity---Administrator would be obliged to administer estate of deceased by way of transfer and/or distribution in favour of all legal heirs---Administrator could not sell property under administration without permission of court---Person to be issued letter of administration had to execute administration bond---Misapplication of estate of deceased by Administrator or his neglect, if any, would make him liable for damages or loss---Person to be issued succession certificate would be required to submit personal bond with one or more sureties or other sufficient securities for rendering an account of debts or securities received by him---One of legal heirs in the present case was minor---Court in case of minor would be more cautious and obliged to protect his interest---Neither any officer of court could be issued such letter and certificate within meaning of Succession Act, 1925 nor could be imposed upon him any responsibility or liability involved in administration of estate of deceased nor could he be made subsequently accountable for any person interested in such estate in future or involve him in litigation---No apparent dispute existed between legal heirs, while some of them were competent to manage such affairs---Officer of court could not be appointed as an Administrator of estate of deceased---High Court dismissed both such applications in circumstances.

Abdul Hameed Yousufi for Petitioner.

Nawab Mirza for Objector.

P L D 2011 Karachi 385

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

Messrs ZURASH INDUSTRIES (PVT.) LTD. through Director and 4 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad

and 3 others---Respondents

Constitutional Petition No.908 of 2009, decided on 8th January, 2011.

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

----S. 2---Constitution of Pakistan, Art.199---Constitutional petition---Banker and customer---Petitioner was Director of company which had obtained financial facility from respondent-bank which had filed recovery suit and criminal complaint against the petitioner and his company---Petitioner challenged inclusion of his name in Exit Control List without any notice or information to him---Validity---Right to travel abroad was an important feature of citizen's liberty---Putting someone on Exit Control List was serious infringement of citizen's liberty---Provision of notice must be read as an integral part of each statute unless specifically excluded---Person concerned must be heard before passing an adverse order against him---Show-cause notice must follow the order which should disclose reasons for the action taken against a person---Order barring a person from going abroad without reasons was liable to be set aside---If there was provision in the substantive law under which a person was being proceeded against (that his name be placed on exit control list) it would not be permissible to put his name in the exit control list---Pendency of criminal cases did not, ipso facto, disentitle a person from travelling abroad---Obtaining sufficient security against an ultimate order of recovery was more appropriate than barring a person from exercising his right---Petitioner's leave to defend in recovery suit had yet to be decided---Placement of petitioner's name on the Exit Control List was clumsy exercise of power in circumstances---Constitutional petition was allowed setting aside the order putting petitioner's name on Exit Control List.

Re-Passport Act, 1974 PLD 1989 FSC 39; Ashfaq Yousuf Tola v. Federation of Pakistan through Secretary, Ministry of Interior and Narcotics Control, Islamabad PLD 2006 Kar. 193; Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617; Mirza Muhammad Iqbal Baig v. Federation of Pakistan and others 2006 YLR 2797 and Sohail Latif and 2 others v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 2 others, PLD 2008 Lah. 341 ref.

Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504 and Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681 fol.

Khawaja Shamsul Islam for Petitioners.

Shahab Serki along with S. Israr Ali, Dy. Director, F.I.A. for Respondent No.1.

Hassan Akbar for Respondent No.2.

Malik Khushhal Khan for Respondent No.3.

Date of hearing: 13th December, 2010.

P L D 2011 Karachi 394

Before Muhammad Ali Mazhar, J

GHULAM MUSTAFA and 2 others---Applicants

Versus

THE STATE---Respondents

M. A. No.2607 of 2009 in Criminal Appeal No. S-207 of 2004, decided on 27th May, 2001.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A) [as inserted by Code of Criminal Procedure (Amendment) Act (VIII of 2011)]---Suspension of sentence-Application for---Matter was adjourned on certain dates on account of absence of complainant's counsel---Delay in the case was not caused solely for inaction or lack of concern or lackadaisical attitude of accused persons, but there were many other reasons for the delay for which accused could not be held responsible, solely for denying or disagreeing with the benefit of subsection (1-A) of S.426, Cr.P.C.---Before the suspension of sentence and to grant bail, the Legislature had imposed an obligation and responsibility upon the court to first ascertain and examine the cause of delay---Accused could be released by the court on bail, except where it was of the opinion that delay in the decision of appeal had been occasioned by an act or omission of accused or any other person on his behalf---Such statutory right was subject to the fulfilment of the criteria and decisive factor prescribed under clauses (a) to (c) of S.426(1-A), Cr.P.C.---Court was also to examine essentially, whether the person who had applied for bail was not previously convict/offender for offence punishable with death or imprisonment for life; or said person was hardened desperate or dangerous criminal---High Court was not obliged to have examined the case on merits and should have dilated upon the contentions as agitated in depth while deciding application under S.426, Cr.P.C.---Appeal in the case was pending since 9-11-2004 and all appellants had already served substantial portion of their sentences which was much more than the half sentence---All appellants were not previously convicts and their conduct had also been found satisfactory by the Superintendent of Jail---Appeal of the appellants had not been decided within a period of two years of their conviction---Sentence of applicants, was suspended, and they were granted bail, in circumstances.

Allanditta Khan v. The State PLD 2002 SC 845 and Makdoom Javed Hashmi 2008 SCMR 165 ref.

Syed Madad Ali Shah for Applicants.

Shahzada Saleem Nahyoon, A.P.G. for the State.

Date of hearing: 27th May, 2011.

P L D 2011 Karachi 400

Before Sarmad Jalal Osmany, C.J. and Salman Hamid, J

Miss UFERA MEMON---Petitioner

Versus

LIQUAT UNIVERSITY OF MEDICAL AND HEALTH SCIENCE (LUMAS) JAMSHORO, through Registrar and 2 others---Respondents

Constitutional Petitions Nos.D-438, D-439 and D-3066 of 2010, decided on 29th January, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational Institution---Medical College---Admission on self-finance basis on vacant seat of overseas Pakistani after petitioner (resident citizen of Pakistan) having failed to get admission on merits as well as on local self-finance seats of his District---Payment of tuition fee in US Dollars 7000 by petitioner for first academic year without reservation---Petitioner's plea raised in second academic year that as he was granted admission on approval of Chief Minister after conversion of overseas Pakistani seat into that of local seat, tuition fee whereof was Rs.2,50,000 per year, thus, tuition fee paid in US dollars was liable to be adjusted towards tuition fee applicable to local students for future years and his treatment as overseas Pakistani student and demand of tuition fee in US dollars in future from him was unjustified---Validity---Tuition fee paid by petitioner in US dollar was fees for overseas Pakistani citizens on self-finance basis---Petitioner's passing percentage on merits and self-finance scheme for local seats was far below against last candidate selected against self-finance seats on merits---Petitioner's case at the time of making application to Chief Minister for admission on vacant seat of overseas Pakistani was that by giving him admission, financial loss to College by such unutilized seat would be curtailed---Petitioner at relevant time had come to rescue of College and wanted to save College from financial loss as there was no applicant for such vacant seat and same was going to waste---Petitioner had offered himself on such quota and agreed to pay tuition fee in US dollars---Petitioner's such offer was selfish and at cost of usurpation of rights of students having fallen short on merit list and aimed at depriving College to charge him for seat on which he was accommodated---Petitioner was attempting to wriggle out from his commitment in paying tuition fee in dollars on false plea that since he was admitted on local self-finance seat, he could not be asked to pay in dollars---Petitioner had come from back door---Legitimate right of students having secured far more percentage than petitioner had been compromised just on his plea that College would generate funds (in dollars) by his admission---Chief Minister in subsequent summary had declined petitioner's request regarding payment of tuition fee applicable to students of local self-finance seats---Person not entitled to a right thing directly could not obtain same indirectly---Petitioner was not an aggrieved person and had approached High Court with patent mala fide and unclean hands---High Court dismissed constitutional petition while directing petitioner to deposit tuition fee in dollars within specified time, failing which he would forthwith discontinue his studies in College.?

(b) Administration of justice---

----Person not entitled to a right thing directly could not obtain same indirectly.?

Syed Ali Bin Adam Jafri for Petitioners.

Kamaluddin for Respondent No. 1 along with Dr. Syed Ahmed Qureshi, Focal Person to Secretary Health.

Muhammad Sarwar Khan, Addl. A.G. Sindh.

Date of hearing: 1st December, 2010.

P L D 2011 Karachi 405

Before Muhammad Ali Mazhar, J

Haji MUHAMMAD USMAN---Applicant

Versus

ABDUL SATTAR and 7 others---Respondents

Criminal Revision Application No.S-30 of 2009, decided on 3rd June, 2011.

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

----Ss. 3 & 4---Illegal dispossession---Complainant had alleged that he was lawful owner of plot in dispute; that as he was mostly residing abroad and visiting his native place once or twice a year, he had appointed chowkidar to look after said plot---Complainant had alleged that respondents after harassing and threatening his chowkidar, illegally dispossessed him from the lawful possession and occupied the same illegally and were raising construction over it---Respondents contested the complaint, contending that they had purchased property in question from the complainant under sale agreement and possession was handed over to them; that they had paid amount to complainant as part of sale consideration; that as the complainant had failed to perform his part of contract, they had filed suit for specific performance, which was pending before the court of law; that in circumstances case did not fall within the ambit of Illegal Dispossession Act, 2005---Respondents had claimed that sale agreement was executed through attorney of the complainant, but they had failed to place on record any document showing that alleged attorney was duly authorized or duly recognized agent or attorney of the complainant---Respondents also failed to place on record anything to demonstrate that possession of plot in dispute was handed over to them under the signatures of complainant or under the terms and conditions of alleged sale agreement---Even otherwise suit was filed by the respondents subsequent to filing of complaint by the complainant under Ss. 3/4 of Illegal Dispossession Act, 2005, which suit had no legal foundation and was of no consequence and significance to protect illegal and unauthorized possession of the respondents---Impugned order whereby complaint filed under Ss.3/4 of Illegal Dispossession Act, 2005 by the complainant, was dismissed, was set aside and matter was remanded to the Trial Court for decision of complainant on merits, in accordance, with law.

Rao Khalid Javed v. Faiz Ahmed and 6 others PLD 2009 Lah. 220; PLD 2008 Lah. 392; Sardar Shah Nawaz Khan v. Malik Aman and others 2009 PCr.LJ 578; Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423; Mumtaz Hussain v. Dr. Nasir Karim and 2 others 2008 MLD 1702; Fazal Karim v. The State and 10 others 2008 YLR 462; Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; PLD 2009 SC 404; 2008 SCMR 1254 and 2010 YLR 2864 ref.

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

----S. 53-A---Doctrine of part performance---Applicability---Scope---Doctrine of equity of part performance, should be inured from the legality and enforceable contract between the transferor and the transferee---Where the possession of transferee was not under proper legal and enforceable contract, the protection of S.53-A of Transfer of Property Act, 1882, was not available to him; and transferee could not use the same-as weapon---Doctrine of part performance had been given statutory recognition by means of enacting S.53-A of Transfer of Property Act, 1882---Principle of part performance being based upon rules of fairness, justness and righteous dealing between the parties, in order to avail plea of part performance in S.53-A of Transfer of Property Act, 1882, one had to show that contract was in writing signed by transferee in respect of an immovable property; transfer could be ascertained with reasonable certainty from such writing; and in part performance of contract, transferee had taken possession of property or any part thereof; or if he was in possession; he continued to be in possession in part performance of contract; and had done some act in furtherance of contract and transferee had performed or was willing to perform his part of contract.

Bashir Ahmed Mirani for Applicant.

Aijaz Ali Hakro for Respondents Nos. 1 and 2.

Syed Meeral Shah, Deputy Prosecutor General for the State.

Date of hearing: 13th May, 2011.

P L D 2011 Karachi 416

Before Muhammad Ali Mazhar, J

NORMEEN SHAFI---Applicant

Versus

AMJAD SHAFI and 5 others---Respondents

Revision Application No.27 and C.M.A. No.146 of 2007, decided on 16th May, 2011.

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

----S. 20(c)---Term "cause of action "---Connotation---Term cause of action refers to every fact which if traversed it should be necessary for plaintiff to prove in order to support his judgment and which if not proved, give defendant a right to judgment---Bundle or totality of essential facts is necessary for plaintiff to prove before he succeeds.

Muhammad Shabbir v. Mrs. Faraha Bibi 2010 CLC 1603 rel.

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

----S. 20, Expln.-II---Territorial jurisdiction of court---Corporation having more than one offices---Corporation can be said to carry on business at head office or at the place where it has a branch in respect of a cause of action which arises wholly or in part, at the place where branch office is situated---If no part of cause of action arises at the place of branch office, the Corporation cannot said to transact business at that place.

1981 SCMR 494 rel.

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

----S. 20---Specific Relief Act (I of 1877), Ss.39, 42 & 54---Cause of action---Territorial jurisdiction of court---Determination---Dispute was with regard to shares of a company having its registered office at place "H" and also having its property at place "I"-Suit filed by plaintiff at place "H" was returned to her for filing the same in court at place "I"-Validity---Totality of facts must co-exist and if anything was wanting the claim would be incompetent---Part was included in the whole but the whole could never be equal to the part---Not only the party seeking relief should have a cause of action when the transaction or alleged act was done but also at the time of institution of the claim--There could be a case where at the time when an action was brought, there was no right to seek the remedy though the remedy was available when the right was infringed---Suitor was required to show that not only a right had been infringed in a manner to entitle him to a relief but also that when he approached the court, the right to seek the relief was in existence---Judgments and decrees passed by two courts below were set aside and the matter was remanded to trial court to decide the suit on merits---Petition was allowed accordingly.

United Distribution Pakistan Ltd. v. Al-Syed Agrochemicals Services and others 2005 CLC 1659 and Messrs Apollo Textiles Mills Ltd. v. Mian Farhat Iqbal 2010 CLC 389 distinguished.

Pakistan Kuwait Investment Company (PVT.) Ltd. v. Saadullah Khan and Brothers 2010 CLD 760 rel.

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

---S. 20---Cause of action---Determination---Only the facts stated in plaint are to be considered to determine whether those facts state cause of action or not---Even fraction of cause of action is a part of cause of action.

(f) Words and phrases---

----"Cause of action"-Defined.

Black's Law Dictionary, Sixth Edn. ref.

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

----S. 115---Revisional jurisdiction---Scope---Concurrent findings of fact---Such findings are not sacrosanct and can be examined in the light of record of case and if found suffering from legal infirmities and jurisdictional errors, the same can be declared as illegal and without jurisdiction, eventually, can be set aside---If revisional court finds any violation of provisions of law or ignorance of law by court then it is vested with the authority to set aside concurrent findings and substitute its own findings.

Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 and Habib Khan v. Mst. Bakhtmina and others 2004 SCMR 1668 rel.

Sundardas for Applicant.

Azhar Mehmood for Respondents Nos. 2 to 5.

Date of hearing: 1st April, 2011.

P L D 2011 Karachi 426

Before Muhammad Ali Mazhar, J

TRUSTEES OF THE PORT OF KARACHI---Plaintiff

Versus

Messrs FATIMA SUGAR MILLS LTD. and 2 others---Defendants

Suit No.233 of 2007 and C.M.As. Nos. 4332 and 1291 of 2008; 5759, 5760, 5761 of 2009, decided on 25th May, 2011.

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

----S. 3---Limitation---Applicability---Because of mandatory nature of S.3 of Limitation Act, 1908, the court before which any suit, appeal or application instituted, preferred or made is obliged to dismiss the sane although question of limitation may have not been set up as a defence.

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

----S. 14(1)---Civil Procedure Code (V of 1908), S.151---Exclusion of tine---Bona fide proceedings---Determination---Question of fact---Plaintiff Trust filed suit against defendants before Banking Court but later on plaint was withdrawn and filed in court of plenary jurisdiction---Plaintiff sought exclusion of time spent before Banking Court on the ground that it was a bona fide mistake---Validity---Whether suit was filed in Banking Court with bona fide intention or with sheer negligence or plaintiff was prosecuting suit in Banking Court in good faith, the same was mix question of law and fact---Plaintiff was entitled to lead evidence to prove its bona fides and instead of technical knockout, it would be in the interest of justice to decide the case on its own merits---Controversy raised by plaintiff required evidence, therefore, both parties at the time of settlement of issues could suggest specific issue regarding the same and controversy could be decided after leading evidence---Application was disposed of accordingly.

Muhammad Sharif Khan v. Mst. Manzoora Begum 1992 CLC 22; Muhammad Ali v. Imdad Hussain 1997 CLC 768 and Sher Muhammad and others v. Ismatullah and others 1996 CLC 206 ref.

Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 rel.

(c) Administration of justice---

----Technicalities---Scope---Technicalities have to be avoided unless it is essential to comply with them on grounds of public policy---English system of administration of justice on which our own is based may be to certain extent technical but we are not to take from that system its defects---Any system, which by giving effect to the form and not to the substance defeats substantive rights, is defective to that extent---Ideal must always be a system that gives it every person what is his.

Safdar Mehmood for Plaintiff.

Shaiq Usmani for Defendant No.1.

Date of hearing: 2nd March, 2011.

PLD 2011 Karachi 435

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

DADEX ETERNIT LIMITED---Petitioner

Versus

Syed HAROON AHMED and others---Respondents

C.P. No. D-2059 of 2010, decided on 9th March, 2011.

(a) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 21 & 24---Jurisdiction: of Environmental Tribunal and Environmental Magistrate---Scope---Substance of allegations and charges made in complaint and not its nomenclature or title would govern such jurisdiction in a matter---Misquoting any provision of law would not affect merits of complaint, provided same was cognizable under different provisions.

(b) Pakistan Environmental Protection Act (XXXIV of 1997)---

----Ss. 11 to 14, 16, 17 & 23---Constitution of Pakistan Art. 199---Constitutional petition---Complaint---PVC Pipes manufacturing factory (petitioner)---Generation of highly hazardous air polluting waste known as "asbestos" from production of PVC pipes spreading within radius of 15 miles of factory and causing various types of cancers amongst residents of area including death of complainant's brother---Report of Environmental Protection Authority not found to be comprehensive by Environmental Tribunal---Order of Tribunal finding such matter to be of technical nature directed for constitution of commission to carry out environmental audit and directed petitioner to prepare Environmental Management Plan through reputable environmental consultants to address environmental issues---Validity---Complainant had not alleged in the complaint that the petitioner was using any hazardous substance with or without a valid licence---Complainant had lodged complaint against hazardous waste and sought direction in public interest against petitioner to clean asbestos front the area and take preventive measures and pay damages for death of his brother---Such matter was exclusively triable by the Tribunal---Tribunal constituted under special law was legally obliged to examine environmental issue before' passing any final order---Impugned order, whereby Tribunal had decided to conduct an inquiry into allegations made in complaint, was not a final order and appealable under Pakistan Environmental Protection Act, 1997---Impugned order was not prejudicial to interest of petitioner---Tribunal while passing impugned order had not committed any illegality or jurisdictional error---Setting aside of such interim order in constitutional jurisdiction would tantamount to negating provisions of relevant statute not providing for an appeal thereagainst---Setting aside of impugned order at such premature stage would amount to strangulate and stifling spirit and scope of Pakistan Environmental Protection Act, 1997 promulgated in larger public interest---High Court dismissed constitutional petition in limine.

Nasir Abdul Qadir v. The State and others 2003 SCMR 472; Allah Din and others v. The State and another 1994 SCMR 717; Malik Muhammad Hasan v. Assistant Commissioner, Quetta and others 1987 CLC 182 and Digital Radio Paging Limited v. Pakistan Industrial Credit and Investment Corporation and others 2003 CLD 1612 ref.

Anjum Irfan v. LDA and others PLD 2002 Lah. 555; Sheri C.B.E. v. Government of Pakistan and others 2007 CLD 783; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Muhammad Iftikhar Mohmand v. Javed Muhammad and others 1998 SCMR 328; Ms. Afshan Ahmed v. Messrs Habib Bank Limited and another 2002 CLD 137; Syed Ali Azhar Naqvi v. The Government of Pakistan and others PLD 1994 Kar. 61; Ardeshir Cowasjee and others v. Sindh Province and others 2004 CI.0 1353 and Khalid Mamood v. Collector of Customs 1996 SCMR 1881 rel.

(c) Constitution of Pakistan---

----Art. 199 ---Constitutional petition---Interlocutory order not appealable under relevant law---Constitutional jurisdiction of High Court to set aside such order---Scope---Duty of court not to act in a manner by which object of a statute would be defeated and rendered nugatory---Setting aside of such order in constitutional jurisdiction would tantamount to negating provision of relevant statute not providing for an appeal thereagainst--Principles.

Muhammad Iftikhar Mohmand v. Javed Muhammad and others 1998 SCMR 328; Ms. Afshan Ahmed v. Messrs Habib Bank Limited and another 2002 CLD 137; Syed Ali Azhar Naqvi v. The Government of Pakistan and others PLD 1994 Kar. 67; Ardeshir Cowasjee and others v. Sindh Province and others 2004 CLC 1353 and Khalid Mamood v. Collector of Customs 1996 SCMR 1881 rel.

M. Jamshed Malik for Petitioner.

Qazi Abdul Hameed Siddiqui and Hussain Bakhsh Saryo for Respondent No. 1.

Mian Khan Malik and Nazar Akbar, D.A.-G.

Abdul Maroof, Deputy District Public Prosecutor for Respondent No. 2.

Adnan Karim, Additional Advocate-General, Sindh.

Dates of hearings: 29th July, 2010 and 21st February, 2011.

PLD 2011 Karachi 451

Before Mushir Alam, C J and Tufail H. Ebrahim, J

AMANULLAH KHAN YOUSUFZAI and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Law Secretary and others---Respondents

C.Ps. Nos. D-1465, D-1930, D-2318, D-2433 of 2009, decided on 24th May, 2011.

(a) Constitution of Pakistan---

----Preamble & Art.175---Scheme of the Constitution---Judiciary---Constitution does not contemplate a batch of unconnected courts but a judiciary composed of superior courts and subordinate courts---Subordinate courts are therefore integral part of the judicial system of Pakistan---Constitution does not draw any distinction between superior or subordinate judiciary.

Masroor Ahsan v. Ardersher Cowasjee PLD 1998 SC 823; Registrar v. Wali Muhammad 1997 SCMR 141, 154; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and Muhammad Mansha v. State PLD 1996 SC 229 ref.

(b) Constitution of Pakistan---

----Arts. 175 & 4---Disparity in the terms and conditions including emoluments of members of Judicial Service in the Province of Sindh---Right to be dealt with in accordance with law---Failure of authorities, to extend equal remuneration in the Province of Sindh gi4alitatively undermines the judicial independence to the citizens of Pakistan residing in the Province of Sindh thus denying their right to be treated alike as mandated in terms of Art.4 of the Constitution---Principles.

(c) Constitution of Pakistan---

---Arts. 175, 25 & 27---Equal treatment to all persons similarly placed---Judiciary---Discrimination in service---Disparity in the terms and conditions including emoluments of the members of Judicial Service in the Province of Sindh as compared to other Provinces is clear negation to the recommendations of National Judicial (Policy Making) Committee---Low pay is one of the main reasons of corruption and malpractice.

(d) Constitution of Pakistan---

----Arts. 175 & 73---Parochial and other similar prejudices---Any disparity in the terms and conditions of District Judiciary and other courts/Tribunals and staff attached thereto in various Provinces may form parochial and other negative sentiments among citizens of Pakistan residing in the Province of Sindh---Such disparity is also one of the causes of social injustice and other social evils.

(e) Constitution of Pakistan---

----Arts. 175, 25, 27, 37 & 38---Judiciary---Equality of citizens and safeguard against discrimination---Social justice and eradication of social evils and social well-being of the people---Principles of Policy--Constitution, cast duty on State to promote social justice and eradicate the social evils---Disparity in terms and conditions in Judicial Service is a social evil which could only be possible if equality in terms and conditions in judicial service was brought into uniform terms and conditions with similar emoluments in services were provided to all the categories of the persons placed in similar position; namely, judicial officers, servants and employees of the establishment of the District Judiciary in the Province of Sindh were provided similar terms and conditions of service including facilities and salaries and retiring benefits as were provided to their counterparts in the other provinces of the country---Judicial officers in District Judiciary and courts and Tribunal and the staff attached thereto perform one and the same functions in all the Provinces of the country and it was not that the judiciary in one Province performed any different functions; therefore, the judiciary anywhere in the country as a whole is a class in itself.

Attiyya Bibi v. Federation of Pakistan 2001 SCMR 1161; Muhammad Akram v. Selection Committee 2003 CLC 18 and Secretary, Ministry of Finance v. Masdar Hossain (1999) DLR (AD) 82 ref.

(f) Interpretation of Constitution---

----Constitution is a living and organic document---While interpreting the Constitution expansive and dynamic approach and interpretation is to be adopted.

(g) Constitution of Pakistan---

----Federal Legislative List, item No.55---Judicial service---Judicial service is essentially and structurally distinct and separate service from the civil, executive and administrative services of Pakistan and Judicial service cannot be treated at parity with such services on any account nor can judicial service be combined, abolished, replaced, mixed up and or tied together with the civil executive and or administrative services---Judiciary, as a whole is a separate and distinct class in itself---Principles.

Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Rashid A. Razvi v. Province of Sindh PLD 2010 Kar. 63; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404 and Ranyal Testile v. Sindh Labour Court No.3 PLD 2010 Kar. 27 ref.

(h) Constitution of Pakistan---

----Arts. 203, 175 & 208---Judiciary---High Court to superintend subordinate courts---Scope---Supervision and control over the subordinate judiciary vested in the High Court under Art.203 of the Constitution, keeping in view Art.175 of the Constitution, is exclusive in nature, comprehensive in extent and effective in operation---Such supervision comprehends the administrative power as to the working of the subordinate courts and disciplinary jurisdiction over the subordinate judicial officers---Any provision in an Act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of Art.203 of the Constitution and militate against the concept of separation and independence of judiciary as envisaged by Art.175 of the Constitution and the Objectives Resolution.

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404 ref.

(i) Constitution of Pakistan---

----Arts. 175 & 2A---Independence of judiciary---Concept---Separation of judiciary from the executive---Judiciary has been termed as custodian and sanctuary of the rights of the people and that of the Constitution---Judiciary holding such control and exalted position must be independent and separate from executive in all respect---Independence of judiciary is grand norm in the constitutional regime in almost all the modern time Constitutions including Constitution of Pakistan which cast mandatory and constitutional obligation on Government to ensure separation of judiciary from the executive---Independence of judiciary and the impartial judicial practice are interrelated concepts, one cannot sustain without the other---No judiciary can claim neutrality and independence unless it is insulated and detached from executive and administrative influence in all respect including in terms of appointment, tenure and security of service and in financial matters.

Azizullah Memon's case PLD 1993 SC 341; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Walter Valente v. Her Majesty the Queen (1985) 2 SCR 673; Access to Justice in Pakistan 2003 Edn. by Fazal Karim; Zafar Ali Shah v. Pervaiz Musharaf PLD 2000 SC 869; Accountant General v. Ahmed Ali U. Qureshi PLD 2008 SC 522; 2010 PLC (C.S.) 141 and Government of Punjab v. Mubarak Ali PLD 1993 SC 375 ref.

(j) Constitution of Pakistan---

----Arts. 175(3) & 199---Independence of judiciary---High Court is quite competent to direct the concerned quarters to implement Art. 175(3) of the Constitution in its true sense by eliminating the intervention of executive into the affairs of judiciary from each and every angle, so that Pakistan as nation rank and stand out amongst comity of nations having independent, impartial and competent judiciary for all times to come.

(k) Constitution of Pakistan---

----Preamble, Arts. 2A, 175(3), 25, 27, 37(d), 38(b)(c)(d)(e) & 199---Implementation of concept of independence of judiciary and its separation from the executive---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Disparity in the terms and conditions including emoluments of members of judicial service in the Province of Sindh---High Court under Art.199(1)(c) of the Constitution can issue appropriate directions to treat judicial officers and staff attached to the court in equal fashion and can also issue appropriate directions to any person, authority including Federal or Provincial Government to remove such anomaly and disparity---High Court is competent to issue directions to Government both Federal and Provincial to take such steps and legislative measure to separate and insulate judiciary from other civil, executive and administrative service of Pakistan so as to ensure independence of judiciary is fully secured including and not limited to financial independence within the contemplation of Preamble, Art. 2A read with Objectives Resolution and Art.175(3) of the Constitution and in fulfilment of rights guaranteed under the Constitution and in compliance to the Principles of Policy.

(l) Constitution of Pakistan---

----Art. 187(2), 199(1)(c) & 175---Constitutional jurisdiction of High Court---Scope---Issuance and execution of processes of Supreme Court---Independence of judiciary and its separation from the executive---Disparity in the terms and conditions including, emoluments of members of Judicial Service in Sindh---High Court, in addition to jurisdiction under Art.199(1)(c) of the Constitution. to issue directions to any person including Government, may also under Art.187(2) of the Constitution direct implementation of orders passed by the Supreme Court wherein the apex court categorically directed for separation of judiciary and given financial independence---High Court treated the present constitutional petition as the one for seeking enforcement of the judgment rendered in the case of Government of Balochistan v. Aziz Ullah Memon PLD 1993 SC 341 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and passed directions to the Government of Sindh to immediately enhance the allowances and salaries structure of members of judicial service in Sindh at par with the Province of Punjab and frame appropriate legislation to provide for independent Judicial Service Board within reasonable time frame.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 fol.

(m) Constitution of Pakistan---

----Arts. 203, 175 & 199---Constitutional petition- --Disparity in the terms and conditions including emoluments of members of judicial service in the Province of Sindh---High Court directed the concerned authorities to extend benefits to the employees in the office of Advocate General of Sindh in similar terms as granted to the office of Attorney General of Pakistan, but with effect from 1-3-2010 when such benefits were extended to the employees and servants of Sindh High Court Establishment by the Chief Justice of Sindh through Notification dated 2-4-2010---Such increase to be paid with effect from 1st July, 2011 and arrears with effect from 1-3-2010 be paid in monthly instalments along with monthly salary with 'effect from 1st January, 2012 till entire arrears are paid along with monthly salary for the month it is due.

(n) Constitution of Pakistan---

----Arts. 203, 175 & 199---Constitutional petitions---Disparity in the terms and conditions including emoluments of judicial service in the Province of Sindh---High Court disposed of the constitutional petitions and directed the Government of Sindh to pay Special Judicial Allowance equal to three times of the initial of their substantive pay scale (as allowed in Province of Punjab through notification dated 12-8-2008) with effect from 1-3-2010 when such allowances were extended to servants and employees of the High Court establishment (through Notification dated 2-4-2010 by the Chief Justice of High Court of Sindh) to all the Judicial Officers of the District Judiciary including those working on ex cadre posts, which shall include the District & Sessions Judges, Additional District & Sessions Judges, Senior Civil Judges, all Civil Judges and Judicial Magistrates working under the control, superintendence, and within the territorial jurisdiction of the High Court of Sindh per Article 203 of the Constitution; the employees and servants of establishment of Subordinate Judiciary/District Judiciary (Sindh Judicial Service) and that of Courts and Tribunal established under Federal or Provincial laws, which were under the control, superintendence, of High Court of Sindh and functioning and discharging duties within the territorial jurisdiction of the High Court of Sindh per Article 203 of the Constitution, were also granted the same relief as is allowed through the present order to the Judicial Officers referred to above and in the same manner; in view of financial constraints of the Provincial Government of Sindh, the arrears to the Judicial Officers of District Judiciary including Judicial Officers discharging judicial function/duty in Courts/Tribunal established under either Federal or Provincial law with effect from 1st March, 2010 to 30th June, 2011 shall be paid in monthly instalments together with and in addition with the monthly salary with effect from 1st January, 2012 till such time entire arrears with effect from 1-3-2010 were totally set off; Government of Sindh and Government of Pakistan were also directed to take steps and initiate such legislative measures as may be necessary to empower High Court of Sindh and or the Chief Justice of High Court of Sindh to fix and determine the pay scale of members of Sindh Judicial Service including judicial officers and servants and employees of Sindh Judicial Service in consonance with Article 203 and other enabling Articles of the Constitution and as per direction given in the case of Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341 to fully secure financial independence and separation of judiciary from executive; Government of Sindh and Government of Pakistan were further directed to take such steps and legislative measures as may be necessary to empower High Court of Sindh and or the Chief Justice of High Court of Sindh to appoint, determine terms and conditions of employment, emoluments, disciplinary proceedings removal from service and other incidental power and authority as regard Presiding Officers, servants and employees of Courts and Tribunals established under the Provincial and Federal laws in consonance with Article 203 and in implementation of Article 175(3) of the Constitution, which were under the control and superintendence, of High Court of Sindh and were functioning and discharging duties within the territorial jurisdiction of the High Court of Sindh as per Article 203 of the Constitution and as per directions given in the case of Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and in the case of Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341; and Registrar High Court of Sindh was directed to intimate Government of Sindh and Government of Pakistan to take immediate steps for the implementation and compliance of order/directive of the High Court.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 fol.

Anwar Mansoor Khan for Petitioner (in C.P.No.D-2318 of 2009).

Salahuddin Ahmad, Makhdoom Ejaz Ahmed, Muhammad Ali Hakro and Haider Imam Rizvi for Petitioners (in other petitions).

Ashraf Mughal and Umer Hayat Sindhu, D.A.-G. and Miran Muhammad Shah and Muhammad Ashraf Mughal, Adnan A. Karim A.A.-G. for Respondents (in all petitions).

Dates of hearing: 8th, 16th, 29th April, 6th, 21st May and 28th March, 2011.

P L D 2011 Karachi 484

Before Munib Akhtar, J

A. KHALID ANSARI---Plaintiff

Versus

Mir SHAKIL UR RAHMAN---Defendant

Suit No.952 and C.M.A. No.12872 of 2010, decided on 20th May, 2011.

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

----O. VII, R.11(a) & O.XXIX, R.1---Suit against Director of company for recovery of money for work done for registered company---Maintainability---Plea of plaintiff was that defendant was holding majority snares in the company, while remaining shares thereof had been distributed amongst his own kin and kiths, thus, suit was maintainable--Validity---Facts stated in plaint for purposes of O. VII, R.11, C.P.C. must 1e assumed to be true---Documents annexed with plaint showing suit claim to be against company---Liability to pay suit amount, if any, was that of company and not of defendant director personally---Company being a separate legal entity in its own right, thus, any liability thereof would solely and exclusively be that of company and not of its officer directors or shareholders---Limited number of statutory and judicially evolved exceptions to such rule were not applicable to the present case---Plaint for not disclosing any cause of action against defendant was rejected in circumstances.

(b) Defamation Ordinance (LVI of 2001)---

---Ss. 2(e), 3(4) & 8---Civil Procedure Code (V of 1908), O. VII, R.11(a)---Suit for damages---Defamation by e-mail sent by defendant to plaintiff---Application under O. VII, R.11, C.P.C. for rejection of plaint for not disclosing any cause of action against defendant---Validity---Defamation by e-mail was clearly libel in terms of S.3(4) of Defamation Ordinance, 2002-Defendant had attached e-mail of a journalist with his e-mail---Such e-mail of journalist, if libelous, was a libel committed by such journalist and not defendant who was merely its recipient and not its author or originator---Plaintiff had not pleaded in plaint that there was possibility of defendant having dictated such e-mail to his Secretary---Dictation of e-mail by defendant to Secretary would constitute a distinct and separate publication in its own right---Each act of publication of alleged defamation being a separate act of defamation must be alleged, pleaded and proved accordingly---Plaintiff had to prove defamation, and if publication was denied by defendant, then he had to prove publication as well---Plaint did not contain any averment regarding publication of e-mail by defendant---Plaintiff had no cause of action in absence of any publication of alleged e-mail in a newspaper nor was same broadcast from a station---Plaintiff's subsequent e-mail asking defendant for an unconditional apology would constitute sufficient compliance with requirements of S.8 of Defamation Ordinance, 2002---Plaint was rejected in circumstances.

Azhar Chaudhry v. Residents Executive Committee and another 2007 YLR 2231(1) and Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and others PLD 2008 Kar. 458 ref.

(c) Defamation Ordinance (LVI of 2002)---

---Ss. 2(e) & 3(4)---Libel, non-publication/circulation of---Effect---Alleged libel must injure reputation of a person or tend to lower him in estimation of others or tend to reduce him to ridicule, unjust criticism, dislike, contempt or hatred---Where defamatory communication was confined only to person being allegedly defamed and there was no publication/circulation thereof, then there could be no defamation.

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

----O VII, R.11---Rejection of plaint---Material requiring consideration---Scope---All factual averments in plaint would be assumed to be true---Concomitant requirement of such assumption being that plaintiff must have averred or alleged all facts which taken together would constitute his cause of action---If plaintiff failed to aver all such facts, then he could not ask court to assume relevant facts in his favour---Principles.

(e) Defamation Ordinance (LVI of 2002)---

----S. 13---West Pakistan Civil Courts Ordinance (II of 1962), Ss. 3 & 7---Civil Procedure Code (V of 1908), S.15---Suit for damages under Defamation Ordinance, 2002---Pecuniary jurisdiction of District Court---Scope---Section 13 of Defamation Ordinance, 2002 created an exception to rule contained in S.15, C.P.C., and particularized one of Civil Courts namely District Court as appropriate forum for instituting such suit---Not open and permissible now for plaintiff to file such suit in any Civil Court other than District Court---Where pecuniary claim in such suit was greater than the limit stipulated in S.7 West Pakistan Civil Courts Ordinance, 1962, it is to be brought in High Court; otherwise it is to be- instituted not in the court of concerned Civil Judge, but in the District Court.

Azhar Chaudhry v. Residents Executive Committee and another 2007 YLR 2231(1) and Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi and others PLD 2008 Kar. 458 not fol.

Habib ur Rehman and Hasan Hashimi for Plaintiff.

Ali Almani and Sami-ur-Rehman for Defendant.

Date of hearing: 2nd May, 2011.

PLD 2011 Karachi 494

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

INDEPENDENT MUSIC GROUP, SMC (PVT) LTD. and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Islamabad

and another---Respondents

Constitutional Petition No.D-1743 of 2009, decided on 18th May, 2011.

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

----Ss. 25 & 30 A---Pakistan Electronic Medial Regulatory Authority Rules, 2002, Rr. 7 & 10---Pakistan Electronic Media Regulatory Authority Rules, 2009, Rr.9 & 20(2)(d)(v)---Constitutional of Pakistan, Art.199---Constitutional petition-Application for grant of licence for Satellite TV Channel/Broadcasting Station---Refusal of PEMRA to grant such licence to petitioner on account of non-clearance of security by Ministry of Interior on advice of security agencies---Validity---PEMRA had denied to have jurisdiction to question conclusion arrived by security authorities---PEMRA asserted to be duty bound to follow instructions of Ministry of Interior in the matter of security---Impugned order was in fact an order by Ministry of Interior and not by PEMRA---PEMRA had followed dictate of Ministry of Interior, whereagainst no appeal was provided under Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Ministry of Interior had not given any reasons for refusing security clearance to petitioner---No material on record to show as to what threat, if any, was perceived to be likely to be caused by grant of such licence---Every executive order must contain reasons therefor---Pakistan Electronic Media Regulatory Authority Rules, 2009 came into force during pendency of present proceedings, thus, such application was liable to be processed under Pakistan Electronic Media Regulatory Authority Rules, 2002---High Court set aside impugned order and remanded such application to PEMRA for its decision within specified time in accordance with law.

Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810; Government of Pakistan through Secretary, Ministry of Commerce and another v. Zamir Ahmed Khan PLD 1975 SC 667; Muhammad Siddique v. The Market Committee, Tandlianwala 1983 SCMR 785; Syed Match Company ltd. v. Authority Under the Payment of Wages Act and others 2003 SCMR 1984 and Financial Broadcasting Services (Pvt.) Limited v. Pakistan Electronic Media Regulatory Authority (Sindh Region), C. P. No. D-984 of 2008 ref.

(b) Constitution of Pakistan--

----Art. 199---Constitutional petition---Alternate remedy, existence of---Effect---Existence of such remedy would not absolutely bar High Court from entertaining such petition.

Nagina Silk Mill, Layallpur v. The Income-Tax Officer, A-Ward Layallpur and another, PLD 1963 SC 322; Fazal Din alias Mina and 2 others v. Commissioner, Peshawar Division and another, PLD 1968 Pesh. 30 and A.F. Ferguson and Co. v. The 5th Sindh Labour Court Karachi and another, 1974 PLC 98 rel.

(c) Notification---

----Notifications, instructions, circulars etc., issued by Government or statutory bodies would operate prospectively and not retrospectively.

Hashwani Hotels Limited v. Federation of Pakistan and others, PLD 1997 SC 315; Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652 and Dadabhoy Cement Industries Ltd. 'v. M/s. National Development Finance Corporation, 2002 CLC 166 rel.

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

----S. 24-A---Public functionaries---Every executive order must contain reasons therefore.

Nadeem Ahmed and Jam Asif Mehmood for Petitioners.

Mrs. Sheraz Iqbal Chaudhry, Standing Counsel for Respondent No.1.

Kashif Hanif for Respondent No.2.

Date of hearing: 27th April, 2011.

P L D 2011 Karachi 504

Before Sarmad Jalal Osmany, C.J. and Salman Hamid, J

Prof. Dr. SURAYYA KHATOON, CHAIRPERSON UNIVERSITY OF KARACHI---Petitioner

Versus

CHANCELLOR, UNIVERSITY OF KARACHI and 7 others---Respondents

C.P. No.D-1623 of 2010, decided on 4th February, 2011.

University of Karachi Act (XXV of 1972)---

----Ss. 4(p), 14, 21(a), 23(2)(y) & 28(1)(g)---Higher Education Commission Ordinance (LIII of 2002), S.10(i)---Constitution of Pakistan Art.199---Constitutional petition---Centre for Plant Conservation in University, creation of---Appointment of respondent as Head of such Centre alleged to be junior to petitioner being Head of Botany Department; that such Centre was created without approval of Senate; and that Botanical Garden and Herbarium should be a part of Botany Department---Validity---Syndicate as executive body of University had powers respecting its affairs and management---Record showed that as per requirement of S.21(a) of University of Karachi Act, 1972, Syndicate in its meeting had approved creation of such Centre and prepared propose draft statutes (Rules) for approval of Senate---While creating such Centre, no deviation or violation of S.21(a) of University of Karachi Act, 1972 had been committed---Such Centre was created as an independent department to cater to students aspiring for higher education by way of applying for Directorate Degrees, which was not available with University prior thereto in discipline of Botany and/or Department of Botany---Creation of such Centre was in larger interest of University, educationists, students and researchers---Petitioner as member of teaching staff/officer of University had no right to interfere with its administrative decisions concerning creation of such Centre for promotion of higher education and object thereto---Petitioner was not competent to file such petition for not being. an aggrieved person--Petitioner could prefer a petition before Vice-Chancellor in terms of S.10(3) of University of Karachi Act, 1972 regarding alleged irregularities, lapses and violation of law---High Court dismissed constitutional petition in circumstances.

Ms. Raana Khan for Petitioner.

Moin Azhar Siddiqui for Respondents Nos. 1, 3 to 8.

Nemo for Respondent No.2.

Mian Khan Malik, DAG. HEC, Islamabad.

Dates of hearing: 16th and 26th November, 2010.

P L D 2011 Karachi 508

Before Syed Zakir Hussain, J

Mst. KHADIJA---Applicant

Versus

IBRAHIM (deceased) through Legal Heirs and 2 others---Respondents

Civil Revision No.96 of 2006, decided on 27th November, 2010.

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

---Ss. 15(2) & 22---Civil Procedure Code (V of 1908), Ss.10, 12(2), O. VII, R.11(d) & O.XXI, R.103---Specific Relief Act (1 of 1877), Ss.42 & 54---Ejectment petition---Denial of relationship of landlord and tenant between parties by tenant---Ejectment order passed by Rent Controller upheld by Appellate Court---Execution proceedings---Application under S.12(2) read with O.XXI, R.103, C.P.C. by wife of tenant resisting execution of ejectment order claiming to have inherited demised premises---Subsequent suit for declaration and permanent injunction filed by wife of tenant on similar ground during pendency of her such application before Rent Controller---Dismissal of suit by Trial Court upheld by Appellate Court---Validity---Trial Court had dismissed suit on ground that such matter was already sub judice before competent court---Rent Controller had passed ejectment order against tenant after having been established so---Tenant would include his spouse and children in Occupation of demised premises---Wife had knowledge of ejectment proceedings, but remained silent and emerged with such application after passing of ejectment order---Wife had already sought remedy by filing such application before Rent Controller, thus, bar to file separate suit in such matter would operate against her rendering her suit to be incompetent---Two suits on same cause of action could not run together---Such application being equivalent to that of a suit would be decided like a suit for all practical purpose---Subsequent proceedings in suit being hit by provisions of S.10, C.P.C., would warrant discontinuation in order to avoid conflict of findings---Plaint in suit was liable to be rejected under O. VII, R.11, C.P. C.---High Court dismissed revision petition in circumstances.

PLD 1982 Kar. 374; 1984 CLC 2255; 1986 CLC 2600; 1997 CLC 343 and 1997 CLC 1691 rel.

1992 SCMR 1908 distinguished.

(b) Jurisdiction---

----Court not having jurisdiction would have no domain over a dispute both on factual and legal score.

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

----S. 2---Word "Tenant"---Connotation---Tenant would include his spouse and children in occupation of rented premises.?

Ishrat Alvi for Applicant.

Pir Rehman Mehsood for Respondents.

Date of hearing: 13th October, 2010.

P L D 2011 Karachi 514

Before Munib Akhtar, J

Dr. NAHEED FATIMA and 3 others-Plaintiffs

Versus

Messrs PAKISTAN INTERNATIONAL AIR CORPORATION (PIAC) through Chairman and another---Defendants

Suit No.812 of 2007, decided on 27th May, 2011.

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

----O. VII, R. 11---Rejection of plaint---Material essential to be considered---Scope---Averments in plaint must be deemed to be true.

(b) Carriage by Air (International Convention) Act (IX of 1966)---

----S. 2(3), Scheds. First & Second--Fatal Accidents Act (XIII of 1855), S.1---Death of passenger caused due to accident of Aircraft---Suit for recovery of damages---Availability of remedy under Fatal Accidents Act, 1855 or Carriage by Air (International Convention) Act, 1966---Scope---Non obstante clause of S.2(3) of Carriage by Air (International Convention) Act, 1966 specifically excluded in such matter application of any law for the time being in force including the Fatal Accidents Act, 1855---Such matter would be determined within four corners of Carriage by Air (International Convention) Act, 1966---Principles.

(c) Carriage by Air (International Convention) Act (IX of 1966)---

----S. 2(3), Scheds. First & Second---Civil Procedure Code (V of 1908), O. VII, R.11---Death of passenger due to accident of Aircraft-Suit for recovery of damages---Non framing of relief prayed for as per provision contained in First Sched. of Carriage by Air (international Convention) Act, 1966--Rejection of plaint---Scope---When relief claimed being' different either in nature or in quantum of liability of carrier from what was contained in First Sched. of the Carriage by Air (International Convention) Act, 1966, then suit would become liable to be dismissed---Non framing of proper relief by itself would not be fatal and plaint on such ground alone could not be rejected--Court in such case after conclusion of trial could limit or mould relief to be granted to plaintiff to what he was entitled under First Sched. of the Act---Whether amount claimed by plaintiff was correctly computed in terms of rules laid down in First Sched. of the Act or fell entirely or in part outside of its ambit being a question which could only be decided at conclusion of trial---Principles.

(d) Carriage by Air (International Convention) Act (IX of 1966)---

----S.2(3), First Sched., R.19-Limitation Act (IX of 1908), First Sched.---Death of passenger caused due to accident of Aircraft---Suit for damages---Limitation---Period of limitation of two years provided in R.29 of First Sched. to Carriage by Air (International Convention) Act„ 1966--Effect--Such period of limitation and manner of its computation as provided in said Rules, if being different from that provided in Limitation Act, 1908, then such Rule would prevail and provision of Limitation Act, 1908 would stand excluded.

(e) Carriage by Air (International Convention) Act (IX of 1966)---

----S. 2(3), Second Sched.-Civil Procedure Code (V of 1908), O. VII, R.11---Fatal Accidents Act (XIII of 1855), S.1---Death of passenger caused due to accident of Aircraft-Suit for damages--Non-compliance of provisions of Second Sched. of Carriage by Air (International Convention) Act, 1966-Effect-Suit would become non-maintainable and its plaint would be liable to rejection-Suit brought in terms of general law, if provisions whereof being different from those contained in Second Sched. of the Act would be barred, but not suit brought in terms of such Sched.--Principles.

The provisions of the Second Schedule, of Carriage by Air (International Convention) Act, 1966 if not complied with, may well result in the suit being found not to be maintainable, and hence liable to be dismissed as such (or for the plaint to be rejected). The reason is that the rules contained in the Second Schedule shall determine the persons by whom, and for whose benefit, and the manner in which the claim under the Act is to be enforced. Thus, if the general law makes certain provisions with regard to the persons by whom, or for whose benefit, and/or the manner in which a claim arising out of the death of a person carried by an air carrier is to be brought, and those provisions are different from the ones contained in the Second Schedule, a ,suit brought in terms of the general law, and not in terms of the provisions of the Second Schedule, would be barred, and hence the plaint would be liable to be rejected.

Sidhu v. British Airways [1977] 1 All ER 193; Deep Vein Thrombosis [2005] UKHL 72; Povey v Qantas Airways Limited [2005] HCA 33); Daoud Shami v. Emirates Airlines PLD 2011 SC 282 and Dr. Pro. Haroon Ahmed v. British Aiways and others PLD 2004 Kar. 439 ref.

Nasir Mqsood, Farukh Usman and Aamir Maqsood for Plaintiffs.

Mahmud Alam and Muhammad Siddiqui for Defendant No. 1.

Muhammad Ahsan, holding brief for Faisal Kamal and Muhammad

Riaz Shah, Standing Counsel.

Date of hearing: 17th May, 2011.

PLD 2011 Karachi 521

Before Salman Hamid, J

CHEC-MILLWALA DREDGING CO. (PVT..) LTD.---Plaintiff

Versus

ALLIED BANK OF PAKISTAN LTD. and another---Defendants

Suit No.1403 of 2007 and C.M.A. 11263 of 2010, decided on 5th May, 2011.

Arbitration Act (X of 1940)---

----S. 34-Proceedings in suit---Application for stay of---Making of such application by defendant (a statutory body) at stage when plaintiff's witnesses were examined and partly cross-examined---Plea that upon filing of agreement in evidence, which was not supplied with plaint, defendant noticed that same contained arbitration clause---Validity---Such agreement was signed and executed on behalf of defendant by its Secretary---Secretary of defendant had signed written statement and counter-affidavit to affidavit of injunction application---Defendant had not denied execution of such agreement--Defendant and/or its Secretary were aware or would be deemed to be aware of contents of such agreements including arbitration clause thereof---Office of Secretary being custodian of defendant's entire record was responsible to look after interest of defendant---Once defendant through its Secretary had chosen to take steps into proceedings of suit, he could not turn back and fall upon provision of S.34 of Arbitration Act, 1940---Such application was dismissed in circumstances.

Pakistan International Airline Corporation v. Pak Saaf Dry Cleaner .PLD 1981 SC 553 distinguished.

Aimal Kansi.

Munawar Malik.

Akhtar Ali, holding brief for Mansoor ul Arfin.

Date of hearing: 2nd May, 2011.

P L D 2011 Karachi 524

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

REZA IQBAL---Appellant

Versus

ROYAL GROUP though Attorney---Respondents

High Court Appeal No.81 of 2010, decided on 30th May, 2011.

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

----S. 12---Suit for specific performance of agreement to sell property---Plaintiff's claim based on fax letter signed by both parties---Denial of defendant to have entered into concluded sale agreement-Proof-Evidence on record showed fixation of sale consideration of Rs.40 million and payment of Rs.1 million by plaintiff to defendant through cheque and its encashment by defendant---Willingness on part of defendant to accept offer of plaintiff and enter into sale agreement was proved from his acceptance of cheque and its encashment---Defendant in deposition had not denied to have entered into sale agreement with plaintiff---Once sale consideration was fixed between parties by way of offer and acceptance and defendant received biyana, then he was duty bound to perform his part of promise-Had there been no intention of defendant to sell property, he would have neither accepted cheque nor encashed same---Subsequent retraction from admitted sale agreement would show mala fide on part of defendant---Plaintiff did have a cause of action against defendant and was justified in filing suit against him---Suit was decreed by directing defendant to sell and transfer suit property to plaintiff under terms of such agreement.

Abdul Khalid v. Muhammad Asghar Khan and others PLD 1996 Lah. 367; Suleman Ali v. Maqbool Hussain and others 2000 YLR 1983; Mst. Rasheeda Begum and others v. Muhammad Yousuf and others 2002 SCMR .1089; Ghulam Yasin Butt and others v. Manzoor Hussain and others 2003 UC 352 (sic): Abbas Ali Shah and others v. Ghulam Ali and others 2004 SCMR 1342; Mst. Gulshan Hamid v. Kh. Abdul Rchman and others 2010 SCMR 334; Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241; Qazi Muhammad Saqib Khan v. Ghulam Abbas and others 2003 MLD 131; Muhammad Ralique and others v. Sharaf Din and others 2006 SCMR 340; Custodian of Enemy Property Islamabad v. Hoshang M Dastur and others PLD 1977 Kar. 377; Shajar Ali Hoti v. Usman Subhani 1985 CLC 342; Al-Huda Hotels and Tourism Co. and others v. Paktel Ltd. and others 2002 CLD 218; Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Atlas Khan and others v. Muhammad Nawaz Khan and others 2010 SCMR 1217; Bashir Ahmed v. Ahmed Ali 2007 SCMR 1047; Messrs Karachi Gas Company v. Fancy Foundation PLD 1984 Kar. 233; Mst. Rashida Abdul Rehman v. Zahoor Hussain and others 2007 CLC 1372; Rafaqat Ali v. Muhammad Farid and others 2007 SCMR 1047; Saecd Naseem Cheema v. Mrs. Rukhsana Khan 2010 MLD 123; Muhammad Nawaz Khan v. Mir Ahmad and another 1996 MLD 1389; Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816; Muhammad Hussain Khan v. Said Muhammad Khan and others PLD 1988 SC (AJ&K) 184; Mst. Hayat Zaib-un-Nisa v. Muhammad Asad Khan 2003 SCMR 1748; Rehmatullah Khan and another v. Ghulam Farid and others 2009 SCMR 371; NLR 1994 (sic) 695; Hatiz-ul-Haq v. Haji Abdul Mastan PLD 1994 Pesh. 235; Sardar Ali v. Wazir Khan 2005 SCMR 1583; Federation of Pakistan v. Mrs. Riaz Latif PLD 1990 SC 90; M. Salim and others v. Lahore Development Authority 1993 MLD 2312; Qamarul Hassan v. United Bank Limited 1990 MLD 276; Hindustan Co-operative Insurance Society Ltd. v. Shyam Sunder and others AIR 1952 Cal. 691; Major (Retd.) Syed Baqar Hussain Shah v. Mst. Rashida Begum 1992 MLD 2515; Habibullah v. Azmatullah PLD 2007 SC 271 and Muhammad Hussain v. Ghulam Nabi and another 1982 CLC 888 ref.

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

---S. 12-Contract Act (IX of 1872), S.2---Suit for specific performance of agreement to sell---Proof---Parties had to fulfil terms of agreement by showing their intentions, which would be gathered by looking at the circumstances of each case.

Muhammad Masood Khan for Appellant.

Arshad M. Tayebali for Respondents.

Dates of hearing: 28th April, 5th and 13th May, 2011.

P L D 2011 Karachi 542

Before Salman Hamid, J

ASIF S. SAJAN and another---Plaintiffs

Versus

REHAN ASSOCIATES through Partner and others---Defendants

Suit No.970 of 2006, decided on 16th May, 2011

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

----S. 151 & O. XXXVIII, R.5---Suit for recovery of money---Application for attachment of immovable property before judgment in case of defendant's failure to furnish surety for amount equal to suit amount---Plea that plaintiffs apprehended that defendant was removing their goods lying in premises and was secretly negotiating to dispose of his immovable property and creating third party interest in order to defeat decree to be passed in suit---Validity---Court on such application had passed interim order on 25-7-2006 to restrain defendant from creating third party interest on property mentioned therein---Defendant on couple of occasions had denied to be owner of property mentioned in such application or to have any concern thereto---Since date of filing of suit and such application, five years had passed, but defendant was still doing his business, whereas its winding up or discontinuance was not alleged by plaintiff---Defendant was vigorously following suit for damages filed against plaintiff---Plaintiff was only apprehending and had levelled a bald allegation that defendant was secretly trying to sell property, which had been denied to be owned by defendant---Such application was dismissed in circumstances.

Encyclopaedia Britannica Inc. v. Pak American Council (Pvt.) Limited 1997 CLC 2003; Muhammad Hanif v. Eckhard and Co. Marine GMBH and 2 others PLD 1983 Kar. 609; Mohiubddin Molla v. The Province of East Pakistan and others PLD 1962 SC 119 ref.

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

----O. XXXVIII, R.5---Attachment before judgment---Duty of Court stated.

The provisions of Order XXXVIII, C.P.C. are penal in nature, therefore while exercising powers thereunder, the courts are always required to see that the order so passed therein does not affect the party against whom such severe order is sought. The courts still have to be more vigil and alive of the situation when attachment order is prayed for merely because of some distant apprehension without any substance in shape of an evidence brought forth. An order under Rule 5 of Order XXXVIII is preventive in nature; not punitive.

The courts have to be cautious in passing order for attachment before judgment and have to look into various factors before passing such an order.

Kh. Shamsul Islam for Plaintiff.

Aimal Kansi for Defendants.

Date of hearing: 13th May, 2011.

P L D 2011 Karachi 546

Before Gulzar Ahmed and Shahid Anwar Bajwa, JJ

MUHAMMAD KHYZER YOUSUF DADA---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior and 5 others---Respondents

Constitutional Petition No.D-1482 of 2009, decided on 28th May, 2011.

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

----S. 2-Constitution of Pakistan, Art.199--Constitutional petition---Petitioner had challenged the memorandum issued by Section Officer, Ministry of Interior, by which his name had been placed in the Exit Control List--Enquiry and investigation against the petitioner was pending and despite two years had expired, no reference had been filed against the petitioner by the NAB authorities---Neither any ground had been provided for putting the name of the petitioner on Exit Control list nor the inquiry/investigation which was going on for more than two years had been concluded---No case was pending against the petitioner, nor he was given any opportunity of personal hearing; nor any notice of intimation was served upon him---Merely on the ground that there was apprehension that the petitioner could flee from Pakistan was not a ground for depriving him from exercising his fundamental right of travelling freely---Impugned memorandum putting the name of the petitioner on Exist Control-List, was set aside. \

Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Kar. 705; Syed Shujaat Ali Qadri, Muftakhiruddin v. Kamal Mustafa Bokhary, Abdur Rahman Khan PLD 1989 FSC 39; Habibullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior, Pakistan Secretariat, Islamabad and 2 others PLD 2C'J9 Kar. 243; Abdul Qayyum Khan v. Federal Government of Pakistan through Federal Secretary Ministry of Interior, Interior Division, Pakistan Secretariat and 2 others PLD 2009 Kar. 361; Baber Qayyum Raja v. Federation of Pakistan through Secretary Interior, Ministry of Interior and 3 others 2010 CLC 373 and Ashfaq Yousaf Tola v. Federation of Pakistan PLD 2006 Kar. 193 ref.

Farrukh Niaz v. Federal Government of Pakistan and others PLD 2006 Kar. 530 rel.

Muhammad Yousaf for Petitioner.

Noor Muhammad Dayo, Senior Prosecutor NAB.

Muhammad Qasim, Standing Counsel.

Date of hearing: 17th May, 2011.

P L D 2011 Karachi 550

Before Salman Hamid, J

ANJUMAN MASJID NEW TOWN through Secretary and another---Plaintiff

Versus

MUHAMMAD SHAHID ZAKI and 12 others---Defendants

Civil Suit No.1395 of 2010, C.M.As. Nos.9998 of 2010 and 4344 of 2011, decided on 16th May, 2011.

Civil Procedure Code (V of 1908)---

----S. 12(1), O.II, R.2, O. VII, R.11(d) & O.XXIII, R.1---Second suit between same parties on basis of same cause of action as contained in previous suit pending between parties---Withdrawal of previous suit after filing of second suit---Prayer in second suit, though being same as raised in previous suit, but couched differently with addition of prayer of damages--Maintainability---Record showed that while filing second suit, previous suit was pending before same court and interim injunction passed therein was still operating---Plaintiff after having withdrawn previous suit could not file second suit by virtue of O.XXIII, R.1, C.P.C.---Plaintiff had omitted or relinquished claim of damages in previous suit, thus, in respect thereof he could not sue afterwards in second suit by virtue of O.II, R.2, C.P.C.-Second suit was barred by O. VII, R.11(d) and could not be filed and/or entertained at all---Plaint was rejected under O. VII, R.11(d), C.P.C. in circumstances.

M. Qutbuzzaman for Plaintiff.

Faisal Kamal for Defendants Nos.1 to 9 along with Manzoor Rajput.

Nafees A. Osman, A.A.-G.

Date of hearing: 16th May, 2011.

P L D 2011 Karachi 553

Before Munib Akhtar, J

MUHAMMAD SADIQ---Plaintiff

Versus

BRITISH HIGH COMMISSIONER and 4 others---Defendants

Execution No.53 of 2004 and C.M.As. Nos.110, 138, 139 of 2011, decided on 9th June, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 23(2), 28-A & 34---Civil Procedure Code (V of 1908), S.151---Acquisition of land---Urgency clause and interest---Powers of Land Acquisition' Officer---During execution of award, judgment-debtors withheld the amount due to decree holder on account of 15% urgency charges and 6% interest---Plea raised by judgment-debtors was that. such charges could not be imposed by Land Acquisition Officer rather it was the court to impose the same---Validity---Ample power and jurisdiction was conferred under Ss.28-A and 34 of Land Acquisition Act, 1894, on acquiring authority to make an award of 15% and also to award 6% interest to the person whose land was being acquired---High Court overruled the objection taken by judgment-debtors---Application was dismissed in circumstances.

Dilawar Hussain v. Province of Sindh PLD 1993 Kar. 587 distinguished.

Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603 ref.

S. Masroor Ahmed Alvi for Decree-Holder along with Syed Jehangir Akhtar.

Qaiser Jameel for CDGK.

Pir Riaz Muhammad Shah, S.C.

P L D 2011 Karachi 559

Before Syed Hasan Azhar Rizvi, J

HABIBULLAH and 59 others---Decree Holders

Versus

PROVINCE OF SINDH through Secretary Revenue and another---Judgment Debtors

Executions Nos.57 and 58 of 1989, decided on 30th May, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18 & 28-A---Civil Procedure Code (V of 1908), S.47---Execution of decree--Acquisition of land---Additional Compensation-Principle--Notification under S.4 of Land Acquisition Act, 1894, was issued on 2-2-1960 regarding acquisition of lands in question and award was announced on 17-12-1960---Land owners were dissatisfied with the award, therefore, they filed reference and the compensation was modified by High Court on 27-8-1970 and matter was finally decided by Supreme Court on 18-2-1987---Decree holders during execution of decree had sought additional .compensation on the enhancement of compensation (unpaid amount)---Validity---Question of amount of compensation payable from the date of notification under S.4 of Land Acquisition Act, 1894, till entire amount of compensation was to be determined in single transaction---Additional compensation under S.28-A of Land Acquisition Act, 1894, would have to be calculated by bifurcating unpaid amount from that which had already been received by land owners---Provision of S:28-A of Land Acquisition Act, 1894, was a self executing provision and mere fact that it was not considered in the judgment of Supreme Court did not disentitle High Court from allowing the decree holders to avail all its benefits---Decree holders were entitled to receive additional compensation under S.28-A of Land Acquisition Act, 1894, on unpaid amount of compensation from the date of notification under S.4 of Land Acquisition Act, 1894 till final payment of compensation made to decree holders---High Court directed the office to complete the payment within two weeks---Application was allowed accordingly.

PLD 1987, Kar. 466; Majeed Shaikh v. Syed Shakir Alia Jafri and 6 others 1991 MLD 1258; Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472; Dilawar Hussain and 6 others v. The Province of Sindh through Secretary Revenue Department, Karachi and 2 others PLD 1993 Kar. 578; Dilawar Hussain and 6 others, v. The Province of Sindh through Secretary Revenue Department, Karachi and 2 others PLD 2003 Kar. 174; Land Acquisition Officer, Badin District v. Pir Altaf Hussain Shah and 2 others 1994 CLC 160; Abdul Hamid Ali and 5 others v. Land Acquisition Officer, Badin PLD 1998 Kar. 50; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through legal heirs PLD 2005 SC 311; Deputy Commissioner, Malir v. Jan Muhammad and others 2006 CLC 1042 and Ahmed Ali v. Land Acquisition Officer L.B.O.D. WAPDA. and another 2010 YLR 1736 rel.

Mushtaq A. Memon for Decree Holder.

Qaiser Jamil Malik for Judgment Debtor.

Ms.Farkhanda Mangi for the State.

P L D 2011 Karachi 571

Before Munib Akhtar, J

Mst. SURRIYA REHMAN through Attorney---Plaintiff \

Versus

SIEMENS PAKISTAN ENGINEERING COMPANY LTD. through Chief Executive Officer/Managing Director and another---Defendants

Suit No.923 and C.M.A. No.9463 of 2005, decided on 4th July, 2011.

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

----Ss. 2(a) & 34---Suit for recovery of damages on account of unlawful termination of job contract---Stay of suit, application for---Arbitration clause of such contract contained word "arising" followed by words "during the period of the job contract in connection with any of the terms and conditions of this job contract"---Plaintiff's plea that dispute disclosed in plaint did not come within scope of such arbitration clause---Validity---Such words were somewhat different from those used normally in arbitration clause---Scope of such clause was limited to a dispute arising during course of contract and not otherwise---Dispute raised in plaint related to unlawful termination of job contract and recovery damages on account of toss and injury allegedly suffered by plaintiff on account of such termination---Plaintiff's claim as disclosed in plaint, except a small portion thereof, would come within scope of such arbitration clause---Where portion of claim falling within scope of arbitration clause being small as compared to overall claim, and evidence to be led to establish both such claims being same, then suit ought not to be stayed even with regard to claim referable to arbitration---Principal dispute, but not whole, as disclosed in plaint fell within scope of arbitration clause---Such application was dismissed and defendant was directed to file written statement within specified time.

Cosmopolitan Development Co. v. So Di-Me Spa and another 1987 MLD 2832; Syed Arshad Ali v. Sarwat Ali Abbasi 1988 .CLC 1350; NLR 1989 PC 524; Novelty Cinema v. Firdaus Films and another PLD 1958 Lah. 208; Port Qasim Authority v. Al-Ghurair Group of Companies and others PLD 1997 Kar. 636; Renusagar Power Co. Ltd. v. General Electric Company and another AIR 1985 SC 1156 and Lahore Stock Exchange v. Federick T. Whyte Group Pakistan Ltd. PLD 1990 SC 48 ref.

(b) Constitution of Pakistan---

----Art. 190---Judgment' of High Court---Binding effect---Scope---Judgment of a High Court would not be binding on a Judge of another High Court---Judgment of a Single Bench would not be binding on another Single Bench of same High Court.

(c) Constitution of Pakistan---

----Art. 190---Judgment of Single Bench of High Court---Binding effect of such judgment on subsequent Single Benches---Scope.

It is a well-recognized convention that single Bench decisions, especially of some years' standing, are of high persuasive value and ought not to be lightly departed from by subsequent single Benches of that High Court. However, this convention has not (at least yet) hardened into a rule of law, and in appropriate circumstances, a subsequent single Bench made well depart from the view that was taken earlier.

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

----S. 34---Stay of suit, application for---Failure of defendant to specify in application dispute to be referred to arbitration---Effect---Such failure would not be regarded as fatal---Reasons stated.

It would be desirable for a defendant moving an application under section 34, Arbitration Act, 1940 to specify with some exactitude the dispute that ought to be referred to arbitration, a failure to do so should not be regarded as fatal. The reason for this is twofold. Firstly, if the parties have chosen to refer their disputes to a domestic forum of their own choice, that choice should be honoured to the maximum extent possible, and the parties should be directed to have the dispute resolved by that forum (i.e., by arbitration). To simply dismiss an application for stay of suit on a rather technical ground may result in the court being forced to proceed with a dispute that ought to have been arbitrated. Secondly, even if the court is put to some inconveniency as a result of the defendant's failure to specify the dispute that ought to have been referred to arbitration, that inconvenience does not create an insurmountable burden. The reason is that the plaint must, after all, disclose a cause of action, and the defendant's objection that the matter be referred to arbitration can only be in respect of the cause of action disclosed in the plaint, either in whole or in part. It is normally not difficult to extract the cause of action from the contents of the plaint and thus, in effect, to identify the dispute that ought to be referred to arbitration. It is also to be noted that section 34 does not, as such, require that the defendant must specify the dispute in his application. It follows therefore that failure to exactly identify the dispute in the application under section 34 ought not to be regarded as fatal.

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

----S. 2(a)---Arbitration agreement, interpretation of---Scope---Arbitration clause embedded in an agreement for being an independent agreement in its own right would be interpreted and applied accordingly.

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

----S. 34---Staying of suit by court being discretionary and not mandatory.

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

----Ss. 2(a) & 34---Stay of suit, application for---Major portion of dispute raised in plaint not falling within scope of arbitration agreement, except a small portion thereof falling within its scope---Effect---Staying of a suit under S.34 of Arbitration Act, 1940 being discretionary and not mandatory---Suit ought not be stayed with regard to such small claim referable to arbitration---Principles.

(h) Arbitration Act (I of 1940)---

----Ss. 2(a) & 34---Stay of suit, application for---Reference of dispute to Managing Director of defendant-company as per arbitration agreement---Plaintiff's objection was that the Director would be biased against him or at least biased in favour of defendant---Validity---Mere fact of having chosen an officer or Director of one party as arbitrator would not be a ground in and of itself not to refer parties to arbitration---Arbitrator selected in the present case was by designation and not by name i.e. holder for time being of office of Managing Director---Bias, if any, would arise in respect of acts or omission of an individual---Allegations of bias could not be made against an office---Nothing on record to show that there would be a bias against plaintiff or in favour of defendant in any manner---Such objection was repelled in circumstances.

(i) Bias---

----Question of bias, if any, would arise in respect of acts or omission of an individual---Allegations of bias could not be made against an office.

Rehman Aziz for Plaintiff.

Imtiaz Agha for Defendants.

Date of hearing: 20th May, 2011.

P L D 2011 Karachi 578

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

Malik GUL MUHAMMAD AWAN---Appellant

Versus

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

H.C. Appeals Nos.98 and 128 of 2009, decided on 24th June, 2011.

(a) Suit for damages---

----Suit for recovery of Rs.81.82 million as damages from officials of Sales Tax Department---Imposition of embargo on plaintiff's factory due to non-payment of tax---Loaded vehicle found by such 'official while leaving plaintiff's factory without payment of tax---Confiscation of such vehicle and imposition of penalty by authority---Plaintiff's plea that he was bringing some material to his factory in such vehicle, which was forcibly taken over by such officials, who detained him in their Headquarter whole night, where they assaulted, maltreated, manhandled and blind folded him---Appellate Tribunal set aside such confiscation order while condemning treatment meted out by such officials to plaintiff being a respectable and educated person---Degree for Rs. 1,00,000 passed by Trial Court against such official jointly and severally---Validity---Plaintiff had made out a case of maltreatment against him as manner and method in which he was treated by such official was an inhuman activity---Demand of outstanding tax would not give authority and licence to such official to maltreat or misbehave with taxpayer---Such official had taken law in their hands with mala fide intention---Plaintiff had based his claim upon damages and special damages worked out on basis of expected losses only and without bringing any exact amount of losses sustained by him---Damages claimed by plaintiff were exaggerated and he failed to prove same through evidence---Suit for damages in absence of actual losses suffered by plaintiff could not be decreed---Plaintiff had suffered mental shock and agony---Such official entrusted with collection of taxes could not resort to harassing, insulting and torturing taxpayers illegally for their personal gratification---Damages awarded to plaintiff by Trial Court, though not being complete relief for agony suffered by him, would act as deterrent for such official not to act so in future---High Court dismissed appeal while directed such official to pay damages awarded by Trial Court within thirty days, otherwise plaintiff would be entitled to mark up at Bank rate till its realization.

Haji Salman Ali and Co. v. Province of Balochistan PLD 1994 Quetta 13 rel.

(b) Tort---

----Damages, awarding of---Discretion of court exercisable in view of facts and circumstances of each case---Principles.

(c) Tort---

----Damages, claim for---Essentials---Exact amount of damages suffered by plaintiff and its proof being essential for decreeing such suit---Principles.

If some damages have been caused to a person the same are to be assessed in the exact amount and proved to this extent. Scanty and the claims based on no evidence should hardly be entertainable. The courts do not decree those types of damages the exact amount of which cannot be proved. Though damages to be awarded by the rule of thumb and exact amount is not determinable but person making the claim is legally obliged under the law to claim a sum of money as early as possible to the amount of damages suffered by him.

Damages for mental torture, nerves shocks, the losses of livelihood for family etc., cannot be measured in terms of money and as no standard or method can be laid down in this regard, the claims are therefore to be worked out on a rational basis and not upon the working submitted by a person.

Haji Salman Ali and Co. v. Province of Balochistan PLD 1994 Quetta 13 and Sufi Muhammad Ishaque v. Metropolitan Corporation Lahore PLD 1996 SC 737 rel.

(d) Tort---

----Damages, claim for---Burden of proof:--Person claiming such damages would be bound to prove same through evidence, otherwise, his claim would not be entertainable.

Muhammad Ashraf v. Nawabuddin PLD 1951 Lah. 283 and Muhammad Akram v. Farman Bibi PLD 1990 SC 28 rel.

Malik Gul Muhammad Awan Appellant in person (in HCA No.98 of 2009 and Respondent in HCA No.128 of 2009).

Mrs. Masooda Qureshi for Respondents (in HCA No.98 and for Appellant in HCA No.128 of 2009).

Date of hearing: 26th May, 2011.

P L D 2011 Karachi 586

Before Munib Akhtar, J

M.C.B. BANK LTD.---Decree-Holder

Versus

DUTY FREE SHOP LTD.---Judgment-Debtor

Execution No.69 of 2008 and C.M.A. No.908 of 2010, decided on 15th July, 2011.

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

----O. XXI, Rr. 54 & 58(1) [as amended by Lahore High Court and also substituted by Law Reforms Ordinance (XII of 1972)]---Limitation Act (IX of 1908), Art.11---Objection petition filed after one year from date of first attachment---Maintainability---Intent behind amendment made in O.XXI, R.58(1) by Law Reforms Ordinance, 1972 was to prevent raising of frivolous, fictitious or vexatious objections/claims, but not to shut out genuine and valid claims simply due to expiry of one year from date of order of first attachment---Outer limit of one year would apply only to objector having knowledge of first attachment, but not to others having no such knowledge---Objection/claims in terns of O.XXI, R.58(1), C.P.C. could be taken at any time after attachment and confirmation of subsequent sale---First attachment Must substantially comply with requirements of O.XXI, R.54, C.P.C.---Mere making of attachment order, attachment would not be effective without giving effect to same in prescribed manner---Proviso to O. XXI, R. 58(1), C.P.C. would become applicable in appropriate circumstances once attachment was held to have been properly effected, but not otherwise---Principles.

Mulla on the Code of Civil Procedure 13th Edn. 1967, Vol II; Sardhari Lal v. Ambika Prasad (1888) 15 Indian Appeals 123 and Code of Civil Procedure by Aamer Raza A. Khan 10th Edn. 2010 rel.

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

----S. 19---Civil Procedure Code (V of 1908), O.XXI, R.58---Transfer of Property Act (IV of 1882), S.54---Registration Act (XVI of 1908), Ss.17 & 49---Companies Ordinance (XLVII of 1984), S.196---Limitation Act (IX of 1908), Art.11---Money decree, execution of---Sale of warehouse of judgment debtor situated in Islamabad Capital Territory---Confirmation of sale in favour of auction purchaser by Executing Court---Objection petition by Pakistan International Airlines Corporation (PIA) claiming to be owner of warehouse on basis of handing/taking over certificate issued by judgment-debtor company in pursuance of decision of its Board of Directors and on payment of its outstanding dues to Capital Development Authority (CLA) prior to passing of decree under execution--- Plea of decree-holder and auction purchaser that objection petition filed after one year of first attachment was hit by proviso to R.58(1), O.XXI, C.P.C. that sale of warehouse to PIA without registered sale deed was invalid and violative of S.196 of Companies Ordinance, 1984---Validity---Reports of Bailiff on record did not show that copy of order of first attachment was affixed on a conspicuous part of warehouse and court---First attachment was without substantial compliance with requirements of O.XXI, R.54,. C.P.C., thus, proviso to R.58(1) thereof would not apply thereto---Nothing on record to show that PIA had knowledge of execution proceedings or order of first attachment and delayed filing of objection petition designedly or unnecessarily or did not file same within a reasonable time---Proviso to O.XXI, R.58(1), C.P.C. would not apply to objection petition filed by PIA in such circumstances---Warehouse was standing in name of PIA in record of Capital Development Authority (CDA)---Provisions of Transfer of Property Act, 1882 were not applicable to Islamabad Capital Territory---Transfer of warehouse to PIA had taken place by decision of Board of Directors of judgment-debtor company, and not by any document, thus, provisions of S.17 of Registration Act, 1908 would not apply thereto---Such handing/taking over certificate was not a document adoring any rights, rather same confirmed factum of change of ownership to warehouse and did not itself bring about such change---Capital Development Authority had duly accepted transfer of warehouse of PIA and given effect thereto in its record without a registered document---Nothing on record to show that transfer of warehouse came within description given in S.196(3) of Companies Ordinance, 1984---Warehouse had been transferred to PIA prior to first order of attachment and decree under execution---High Court accepted objection petition and set aside sale of warehouse including its confirmation and order of its attachment.

Ghulam Mohiuddin and others v. Haji Muhammad and others PLD 1957 Kar. 643 and Bageshwari Charan v. Jagarnath Kuari AIR 1932 PC 55 rel.

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

----Ss. 1 & 2---Islamabad Capital Territory---Provisions of Transfer of Property Act, 1882 not applicable to such territory, but principles thereof would apply by way of equity, justice and good conscience.

Barkatullah Khan v Abdul Hameed 1981 SCMR 1200; Malik Naveed Ahmed v. Nasreen Hameed 2005 SCMR 357 and Shabnam Ashraf v. Muhammad M. Iqbal 2003 YLR 495 rel.

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

----S. 17---Transfer of Property Act (IV of 1882), S.54---Provision of S.17, 1Registration Act, 1908---Scope---Matters specified iii various clauses of S.17 of Registration Act, 1908 not required thereby to come about by way of registered document--Requirement of S.17 of Registration Act, 1908 was that where a written document was used in respect of any of matters specified in various clauses thereof, then same must be registered---In places where Transfer of Property Act, 1882 was applicable relevant document such as sale of immovable property must be by way of registered document because of S.54 thereof and not by reasons of S.17 of Registration Act, 1908.

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

----S. 17--Provisions of S.17 of Registration Act, 1908, would be construed strictly---Where two interpretations of a document were reasonably possible, one of which would make same compulsorily registrable, while other would not, then latter would be preferred.

Behzad Haider for Decree-holder.

Abdul Sattar Lakhani for the Judgment-Debtor.

Zaki Ahmed and Jawad A. Sarwana for PIAC.

Ahmed Nawaz Bhatti for Auction Purchaser.

Kh. Ahsan, Advocate.

Jam Asif Ali, Advocate.

Qadir Bux Umrani, Official Assignee.

P L D 2011 Karachi 602

Before Syed Hasan Azhar Rizvi, J

Sahibzada GHULAM MUHAMMAD KHAN---Plaintiff

Versus

NAWAB JAHANGIR KHANJI and 6 others---Defendants

Suit No.219 and C.M.As. Nos.12671, 1267, 5449, 10970 of 2010 and 7596 of 2011, decided on 7th July, 2011.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Devolution and Distribution of Property (Junagadh State) Order, 1963, Arts. 1(3), 2(3) & Sched. I, Sr.No.2---Civil Procedure Code (V of 1908), O.XL, R.1-Suit for declaration, cancellation and permanent injunction---Application for appointment of Receiver of suit land belonging to Nawab of Junagadh not saleable without permission of Government---Plaintiff as one of legal heirs alleged that notification issued by Government of Pakistan declaring first defendant as the present Nawab of Junagadh was illegal in absence of Wirasatnama; and that first defendant had no power to execute sale agreement in respect of suit land in favour of second defendant without approval of Government---Validity---High Court had directed parties to maintain status quo in respect of suit land---Ruler was barred to transfer or dispose of State property without approval of Government by virtue of Art.1(3) of Devolution and Distribution of Property Order, 1963---Government had not yet granted permission to first defendant to sell suit land---Second defendant had launched a Housing Project on the suit land---According to report of Local Commission that different persons had constructed houses over 1/3rd area of suit land, whereas 2/3rd area of suit land surrounded by boundary walls was possessed by second defendant---Appointment of Receiver was necessary to preserve suit land from waste, destruction and illegal and unlawful occupants---High Court appointed Nazir as Receiver with directions to take over suit land from second defendant and submit report regarding occupations of suit land and encashment of cheques alleged to have been received by plaintiff from second defendant.

Syed Muhammad Abbas Hyder and Atif Hafeez for Plaintiff.

Azizur Rehman Akhund for Defendant No.2.

Irshad Ahmed Kehar, D.A.G.

Khizer Asker Zaidi A.A.G., Sindh.

Date of hearing: 7th July, 2011.

P L D 2011 Karachi 605

Before Munib Akhtar, J

MUHAMMAD ATHER HAFEEZ KHAN---Plaintiff

Versus

Messrs SSANGYONG & USMANI JV---Defendants

Suit No.305 of 2010 and C.M.As. Nos. 902, 5597 of 2011, decided on 15th July, 2011.

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

----O. XXXVIII, Rr. 5(1)(3) & 6---Attachment before judgment---Powers of court to direct defendant to furnish security for production of property---Scope---Court before issuing such direction must first require defendant to show cause for not furnishing security, and only on his failure- to show cause or furnish security could direct him to do so.

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

----O. XXXVIII, R. 5---Arbitration Act (X of 1940), Ss.20, 42 & Second Sched.--Arbitration proceedings, pendency of---Defendant (foreign company) engaged in construction project in Pakistan---Contract for providing consultancy services by plaintiff to assist defendant to obtain tax benefits or reduce its tax burden on its business activities---Non payment to plaintiff agreed percentage of tax benefits obtained by defendant---Application for attachment before judgment amount retained by project owner from running bills of defendant---Validity---Money retained by project owner from running bills of defendant till fulfilment of contractual task would be a debt owed to defendant---Retention money, in absence of any term to the contrary in contract, would be regarded as property belonging to defendant-contractor within meaning of O.XXXVIII, C.P.C.---Plaintiff apprehended that if defendant received amount from its project owner, then same would be remitted abroad making him unable to execute in Pakistan any decree made in his favour against defendant---In order to make applicable O.XXXVIII, R.5(1)(b), C.P.C. plaintiff had to show that defendant had necessary intent to remove his property from jurisdiction of court---Plaintiff had not shown that such remittance, even if made, would be with necessary "intent" to defeat or obstruct decree expected to be obtained by him---Such application was dismissed in circumstances.

Allied Industries Hub (Pvt.) Ltd. v. China National Metals and Mineral Import and Export Corporation and another 1989 MLD 2027; Balagamwala Oil Mills (Pvt.) Ltd. v. Shakarchi Trading AG and others 1991 CLC 2071; Arrow Trading Company v. Hyosung Corporation and others 1997 MLD 55; Associated Drillers Ltd. v. Dirk Verstoop BV PLD 1979 Kar. 734; Muhammad Hanif v. Echard & Co. Marine GmbH and others PLD 1977 Kar. 609; Lister and Co. v. Stubbs (1890) 45 Ch D 1; Nippon Yusen Kaisha v. Karageorgis and another [1975] 3 All ER 282; Mareva Compania Naviera SA v. International Bulkcarriers SA [1975] 2 Lloyd's Rep 137; [1980] 1 All ER 213; Jackson v. Sterling Industries Ltd. [1987] HCA 23; (1987) 162 CLR 612; Rasu Maritima SA v. Perusahaan Pertambangan Minyak Das Burni Negara [1977] 3 All ER 324; Iraqi Ministry of Defence and others v. Arcepey Shipping Co. SA (The Angel Bell) [1980] 1 All ER 480; Rahman (Prince Abdul) Bin Turki al-Sudairy v. Abu Taha [1980] 3 All ER 409; A.J. Bekhor and Co. Ltd. v. Bilton [1981] 2 All ER 565; Z. Ltd. v. A. [1982] 1 All ER 556;. Mercedes-Bnenz AG v. Leiduck [1995] 3 All ER 929 and Cretanor Maritime Co. Ltd. v. Irish Marine Managemetn Ltd. [1978] 3 All ER 164 rel.

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

----O. XXXVIII, R. 5---Attachment before judgment, order of---Scope and object---Object of such order being preventive and not punitive---Such order would curtail undoubted right of defendant to deal with his property as he deemed appropriate---Plaintiff had to make out a clear case that ingredients of O. XXXVIII, R.5, C. C.P. C., were applicable---Benefit would go to defendant in case of doubt or ambiguity---Defendant having "intent" to obstruct or delay execution of any decree against him must be shown with reasonable clarity from relevant facts objectively considered; otherwise such order would be regarded as inappropriate---Object of such order would not be to guarantee to plaintiff availability of an asset within jurisdiction of court to satisfy his claim, but to ensure non-abusing of process of court by defendant---Principles.

Associated Drillers Ltd. v. Dirk Verstoop BV PLD 1979 Kar. 734 and Muhammad Hanif v. Echard & Co. Marine GmbH and others PLD 1977 Kar. 609 rel.

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

----S. 151---Exercise of inherent powers by court---Scope.

The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provision. Whatever limitations are imposed by 'construction on the provisions of section 151 of the Code, they do not control the undoubted power of the Court conferred under section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court.

Nazar Muhammad v. Ali Akbar PLD 1989 Kar. 635 fol.

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

----O. XXXVIII, R.5 & XXXIX, R.1(b)---Provisions of O.XXXVIII, R.5 and O.XXXIX, R.1(b), C.P.C.---Distinction between the two stated.

Provision of O.XXXIX, Rule 1(b), C.P.C., empowers the court to grant an injunction if "the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors". While in one sense, the language of this provision is broader than that used in Order XXXVIII, Rule 5 (inasmuch as a mere "threat" is sufficient), in its applicability, the provision is narrower, and indeed, directed towards another purpose altogether. The objective is to prevent a defendant from "defrauding" his "creditors", and not to defeat or frustrate any decree that may be made against him. The, material on which the court can come to one or the other of these conclusions is not the same, and what may be sufficient for one purpose may be insufficient or irrelevant for the other. The threat or intention must be established by definite information, and a case of fraud clearly spelt out.

Mansoorul Arfin for Plaintiff.

Balal A. Khawaja for Defendant.

Dates of hearing: 4th, 27th and 31st May, 2011.

P L D 2011 Karachi 624

Before Munib Akhtar, J

MUHAMMAD USMAN S. MEMON---Applicant

Versus

IVTH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HYDERABAD through Presiding Officer and 4 others---Respondents

Criminal Revision No.S-107 of 2009, decided on 25th February, 2011.

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

----S. 3---Illegal dispossession, complaint against---Complainant had alleged that property in question belonged to him and respondents illegally broke open the locks and occupied the same---Respondents first took up the position that they were the tenants of the complainant, but later on their case was that they had entered into an agreement to sell with the complainant--Complainant had rejected the claim of the respondents with regard to alleged agreement to sell and his case was that it was a complete fabrication---Complaint had been dismissed by the Trial Court---Civil suit on the basis of alleged agreement to sell, was filed after the filing of the complaint by the complainant---Even if the title of the complainant was challenged by the respondents in civil litigation, that would not prevent the criminal court exercising jurisdiction under Illegal Dispossession Act, 2005 from entertaining the complaint, provided that the civil litigation did not precede or predate the complaint---Criminal court was only required and permitted to form a prima facie opinion of the title for purpose of Illegal Dispossession Act, 2005 and disposal of the complaint; and that was without prejudice to the final and authoritative adjudication on the matter of the civil court---Respondents, did not challenge the title of the complainant to the subject property---Impugned judgment was set aside and matter was remanded to the Trial Court for trial, and disposal of complaint in accordance with law.

Zahoor Ahmed v. State PLD 2007 Lah. 231 distinguished.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 ref.

Dr. Muhammad Safdar v. Edward Henry Louis PLD 1009 SC 404; Rahim Tahir v. Ahmed Jan and others PLD 2007 SC 423 and Muhammad Akram and others v. Muhammad Yousaf and another 2009 SCMR 1066 rel.

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

----S. 3---Prevention of illegal possession of properly---Ingredients/elements of offence---Offence under S.3 of Illegal Dispossession Act, 2005, like many offences comprised different elements or ingredients, all of which had to be established before the offence was made out---Said offence comprised four elements; first, was that the complainant must be the actual owner of the property; second that the issue of title, would go towards establishing that element; third and fourth elements were that accused must have entered the property without lawful authority; and with intent to dispossess the complainant---Respondents/accused's claim to their lawful possession was based squarely on agreement to sell, the question whether agreement was forgery, was within the competence and jurisdiction of the criminal court seized of the complaint, under Illegal Dispossession Act, 2005; and that matter could be considered and decided by said court---Proceedings in a civil court on the one hand, and a court of criminal jurisdiction, on the other, were separate and distinct---Same act could be both civil wrong and a criminal offence---Mere fact that a party failed to establish that the act constituted a criminal offence would not mean that it could not be a civil wrong ---Reason was that the standard of proof required in a civil suit was different from that of a criminal case---In a criminal case offence must be proved beyond reasonable doubt while in a civil suit, the court simply had to consider the balance of probability---Even if the complainant failed to establish that the agreement to sell was a forgery, that would not automatically mean that contesting respondents/accused would be entitled to a decree for specific performance---Such was a matter for the civil court to decide on its own merits---Whether the agreement to sell was a forgery and constituted an offence was a matter that the criminal court could consider, and decide at the trial and dispose of the complaint---Civil suit would be decided on its own merits, and the criminal court need not stay its hand to avail the outcome of the civil litigation.

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

----Ss. 3 & 7---Offence of illegal dispossession---Eviction and mode of recovery of possession as an interim relief---Scope---Four points, could be made with regard to subsection (1) of S.7 of Illegal Dispossession Act, 2005; firstly, the jurisdiction conferred thereby was exercisable during the trial, and not before; interim relief could be granted even while the trial was still in progress i.e. even before it was established whether accused had committed the offence under S.3 of Illegal Dispossession Act, 2005; secondly, if subsection (1) of S.3 of Illegal Dispossession Act, 2005 was found to be applicable, then the court must provide the interim relief specified therein; thirdly, it was only necessary for the court to form a prima facie opinion and finally, what the court must be satisfied (prima facie) of was simply that' accused was "not in lawful possession" of the property---Offence under S.3 of Illegal Dispossession Act, 2005, could only be established at the conclusion of the trial---Intent behind S.7 of Illegal Dispossession Act, 2005 was to grant interim relief during the course of the trial.

Miss Naseem Abbas for Applicant.

Faisal I. Ahmed for Respondent Nos.2 and 5.

Syed Meeral Shah, D.P.G.

Date of hearing: 21st January, 2011.

P L D 2011 Karachi 633

Before Mushir Alam and Muhammad Athar Saeed, JJ

AKIF SHOAIB---Petitioner

Versus

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

C.Ps. Nos.D-1188, 1190, 1193, 1194, 1195, 1196, 1197 and 1198 of 2009, decided on 14th September, 2009.

Transfer of Offenders Ordinance (XXXVII of 2002)---

----Ss. 3, 6, 9 & 12---Control of Narcotic Substances Act (XXV of 1997), S.9---Constitution of Pakistan, Art.199---Constitutional petition--Possessing narcotics---Arrest and conviction of accused persons in a foreign country---Transfer of convict to Pakistan---Accused persons who were arrested, tried on the charge of possessing different quantities of heroin and were convicted for imprisonment for life in `Srilanka' had been repatriated to Pakistan to serve out the sentence---Contention of convicts was that they had already undergone the maximum sentence which could be imposed upon them in Pakistan, had they been apprehended, charged and tried for the similar offence in Pakistan---Held, to claim benefit of such transfer, there had to be a treaty for mutual transfer for offenders between Pakistan and Srilanka, which existed and had provided that the offenders, who were tried in one country, could be transferred to the other country to undergo the remaining portion of their sentence---Irrespective of the severity of sentence awarded to a convict in the country of crime and conviction, on being transferred under bilateral arrangement to Pakistan, such convict was entitled to undergo such sentence as was compatible with the laws of Pakistan---Compatibility of sentence could only be adjudged and determined by the court of competent jurisdiction in Pakistan---Under Transfer of Offender Ordinance, 2002, enforcement of the sentence of the imprisonment that was imposed on any offender, who was transferred to Pakistan, was to be governed by the laws of Pakistan; and in case the duration of .the sentence of imprisonment inflicted on any offender that could be transferred to Pakistan by a country having signed bilateral treaty for the transfer of offender was incompatible with any law of Pakistan; theca the court of competent jurisdiction could examine and make it akin to the sentence that could be awarded for the similar crime as in vogue in Pakistan---Offender who was transferred to Pakistan in terms of S.9 of Transfer of Offenders Ordinance, 2002, was entitled to be given benefit of remission of sentence as per laws in force of the country of conviction up to the date of transfer to Pakistan---On transfer, such convict was also entitled to the benefit of remission in left over sentence or pardon as could be declared by the President of Pakistan; or by any other Authority under any law in Pakistan.

Imran Ali v. Province of Sindh and others 2007 PCr.LJ 1364; Zafar v. State 1999 SCMR 2028, Farooq Ahmed Khan Leghari v. Federation PLD 1999 SC 192 and Muhammad Ilyas v. Muhammad Sufaian PLD 2001 SC 465 at 474 ref.

Javed Iqbal Burqi for Petitioner.

Zafar Ahmed Khan Addl. Prosecutor General Sindh for Respondent No.1.

Date of hearing: 25th August, 2009.

P L D 2011 Karachi 640

Before Munib Akhtar, J

M. SAEED QURESHI AL-WARSI through Legal Heirs---Decree-Holder

Versus

PAKISTAN through Secretary, Housing and Works, Islamabad and 2 others---Judgment Debtors

Execution Application No.88 of 2010 and C.M.A. No.380 of 2011, decided on 20th July, 2011.

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

----S. 82---Decree against government---Execution---Procedure---Two distinct opportunities should be given to government to satisfy the decree---If government remains recalcitrant despite such opportunities, then government is to be treated in the same manner as any other judgment debtor i.e. the execution may be issued against it---Essence of S.82, C.P.C. lies in granting two opportunities to government---Law in its wisdom has chosen to grant certain privilege to government over other judgment debtors, and it is for the government to decide whether it wishes to properly avail the privilege in the spirit and intent of law or simply abuse it in order to vexatiously prolong and delay the inevitable.

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

---S. 82---Execution against government---Nature of proceedings---Provision of S.82, C.P.C. is mandatory in substance but directory in. form.

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

----S. 82---Execution of decree-.-Procedure---Decree for recovery of money was passed against Federal Government---Executing Court directed Federal Government/judgment debtor to deposit the decretal amount in Court---Validity---Essence of S.82, C.P.C. was to grant the government two opportunities to itself satisfy the decree---Such requirement must be complied with but if there was substantial compliance, then adherence to a particular form was not mandatory---First opportunity was to be provided if there was a reasonable period between making of decree and institution of execution application, if decree itself had not provided any such period---Executing court was to satisfy itself that a reasonable period had elapsed and if the court was satisfied, then if judgment debtor was Provincial Government, it must be given second opportunity by making a report to it as contemplated by S.82, C.P.C. itself---If judgment debtor was Federal Government, then Executing Court might either make a report to Provincial Government or simply give a period of three months to Federal Government as judgment debtor and that would be substantial compliance of the requirement of S.82, C.P.C. to avoid any issue of constitutional impropriety---If execution was inadvertently issued in the meantime, then such execution proceedings must be suspended while the opportunities were being given to the government---If the decree continued to remain unsatisfied then execution proceedings might be resumed from the point where they were suspended---Decree was made on 30-9-2010, while execution application was filed on 10-11-2010, since decree. in question was a money decree and a reasonable period had elapsed between making of the decree and filing of execution, thus requirement to grant first opportunity had been fulfilled---Judgment debtor was Federal Government, which not merely contested the suit but put in appearance in execution proceedings, thus requirement would be fulfilled by suspending execution proceedings for requisite period---High Court suspended execution proceedings for three months and if decree would remain unsatisfied at or by the conclusion of three months period, order to deposit the amount would revive and judgment debtor would be bound to deposit the sum specified therein within a further period of seven days from the end of three .months period and other steps in execution proceedings as might be deemed appropriate would also be taken---Application was disposed of accordingly.

Pakistan and another v. Sarwar and Co. (Pvt.) Ltd. NLR 1999 Civil 409; 1998 CLC 1817; Punjab Province v. Shaikh Abdul Ghani 1988 MLD 2912 and Governor General in Council v. Piramal Marwari AIR 1948 Patna 179 ref.

Assistant Commissioner and others v. Abdul Ghafar and others PLD 1994 Pesh. 161; Mst. Shanti v. Karachi Transport Corporation and others 2000 CLC 595 and Pakistan v. Mrs. Khalida Nazir 1991 CLC 563 distinguished.

Miss Haleema Khan for Decree Holders.

Munir Rehman for Judgment Debtors.

Date of hearing: 12th July, 2011.

P L D 2011 Lahore 1

Before Sh. Azmat Saeed and Shaukat Umar Pirzada, JJ

AQIB RASHEED and 3 others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Secretary Health and 4 others---Respondents

Writ Petitions Nos.15532, 17339, 17768, 17769, 18063 and 15808 of 2010, decided on 6th September, 2010.

Pakistan Medical and Dental Council Regulations, 2003---

----Ss. 1 & 11---Pakistan Medical and Dental Council Ordinance (XXXII of 1962), S.33(1) & 33(2)(c)---Constitution of Pakistan, Art.199---Constitutional petition---Medical Colleges, admission in---Eligibility criteria advertised by authority for determining merit for such admission being passing of Entry Test with 65% marks by a candidate---Petitioners plea that according to Pakistan Medical and Dental Council Regulations, 2003, candidates having obtained 60% marks in F. Sc., or equivalent examination were eligible-to sit for such Test---Respondents plea that Regulations, 2003 had no binding effect for having been issued-without prior sanction of Federal Government---Validity---According to S. 33 of Pakistan Medical and Dental Council Act, 1962, regulations framed by Pakistan Medical and Dental Council (PMDC), if pertained to subjects/matters mentioned in subsection (1) thereof would require prior sanction of Federal Government, but would not require such sanction, if same related to subjects/matters mentioned in subsection (2) thereof---Regulations 2003 pertained to admission to Medical Colleges, examinations and educational facilities etc., which subject was covered by S.33(2)(c) of Pakistan Medical and Dental Council Act, 1962 and not S.33(1) thereof---Regulations duly framed by PMDC were binding upon and required to be given effect to by all Medical Colleges and respondents---Minimum academic qualification as prescribed in Regulations, 2003 of obtaining 60% aggregate marks in F. Sc. (Medical Group) had been increased to 65% by respondents-.. Respondents had introduced concept of pass and fail in Entry Test by postulating that a candidate securing less than 60% marks in Entry Test would be deemed to have failed same---Exclusive jurisdiction for conduct of Entry Test for admission in Medical Colleges vested in PMDC by virtue of Ordinance, and Regulations---PMDC had required Provincial Government to make available venue for conduct of Entry Test, but had not authorized same to determine eligibility to participate in and set standards for Entry Test---Provincial Government could not encroach upon domain or jurisdiction of PMDC---Candidate, if considered to be ineligible or having failed in Entry test conducted in Punjab Province, might be entitled to admission in Medical College in another Province---Through impugned Entry Test, eligible candidate' having obtained 60% marks in F.Sc., but less than 65% marks had been excluded and denied opportunity in Entry Test---Concept of pass and fail in Entry Test introduced by respondents was in violation of Regulations---High Court directed respondents to conduct another Entry Test enabling all candidates eligible to take same including students having obtained more than 60% marks in F.Sc., and impugned Entry Test and issue whereafter combined merit list.

PMDC v. Zia-ud-Din Medical University and others PLD 2007 SC 323 and Nadir Khan and others v. Khyber Medical College and others 1995 SCMR 421 rel.

Mian Abdul Qadoos, Azhar Siddiqui, Qamar-uz-Zaman and Nasir Mehmood Qureshi for Petitioners.

Dr. Abdul Basit, Ch. Muhammad Umer, Dr.Syed Zahid Bukhari along with Dr. Ahmad Nadeem Akbar, Registrar, PMDC and Ijaz Farrukh Senior, Law Officer, Health Department for Respondents.

Date of hearing: 30th August, 2010.

P L D 2011 Lahore 11

Before Umar Ata Bandial, J

GHAZANFAR ALI---Petitioner

Versus

NOOR MUHAMMAD and others---Respondents

Writ Petition No.3527 of 2010, decided on 26th February, 2010.

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

----Ss. 12(2)(f) & 14(3)(c)---Constitution of Pakistan, Art.199---Constitutional petition---Misdeclaration of assets---Inherited property---Petitioner was returned candidate and his declaration of asset form was challenged being false and he was alleged to have committed concealment of assets---Election Tribunal disqualified the petitioner for committing concealment of assets---Validity---Subject inherited property of petitioner did not fall within the mischief of section 12 of the Representation of the People Act, 1976---Bulk of petitioner's land holding was disclosed in his declaration and subject accretion was made by inheritance from his grandmother and not by personal acquisition---On account of default by Halqa Patwari mention of land in question was omitted in extract of revenue record---Burden of such omission could not be cast upon petitioner as he did not consciously suppressed its disclosure---Error or omission committed by petitioner was of trifling nature and not deliberate and, therefore, it was outside the ambit of disqualifying provision of section 14(3) of Representation of the People Act, 1976---Objection that petitioner should have corrected that error in his declaration would have had force if respondent had pointed out the same before Returning Officer and nomination papers of returned candidate were rejected as a result---Petition was allowed in circumstances.

Umar Ayub Khan v. Returning Officer NA-19, N-W.F.P. District Haripur/Additional District and Sessions Judge, Haripur and another 2003 MLD 222; Fahad Malik v. Mir Mumtaz Hussain Jakhrani and another 2008 CLC 457 and Rana Tajamul Hussain v. Rana Shaukat Mehmood PLD 2007 SC 277 ref.

Kh. Saeed-ur-Zafar and Zafar Iqbal Chohan for Petitioner.

Jehangir A. Jhojha for Respondents.

P L D 2011 Lahore 14

Before Umar Ata Bandial, J

Mst. SAFEER BEGUM and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.4291 of 2008, decided on 29th June, 2009.

Civil Procedure Code (V of 1908)---

----O. XVI, R. 2---Constitution of Pakistan, Art.199---Constitutional petition---Additional evidence---Technicalities---Petitioner was defendant in suit filed by respondent and he intended to include certain persons in the list of witnesses which was filed by hint after framing of issues---Trial Court allowed the petitioner to include the names in list of witnesses but Lower Appellate Court in exercise of revisional jurisdiction set aside the order passed by Trial Court---Validity---Trial Court had discretion under O. XVI, R. 2, C.P.C. to summon new witnesses, if good cause for omission of their names in the list was shown---Element of good cause was a matter of discretion to be exercised by Trial Court---No prohibition existed against summoning of new witnesses as perceived by lower Appellate Court---Parties had a right to bring relevant evidence on record so as to facilitate resolution of controversy with clarity and good reason---Resort to technicalities could hamper the course of justice---Lower Appellate Court in exercise of revisional jurisdiction had wrongly presumed a prohibition to exist in the case---Discretion to allow recording of evidence of new witnesses was a matter for Trial Court and the same had been, exercised on the grounds which did not indicate illegality or injustice to require interference---High Court restored order passed by Trial Court---Petition was allowed in circumstances.

Mst. Musarrat Bibi and 2 others v. Tariq Mahmood Tariq 1999 SCMR 799 ref.

Rai Wali Muhammad for the Petitioners.

Syed Ali Raza Rizvi for Respondents.

P L D 2011 Lahore 16

Before Asad Munir and Kh. Imtiaz Ahmad, JJ

MUHAMMAD AYUB AND BROTHERS through Partner---Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD and 5 others---Respondents

Intra-Court Appeal No.134 of 2010, decided on 15th September, 2010.

(a) Public Procurement Rules, 2004---

----R.48---Law Reforms Ordinance (XII of 1972), S.3(2), proviso---Infra-Court Appeal---Maintainability--Plea raised by Capital Development Authority was that Infra-Court appeal was barred in view of R.48 of Public Procurement Rules, 2004---Validity---No remedy of review, revision or appeal was provided under R.48 of Public Procurement Rules, 2004, against Capital Development Authority's letter in question---Remedy of complaint to the Committee provided in R.48 of Public Procurement Rules, 2004, could not be equated with the remedy of review, revision or appeal which appeared to be totally different in nature and scope---Bar contained in proviso to S.3(2) of Law Reforms Ordinance, 1972, therefore, was not attracted---Intra-Court Appeal was maintainable in circumstances.

(b) Public Procurement Rules, 2004---

----Rr. 30 & 31---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Bid, modification of---Parties took part in bidding for a contract in which respondent. was allowed to replace his insurance Guarantee with Call Deposit/Bank Guarantee---Plea raised by appellant was that such replacement was allowing, altering or modification of bid after opening of tender---Validity---Offer of respondent was initially rejected as invalid but was unlawfully revived and an opportunity was unlawfully and unduly given to respondent to amend the substitute its Insurance Guarantee with a Deposit at Call, one day later---Once the bids were opened, the procuring agency, could not allow any bidder to amend its bid so as to gain an unfair and undue advantage over others as any such indulgence was contrary to the norms of any bidding---Capital Development Authority had made a volte face as in pre-bid meeting held a few days earlier, it categorically told the bidding contractors that an Insurance Guarantee would not be allowed as bid security---Capital Development Authority's consultant found that the rates of respondent were unworkable which was totally ignored by the Authority---Judgment passed by single Judge of High Court was not sustainable and was set aside---Division Bench of High Court directed Capital Development Authority to either consider bid of appellant along with other bidder who had tendered responsive bids or in alternative Capital Development Authority was at liberty to call for a re-bidding of the contract---Infra-Court Appeal was allowed accordingly.

Bilal Khawaja and M. Nasir Khan for Appellants.

Tanveer-ul-Islam Khan for Respondents Nos. 1, 4 and 5.

Sajid Ahmad Qureshi for Respondent No.6.

Zafar Mihas, Legal Manager, CDA.

P L D 2011 Lahore 23

Before Umar Ata Bandial, J

Mian MAZHAR ALI and others---Petitioners

Versus

TAHIR SARFRAZ and others---Respondents

Writ Petition No.2204 of 2010, decided on 24th March, 2010.

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

----S. 4---Constitution of Pakistan, Art.199---Constitutional petition---right of inheritance---Wife of petitioner predeceased her parents and after their death petitioner claimed to be a legal heir pf his parents-in law---Validity---According to S.4 of Muslim Family Laws Ordinance, 1961, share from deceased grandfather's property had been bestowed upon the children of his predeceased son but the same did not mean that other heirs of the deceased would be excluded from their share of inheritance---Petitioner who was a widower of predeceased daughter was to be treated as an heir in the proceedings regarding division of property devolved upon his pre-deceased wife from her parents---Petition was allowed in circumstances.

Mst. Bhaggay Bibi and others v. Mst. Razia Bibi and others 2005 SMR 1595 ref.

Mst. Zainab v. Kamal Khan alias Kamla 1990 SCMR 1051 fol.

Mirza Aamer Baig for Petitioners.

Azhar Aqeel Arain for Respondents Nos. 1, 2 and 3.

PLD 2011 Lahore 25

Before Ijaz Ahmad Chaudhry and Shahid Hameed Dar, JJ

AURANGZEB and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1073-M of 2010 in Criminal Appeal No.190 of 2000 and M.R.No.247-T of 2000, decided on 2nd June, 2010.

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

---Ss. 35, 561-A & 397---Penal Code (XLV of 1860), Ss.302, 201 & 57---Prisons Rules, 1894, R.140---Qatl-e-amd, causing disappearance of evidence, or giving false information to screen the offender, acts done by several persons in furtherance of common intention---Sentence in cases of conviction of several offences at one trial---Trial Court convicted the accused on six counts---Sentences having been ordered to run consecutively, cumulative period amounted to 150 years---Petitioners/accused contended that S.35, Cr.P.C. barred awarding consecutive sentence of more than 14 years in one trial---Validity--. Imprisonment for life would mean twenty five years rigorous imprisonment and every such prisoner was required to undergo a minimum of fifteen years substantive imprisonment under R.140, Prisons Rules, 1894-Section 35, Cr.P.C. barred imprisonment of an accused for a term of more than 14 years for two or more offences at one trial---Consecutive sentence of 150 years was not a requirement of law---Aggregate of punishments of imprisonment for several offences at one trial would be deemed to be a single sentence---High Court ordered sentences of imprisonment for life to run concurrently with the benefit of S.382-B, Cr.P.C.---Application was accepted.

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

----S. 35---Maximum terms of punishment at one trial---Section 35, Cr.P.C. barred imprisonment for a term of more than 14 years for two or more offences at one trial.

Javed Sheikh v. State 1985 SCMR 153 and Shah Hussain v. The State PLD 2009 SC 460 fol.

Mian Subah Sadiq Klasoon for Petitioners.

Muhammad Aslam Sindhu, AGP for the State

P L D 2011 Lahore 29

Before Sayyed Mazhar Ali Akbar Naqvi, J

MUKHTAR AHMAD alias MUKHOO---Petitioner

Versus

THE STATE and 2 others---Respondent

Writ Petition No.7290 of 2010, decided on 24th June, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(c), 302(6) & 394---Criminal Procedure Code (V of 1898), Ss.403, 397 & 35(2)(a)---Constitution of Pakistan, Art. 199---Qatl-e-­amd, voluntary causing hurt in committing robbery---Constitutional petition---Sentences in two different cases sought to run concurrently---Prayer accepted---Accused was convicted and sentenced under S.302(b), P.P.C. to undergo 14 years' R.I. by Additional Sessions Judge on 24-9-2001 which was reduced to 10 years' R.I.---Accused was also convicted under S.302(b), P.P.C. and S.394, P.P.C. in another case registered at a different police station of the same District, by a different Additional Sessions Judge on 29-7-2002 and sentenced to suffer imprisonment for life and ten years' R.I. respectively, with the direction for the sentences to run concurrently---Accused had Prayed that the sentences awarded to him in both the aforesaid different cases be directed to run concurrently---Held, both the sentences, no doubt, had an independent footing with all strength of law, but the same pertained to one and the same person---Intent of Legislature to insert and confine the word "concurrent" in the Criminal Procedure Code, 1898, held much significance with analogy drawn from S.403, Cr. P. C. ---High Court as per S. 397, Cr.P.C. read with S. 35(2)(a), Cr.P.C. was empowered to order different sentences inflicted upon one accused to run concurrently---Sentences awarded to accused in both the cases were, therefore, ordered to run concurrently---Constitutional petition was allowed accordingly.

2005 YLR 866 ref.

Muhammad Ittefaq v. The State 1986 SCMR 1627 and Javed Sheikh v. The State 1985 SCMR 153 rel.

Ch.Abdul Majeed Gondal for Petitioner.

Ishaque Masih Naz, Deputy Prosecutor General Punjab for Respondent.

P L D 2011 Lahore 32

Before Shahid Hameed Dar, J

MUHAMMAD IJAZ---Petitioner

Versus

MUHAMMAD RIAZ and 4 others-Respondents

Criminal Miscellaneous No.1071-M of 2010, decided on 17th September, 2010.

Criminal Procedure Code (V of 1898)---

---Ss. 516-A & 561-A---Penal Code (XLV of 1860), S.379/411---West Pakistan Arms Ordinance (XX of 1965), S.13---Theft dishonestly receiving stolen property, possessing unlicensed fire arm---Custody on Superdari of case property---Matter related to the custody of a "bitch" which initially had been given to the petitioner on Superdari by the Magistrate---Sessions Court in revision upset the said order and gave the custody of the bitch to the respondent vide impugned order---Petitioner in his F.I.R. and respondent in his cross version had both admitted that the bitch was in the custody and control of the petitioner at the time of occurrence, when the same had been stolen---Petitioner had, prima facie, established that he was the last possessor of the bitch, which had been returned to him after the occurrence, as contended by both the parties in their respective versions before the police---Respondent, for the being, had failed to establish his claim of being the last possessor of the bitch---Sessions Court in the impugned order had rightly hinted at the principles governing the custody and control of the case property pending trial by observing that the last possessor of such property was entitled to the custody thereof under S. 516-A, Cr.P.C., but thereafter it had been swayed away by the terms "rightful claimant" and "sufficient material", as nothing of the sort at the moment existed on the investigation file of the case favouring the respondent---Impugned order had been passed on whimsical grounds which did not appeal to reason and logic---First order passed by Magistrate in favour of petitioner had not even been challenged by the respondent in his revision petition, which had been disposed of by Sessions Court in an arbitrary and perverse manner---Impugned order was consequently set aside and the case property i.e., the bitch was directed to be retained by the petitioner till the final adjudication of the case by Trial Court---Petition was allowed accordingly.

Zafar Iqbal Chohan for Petitioner.

Malik Asif Ahmad Nissoana for Respondent.

Khurram Khan, D.P.G. with Muhammad Shahzad S.-I. (with record).

P L D 2011 Lahore 37

Before Iqbal Hameed-ur-Rahman, J

Mst. NAILA PARVEEN and another---Petitioners

Versus

THE STATE and 2 others---Respondents

Writ Petition No.17187-Q of 2010, heard on 17th September, 2010.

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

----S. 365-B---Muslim Family Laws Ordinance (VIII of 1961), S.7(6)---Constitution of Pakistan, Art.199---Kidnapping, abducting or inducing women to compel for marriage etc.---Constitutional petition---Quashing of F.I.R.---Female accused, star prosecution witness in the 'case, had appeared before High Court and categorically stated that she being sui juris had contracted remarriage with her co-accused with her free-will and accord and that no one had abducted her---Said accused petitioner had also got registered her statement to the same effect under S.164, Cr.P.C. controverting the allegations contained in the F.I.R.---Earlier, divorce had been effected on account of a suit for dissolution of marriage filed by the female accused herself and not on account of verbal pronouncement of talaq by her co-accused for three times and the same would not be considered against the Injunctions of Islam or Qur'an and Sunnah---Pronouncement of "Khula" by Court would amount to a single divorce and the wife would be at liberty to remarry her husband after solemnization of Nikah without intervention of third person---Contents of Nikahnama had been admitted by both the accused petitioners, validity of which could not be challenged by any other person---Statement of the alleged abductee as well as the Nikahnama had belied the prosecution story narrated in the F.I.R.---Nikah of an adult woman was not invalid for want of permission of Wali and marriage was not invalid on account of the alleged absence of the consent of Wali---Brother of female accused being annoyed with her marriage with co-accused had got the impugned F.I.R. registered against them---F.I.R. was quashed in circumstances.

Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; Mst. Sughran Bibi v. DOP Lodhran and 5 others 2007 YLR 1292; Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316; Muhammad Ayub Khan v. Mst. Shehla Rasheed and another PLD 2010 Kar. 131; Gulzar Hussain v. Mst. Mariyam Naz 2000 MLD 447; Majmua-e-Qawaneen-e-Islam, Vol. II, Qanun-e-Talak written by Tanzil-­ur-Rehman, PP 369 and 597; Dr. Ghulam Mustafa Solangi and 5 others v. The State 2005 PCr.LJ 1638; Muhammad Imtiaz and another v. The State PLD 1981 FSC 308 and Hafiz Abdul Waheed v. Mrs. Asma Jahangir and another PLD 2004 SC 219 ref.

(b) Islamic law---

----Re-marriage after "Khula"---Validity---Pronouncement of "Khula" by Court amounts to a single divorce---Wife is at liberty to re-marry her husband after solemnization of Nikah without intervention of third person.

Muhammad Ayub Khan v. Mst. Shehla Rasheed and another PLD 2010 Kar. 131; Gulzar Hussain v. Mst. Mariyam Naz 2000 MLD 447; Majmua-e-Qawaneen-e-Islam, Vol. II, Qanun-e-Talak written by Tanzilur-Rehman, PP 369 and 597 ref.

Mirza Nasir Hussain Shahid Baig for Petitioner.

Naveed Ahmad Khawaja for Respondent No.3.

Muhammad Aslam Sindhu, Additional Prosecutor-General for Respondent.

Dil Nawaz S.-I. with record.

Date of hearing: 17th September, 2010.

P L D 2011 Lahore 42

Before Sh. Ahmad Farooq, J

IJAZ AHMAD---Petitioner

Versus

SURIYA AKHTAR and others---Respondents

Writ Petition No.5623 of 2010, decided on 15th October, 2010.

(a) Administration of justice---

----Explicit procedure---Deviation---Effect---Deviating from explicit procedure of enacted law is. not mere technicality but negation of will of legislature embodied under law in vogue---Statute is formal expression in writing of will of legislative organ of State---When law requires a thing to be done in a particular manner, the same must be done accordingly and if prescribed procedure is not followed, it is presumed that the same has not been legally done.

(b) Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 15, 19(4), 21 (1) & 22---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Mandatory procedure non-compliance of---Landlords sought ejectment of tenant on the grounds of personal need and expiry of lease period---Rent Tribunal neither issued notices under S.21(1) of Punjab Rented Premises Ordinance, 2007, nor tenant was directed to submit leave to contest---Rent Tribunal passed eviction order against tenant and the same was maintained by Lower Appellate Court---Plea raised by tenant was that proper procedure was not adopted by Rent Tribunal and ground relied upon for eviction was alien to law---Validity---Landlords neither filed eviction petition against tenant on the grounds available in S.15 of Punjab Rented Premises Ordinance, 2007, nor attached affidavits of witnesses along with eviction petition, as envisaged in S.19(4) of Punjab Rented Premises Ordinance, 2007---Rent Tribunal, in circumstances, did not conduct proceedings as envisaged in Ss. 21 and 22 of Punjab Rented Premises Ordinance, 2007---Eviction orders were passed in complete derogation of the explicit provisions of Punjab Rented Premises Ordinance, 2007 and the same were declared to be illegal and were set aside---Petition was allowed accordingly.

2007 YLR 2083 and 2003 SCMR 29 distinguished.

Younas Siddique v. Mst. Tahira Jabeen PLD 2009 Lah. 469 rel.

Ibad-ur-Rehman Lodhi for Petitioner.

Irfan Younis Dar for Respondents.

Date of hearing: 15th October, 2010.

P L D 2011 Lahore 46

Before Umar Ata Bandial and Muhammad Ashraf Bhatti, JJ

AKHTAR ALI---Appellant

Versus

MUHAMMAD SHOIAB AHMAD---Respondents

R.F.A. No.68 of 2008, decided on 10th September, 2009.

Defamation Ordinance (LVI of 2002)---

----Ss. 5(h) & 6---Civil Procedure Code (V of 1908), O. VII, R. 11---Rejection of plaint---Defamation---Proof---Essentials---Annual Confidential Report---Nature---Plaintiff, a civil servant, was aggrieved of the comments in his Annual Confidential Report, prepared by defendant another civil servant---Trial Court rejected the plaint for non-disclosure of cause of action---Validity---For wrongful act of defamation to be committed it was necessary that communication of defamatory material be made to "at least one person other than the person defamed"-To prove defamation, recipient of communication were necessary to allege that plaintiff was defamed or ridiculed---Plaint lacked any such particulars of "communication" and wrong of defamation was incomplete without communication---Annual Confidential Report of a government servant contained confidential opinion given by reporting officer about service credentials, performance and capabilities of his subordinate officer---As name of the report suggested, such remarks were made in strict confidence under the provision of law---Annual Confidential Reports formed part of the record of competent authority in government for determining service prospects and capabilities of officer commented upon ; it was essential that an objected communication and the person to whom it was made be stated in pleadings---Particulars about slander were given to the extent that essential ingredients of falsity of statement, injury to reputation or exposure to a claim in consequence of false statement, must be evident from pleadings---Plaint in the suit had been rightly rejected for non-disclosure of cause of action and High Court declined to interfere in the order passed by Trial Court---Appeal was dismissed in circumstances.

M. Akhtar Ali Chaudhry for Appellant.

P L D 2011 Lahore 48

Before Sh. Ahmad Farooq and Ijaz Ahmad Chaudry, JJ

EDEN-DEVELOPERS LTD.---Petitioner

Versus

NAB and others---Respondents

Writ Petition No.20549 of 2010, decided on 10th November, 2010.

(a) National Accountability Ordinance (XVIII of 1999)---

---Ss. 5(c), 5(da) & 25(b)---Plea bargaining---Crime proceed, recovery of---Benami assets---Husband of respondent was accused, who entered into plea bargaining with National Accountability Bureau (NAB)---Respondent voluntary surrendered amount which her husband deposited with Developers' company for purchase of house and in such connection respondent had submitted an affidavit---Objection of petitioner company was that NAB could not recover amount deposited on behalf of respondent as sale price paid by customer could not be returned to third party---Validity---Objection of petitioner company was devoid of any legal force as respondent only entered into an agreement to sell, which could not be equated with sale deed, as agreement to sell could not confer any right or title in the property---Prima facie, respondent had no known sources of income for depositing huge amount with petitioner company in respect of booking of house---National Accountability Bureau not only found during investigation that the house was booked by accused in the name of his wife but also the amount, which had been so far deposited by wife of accused was part of crime proceeds acquired by accused through cheating public at large---Letter issued to petitioner by NAB for recovery of amount deposited by husband of respondent did not suffer from any illegality---High Court declined to interfere in demand by NAB for return of amount---Petition was dismissed in circumstances.

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

----S. 12---Specific performance of agreement to sell---Nature---Agreement to sell could not be equated with sale-deed, as agreement to sell could not confer any right or title in the property.

Ch. Khurshid Ahmed for Petitioner.

Qazi Misbah-ul-Hassan for Respondent No.3.

Haroon Rasheed Chemma, Special Prosecutor for NAB.

Date of hearing: 10th November, 2010.

P L D 2011 Lahore 52

Before Muhammad Khalid Mehmood Khan, J

KHALID MAHMOOD---Appellant

Versus

TANDALIANWALA SUGAR MILLS LTD. through Manager, Personnel and Administration

FAISALABAD---Respondent

R.F.A. No.243 of 2002, decided on 15th September, 2010.

Civil Procedure Code (V of 1908)---

----O. XXXVII, R. 2---Negotiable Instruments Act (XXVI of 1881), Ss.4 & 13---Suit for recovery of amount on basis of promissory note---Part-payment made by defendant out of amount of promissory note admitted by plaintiff---Effect---Promissory note' being against consideration contained unconditional promise of executor to pay its amount on demand---Promissory note in case of such part payment stood converted into subsequent agreement under which part payment was made and adjusted, thus, same lost its credibility and enforceable under special law---In case of such part payment, suit on basis of original promissory note could be filed before Civil Court under its ordinary jurisdiction, but not under special jurisdiction of O.XXXVII, C.P.C.---Plaint was returned to plaintiff for its presentation before competent Court---Principles.

Inayat Ullah Ch. for Appellant.

Komal Malik Awan for Respondent.

Date of hearing: 28th July, 2010.

P L D 2011 Lahore 57

Before Asad Munir, J

MUHAMMAD ASGHAR---Petitioner

Versus

SAEEDA KHANUM---Respondent

Civil Revision No.2081 of 2001, decided on 27th October, 2010.

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

----S. 51---Decree would be executed as it is, and not in any other manner or mode which amounts to its modification.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 20---Civil Procedure Code (V of 1908), O.XX, Rr.18(1) & O.XXI, R.35(1)---Pre-emption suit Decree in favour of pre-emptor and vendee in equal shares---Application for execution of such decree by issuance of warrants of actual physical possession of land---Order of Executing Court directing Collector to divide land between parties---Validity---Such decree was a final decree for having completely disposed of suit filed by applicant/pre-emptor---Such decree had not demarcated pre-emptor's half share in land, thus, same was for its joint possession as against its separate possession---Pre-emptor by virtue of such decree had become a joint and equal owner in land along with vendee happened to be in its possession---Pre-emptor could not obtain actual possession of his share in land till his share was determined and separated by means of partition suit---Such decree did not contain any direction to Collector, thus, impugned order had amounted to its modification or correction, which was not permissible at post-deeretal stage in execution proceedings---Pre-emptor could only seek symbolic possession of his share in land as against its actual physical possession---High Court set aside impugned order in circumstances.

Ali Shah v. Allah Ditta and 6 others 1994 CLC 800 and Kazi Khan Mahomed v. Hemandas Pritamdas AIR 1935 Sind 192 rel.

Mehdi Khan Chohan for Petitioner.

Pervaiz Iqbal Gondal for Respondent.

Date of hearing: 30th September, 2010.

P L D 2011 Lahore 61

Before Umar Ata Bandial, J

MEHRAN ADVERTISER and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petitions Nos.15675, 15876, 15877, 23426, 21010 of 2009 and 2249 of 2010, decided on 10th May, 2010.

(a) Punjab Development of Cities Act (XIX of 1976)---

---Ss. 7. (2) (vi) (vii), 19, 20 & 44---Parks and Horticulture Authority Regulations, Reglns. 5(iii) & 6(f)---Constitution of Pakistan, Art.199---Constitutional petition---Vested right---Billboards and sky-­signs---Executive action, retrospectivety---Petitioners were engaged in the business of offering advertisement from their sky-signs affixed on private properties, who claimed to be adversely affected by height and size limits imposed by Parks and Horticulture Authority---Plea raised by petitioners was that restrictive height limit was illegal and it amounted to retrospectively curtailing their existing proprietary rights granted under valid authorization of authorities---Validity--- No Objection Certificates' were issued to petitioners without payment of any consideration, therefore, no proprietary rights could be claimed by petitioner under suchNo Objection Certificates'---No statutory or regulatory provision existed authorizing Parks and Horticulture Authority to confer a permanent "right'' on an out-door advertiser---Terms of No Objection Certificates' amounted to a permissive licence lacking any tenure or specific terms creating any indefeasible legal rights---No Objection Certificates' granted by Parks and Horticulture Authority under Punjab Development of Cities Act, 1976, was not a solitary and self-standing instrument but. was surrounded by set of other documents that defined and implemented the permission granted to petitioners---Application form for out-door advertisement signed by petitioners, the respective affidavits filed by them acknowledging applicable terms and conditions of Parks and Horticulture Authority and payment of sky tax for renewable periods by petitioner to Parks and Horticulture Authority, all indicated that permission accorded to petitioners through `No Objection Certificates' was of limited duration and subject to control and approval of the Authority, including right to revoke such permission in case of default by concerned petitioners to satisfy terms and conditions of permission inter alia on public interest considerations---Petitioners possessed, at the best, a revocable right or interest in out-door advertising and such claim could not possess character of a vested right in law---Necessary element for retrospectivity of executive action was curtailing or revocation of vested legal right or breach of lawful assurance or representation made by the State or its competent functionary---For rule of retorspectivity to apply, there must be first a vested legal right in existence---Authorities were competent, authorized and justified to enforce Parks and Horticulture Authority Regulations, whereafter the Authority did not accept any rent for sky-signs from petitioners and thereby emphatically rejected petitioners' claim for continuous use of their existing sky-signs---High Court in exercise of constitutional jurisdiction declined to interfere implementing of Regln.5 of Parks and Horticulture Authority Regulations---Petition was dismissed in circumstances.

State Bank of Pakistan v. Messrs Faisal Spinning Mills Ltd. 1997 SCMR 1244; Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad 2008 SCMR 773; Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156; Jibendra Kishore and others v. The Province of East Pakistan and another PLD 1957 SC (Pak.) 9 and Mst. Sardaran and 75 others v. The Municipality, Lyallpur PLD 1964 SC 397 ref.

Sheikh Fazal Ahmad v. Raja Ziaullah Khan and another PLD 1964 SC 494; Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong PLD 1970 SC 439; Arshad Mehmood v. through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 and Messrs Fazal Din and Sons (Pvt.) Ltd. v. Federal Board of Revenue, Islamabad and others 2009 SCMR 973 rel.

(b) Licence---

----Alteration of terms of a licence, permission or a privilege is inherent to any licensing system.

Sikandar Khan and Shoaib M. Rashid for Petitioners in (W.P. No.15675 of 2009).

Nadeem-ud-Din Malik for Petitioners (in W.Ps. Nos.15876 and 15877 of 2009).

Mian Muhammad Raul' for Petitioner (in W.P.No.21010 of 2009).

Asim Hafiz for Petitioner (in W.P. No.23426 of 2009).

Sh.Hamid Danish for Petitioner (in W.P. No.2249 of 2010).

Zaka-ur-Rehman Awan, Addl. A.G., Kh. Haris Ahmad assisted by Adnan Tariq for Respondent PHA along with Usman Ghani, Acting Director Machinery and Amir Ibrahim, Dy. Director (Machinery), PHA for Respondents.

P L D 2011 Lahore 76

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

TARIQ MAHMOOD and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.304-J of 2005 and Criminal Revision No.468 of 2009, heard on 30th November, 2010.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---F.I.R. had clearly mentioned that it was an unknown person who had committed the murder---Even in the inquest report story of prosecution was the same, but accused had been impleaded through a supplementary statement---Widow of deceased, firstly had stated that it was some unknown person who killed her husband, but later on she. stated that she had come to know subsequently that said unknown person was the accused---Trial Court declared accused as proclaimed offender and recorded prosecution evidence under S.512, Cr.P.C. wherein statement of complainant was recorded and even in that statement complainant had not named the accused---Evidence furnished by widow of deceased as prosecution witness and complainant had lost its intrinsic value and same was not confidence-inspiring---Other two witnesses had stated that they saw accused while he was carrying a kalashinkov in his hand---Such evidence itself was not of any importance as it did not connect accused with the crime mentioned in the F.I.R.---Klashnikov and crime empties allegedly recovered, having not been sent to the Forensic Science Laboratory for comparison carried no value---Prosecution had failed to prove motive against accused---Medical evidence and abscondance of an accused were supporting evidence and a person could not be convicted on the basis of the fact that accused remained absconder for sometime---Prosecution having failed to prove its case, mere abscondence of accused was of no avail to the prosecution---Prosecution was bound to prove its case beyond any shadow of doubt and that burden would never shift, if any reasonable doubt would arise regarding culpability of an accused and accused was always entitled for its benefit---Prosecution had failed. to prove its case against accused which was full of doubts---While extending benefit of doubt, conviction and sentence recorded by the Trial Court against accused, was set aside; he was acquitted of the charge leveled against him and was released.

Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Hakim Ali v. The State 1971 SCMR 432; Ameenullah v. State PLD 1976 SC 629; Muhammad Zaman v. Muhammad Afzaal and others 2005 SCMR 1679; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Ejaz Ahmad Bajwa for Appellants (Defence Counsel at State expense).

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State.

C.M. Sarwar for the Complainant.

Date of hearing: 30th November, 2010.

P L D 2011 Lahore 84

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

HAQ NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.410-J and Murder Reference No.599 of 2005, heard on 11th November, 2010.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---F.I.R. was promptly registered with full details of the incident---Motive had been established through the evidence of the complainant, who had stated that when he reached in the house of deceased she told him that accused wanted to develop illicit relations with her, but she did not agree---Presence of eye-witnesses at the spot was quite natural as deceased was real daughter of the complainant and their presence in view of their consistent, coherent and straight forward evidence had been proved---Defence remained unable to shake their evidence, even after lengthy cross-examination---Both witnesses had no enmity or ill-will of their own to falsely involve accused in the case---Mere relationship of the witnesses was not at all a ground itself to discredit their testimony in a murder case---Minor variations in minute details of the incident were insignificant and did not affect their natural narration of the whole incident---Medical evidence and recovery of weapon of offence, coupled with positive reports of Chemical Examiner and that of Serologist, further corroborated ocular account---Accused pleaded that he had killed the deceased when he found her in a compromising position with a man, but accused had not been able to produce any evidence in that respect, except the statement of husband of the deceased who was in jail at that time; and he had simply stated that his deceased wife was not of a good moral character; but he conceded that they were living happily for the last about twelve years---Accused, in circumstances, had failed to prove that plea---No reason of false implication of accused who was a single accused in a promptly lodged F.I.R. was available---Finding of conviction of accused recorded by the Trial Court was quite in accordance with law and was based upon well recognized principles of appreciation of evidence in a criminal case.?

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.367(5)---Qatl-e?-amd---Sentence, quantum of---Counsel for accused remained unable to point out any circumstance in the case calling for any mitigation in favour of accused---Act of accused and in the manner he committed cold blooded murder of deceased, was shocking---Accused at the time of occurrence was not of immature mind; and he fully knew the consequence of cutting throat of innocent victim with a chhuri in such a brutal manner---Normal sentence in qatl-e-amd was death and court was required to give reasons under S.367(5), Cr.P.C. for not awarding the same---Question of sentence in a murder case was of very vital importance and all the care and caution was required to be maintained in that regard and it was also equally important aspect of the matter that sentence of death could not be altered on basis of flimsy grounds and principle of proportionality could not be lost sight---No extenuating circumstance was available in favour of accused for extending him any benefit regarding his sentence; his conviction and sentence under S.302(b), P.P.C. was maintained, in circumstances.?

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

----Art. 121---Burden of proof---Under Art.121 of Qanun-e-Shahadat, 1984 if any accused took up any specific plea, then burden to prove same would shift upon him.?

Mian Abdul Qayyum Anjum for Appellant.

Chaudhry Muhammad Mustafa, Deputy Prosecutor-General for the State.

Chaudhary Rizwan Hayat for the Complainant.

Date of hearing: 11th November, 2010.

P L D 2011 Lahore 92

Before Manzoor Ahmad Malik and Muhammad Anwaarul Haq, JJ

ABDUL REHMAN alias GAGI and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.990 and Murder Reference No.629 of 2005, heard on 28th October, 2010.

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

----Ss. 302(b), 324 & 148---Qatl-e-amd, attempt to commit Qatl­-e-amd---Appreciation of evidence---Opinion of Police---Evidentiary value--Opinion of Police regarding guilt or innocence of accused, was not admissible in evidence.

Muhammad Ahmad (Mahmood Ahmed) v. The State 2010 SCMR 660 rel.

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

----Ss. 302(b), 324 & 148---Qatl-e-amd, attempt to commit Qatl-e­-amd---Appreciation of evidence---If evidence of the prosecution was disbelieved qua one accused, it could not be believed against the other, unless there was a strong and independent corroboration, especially when the witnesses were inimical and interested.

Akhtar Ali and others v. The State 2008 SCMR 6 and PLD 1975 SC 588 ref.

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

----Ss. 302(b)/324/148 & 149---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-e-amd, attempt to commit Qatl-e-amd---Appreciation of evidence---Benefit of doubt---No empty having been recovered from the spot, mere report of the Forensic Science Laboratory that two pistols recovered from co-accused were in working order, was of no avail to the prosecution---Motive set up in the F.I.R. was directly against co-accused who had been acquitted by the Trial Court and no appeal against his acquittal had been filed either by the State or the complainant party---Motive in the case, in circumstances, could not be treated as a corroborative piece of evidence against accused persons---One person was also injured in the occurrence and complainant had categorically stated that said person had received injury on his chest by an acquitted co-accused; but whole record was silent about that most important witness; and even his Medico-legal Report was not available on the file---Counsel for accused persons, in circumstances, was rightly of the view that adverse inference within the meaning of Art.129(g) of Qanun-e-Shahadat, 1984 should be drawn against prosecution---Prosecution had failed to prove its case against accused persons and ocular account was not in line with the medical evidence---Prosecution had to prove its case beyond any shadow of doubt; and if any doubt would arise from the circumstances of the case, its benefit had to go to accused---Prosecution case being full of doubts, accused were entitled to the benefit of the same not as a matter of grace, but as a matter of right---Extending benefit of doubt, conviction and sentence recorded by the Trial Court against accused persons were set aside and they were acquitted of the charge levelled against them and were released, in circumstances.

Riaz Ahmed v. The State 2010 SCMR 846; Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

Malik Akhtar Saeed Bhatti and Hamid Ali Mirza for Appellants.

Ch,audhary Muhammad Mustafa, Deputy Prosecutor-General for the State.

Date of hearing: 28th October, 2010.

P L D 2011 Lahore 102

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD YOUNAS KHAN LODHI---Petitioner

Versus

SECRETARY, GOVERNMENT OF THE PUNJAB, COOPERATIVE DEPARTMENT, LAHORE and 4 others---Respondents

Writ Petition No.8307 of 2006, heard on 15th October, 2010.

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

----S. 54---Constitution of Pakistan, Art.199---Constitutional petition---Respondent raised construction on the property of petitioner who sought demolition of said construction and restoration of possession and moved a petition under S.54 of Co-operative Societies Act, 1925 before Secretary, Co-operative Department of the Province and contended that the matter related to the "business of the cooperative society "---Secretary to Government, Cooperative Department dismissed the petition holding that the disputed question did not relate to "business of the society"---Validity---Dispute in question was between two parties and the same did not pertain to the business of society---Remedy available to petitioner lay before the civil court---Proviso to S.54 of Co-operative Societies. Act, 1925 laid down that complicated questions of law and fact between the society and a claimant could be referred to civil court---Dispute relating to encroachment being complicated question of law and fact could be resolved through evidence of the parties---Impugned order suffered from no illegality or material irregularity warranting High Court's interference in its constitutional jurisdiction---Constitutional petition was dismissed.

Syed Sultan Ali v. Sahibzada Frogh Najam Najmi and 2 others 2003 YLR 2216 distinguished.

M. Wahidullah Ansari through Legal Heirs v. Zuheda Sharif and another PLD 2002 Kar. 414 and Zaibunnissa v. Muhammad Sajid and 2 others PLD 2009 Kar. 133 ref.

Nadeem-ud-Din Malik for Petitioner.

Sharif Sindhu for Respondent No.3.

Mian Iftikhar Hussain for Respondent No.5.

Date of hearing 15th October, 2010.

P L D 2011 Lahore 106

Before Sh. Azmat Saeed and Muhammad Yawar Ali, JJ

UZAIR IKRAM---Petitioner

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL through President and 8 others---Respondents

Writ Petition No.20460 of 2010, heard on 2nd November, 2010.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Educational institution---Admission---Petitioner challenged Self Finance Scheme being discriminatory on the ground that students holding dual nationality who had passed intermediate or an equivalent examination from Pakistan were ineligible for admission to M. B. B. S. /B. D. S. courses under the said scheme while students with dual nationality who had also taken their intermediate or equivalent examination were eligible for admission under the scheme for B.E./B.Sc. Engineering and also for Pharm D.---Contention raised by the petitioner was that there was no intelligible differentia which would justify such discrimination inter se the two sets of students---Validity---Students with dual nationality who had done their intermediate or equivalent examination from Pakistan had been dealt with differently, inasmuch as, the additional disqualification had been added by way of insertion of special clause which was violative of Art.25 of the Constitution---Ex facie no intelligible differentia was available justifying such discrimination---High Court allowed constitutional petition and declared special clause to be ultra vires the Constitution with the direction that no student should be deprived of benefits of the Self Finance Scheme on such basis and authorities were directed to ensure that such order of High Court was publicized so that no student entitled to be considered for benefit of the said scheme was deprived thereof.

Rizwan Mushtaq for Petitioner.

Syed Iqbal Hussain Gillani, D.A.G., Dr. Abdul Basit and Shujat Ali Khan, A.A.-G. for Respondents.

Date of hearing: 2nd November, 2010.

P L D 2011 Lahore 110

Before Syed Ikhlaq Ahmad, J

IFTIKHAR HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1342-B of 2010, decided on 1st September, 2010.

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

----S. 497---Penal Code (XLV of 1860), Ss.337-D/337-F(v)/337-F(i)/ 148/149---Jaifah, damiyah and hashimah---Bail, refusal of---Accused was named in the F.I.R. with specific role---Version of the F.I.R. was supported from the statements of the prosecution witnesses and was further corroborated from the Medico-legal report of the injured female and the recovery of Kalashnikov from the accused---Empty of Kajashnikov had also been recovered from the spot, but it had not been sent for matching---Accused along with co-accused, in the first instance threatened complainant of dire consequences and after one hour implemented said threat by firing direct shot from his Kalashnikov upon the chest of the innocent lady belonging to the complainant side---After the occurrence accused became fugitive from law for about I5 days and was arrested during raid conducted by the Police---Case of accused was quite distinguishable from the case of co-accused who had been admitted to bail by the High Court---Accused, in circumstances, could not claim bail on the principle of rule of consistency---Offence against accused also fell under the prohibitory clause of S.497, Cr.P.C.---Accused having no case for bail, his bail application stood dismissed, in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss.337-D/337-F(v)/337-F(i)/ 148/149---Jaifah, damiyah and hashima---Bail, refusal of---Direction of court for disposal of case within a particular period of time---Trial Court had recorded 16 out of 18 prosecution witnesses and statements of two Police Officials, were yet to be recorded---No doubt direction of High Court was to decide the case before specified period, accused, however, would not become entitled to the concession of bail on that ground---Direction by a superior court for disposal of a case within a particular period of trial, was always directory in nature; and such a direction should be followed as far as possible, keeping in view the interest of justice---Care should be taken that justice was not sacrificed at the altar of expeditious disposal of cases---Direction issued by High Court to Trial Court regarding conclusion of trial within a specified period was only an administrative direction and same would not confer any right of bail on the accused, if direction was not complied with by the Trial Court on account of any exigency or any fresh development in the case---Perusal of order sheet had shown that accused side had also contributed in delay in conclusion of trial by getting, a few adjournments---Bail application was dismissed.

Shams-ud-Din v. Muhammad Sharif 1996 MLD 1094; Muhammad Nawaz alias Deno and another v. The State 2003 MLD 79; Abdul Qadir Sahar v. the State PLD 2004 Kar. 287 and Abid Sohail v. The State 2006 PCr.LJ 864. ref.

Malik Waheed Anjum for Petitioner.

Sheikh Istajabat Ali DDPP for the State.

Muhammad Abdul Hayee Alvi for the Complainant.

Irfan A.S.-I. along with record.

P L D 2011 Lahore 115

Before Ijaz Ahmad Chaudhry and Sh. Ahmad Farooq, JJ

NAZAR MUHAMMAD CHOOHAN---Petitioner

Versus

Dr. FAIZA ASGHAR and others---Respondents

Writ Petition No.24679 of 2010, heard on 24th November, 2010.

(a) Provincial Assembly of the Punjab Privileges Act (II of 1972)---

----S. 10(7)---Constitution of Pakistan Art. 199---Constitutional jurisdiction of High Court---Notice of appearance---Exemption---Scope---If any public servant is aggrieved of issuance of a notice to appear before Assembly or Committee thereof, such person may approach Government in order to claim exemption from the appearance---Courts are not expected to place any clog on the authority of Provincial Assembly or any of its committees to summon a public servant for his appearance.

(b) Rules of Procedure of Provincial Assembly of Punjab---

----Rr. 70 & 73---Privilege Motion---Summoning of any person---Scope---Speaker is empowered under Rules 70 and 73 of Rules of Procedure of Provincial Assembly of Punjab, to admit a Privilege Motion and refer the same to the Committee on Privileges for examination, investigation and submission of a report---Summoning of a person/public servant by Committee on Privileges, against whom a Privilege Motion was moved, is an act which is not only permitted under relevant rules but also in consonance with the principles of natural justice.

(c) Provincial Assembly of the Punjab Privileges Act (II of 1972)---

----S. 10---Rules of Procedure of Provincial Assembly of Punjab, R.117---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Privilege Motion---Summoning of a person by Committee---Pendency of matter before High Court---Grievance of petitioner was that the Committee on Privileges had summoned him to appear before it in the matter which was pending before High Court---Validity---Only moving of a resolution for seeking to raise discussion in respect of a matter pending before any statutory tribunal or statutory authority performing any judicial or quasi judicial functions or any Commission or court of inquiry, is prohibited under Rule 117 of Rules of Procedure of Provincial Assembly of Punjab---Constitutional provisions were designed to allow pillars of the State to work in harmony with a system of check and balance---Judiciary was charged with the duty and power to interpret, construe and apply the Constitutional law but in exercise of such power, judiciary could claim no supremacy over other organs of the State e.g. the legislator but was to act only as an administrator of the public will---Procedure adopted for conducting proceedings of Assembly could not be scrutinized by High Court in exercise of its Constitutional jurisdiction---High Court declined to interfere in the notice issued to petitioner by Committee of Privileges of Punjab Assembly---Petition was dismissed in circumstances.

Commodore (R.) Shamshad v. Federal Board of Intermediate and Secondary Education and others PLD 2009 SC 75 distinguished.

Wasi Zafar v. Speaker Provincial Assembly PLD 1990 Lah. 401 rel.

Rana Abdul Ghaffar Khan for Petitioner.

Date of hearing: 24th November, 2010.

P L D 2011 Lahore 120

Before Sh. Azmat Saeed, J

Messrs SHAHEEN COTTON MILLS, LAHORE and another---Petitioners

Versus

FEDERATION OF PAKISTAN, MINISTRY OF COMMERCE through Secretary and another---Respondents

Writ Petitions Nos. 4396, 6158, 7760, 7320, 7321, 7577, 7579, 4833, 5595, 7029, 7030, 5477, 5479, 7578, 4831, 6155, 4835, 5495, 4836, 4837, 6157, 4397, 7031, 7272, 7229, 5496, 8023, 8024, 4832, 6154, 6159, 6156, 6160, 6223, 6222, 4834, 4398 and 7023 of 2010, decided on 18th May, 2010.

(a) Import and Export (Control) Act (XXXIX of 1950)---

----Ss. 3(1) & 5---Constitution of Pakistan, Arts. 3, 18, 25, 38 & 199---Constitutional petition---Notification of Federal Government restricting export of cotton yarn upto 35 million K.G., per month from 4-1-2010 till 30-6-2010---Petitioners being manufacturers and exporters of cotton yarn alleged such notification to be unreasonable and violative of Arts.18 & 25 of the Constitution--Validity---In absence of impugned restriction, there would be a flight of cotton yarn from country leaving value-added-textile sector starved of its raw material resulting into reduction of export earnings and wide spread closure of textile units and creation of unemployment---Only 8% of workers were employed in spinning industry, while remaining 92% were employed in value-added-textile sector---Policy of Government to impose impugned restriction was not arbitrary and unreasonable---Impugned notification was issued under Import and Export (Control) Act, 1950 and was not suffering from any uncertainty---Purpose of impugned notification was to secure availability of cotton yarn for local industry, while surplus fine yarn fetching higher price in international market was permitted to be exported---Right guaranteed by Art. 18 of the Constitution could not be interpreted by excluding or ignoring any other provisions thereof including Art. 38 casting responsibility upon State to secure well-being of its citizens and promote and protect employment---Right claimed by petitioner would necessarily be exercised in harmony with overriding needs and interest of community and State and its responsibilities under the Constitution---Petitioners could not claim to exercise right under Art.18 of the Constitution in a manner, which would result in a dramatic loss to export earnings further widening in trade deficit with all its attending adverse impacts on economy and resulting in increase unemployment---Interest of State and community could not be sacrificed for profits sought to be made by an individual at cost of great hardship to a significant segment of population--Impugned notification was not violative of Art.18 of the Constitution---High Court dismissed constitutional petition in circumstances.

Arshad Mehmood and others v. Government of Punjab through Secretary Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Muzaffar Khan and others v. Evacuee Trust Property through Deputy Administrator 2002 CLC 1819; Messrs Airport Support Service v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Saleh Muhammad v. Traffic Manager, Port Trust, Karachi PLD 1961 (W.P.) Kar. 349; Hashwani Sales Service Limited v. Karachi Building Control Authority and 15 others PLD 1986 Kar. 393; Messrs East and West Steamship Company v. Pakistan, through the Secretary, Government of Pakistan, Ministry of Commerce, Karachi and others PLD 1958 SC (Pak.) 41; Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957 SC (Pak.) 9; Pakistan Muslim League (N) through Kh. Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2007 SC 642; In re: v. Abdul Azeez and another AIR 1954 Madras 62; Indian Express Newspapers (Bombay) Private Ltd. and others v. Union of India and others AIR 1986 SC 515; The State of Madras v. V.G. Rom AIR 1952 SC 196; I. A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Zaheeruddin and others v. The State and others 1993 SCMR 1718; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Federation of Pakistan and others v. Amar Textile Mills (Pvt.) Limited and others 2002 SCMR 510; Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404; Government of Pakistan v. Zamir Ahmed PLD 1975 SC 667; The Tariq Transport Company Lahore v. Sargodha Bhera Bus Service Sargodha PLD 1958 SC 437; Muhammad Iqbal Rafi v. the Province of Punjab, 1986 SCMR 680; Nisar-ul-Haq v. Tehsil Municipal Administrator City PLD 2002 Lah. 359; Zamir Ahmed Khan v. Government of Pakistan 1978 SCMR 327; MD Tahir v. Chief Secretary Government of Punjab 1995 CLC 1687; Shehzad Riaz v. Federation of Pakistan 2006 YLR 229; Rehmat Filling Station v. Government of Pakistan 2004 MLD 1372; Muhammad Saleem v. Federal Public Service Commission of Pakistan, 2003 MLD 1133; New Shaheen Trading Company v. Government of Pakistan 2008 SCMR 17; Molasses Trading and Export Co. v. Government of Pakistan 2007 PTD 1005; Cynamid Pakistan Ltd. v. Collector of Customs 2005 PTD 1670; Abdul Rahim Allah Ditta v. Federation of Pakistan PLD 1988 SC 670; Ahmad Abdullah v. Government of Punjab PLD 1993 Lah. 752; Collector of Customs v. Ravi Spinning Mills Ltd. 1999 SCMR 412; Associated Provincial Picture House Ltd. v. Wednesbury Corporation 1947(2) All ER 680 and In the Council of the Civil Service Unions and others 1984(3) All ER 935 ref.

Federation of Pakistan and others v. Ammar Textile Mills (Pvt.) Ltd. and others 2002 SCMR 510 rel.

(b) Constitution of Pakistan---

----Arts. 18 & 38---Expression "lawful trade or business" as used in Art. 18 of the Constitution---Connotation---Surplusage would not be easily attributed to a statute least of all a constitutional document---Such Article must be read in context of entire Constitution and interpreted by giving effect to every word and expression used therein including expression "lawful trade or business"---Expression "lawful trade or business" was not surplusage, meaningless, irrelevant or superfluous---Fundamental Rights guaranteed under the Constitution could neither exist in isolation nor be exercised in a vacuum, thus, they must be read in a manner that each right being subject to other right, otherwise one right would collide with another right---Constitution being a living document, thus, interpretation of its provisions must be dynamic rather than strategic and elastic rather than rigid---Right guaranteed under such Article might be exercised subject to reasonable qualifications and regulations-Government not prohibited by such article from creating a State monopoly in respect of any trade, business, industry or service in exclusion of citizens---Right guaranteed under such Article could not be interpreted by excluding or ignoring any provisions of the Constitution including Art. 38 thereof casting responsibility upon State to secure well-being of its citizens and promote and protect employment---Expressions "lawful" and "legal" were not synonymous---Limitations might be imposed by law on right to undertake any trade or business in order to harmonize such right with a competing fundamental right of another person or fulfil a positive command of the Constitution---Such limitations must be rational and proportionate to end sought to be achieved---Such limitations, if imposed through a Federal or Provincial legislation, must stand test of constitutionality by not being in violation of the Constitution or fundamental rights guaranteed thereunder---Such limitations, if imposed through delegated legislation, then additional test of same not being uncertain, not unreasonable or ultra vires parent statute and not in conflict with any other law would apply---Such limitation, if imposed through an executive action, then such action must necessarily be taken in exercise of powers conferred by law and in accordance therewith without offending any other law or Constitution or fundamental rights guaranteed thereunder.

Arshad Mahmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; Zamir Ahmad Khan v. Government of Pakistan 1995 CLC 1687; The Progress of Pakistan Co., Ltd. v. Registrar Joint Stock Companies Karachi PLD 1958 (WP) Lah. 887; Mehtab Jan and another v. Municip0al Committee Rawalpindi PLD 1958 (WP) Lah. 929; Smt. Maneha Gundhi v. Union of India and another AIR 1978 SC 597 and Pakistan Muslim League (N) through Khawaja Muhammad Asif MNA and others v. Federation of Pakistan through Ministry of Interior and others PLD 2007 SC 642 rel.

(c) Interpretation of statutes---

----Surplusage would not be easily imputed or attributed to a statute least of all a constitutional document.

(d) Interpretation of Constitution---

----Constitution must be interpreted as one organic and no part thereof can be read in isolation including Fundamental Rights.

(e) Interpretation of Constitution---

----Constitution being a living document, interpretation of its provisions must be dynamic rather than strategic and elastic rather than rigid---Principles.

While interpreting the Constitution and its provisions, it must be borne in mind that the Constitution is a living document catering for the progress, peace, welfare and amity amongst the citizens. The social and economic needs of the country, growing requirements of the society and the ever changing and complex issues faced by the people cannot be ignored. Therefore, the judicial interpretation must necessarily be dynamic rather than strategic, elastic rather rigid.

Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957 SC (Pak.) (?) Government of Balochistan v. Aziz Ullah Maiman and 16 others PLD 1993 SC 341; Messrs Ilahi Cotton Mills and others v. Federation of Pakistan PLD 1997 SC 582 and Arshad Mehmood v. Government of Punjab PLD 2005 SC 193 rel.

(f) Constitution of Pakistan---

----Part II, Chap. 1 [Arts.8 to 28]---Fundamental rights, interference with---Scope---Such rights should not be treated lightly or permitted to be interfered within a casual or cursory manner through sub-constitutional measures.

(g) Constitution of Pakistan---

----Art. 199---Constitutional Jurisdiction of High Court---Scope---Policy decisions/matters of Government---Judicial review of such matters/decisions by High Court Scope---Exercise of judicial review by High Court in such matters not absolutely barred---Principles.

Constitution of Pakistan is based on trichotomy of power, whereunder it is the right of the Government to lay down a policy and enforce the same. High Court can neither sit in appeal in respect of any policy matter nor substitute the policy decisions of the Government by its own.

However, it may not be correct to hold that there is an absolute bar to the exercise of judicial review by High Court in all matters pertaining to a policy of the Government.

In cases where the policy collides with the law or the Constitution or is arbitrary or unreasonable, High Court can intervene though it may not substitute the policy of the Government by laying down a new policy on the subject. High Court has jurisdiction to examine the offending order/notification or the policy of the Government that it manifests. Even in the policy matters, High Court can always exercise its powers of judicial review so as to ascertain that said policy does not violate any law or the Constitution and the same is not arbitrary or unreasonable.

All Government policies eventually must be translated into legislative or executive actions. In order to implement the policy, laws have to be made and/or executive orders have to be passed or direction given. In the absence thereof, the policy would merely remain an intention good or bad of the Government with no real effect on the citizens, hence may not provide any ground for grievance thereagainst. In such an eventuality, any controversy regarding such policies perhaps would only be academic in nature.

When in order to implement or give effect to a policy, the legislature promulgated a law, such statutory instrument is obviously subject to judicial review and its constitutionality can always be examined and if necessary the same can be struck down inter alia for offending against the provisions of the Constitution for absence of legislative competence or for being a violation of the Fundamental Rights.

In order to implement the policy, the delegated legislation may also require to be resorted to by framing of rules and .regulations and issuance of notifications etc. The vires of such delegated legislation are subject to judicial review and the grounds available for striking down such delegated legislation have also crystallized.

Policies in the ultimate analysis tend to be translated into executive action. Executive has no inherent power to pass any order or take any action.

Every executive action must be justified by disclosure of the powers so vested in the executive under the law and can always be subject to judicial review. Furthermore, all such actions must not only necessarily be intra vires the law i.e. the statute, rules or regulations whereunder they are purportedly taken, but also the fair free from mala fides of fact and law.

An order/notification cannot be hidden from the scrutiny of judicial review by creating a smoke screed of government policy.

Arshad Mahmood and others v. Government of Punjab through Secretary, Transport Civil Secretary, Lahore and others PLD 2005 SC 193; Government of Pakistan v. Zamir Ahmad Khan 1995 CLC 1687; Muhammad Iqbal Rafi and 2 others v. Tlie Province of Punjab, Lahore and others 1986 SCMR 680; Nisar-ul-Haq v. The Tehsil Municipal Administration PLD 2002 Lah. 359 and Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 rel.

(h) Constitution of Pakistan---

----Art. 199---Delegated legislation by Government---Judicial review by High Court---Scope---Essential grounds stated.

Every piece of delegated legislation can be subject to judicial review by High Court and struck down on the grounds that (a) the statutory procedure prescribed for making them has not been followed; (b) they are repugnant to a provision of some other statute; (c) they must not conflict with the parent Act itself; (d) they are uncertain; (e) they are unreasonable.

Muzaffar Khan and others v. Evacuee Trust Property 2002 CLC 1819 rel.

Athar Minallah, Salam Akram Raja, Muhammad Bashir Mirza and Syed Shahab Qutub for Petitioners.

Amir Rehman D.A.-G., Ali Sibtain Fazli, Arshad Mehmood, Rashid Anwar and Kanwar Muhammad Usman Director, Minsitry of Textile, Hasham Ahmad and Nasar Ahmad for Respondents.

Date of hearing: 22nd April, 2010.

P L D 2011 Lahore 145

Before Ijaz Ahmad Chaudhary and Sh. Ahmad Farooq, JJ

Hafiz BILAL AHMAD---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION 18-HAZARI, TEHSIL AND DISTRICT JHANG and 3 others---Respondents

Writ Petitions Nos.14617, 21672, 22103, 21661 and 22192 of 2010, heard on 20th October, 2010.

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

----S.11-EE (2)(a) & (3), Fourth Schedule---Constitution of Pakistan, Arts. 4 & 199---Constitutional petition---Security for good behaviour---Prerequisites---Period beyond three years---Legality---Grievance of petitioners was that their names were included in Fourth schedule and security for good behaviour was sought from them for period beyond three years---Validity---Prerequisites for inclusion of the name of a person in a list prepared according to Fourth Schedule of Anti-Terrorism Act, 1997, were concrete material and cogent reason to prima facie establish that the person was an activist, office bearer or an associate of a proscribed organization or an organization suspected to be involved in terrorism or sectarianism---It was also necessary that material or information placed before concerned government should be of such nature, which could satisfy a reasonable person for making necessary entry in Fourth Schedule of Anti-Terrorism Act, 1997 and foremost requirement was that the competent authority must prove legality of the order---Names of petitioners stood in list prepared according to Fourth Schedule of Anti-Terrorism Act, 1997, for a period exceeding three years, which was violative of restriction imposed on the concerned government as provided in S.11-EE(2)(a) of Anti-Terrorism Act, 1997---Inclusion of name of a person in Fourth Schedule for an indefinite period was not only against relevant provisions of law but also a flagrant violation of inalienable right of a citizen to enjoy protection of law and to be treated in accordance with law, as enshrined in Art. 4 of the Constitution---Retaining names of petitioners in a list as mentioned in Fourth Schedule of Anti-Terrorism Act, 1997, prepared more than three years earlier was not in accordance with law and the same could not be sustained---High Court directed the authorities to delete the names of petitioners from the Fourth Schedule of Anti-Terrorism Act, 1997---Petition was allowed accordingly.

Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2005 Lah. 370 rel.

Shabbir Hussain Dhillon for Petitioner.

Zubair Khalid, Addl. A.-G. for Respondents.

Date of hearing: 20th October, 2010.

P L D 2011 Lahore 149

Before Asad Munir, J

MUHAMMAD RAFIQUE and another---Appellants

Versus

MUHAMMAD ISMAIL and another---Respondents

Regular First Appeal No.503 of 2003, decided on 27th October, 2010.

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

----O. XXXVII, R.2---Stamp Act (II of 1899), Ss.35 & 61---Suit for recovery of amount on the basis of pro note---Plea of insufficiency of stamps on the pro note at appellate stage---Admissibility---Trial Court, after hearing parties and evaluating the material on record, decreed the suit of the plaintiff through the impugned judgment which was challenged in appeal---Plaintiff asserted that the promissory note on the basis of which Trial Court decreed suit of the plaintiff was inadmissible in evidence for being insufficiently stamped---Validity---Promissory note and the receipt were admitted in evidence by the Trial Court---No objection at the appellate stage could be taken to the admissibility of these documents on the ground of insufficiency of stamps in view of S.36 of the Stamp Act, 1899 except as provided in section 61---Documents in question were insufficiently stamped to the extent of Rs.15 and such deficiency could be made good by passing the appropriate order under S.61 of the Stamp Act, 1899---High Court dismissed appeal with direction to plaintiff to pay Rs.15 on account of deficiency in stamp on the promissory note and the receipt, along with ten times penalty of Rs.150 and such amount should be paid into the account of District Collector.

Union Insurance Company Ltd. Pakistan v. Hafiz Muhammad Siddique PLD 1978 SC 279 and Muhammad Rafique v. Muhammad Nawaz 2001 CLC 318 rel.

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

----O. XXXVII, R.2---Suit for recovery of amount on the basis of pro note---Plea of the defendant that no claim could be based on the promissory note as the same was not duly proved---Record revealed that the executant was confronted with the promissory note including the receipt during cross-examination but he denied its execution whereupon it was referred to the hand-writing expert of the Finger Print Bureau who gave report and opined that the promissory note as well as the receipt did bear the thumb impressions of the defendant---Based on opinion of the said report, the promissory note and the receipt in question were duly proved to have been executed by the defendant.

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

----O. XXXVII, R.2---Suit for recovery of amount on the basis of pro note---Pro note could be executed to secure the payment of monetary obligations even where there was no debt or payment involved.

Muhammad Rafique v. Muhammad Nawaz 2001 CLC 318 rel.

Rana Rashid Akram Khan for Appellants.

Rana Ghulam Mustafa for Respondents.

Date of hearing: 29th September, 2010.

P L D 2011 Lahore 153

Before Ijaz Ahmad Chaudhry, J

WALI DAD KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.945 of 2010, heard on 8th December, 2010.

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

----S. 302---Criminal Procedure Code (V of 1898), Ss.464 & 465---Qatl­-e-amd---Application for postponement of trial on ground of lunacy of accused---Accused submitted application for postponement of the trial on the ground that he was suffering from hypomania; and that he was a lunatic person---Accused submitted photocopies of documents in support of his lunacy, but Trial Court disbelieved the same---Validity---Trial Court had rightly disbelieved documents submitted by accused, because those did not suggest, that disease carried by accused, was permanent suffering from insanity, thereby, incapable of making his defence or not---Documents produced by the counsel for the complainant before the Trial Court relating to some transaction in Revenue Department, reflected an impression that accused was of sound mind; and was fit enough to understand the proceedings of the trial pending before the Trial Court---Trial Court, in circumstances had rightly dismissed application filed by accused---No jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning had been pointed out by the counsel for accused so as to warrant an interference in jurisdiction and discretion exercised by the Trial Court in dismissing application of accused.

Raja Aurangzeb v. The State 1968 PCr.LJ 1930 ref.

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

----Ss. 464 & 465--Trial of lunatic---Provisions of S.465, Cr.P.C. should be adhered to if any accused, before the Trial Court or a High Court, appeared to the court at his trial to be unsound mind; and consequently incapable of making his defence---Court in the first instance, would try the fact of such unsoundness and incapacity; and if the court was satisfied of the fact, it would record a finding to that effect; and would postpone further proceedings in the case---Inquiry under S.464, Cr.P.C. should not be held merely because accused had made an application claiming that he was of unsound mind---Such inquiry would only be undertaken where it appeared to the court, from its own observation or from any other factor, that accused was incapable of making his defence because of unsound mind.

Raja Aurangzeb v. The State 1968 PCr.LJ 1930 ref.

Nisar Abbas Jora for Petitioner.

Abdus Samad, Addl. Prosecutor-General for the State/Respondent No. 1.

Shahid Azeem for Respondent No.2.

Date of hearing: 8th December, 2010.

P L D 2011 Lahore 156

Before Ijaz-ul-Ahsan, J

MUHAMMAD JAVAID---Petitioner

Versus

FALAK SHER and 9 others---Respondents

Writ Petition No.11672 of 2005, heard on 1st December, 2010.

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

----S. 12(2) & O.XVII, R.3---Constitution of Pakistan, Art.199---Constitutional petition---Application under S.12(2), C.P.C. against the judgment and decree passed by Trial Court in the year 1998--Respondent contested said application---Trial Court dismissed application for non production of evidence---Revisional court allowed revision petition and remanded the case to Trial Court for decision afresh after granting one more opportunity to the applicants to produce evidence subject to payment of Rs.5000 as costs---Record revealed that application under S.12(2), C.P.C. and the suit filed by respondent was fixed before the same court on the same date---Said application was adjourned for 27-10-2004 for recording evidence, and the suit was put off to 27-11-2004---Possibility regarding the date of hearing could not be ruled out---Order XVII, R.3, C.P.C. was a penal provision and was to be strictly construed and sparingly exercised after putting the defaulting party on notice that, in case evidence was not produced on the next date of hearing, his evidence should be closed and he should be visited with penal consequences as visualized in the said provisions--Such warning did not appear to have been given to the applicants in the present case---Valuable rights of the applicants were involved in the matter and dismissal of said application would non-suit them on technical grounds---Order passed by revisional court did not suffer from any illegality or material irregularity---High Court declined to interfere in constitutional jurisdiction---Constitutional petition was dismissed by High Court.

Messrs Nazir Muhammad and others v. Islamic Republic of Pakistan 1990 CLC 729; Baldia Shahpur Saddar v. Government of the Punjab, through District Collector, Sargodha and another 1993 MLD 930 and Habib Bank Limited v. Messrs Aulia Engineering and others 1993 CLC 154 ref.

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

----O. XVII, R.3---Order XVII, R.3, C.P.C. was a penal provision and was to be strictly construed and sparingly exercised after putting the defaulting party on notice that, in case evidence was not produced on the next date of hearing, his evidence should be closed and he should be visited with penal consequences as visualized in the said provision.

Khizer Abbas Khan for Petitioner.

Syed Mukhtar Abbas for Respondents.

Date of hearing: 1st December, 2010.

P L D 2011 Lahore 160

Before Asad Munir, J

MUHAMMAD NAWAZ MALIK and others---Petitioners

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.3689 of 2009, decided on 27th December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Legitimate expectation---Good governance---Low priority in implementation---Petitioner sought direction to authorities for implementing scheme for construction of bridge over river, approved by government in year, 2005---Plea raised by authorities was that completion of the scheme was low in priority---Validity---Case of petitioners was based on principle of legitimate expectations which had been evolved and invoked to provide relief on considerations of fairness and reasonableness even though no enforceable legal rights were being asserted or claimed---Duly approved public welfare scheme after having been put in operation, had given rise to legitimate expectations which could not be allowed to be frustrated---Good governance also demanded that project once approved and put in operation should be completed otherwise substantial amount in millions which had already been incurred would go down to drain, which amount constituted 28% of the total estimated cost of the work---Low priority of scheme might have been available before its implementation but decisive steps were taken and it was too late then to discard the scheme---High Court directed the authorities to resume and complete remaining construction of bridge in question at the earliest---Petition was allowed accordingly.

Saindad and others v. Government of Sindh and others 1997 MLD 819; R v. Cambridge Health Authority, Ex parte B [1995] 2 All ER 129 CA and R v. Gloucestershire County Council and another ex parte Barry [1997] 2 All ER 1 HL distinguished.

Makhdoom Muhammad Mukhtar v. Member Provincial Assembly Punjab PLD 2007 Lah. 61 rel.

Tanveer Iqbal Khan for Petitioners.

Khawaja Haris Ahmad, A.-G. Punjab, Lahore and Razzaq A. Mirza Addl. A.-G. for Respondents Nos. 1 to 7 with Muhammad Afzal XEN.

Sajid Aziz for Respondent No.8.

P L D 2011 Lahore 165

Before Mamoon Rashid Sheikh, J

AHMAD KAMAL NASIR---Petitioner

Versus

CANTONMENT BOARD, RAWALPINDI and another---Respondents

Writ Petition No.1525 of 2009, heard on 30th November, 2010.

Cantonments Act (II of 1924)---

----S. 60---Notification S.R.O. No.1786(I)/73, dated 26-12-1973---Stamp Act (II of 1899), S. 27-A---Constitution of Pakistan, Art.199---Constitutional petition---Transfer of Immovable Property Tax---Value of property---Determination---Sale of plot in question took place and sale-deed in dispute was presented before authorities for registration---Authorities citing non-payment of transfer of immovable property tax declined to register sale-deed in question as authorities wanted to charge it according to its own rates---Plea raised by petitioner was that tax for registration of sale-deed was to be charged on sale consideration mentioned in sale-deed---Validity---Amount of transfer of immovable property tax to be levied on a given sale-deed was to be based on consideration mentioned in sale-deed and not according to valuation table prepared by authorities---Sale consideration mentioned in sale-deed was according to the valuation table prepared by revenue authorities---Demand of transfer of immovable property tax by authorities was illegal and without lawful authority---High Court directed the authorities to calculate transfer of immovable property tax leviable on sale-deed in dispute on the basis of sale consideration mentioned therein---Petition was allowed in circumstances.

Sardar Ali Shah and another v. Cantonment Board Taxila through Executive Officer 2009 MLD 1462 rel.

Okara Textiles Limited and another v. Deputy District Officer (Registration), Okara and another PLD 2007 Lah. 507 and Sheikh Alla-­ud-Din v. Cantonment Executive Officer, Walton Road, Lahore PLD 2009 Lah. 389 ref.

Hafiz Ahmed Saeed for Petitioner.

Mirza Waqas Rauf for Respondent.

Date of hearing: 30th November, 2010.

P L D 2011 Lahore 169

Before Ch. Iftikhar Hussain, J

MUHAMMAD NAVEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.8309/B of 2010, decided on 18th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque--Pre-arrest bail, grant of---Question whether a cheque to "sap could be said to be issued with dishonest intention or towards repayment of a loan or fulfillment of an obligation to make the accused ultimately liable under S.489-F, P.P. C. would need serious consideration at the trial---Background of hostility existed between the parties---Brother of the complainant had got a criminal case registered against the accused and others prior to the present case---Case against accused, thus, certainly needed further inquiry into his guilt as envisaged under S.497(2), Cr.P.C.---Accused had joined police investigation and nothing was to be recovered from him---Ad-interim pre-arrest bail granted to accused was confirmed in circumstances.

Akhtar Hussain Bhatti with Petitioner.

Rana Muhammad Iqbal District Public Prosecutor on behalf of respondent No. 1/State with Safarish Ali, S.I. with police record.

Respondent No.2/complainant with Ch. Babar Waheed, Advocate.

P L D 2011 Lahore 172

Before Sh. Ahmad Farooq, J

Messrs NASIR NAWAZ and Co. through Muhammad Bukhsh---Petitioner

Versus

ASSISTAN DIRECTOR, MINES AND MINERAL and 4 others---Respondents

Writ Petition No.13779 of 2010, decided on 23rd July, 2010.

Punjab Mining Concession Rules, 2002---

----R. 235(2)---Constitution of Pakistan, Art.199---Constitutional petition---Auction, cancellation of---Vested right---Petitioner claimed to be highest bidder and assailed the order of competent authority whereby auction was cancelled---Validity---Not only that orders passed by competent authority was in exercise of powers under R.235(2) of Punjab Mining Concession Rules, 2002 but also after giving opportunity to the petitioner of being heard--:Fresh auction of area in question was to be held soon and petitioner would be at liberty to take part in forthcoming auction---Petitioner had no vested right for obtaining lease of area in question merely on the basis of acceptance of his highest bid vide letter issued by competent authority---Order declaring petitioner as highest bidder was already set aside by lease granting authority, therefore, High Court declined to interfere in the matter---Petition was dismissed in circumstances.

Ch. Irshad Ullah Chattha for Petitioner.

Jawad Hassan, Addl. A.G. with Rashid Mahmood, Assistant Director, Mines and Mineral, Silakot and Muhammad Ramzan, Deputy Director, Mineral, Lahore Region.

P L D 2011 Lahore 175

Before Sh. Ahmad Farooq, J

MUHAMMAD RAMZAN---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.19069 of 2010, heard on 26th January, 2011.

Penal Code (XLV of 1860)---

----S. 342---Criminal Procedure Code (V of 1898), Ss.154 & 173---Constitution of Pakistan, Art.199---Constitutional petition---Wrongful confinement---Registration of second F.I.R.---F.I.R. was registered under S.342, P.P.C. on the direction of Justice of Peace---Petitioner/complainant contended that said F.I.R. did not reflect the allegation levelled by him in his application filed before Justice of Peace and sought registration of second F.I.R. containing the offences made out in his application---F.I.R. already registered and application of the petitioner, had revealed that same were consistent with each other---Allegations contained in the application were very much incorporated in the F.I.R.---So far as the question of omission in mentioning the correct offences in the F.I.R. was concerned, Trial Court had ample power to add or delete the offences, if it was so required on perusal of contents of the F.I.R.---Facts and circumstances of case did not disclose the commission of a separate cognizable offence, and F.I.R. was registered as per contents of the application submitted by the petitioner/complainant---No ground existed for ordering registration of second F.I.R. in the case---Investigation of case was in progress; and petitioner could approach Investigating Officer for addition of offences alleged to have been committed by accused---Even after the completion of the investigation and submission of a report under S.173, Cr.P.C. petitioner, would have another remedy before the Trial Court for redressal of his grievance---Fate of a criminal case depended upon the contents of F.I.R. and the prosecution evidence, and not on provisions of offence, under which the F.I.R. was registered by the Police; as the courts were not bound by the ipse dixit of Police.

Wajid Ali Khan Durani and others v. Government of Sindh and others 2001 SCMR 1556 and Rana Ghulam Mustafa v. Station House Officer, Police Station, Civil Line, Lahore and 2 others PLD 2008 Lah. 110 ref.

Ch. Waseem Ahmad Gujjar for Appellant.

Ch. Muhammad Aslam Zia for Respondent.

Date of hearing: 26th January, 2011.

P L D 2011 Lahore 179

Before Sh. Ahmad Farooq, J

GHAZANFAR ALI---Petitioner

Versus

M. ZAHID HUSSAIN and others---Respondents

Writ Petition No.6235 of 2007, decided on 2nd February, 2011

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

----Ss. 3 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Illegal dispossession-Petitioner had prayed for setting aside the judgment whereby Trial Court had acquitted the accused---Maintainability of constitutional petition was objected to on the ground that under S.9 of Illegal Dispossession Act, 2005, the provisions of Criminal Procedure Code, 1898 were applicable to the proceedings and in circumstances appeal against acquittal should have been filed instead of the constitutional petition---Counsel for the petitioner had contended that Illegal Dispossession Act, 2005, being a special law and there being no provision qua the right of appeal, constitutional petition was maintainable---Validity---No doubt, there was no specific provision in the Illegal Dispossession Act, 2005 granting right of appeal to any party aggrieved by order passed under S.3 of Illegal Dispossession Act, 2005 however, right of an appeal was presumed to be part of statute, even if it was not specifically mentioned in the relevant law---Constitutional petition being not maintainable, was dismissed, in circumstances.

Quaid Johar v. Murtaza Ali and another PLD 2008 Kar. 342; Yafas v. The State and others PLD 2007 Pesh. 123 and Mian Bahadur Jan v. The State and another PLD 2009 Pesh. 70 ref.

(b) Constitution of Pakistan---

----Art. 199---Illegal Dispossession Act (XI of 2005), S.3---Filing constitutional petition in a criminal lis by special attorney---Competency---Counsel for the respondents had contended that constitutional petition in a criminal matter could not be filed through special attorney---Validity---Held, it was not a simple matter of restoration of possession of a house or a matter involving civil rights, but was subsequently a criminal lis, which could not be agitated or Wended through a special attorney.?

Quaid Johar v. Murtaza Ali and another PLD 2008 Kar. 342 ref.

Mian Sarfraz-ul-Hassan for Appellant.

Ch. Irfan Saeed for Respondent.

Date of hearing: 2nd February, 2011.

P L D 2011 Lahore 181

Before Ijaz Ahmad Chaudhry, C J

VITA PAKISTAN LIMITED through Chief Executive---Petitioner

Versus

DIRECTOR-GENERAL, FIA and 3 others---Respondents

Writ Petition No.23852 of 2010, decided on 28th December, 2010.

(a) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----Ss. 2(e), 1(2) & 5(5)---Specific. Relief Act (I of 1877), S.12--Constitution of Pakistan, Art.199---Constitutional petition---Suit for specific performance---Powers of Federal Investigation Agency---Scope---Petitioner challenged the initiation of criminal proceedings by the Federal Investigating Agency during the pendency of civil suit contending that the provisions of S.2(e) of the Federal Investigating Agency Act, 1974 were not attracted to private limited companies--Validity---Present matter emanated from the contract between petitioner company and the Government of Pakistan regarding which suit for specific performance filed by petitioner company was pending before the civil court---Petitioner companies had embezzled hefty amount with connivance of the department concerned prompting the Federal Investigation Agency to investigate the matter---Factual controversies were involved in the case and the same could not be resolved by the High Court in its constitutional jurisdiction---Questions as to the bidding process adopted by the procurement committee could be decided by recording evidence which could not be undertaken by the High Court especially when the matter was sub judice before the civil. court---Civil and criminal proceedings could go side by side---Federal Investigation Agency Act, 1974 was not applicable to public servants but to all citizens of Pakistan under S.1(2) of the Federal Investigation Agency Act, 1974---Federal Investigation Agency was empowered to inquire into the fraud committed by the petitioner company---Section 5(5) of the Federal Investigation Agency Act, 1974 had delegated power to the inquiry officer/member of the Federal Investigation Agency to seize the property which was subject matter of the case or direct the owner of such property not to dispose of the same where such property was likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure was obtained---Federal Investigation Agency, in circumstances, had rightly frozen the accounts of the petitioner company---Constitutional petition was dismissed.

(b) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----S. 5(5)---Scope---Section 5(5) of the Federal Investigation Agency Act, 1974 had delegated power to the Inquiry Officer/member of the Federal Investigation Agency to seize the property which was subject matter of the case or direct the owner of such property not to dispose of the same where such property was likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure was obtained.

Mst. Azra Israr v. Inspector-General of Police, Punjab, Lahore PLD 2003 Lah. 1 rel.

Syed Ijaz Ali Sabzwari for Petitioner.

Naveed Inayat Malik, Deputy Attorney-General for Respondents with Abdul Jalil Khan, AD, PIA, Islamabad.

P L D 2011 Lahore 187

Before Ijaz Ahmad Chaudhry, C.J.

ZAHID SALEEM SANDHU---Petitioner

Versus

UNIVERSITY OF THE PUNJAB through Vice-Chancellor and 3 others---Respondents

Writ Petition No.6071 of 2005, decided on 13th December, 2010.

Constitution of Pakistan---

----Art. 199---Punjab University General Regulation, Chaps. VI & VII---Constitutional petition---Educational institution---Petitioner challenged cancellation of his result of B.A. examination by the Disciplinary Committee of the university for using unfair means---Petitioner had contended that the university could not quash his result after three years of declaration of the same---Validity---Petitioner had deceived the university twice, first, by deciding to sit for the 2nd Annual examination of the same year and, then, by appearing and clearing the first Annual examination of the following year in violation of the one year ban on his appearance in the examination by the university for using unfair means---Again, petitioner cleared the L.L.B. and M.A. Political Science examinations in disregard of a three years ban---Notices were issued to the petitioner by the Disciplinary Committee but he did not join the proceedings to prove his innocence---First proviso to Chap. VI of the General Regulations invoked by the petitioner pertained only to the matters dealt with under cis. (2) & (3) of the Chap. VII whereas proceedings against petitioner were initiated under cl. (1) of the Chap. VI of the General Regulations, therefore, benefit of the 1st proviso which empowered the syndicate to quash the result within three years of the declaration of the result in case of any mistake etc.; was not available to the petitioner---Petitioner played fraud with the university twice with mala fide intention--Disciplinary Committee followed the procedure properly before taking ex parte decision against the petitioner---Petitioner's case involved factual controversy which could not be resolved by the High Court in constitutional jurisdiction---Petition was dismissed accordingly.

Sh. Shahid Waheed for Petitioner.

Muhammad Shahzad Shaukat for University of the Punjab/Respondents.

Date of hearing: 13th December, 2010.

P L D 2011 Lahore 192

Before Syed Mansoor Ali Shah, J

Mst. SAMINA SIKANDAR---Petitioner

Versus

PUBLIC-AT-LARGE---Respondent

Civil Revision No.2825 of 2009, decided on 19th February, 2011.

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

----S. 373---Succession certificate---Purpose of grant of succession certificate---Scope.

The object of enacting Part X of the Succession Act, 1925 is to facilitate the collection of debts left by the deceased and not to litigate oil question of title.

Succession Certificate neither gives any general power of administration on the estate of the deceased nor establishes title of the grantee as the heir of the deceased. It only furnishes the grantee with authority to collect debts due to the deceased and allows the debtors to make payments to him without incurring loss. Thus the object of the said certificate is to facilitate the collection of the debts, to regulate the administration of succession and to protect person who deals with the alleged representatives. The purpose of the grant of a succession certificate is to give a valid discharge of the debt if paid by the debtor to the person in whose favour the certificate has been granted.

Succession Certificate is not a final adjudication of the question as to who is the next heir. The grant of succession certificate merely clothes the holder of the certificate with an authority to realize the debts of the deceased and to give an authority of discharge.

2000 CLC 585; 1999 YLR 224; (1903) ILR 31 Cal 133; Prankristo v. Nabadwip ILR 8 Cal. 868 and Banarasi Dass v. Tekka Dutta (2005) 4 SCC 449 ref.

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

----S. 373---Nature and extent of enquiry permissible in the summary proceedings under S.373, Succession Act, 1925.

By summary proceeding, it is meant that Court should decide the question by a short inquiry leading up to and resulting in a rapid decision. The nature of this inquiry must depend on circumstances of each case. Thus where the Court feels that the question involved is not capable of decision in summary proceedings under the Succession Act, it can leave the parties to establish their rights in a regular suit... In a summary proceeding contemplated in Part X of the Succession Act, 1925 the Court can dispose of the petition without determining the law or facts which seem to it to be too intricate to the person who appears to have prima facie the best title thereto. While investigating into an application under the Succession Act, the Court need not determine definitely and finally as to who has the best right to the estate of the deceased. All that is required to be done is to hold a summary enquiry into the right to the certificate, with a view, on one hand, to facilitate the collection of debts due to the deceased and prevent the same being time-barred and on the other hand, to afford protection to the properties from being misused. The grant of succession certificate to a person does not give him an absolute right to the debt nor does it bar a legal suit for adjustment of the claims of the heirs inter se.

The summary proceedings under section 373 of the Act is to determine whether the petitioner has a right to a certificate. In the present case, petitioner (widow) had placed the following documents on the record of the trial Court along with her application for grant of Succession Certificate:

(i) Guardianship Certificate issued by the Guardian Judge and the details of the property given in the said Guardianship Certificate include the debts and securities mentioned in the application;

(ii) Death certificate of her husband and;

(iii) Bank certificates showing the amount held in various accounts of the deceased.

Notice to public at large was issued by the trial Court and once again by the High Court in Daily newspaper but no one had cone forward to contest the application. Trial 'Court sought additional information from the petitioner in the following manner:

(i) The original record of Union Council was summoned regarding death of deceased.

(ii) Petitioner was directed to produce death certificates of the parents of deceased.

(iii) Record of NADRA was summoned in order to ascertain the successors of deceased.

(iv) Notices/letter were directed to be issued to the concerned banks about the amount deposited in the name of deceased that the said amount was available for the present successors of the deceased.

Held, enquiry conducted by the trial Court out steped the limits of summary proceedings especially in the light of documents placed on the record. Information sought by the trial Court was, therefore, not necessary or warranted by law.

Indian Succession Act, 1925 by Sen and Sengupta 5th Edition 2008, Kamalan v. Panchali AIR 1988 KER 265 and Binod v. Chandrama AIR 2003 Ori. 11 ref.

Muhammad Zafar Chaudhry for Petitioners.

P L D 2011 Lahore 198

Before Ijaz Ahmed Chaudary, C.J., Sh. Azmat Saeed, Ch. Iftikhar Hussain, Iqbal Hameed ur Rehman and timer Ata Bandial, JJ

AURANGZEB SHAH BURKI---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary and 5 others---Respondents

Writ Petition No.18024 of 2008, heard on 29th September, 2010.

(a) Constitution of Pakistan---

----Art. 105---Governor to act on advice---Scope---In performance of his functions, Governor is bound by advice of Chief Minister and is enjoined to act in consonance therewith--Governor, at the best, may ask Chief Minister to reconsider the matter.

Sindh High Court Bar Association v. Federation of Pakistan, PLD 2009 SC 879 rel.

(b) Constitution of Pakistan---

----Arts. 101, 104, 105 & 199---Punjab Service Tribunals Act (IX of 1974), S. 3(4)---Constitutional petition---Chairman Punjab Service Tribunal, appointment of---Acting Governor---Jurisdiction---Advice of Chief Minister---Scope---Acting Governor appointed Chairman Punjab Service Tribunal on the advice of Chief Minister---Contention of petitioner was that Acting Governor was only authorized to perform day to day functions and was not vested with jurisdiction or authority to make/take any decision on any policy matter or to make any appointment including that of Chairman Service Tribunal---Validity---Chairman of Punjab Service Tribunal was to be appointed by Governor in terms of S.3(4) of Punjab Service Tribunals Act, 1974--Such act of appointment was a function of the office of Governor, for which purpose, he was bound by advice of Chief Minister---It was the sole prerogative, discretion and authority of Chief Minister to take decision for selection and appointment of Chairman of Punjab Service Tribunal and to communicate his decision to Governor by way of an Advice' in terms of Art. 105 of the Constitution---SuchAdvice' of Chief Minister was binding on Governor who was not permitted in law either to reject the `Advice' or to substitute his own finding in lieu thereof--No decision was to be taken by Governor for selection and appointment of an incumbent to the office of Chairman Punjab Service Tribunal---Mere formal act for giving effect to decision of Chief Minister was to be performed by Governor at the best after seeking reconsideration---In view of Art.105 of the Constitution, no decision was required to be taken by Governor regarding selection and appointment of Chairman Punjab Service Tribunal and merely formality of giving effect to the decision of Chief Minister was required of him---Governor might remit the advice for reconsideration but at the end of the day, decision of Chief Minister was to prevail---Such function could always be performed by Acting Governor---To interpret the provisions differently would nullify the very concept of appointment of Acting Governor to carry out day to day functions and would result in total paralysis of Provincial Government in case of temporary absence of Governor, which could never be the intention of law maker---Chairman of Punjab Service Tribunal was validly appointed and notification issued by Acting Governor was free from any legal or constitutional infirmity and the same was validly issued---Petition was dismissed in circumstances.

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb­ul-Kheri and others v. Federation of Pakistan and others PLD 1996 SC 324; Sindh High Court Bar Association v. Federation of Pakistan, PLD 2009 SC 879; Pakistan Tehrik-e-Inqilab v. Election Commission of Pakistan 1997 MLD 3167; Ali Raza Asad Abidi v. Justice Muhammad Ilyas 1995 MLD 2022; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Government of Sindh v. Hasina 1979 SCMR 17; Zafar Ali Shah v. Federal Government of Pakistan 1994 CLC 5; Dr. Azim-ur-Raman Khan Meo v. Government of Sindh 2004 SCMR 1299; Dr. Kamal Hussain v. Muhammad Siraj-ul-Islam PLD 1969 SC 42; Ghulam Ali Shah v. Election Commission of Pakistan 2008 CLC 738; M.Liaqat Munir Rao v. Shamas-ud-Din 2004 PLC (CS) SC 1328; The Tariq Transport Company v. the Sargodha Bhera Bus Service PLD 1958 SC 437; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Jan Muhammad and others v. Government of N.-W.F.P. 1993 CLC 1067 and Arun Kumar v. Union of India and others AIR 1982 Rajasthan 67 rel.

(c) Constitution of Pakistan---

----Arts. 104, 105 & 199---Constitutional petition---Maintainability---Governor and Acting Governor, working of---Scope---Constitutional issues were raised, therefore, High Court considered it appropriate to decide the petition on merits, though maintainability of petition was not free from doubt.

Ch. Fawad Hussain and Asif Ismail for Petitioners.

Abid Hassan Minto for Respondents Nos. 1 to 3.

Muhammad Awais Khalid for Respondent No.5.

Syed Najam ul Hassan Kazmi for Respondent No.6.

Date of hearing: 29th September, 2010.

P L D 2011 Lahore 207

Before Ijaz Ahmad Chaudhry, C.J., Ijaz ul Ahsan and Asad Munir, JJ

Sardar TALIB HUSSAIN NAKAI---Petitioner

Versus

Rana MUHAMMAD HAYAT and 2 others---Respondents

Writ Petition No.21383 of 2010, heard on 21st December, 2010.

(a) Inherent powers---

----Scope---If there is no provision in any law to do a certain thing, then there are incidental powers to perform such an act and such powers are inherent in adjudicating bodies.

Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426; Ch. Sir Muhammad Safrullah Khan v. Custodian of Evacuee Property West Pakistan and Karachi and others PLD 1964 SC 865; Rana Zulfiqar Ali Khan v. Election Tribunal and others 2001 YLR 336), Muhammad Hanif v. District Judge and others 1983 CLC 2965; Muhammad Shafi and another v. Election Tribunal and others 1983 CLC 303; Syed Fakhar Imam v. Muhammad Raza Hayat and 5 others 2009 CLC 1 and H.M.Saya and Co. Karachi v. Wazir Ali Industries Limited Karachi PLD 1969 SC 65 rel.

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

----Ss. 62 & 64---Constitution of Pakistan, Art. 199---Qanun-e-Shahadat (10 of 1984), Art.114---Notification No. F.1(7)/87, dated 17-3-1985---Constitutional petition---Procedure before Election Tribunal---Evidence, recording of---Appointment of Local Commissioner---Purpose and scope---Estoppel---Election Tribunal appointed local commissioner for recording of evidence with the consent of parties---Petitioner who was returned candidate, later on, assailed the order of appointment of local commission---Validity---Election Tribunal was not even obliged to take down evidence of any witness in full and had the power to make memorandum of evidence of each witness as his examination proceeds---Appointment of local commission to take down evidence of parties did not cause any Prejudice to either party and was merely a procedural exercise to facilitate Election Tribunal to deal with election petition expeditiously and promptly---Election Tribunal was enabled to try an election petition in accordance with procedure prescribed in Notification No. F.1 (7)/87, dated, 17-3-1985, that could suggest any restriction being placed on Election Tribunal to adopt any lawful measures that might advance the object of expeditious decision of election petition before it--Once having given his consent to appointment of local commission, paid his fee and participated in the process of recording evidence which was in its final stages, the petitioner/returned candidate was estopped at belated stage from raising objection which in any event was hyper. technical in nature---Such would serve no useful purpose other than further delaying finalization of election petition and the same would defeat the time frame provided for decision of election petitions---Emphasis of election laws was to ensure expeditious disposal and to avoid protracted litigation, thus all procedural rules were geared towards achieving such goal---Depriving Election Tribunal of requisite flexibility in procedural matters like the mode of taking down evidence would not advance the purpose of foster the objective of expeditious administration of justice---High Court declined to interfere in the order of Election Tribunal, appointing local commission to record evidence of parties---Petition was dismissed in circumstances.

Ehsanullah Reki v. Lt.-General (R) Abdul Qadir Baloch and others 2010 SCMR 1271 and lmtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 rel.

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

----O.X, R. 1(A)(ii)---Local commission, appointment of--Consent of parties---Scope---Court in appropriate cases, to achieve ends of justice and to prevent abuse of process of the court, refer the matter for recording of evidence on commission even without the consent of parties in exercise of its inherent powers.

Khawaja Feroz v. Muhammad Dawood and others PLD 2008 Kar. 239 rel.

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

----S. 75, O. X, R.1(A) & O.XXVI, R.1---Local commission---Functions and powers---Local commission does not perform judicial function nor does a Court delegate its power to decide to the Commissioner, who only performs ministerial function the extent and scope of which is limited, narrow and clearly defined---Evidence recorded by commissioner is placed before court and it is the court alone which is empowered to record its findings on the basis of evidence before it--To determine questions regarding believing or disbelieving evidence, which continues to remain in the sole and exclusive domain and jurisdiction of the Court.

Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31 rel.

Syed Ali Zafar for Petitioner.

Rana Muhammad Arif for Respondent.

Date of hearing: 21st December, 2010.

P L D 2011 Lahore 217

Before Syed Mansoor Ali Shah, J

MAQBOOL AHMED---Petitioner

Versus

FARYAD ALI---Respondent

Civil Revision No.602 of 2011, decided on 1st March, 2011.

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Application of O.XVII, R.3, C.P.C.---Scope and application---Expression "where any party to a suit to whom time has been granted" in O.XVII, R.3, C.P.C.---Connotation---Order XVII, R.3, C.P.C. will only be applied where a specific act was to be done on the next date of hearing and the party failed to do so, without any sufficient cause, therefore, impeding the progress of the suit---Failure of the petitioner to lead evidence not on one date but on eleven dates, impedes the further progress of the suit and, therefore, fully attracts 0.XVII, R.3, C.P.C.---Where "mere adjournment" is requested and not opposed by the other side, such an adjournment will not attract O.XVII, R.3, C.P.C.---However, if an adjournment has been granted on the specific request of the party to do a particular act or if a direction of the court has been given to do a particular act on the next date of hearing, absence of objection from the other party is immaterial---Principles.

Expression "where any party to a suit to whom time has been granted in O.XVII, R.3, C.P.C." means where time has been granted by court for a particular act e.g., either to produce evidence or to cause the attendance of witnesses or to perform any other act necessary for further progress of the suit for which time has been allowed. On the other hand where an adjournment simpliciter is sought and is also not opposed by the other side and the case is passed for a next date, time has not been allowed for any particular act but an adjournment in routine has been granted, therefore, such a simple adjournment with no specific act to be done on the next date will not he "time allowed or time granted for the purposes of Order XVII, Rule 3 of C.P.C." However, if the adjournment is granted with a particular direction specifying the act to be done on the next date of hearing, even it is not opposed by the opposite counsel, the party is bound to do the said act and default in doing so will attract the provisions of Order XVII, Rule 3 of C.P.C.

This Rule applied to a case where time has been granted to a party at his instance, to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time was granted.

It is clear from the wording of the said Rule that on the failure of a party to produce its evidence or to do any other act necessary for the purpose of the case, for which time had been allowed to him, the court shall proceed to decide the suit forthwith.

This Rule applies where a party who is granted time to perform some act, not only fails to do so but is also absent on the date to which the hearing is adjourned. It is immaterial whether the adjournment was granted at the instance of the party or for other reasons. Where a defendant does not appear at an adjourned hearing, this Rule applied irrespective of whether he appeared at the first hearing or not and the court has to exercise its discretion; its hands are not tied by the previous ex parte order.

Where "mere adjournment" is requested and not opposed by the other side, such an adjournment will also not attract Order XVII Rule 3 of C.P.C. This is because no specific act is to be done by the party to the suit seeking the adjournment and cannot be said to affect the progress of the suit. However, if an adjournment has been granted on the specific request of the party to do a particular act or if a direction of the court has been given to do a particular act on the next date of hearing, absence of objection from the other party is immaterial.

It would be odd to imagine that series of adjournments can be granted just because the party from the other side does not raise any objection. Like this role of the court is reduced to that of a bystander. This would stultify adjudication of cases and make a mockery of Order XVII, Rule 3, C.P.C. This cannot be the intent of the law. Order XVII, Rule 3 of C.P.C. will only be applied where a specific act was to be done on the next date of hearing and the party failed to do so, without any sufficient cause, therefore, impeding the progress of the suit.

In the present case, the adjournment was granted for a purpose i.e., for the petitioner to lead evidence. Additionally, the adjournments were granted on the request of the petitioner to do a particular act i.e., to lead evidence. Further, warning and two last opportunities were also given. Failure of the petitioner to lead evidence not on one date but on eleven dates, surely impedes the further progress of the suit and, therefore, fully attracts Order XVII, Rule 3 of C.P.C.

Such conduct of the petitioner was deplorable and failed to attract the revisional jurisdiction of High Court.

Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD" 1971 SC 434; Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474; Executive Engineer, Peshawar v. Messrs Tour Muhammad and Sons and 4 others 1983 SCMR 619; Syed Akhlaque Hussain v. Habib Imail Bajwa, Advocate 1974 SCMR. 504; Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474; Tasleem Khan v. Sher Ghulam and others 2010 SCMR 1422; Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942; Muhammad Hussain and 5 others v. Akram Baig and 3 others PLD 1988 Lah. 183 and Mrs. Asmat Begum v. Badiuzzaman Khan 2002 CLC 71 rel.

Syed Tasleem Ahmed Shah v. Salawal Khan and others 1985 SCMR 585 and Muhammad Hussain and 5 others v. Akram Baig and 3 others PLD 1988 Lah. 183 distinguished.

Allah Wasaya Malik for Petitioner.

P L D 2011 Lahore 225

Before Sagheer Ahmed Qadri, J

Mst. HUMAIRA NOREEN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others-Respondents

Writ Petition No.1435 of 2010, decided on 23rd December, 2010.

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

----S. 5 & Sched. Civil Procedure Code (V of 1908), O.X, R.2---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of gold ornaments and personal property and belongings of wife---Plaintiff sought decree to the effect that she had become owner of the house, car, gold ornaments and half of the landed property of the defendant on the basis of Iqrarnama signed by defendant---Trial Court ordered plaintiff to pay the court fee holding that matter involved civil liability, so plaintiff's claim could not be entertained---Appellate Court setting aside the order of Trial Court remanded the case with direction to examine the parties under O.X, R.2, C.P.C.---validity---As per Schedule to the West Pakistan Family Courts Act, 1964, matters relating to dower, maintenance allowance, dowry as well as the personal property and belongings of wife fell within the jurisdiction of Judge, West Pakistan Family Courts Act, 1964---Though the conditions of the Iqrarnama were not mentioned in the Nikahnama yet defendant husband had admitted to the execution of the Iqrarnama in question, albeit, under certain compulsions---Matter involved question of fact to be proved or disproved by the parties through the evidence---Courts below did not exercise the jurisdiction vested in them in accordance with law---Constitutional petition was allowed---Impugned orders were set aside---Case was remanded to Trial Court with direction to frame the issues and record evidence and dispose of the matter in accordance with law.

Syed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840; Mst. Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR 1978; Mst. Mumtaz Bibi alias Taj Khatoon v. Saifullah and 3 others 2004 YLR 700; Mst. Jameela Begum v. Addl: District Judge. and 3 others 2005 MLD 376; Karachi Metropolitan Corporation , Karachi and another v. Raheel Ghayas and 3 others PLD 2002 SC 446; Mst. Mussarat Bibi v. Shah Muhammad and another 2005 MLD 706;. Asia v. Abdul Rehman and another 1994 CLC 1388; Sifat Aizdi v. Dr. Saima Bashir PLD 2008 Pesh. 111; Mst. Ghulam Shaheena v. Judge Family Court 2010 CLC 87 and Liaquat Ali v. Additional District Judge, Narowal, and others 1997 SCMR 1122 ref.

Raja Zahoor Ahmad for Petitioner.

Aman Ullah Mirza for Respondents.

P L D 2011 Lahore 231

Before Ijaz Ahmad Chaudhry, J., Sh. Azmat Saeed, Ch. Iftikhar Hussain, Iqbal Hameed ur Rahman and Umar Ata Bandial, JJ

AURANGZEB SHAAFI BURKI---Petitioner

Versus

PROVINCE OF THE PUNJAB through Chief Secretary and 5 others----Respondents

Writ Petition No.18025 of 2008, decided on 21st December, 2010.

Punjab Office of the Ombudsman Act (X of 1997)---

----S. 3---Constitution of Pakistan, Arts. 199 & 255 (2)---Constitutional Petition---Quo warranto---Appointment of Ombudsman---Oath, taking of---Petitioner assailed the notification in view whereof oath taken by respondent as Ombudsman, before Acting Governor on the ground that the same was illegal---Validity---Oath, under Art. 255 (2) of the Constitution, was required to be made before a specific person and in case it was impracticable for any reason it might be made before such other person as might be nominated by that person---Acting Governor was duly nominated by President of Pakistan to act as Governor in absence of Governor, therefore, Acting Governor was competent to administer oath to the Ombudsman---Petitioner did not challenge notification whereby Acting Governor was directed by President of Pakistan to act as Governor which showed that petitioner had admitted appointment of Acting Governor---Petitioner without challenging appointment of Acting Governor could not challenge the act of Governor which he had done after his nomination as Acting Governor---Constitutional remedy was discretionary particularly the relief claimed on the principle governing quo warranto as envisaged under Art. 199(2)(b)(ii) of the Constitution---Such discretion had to be exercised by High Court in accordance with judicial principles and not as a matter of course---In order to exercise such discretion, the conduct of petitioner was very relevant---Petition was based on mala fides and was an act motivated for ulterior considerations designed to malign and scandalize the respondents---High Court declined to interfere in the appointment of Ombudsman and oath taken by him before Acting Governor---Constitutional petition was dismissed in circumstances.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Pakistan Tehrik-e-Inqilab v. Election Commission of Pakistan and 2 others 1997 MLD 3167; Arun Kumar v. Union of India and others AIR 1982 Rajasthan 67; The Tariq Transport Company v. The Sargodha Bhera Bus Service PLD 1958 SC 437; Dr. Kamal Hussain v. M. Siraj ul Islam PLD 1959 SC 42; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Government of Sindh v. Hasina 1979 SCR 17; Jan Muhammad and others v. Government of N.-W.F.P. 1993 CLC 1067; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Zafar Ali Shah v. Federal Government of Pakistan 1994 CLC 5; Ali Raza Asad Abidi v. Justice Muhammad Ilyas 1995 MLD 2022; Dr. Azim­-ur-Rehman Khan Meo v. Government of Sindh 2004 SCMR 1299; M.Liaqat Munir Rao v. Shams-ud-Din 2004 PLC (C.S.) SC 1328; Syed Amjad Ali v. Ch. Amir Afzal and others 2006 SC (AJ&K) 69; Ghulam Ali Shah v. Election Commission of Pakistan 2008 CLC 738; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Dr. Azim ur Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299 and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644 ref.

Ch. Fawad Hussain and Asif Ismail for Petitioner.

Abid Hassan Minto, Jehanzeb Imran, Ashtar Ausaf Ali and Syed Najam ul Hassan Kazmi for Respondents.

Date of hearing: 29th September, 2010.

P L D 2011 Lahore 239

Before Nasir Saeed Sheikh, J

ALLAMA IQBAL OPEN UNIVERSITY through Vice-Chancellor and 4 others---Appellants

Versus

IRFAN BOOTA and another---Respondents

Regular First Appeal No.439 of 2008, decided on 9th December, 2010.

Punjab Consumer Protection Act (II of 2005)---

----Ss. 2(c)(k), 25 & 28-'Consumer'; Services'---Meaning and scope---Consumer Court awarded compensation totalling Rs.20,000 to complainant/student who was declared failed by the university as his assignment was not sent to the Controller of Examination of the University by his tutor---University contended that the complainant, being a student, was not a "consumer" as defined by clause (c) of S.2 of the Punjab Consumer Protection Act, 2005 and that the services provided by the university also did not fall within the definition ofservices' contained in clause (k) of the Punjab Consumer Protection Act, 2005---Validity---University was an educational institution and could not be described to have undertaken commercial activity---Definition of the term consumer' in clause (c) of S.2 of the Punjab Consumer Protection Act, 2005 contemplated hiring of services for a consideration and the definition was not applicable to the matter wherein a student had submitted application for appearing in any examination to be conducted by an educational institution---Neither the student appearing in the examination held by the university could be described as aconsumer' as defined in S.2(c) of the Punjab Consumer Protection Act, 2005, nor the university was a `service provider' as envisaged in the provisions of S.2(k) of the Punjab Consumer Protection Act, 2005---Complaint lodged by the student was not entertainable by the Consumer Court---Appeal was accepted and impugned order was set aside.

University of Jammu and others v. Brinder Nath and others AIR 2000 J&K 93 rel.

Rana Zia Abdul Rehman for Appellants.

P L D 2011 Lahore 242

Before Sh. Ahmad Farooq, J

AMANAT ALI---Petitioner

Versus

Mst. KHASHNOOD AKHTAR and others---Respondents

Writ Petition No.10352 of 2006, decided on 2nd February, 2011.

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

----S. 5, Sched. & S.14(2)(c)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance and dowry articles---Bar on appeal from decree of Family Court---Applicability---Scope---Trial Court decreed the suit---Appellate Court enhanced rate of maintenance upon appeal filed by plaintiff---Defendant contended that judgment of the Appellate Court was result of wrongful exercise of jurisdiction as S.14(2)(c) of the West Pakistan Family Courts Act, 1964 barred appeal from a decree passed by a Family Court awarding maintenance of Rs.1000 or less per month---Validity---Barring clause of S.14 of the West Pakistan Family Courts Act, 1964 operated where decree of maintenance was challenged to disentitle the decree-holder or reduce the rate of maintenance allowance and the same was not applicable to appeals for enhancement of maintenance---Defendant's objection to maintainability of appeal was, therefore, misconceived--Strong financial position of defendant had been proved by his gifts to his second wife---Even otherwise, father was legally bound to maintain his children---Appellate Court rightly enhanced the rate of maintenance---Constitutional petition was dismissed accordingly.

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

----S. 14(2)(c)---Bar on appeal from decree of Family Court---Applicability---Scope---Barring clause of S.14 of the West Pakistan Family Courts Act, 1964 operated where decree of maintenance was challenged to disentitle the decree-holder or reduce the rate of maintenance allowance and the same was not applicable to appeals for enhancement of maintenance.

Muhammad Latif Kashif v. Judge Family Court/Civil Judge, 1st Class, Bahawalpur and 3 others PLD 2005 Lah. 296 rel.

Sajad Naseer Chaudhry for Petitioner.

Rao Tariq Mehmood for Respondents.

Date of hearing: 2nd February, 2011.

P L D 2011 Lahore 246

Before Sardar Tariq Masood, J

ALLAH DITTA---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, SHEIKHUPURA and 3 others-Respondents

Writ Petition No.1135 of 2011, decided on 20th January, 2011.

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

----S. 489-F---Constitution of Pakistan, Art.199---Constitutional petition---Dishonestly issuing a cheque---Staying of criminal proceedings during pendency of civil proceedings, refusal of---Civil suit had been filed by the accused petitioner much after the registration of the F.I.R. against him by the respondent complainant---Civil suit was not pending prior to the registration of the case---Civil and criminal proceedings could be initiated side by side and criminal case must be allowed to proceed on its own merits---Civil proceedings relating to the same transaction were not a legal bar to continuance of criminal proceedings---Both the proceedings could proceed concurrently, because conviction for a criminal offence was altogether a different matter from civil liability---While the spirit and purpose of criminal proceedings was to punish the offender for commission of a crime, whereas the purpose behind the civil proceedings was to enforce the rights arising out of contracts---Both the civil and criminal proceedings could co-exist and proceed simultaneously without any legal restriction and Courts could not stifle one proceeding for the other---Judgment of a civil court was also not admissible in criminal proceedings to establish the truth of the facts upon which it was rendered---Proceedings in the criminal trial, therefore, could not be stayed--Impugned orders refusing to stay the criminal proceedings against the accused till the decision of his civil suit, did not suffer from any illegality or perversity---Constitutional petition was dismissed in limine accordingly.

Akhlaq Hussain Kayani v. Zafar Iabal Kayani and others 2010 SCMR 1833; Seema Fareed and others v. The State and another 2008 SCMR 839; Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Malik Khuda Bakhsh v. The State 1995 SCMR 1621 ref.

(b) Administration of justice--

----Civil and criminal proceedings---Both the proceedings of civil and criminal nature can be initiated side by side and courts cannot stifle one proceedings for the other.

Seema Fareed and others v. The State and another 2008 SCMR 839 and Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 ref.

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

----Art.57---Civil court's judgment---Admissibility in criminal proceedings---Judgment of a civil court is not admissible in criminal proceedings to establish the truth of facts upon which it is rendered.

Malik Khuda Bakhsh v. The State 1995 SCMR 1621 ref.

Rai Tahir Iqbal for Petitioner.

P L D 2011 Lahore 249

Before Muhammad Khalid Mahmood Khan, J

KAREEM BAKHSH and others---Petitioners

Versus

NOOR MUHAMMAD and others---Respondents

Civil Revision No.450-D of 2003, heard on 23rd November, 2010.

(a) Mortgage--

----Mortgage is a charge and not ownership.

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

----S.42---Limitation Act (IX of 1908), S.19---Civil Procedure Code (V of 1908), O.I, R.10---Redemption of mortgaged property---Misjoinder and non joinder of necessary parties---Acknowledgement of liability---Suit land was mortgaged by predecessor-in-interest of plaintiffs in years, 1893, in favour of non-Muslim, who further assigned his mortgagee rights in favour of another non-Muslim in year, 1937--After creation of Pakistan, non-Muslim evacuee left Pakistan and by operation of law, the Central Government became owner of suit land as well as rights in the suit land---Plaintiff without impleading Central Government as party to their suit, sought declaration of title over suit land---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiffs---Validity---Main grievance of plaintiffs was against Central Government as the Central Government was claiming absolute ownership of suit land and plaintiffs were agitating that Central Government was only owner of mortgage rights and for resolution of such dispute, the Central Government was necessary party---Trial Court failed to frame issue. on such point and in absence of Central Government as party to the suit, judgment and decree under appeal was defective one---Though due to non-impleading necessary party, the suit could not fail but it was equally necessary that no defective decree should be passed in absence of necessary party---Defendants were claiming to be bona fide purchasers for value without notice and as such for resolving of such issue, it was necessary that Central Government should have been impleaded as party in the suit, especially when plaintiffs did not challenge mutation of ownership in favour of Central Government---High Court, in exercise of revisional jurisdicioton, set aside judgments and decrees passed by both the Courts below and the case was remanded to Trial Court for framing of additional issue regarding non-impleading of Central Government as party and then deciding the case afresh---Revision was allowed in circumstances.

Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others PLD 1991 SC 524 rel.

Ismail and 22 others v. Rehmat Ali and 15 others 1993 SCMR 92; Tahir Saeed Qureshi v. The Board of Intermediate and Secondary Education, Sargodha and 3 others 1996 SCMR 1872; Talib Hussain v. Babu Muhammad Shafi and 12 others PLD 1987 Lah. 4; Dost Muhammad through legal Heirs v. Jahangir Khan and another 2000 CLC 1745; Dit Ram Mal and another v. Hans Raj and others (AIR 1934 Lahore 101(2); Chaman Khan v. Naqibullah Khan and 10 others PLD 1989 Pesh. 107; Ghulam Muhammad and 3 others v. Member Board of Revenue Punjab Lahore and 16 others PLD 2005 Lah. 119; Muhammad Akram and others v. Arsalla Khan and others 1997 MLD 138; Abdul Haq v. Ali Akbar and 12 others 1998 CLC 129; Rani Begum and others v. Muhammad Azam Khan and others PLD 2003 SC 235; Muhammad Shafi v. Ghulam Qadir and others PLD 1978 Lah 71; Samar Gul v. Central Government and others PLD 1986 SC 35; Muhammad. Hanif through Legal Heirs and 2 others v. Zulfiqar Ali and 56 others 1996 SCMR 1869; Muhammad Luqman v. Allah Diwaya and others 2006 SCMR 718; Sufi Zaheer Ahmad (deceased) through Legal Heirs v. Chief Settlement and Rehabilitation Commissioner and others 1993 MLD 195; Muhammad Nabi through Legal Heirs v. Ghulam Yahya through Legal Heirs 1999 CLC 1771; Talib'Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 and Allah Ditta and others v. Sardar Khan and others PLD 1997 Lah. 716 ref.

Yado Rao v. Amrit Rao and others AIR 1926 Nagpur 135 and Ahmad Bakhsh v. Ghulam Hussain and others 2007 CLC 454 distinguished.

Abdul Rehman Khan Lachkani for Petitioners.

Khalid Khan Sakhani and Saifullah Khan for Respondents.

Date of hearing: 23rd November, 2010.

P L D 2011 Lahore 258

Before Syed Mansoor Ali Shah, J

GOVERNMENT OF PUNJAB and others---Appellants

Versus

ANJAMAN-I-TARRAQI-I-TALIM---Respondent

F.A.O.No.293 of 2008, decided on 11th February, 2011.

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

----S.17---Ejectment petition---Maintainability---Relationship of landlord and tenant---Proof---Land in question was leased out by Federal Government to respondent society and the society constructed a school over the same---Respondent society claimed to be the owner of the school and sought ejectment of Provincial Government managing the affairs of the school---Validity---Taking over of the management and administration of the school by Provincial Government from respondent society meant that only control of maintenance and administration of school had been taken over from the hands of respondent society---Provincial Government did not become tenant of respondent society or respondent society landlord of Provincial Government---Situation post nationalization/taking over was that Federal Government remained owner of demised premises, respondent society continued to be the tenant on the demised premises while Provincial Government under Martial Law Regulation 118 was the new management of the school---No other legal relationship emerged between the parties post nationalization because the school was managed by the lessee (respondent society) and not by a tenant of respondent society---Powers of management and administration had shifted to Provincial Government under the law and no more---As the management of the school and lessee were the same, no relationship of tenant and landlord arose after nationalization (take-over)---Ejectment petition by respondent society under S. 17 of Cantonments Rent Restriction Act, 1963, was not maintainable---Eviction order passed by Rent Controller against Provincial Government was set aside---Appeal was allowed in circumstances.

Board of Foreign Missions of the Cresbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another 1987 SCMR 1197; The Christian Educational Endowment Trust, Lahore v. The Deputy Commissioner, Lahore and others 1987 SCMR 1189; Zakaria Shahid and others v. Abdul Aziz Qureshi and another 1991 SCMR 145; Province of Punjab through Collector, Faisalabad and 2 others v. Ali Akbar Khan and others 2005 YLR 2733; Province of Punjab and others v. Fazal Ahmad and others 2001 CLC 1185; Society of the Capuchin Fathers v. Government of Punjab and another 1996 MLD 1612; Aided Schools Management Association v. The Government of Sindh and another 1989 MLD 3020; Ahmad Ali alias Ali Ahmed v. Nsar-ud-Din and another PLD 2009 SC 453 and Province of Punjab through Collector Sialkot and others v. Ch. Khan Muhammad and 7 others 1989 SCMR 558 ref.

Khawaja Salman Mahmood, Assistant Advocate General Punjab, for Appellants.

Muhammad Omer Malik for Respondent.

P L D 2011 Lahore 263

Before Rauf Ahmad Sheikh, J

Hafiz ABDUL KHALIQ---Petitioner

Versus

REGISTRAR, JOINT STOCK COMPANY and others---Respondents

Writ Petition No.19 of 2011, decided on 10th January, 2011.

Societies Registration Act (XXI of 1860)---

---Ss. 1 & 21---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner challenged the registration of mosque or Anjuman under the Societies Registration Act, 1860---Validity---Contention that the mosque could not be registered under the Societies Registration Act, 1860 had no force---Word charitable' as used in S.1 of the Societies Registration Act, 1860 had to be construed in its wider sense---Where religious education was being imparted in the mosque with or without other/ordinary education, then such mosque would be deemed to be a "Deeni Maddressah" within the meanings of S.21 of the Societies Registration Act, 1860---Non-mention ofmosque' or `Anjuman' in S.21 of the Societies Registration Act, 1860 was no ground to declare the registration of mosque illegal---Performance of charitable activities and imparting education involved questions of fact which could not be adjudicated upon in constitutional jurisdiction as the same required appraisal of evidence---Civil court, where the dispute was pending was the appropriate forum for resolving the controversy---Petition was dismissed in limine.

M. Amir Butt for Petitioner.

P L D 2011 Lahore 265

Before Rauf Ahmad Sheikh, J

KHAWAR IQBAL---Petitioner

Versus

NADIA KHAN and others---Respondents

Writ Petition No.213 of 2011, heard on 7th February, 2011.

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

----Ss. 7 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Talaq---Wife had been delegated the rights of talaq---Validity and effect of pronouncement of talaq'--Petitioner/husband challenged the initiation of proceedings for confirmation of divorce by the Chairman, Arbitration Council in the wake of exercise of delegated right of divorce by the wife---Petitioner contended that without formal pronouncement of talaq, reconciliation proceedings could not be initiated by the Arbitration Council---Validity---Where wife exercised the delegated right of divorce, S.8 of the Muslim Family Laws Ordinance, 1961 provided that provisions of S.7 of the Muslim Family Laws Ordinance, 1961 would apply mutatis mutandis---No formal mode for exercise of the right was prescribed---Notice in writing to the Chairman, Arbitration Council about the exercise of the right was the only requirement---Wife had duly made the pronouncement by executing the deed and transmitting the. copies to the husband and the Chairman, Arbitration Council---Petitioner's contention that divorce was nottalaq' so the execution of divorce deed did not amount to `talaq' was misconceived---Divorce meant dissolution of marriage (talaq) and separation---Under S.7(3) of the Muslim Family Laws Ordinance, 1961, notice of 'talaq', if not revoked, will become effective after expiry of 90 days of its delivery to the Chairman, Arbitration Council---Constitutional petition was dismissed.

Dr. Qambar Murtaza Bokhari v. Mst.Zainab Bashir PLD 1995 Lah. 187 and Ch. Muhammad Javed v. The Chairman, Union Committee (Arbitration Council), Lahore Cantt, and another 1999 YLR2399 ref.

Sohail Mehmood for Petitioner.

Hassan Raza for Respondent.

Date of hearing: 7th February, 2011.

PLD 2011 Lahore 267

Before Sagheer Ahmed Qadri, J

MUHAMMAD AKRAM and others---Petitioners

Versus

MUHAMMAD TAJ and others---Respondents

Civil Revision No.265 of 2003, decided on 18th January, 2011.

(a) Punjab Tenancy Act (XVI of 1887)---

----S. 59 [as amended by Punjab Tenancy (Amendment) Act (IV of 1951, S.2]---General Clauses Act (X of 1897), S.6---Specific Relief Act (I of 1877), S.42---Suit for declaration---Trial Court dismissed the suit---Appellate Court dismissed appeal---Plaintiffs/female descendants of the deceased contended that the inheritance mutation having been attested subsequent to amendment in S.59 of the Punjab Tenancy Act, 1887, their exclusion from inheritance was unlawful---Validity---Prior to the amendment to S.59 of the Punjab Tenancy Act, 1887 right of occupancy would devolve on the male lineal descendant of a deceased tenant and in the absence of any male descendant, such right devolved on widow as limited owner---Plaintiff's agreement that as mutation was attested after the amendment to S.59 of the Punjab Tenancy Act, 1887 so they were entitled to inherit occupancy right was without force in view of S.6 of the General Clauses Act, 1897---Repealed or substituted substantive law would not have retrospective effect unless subsequent legislation specifically provided in this regard---As soon as a person died, his inheritance opened and devolved on the person entitled to the same---When the deceased died, unamended S.59 of the Punjab Tenancy Act was holding the field, therefore, his occupancy rights devolved upon his male lineal descendants excluding his daughter and widow---Attestation of mutation subsequent to the amendment in S.59 of the Punjab Tenancy Act, 1887 made no difference in view of S.6 of the General Clauses Act, 1897---Judgments of courts below did not warrant interference---Revision was dismissed in circumstances.

PLD 1974 SC 210; Rehmatullah v. Mst. Azmat Bi and 2 others 1996 CLC 1665; Khadi Khan v. Mst. Resham Jan and 2 others 1983 CLC 57; Ch. Muhammad Ashraf and others v. Mst. Gulshan Ara and others 2008 YLR 650; Muhammad Siddique and 3 others v. Muhammad Boota and others 2009 MLD 917; Nighat Reaz v. Rent Controller, Muzaffarabad and 2 others 2008 CLC 110; Begum Syeda Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914; Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 and Wahid Bakhsh v. District Officer (R)/Deputy Settlement Commissioner (Land) Notified Officer, Dera Ghazi Khan and others 2008 SCMR 1711 ref.

Muhammad Shafi v. Mehr Bhola and others PLD 1962 (WP) Lah. 931 rel.

(b) Interpretation of statutes---

----Retrospectivity---Repealed or substituted substantive law would not have retrospective effect unless subsequent legislation provided in that regard.

Muhammad Atif Farzoaq Raja for Petitioners.

Malik Shehzad Ahmad Khan for Respondents.

P L D 2011 Lahore 273

Before Rauf Ahmad Sheikh, J

ANEES HAIDER---Petitioner

Versus

Raja MAQSOOD HUSSAIN----Respondent

Writ Petition No.5260 of 2010, heard on 15th February, 2011.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 22(6) & 28(2)---Constitution of Pakistan, Art.199---Constitutional petition---Default in payment of rent---Amendment in petition for leave to contest---Validity---Special Judge. Rent dismissed tenant's application for amendment in the prayer of the petition for leave to contest---Appellate Court dismissed appeal on the ground that appeal against interlocutory orders was not maintainable---Validity---Under S.28(2) of the Punjab Rented Premises Act, 2009, appeal did not lie against interlocutory orders, so Additional District Judge rightly found that the appeal was not maintainable---Punjab Rented Premises Act, 2009, however, did not contain any specific bar on amendment in written reply/application in suitable cases---One could not be penalized for the act of the court---Tenant was not liable to ejectment for non-submission of application for leave to contest in given circumstances---Prayer sought to be amended was out of the contest of the petition and the same was result of typographical mistake---One was entitled to put forth one's correct contention before the court for effective decision of the matter---Clerical or typographical error should not hamper the course of justice---No limitation was prescribed for filing of petition for amendment in the application or reply to the application---Special Judge Rent erred in dismissing the petition and failed to exercise the jurisdiction vested in him---Though appeal was not maintainable in view of S.28(2) of the Punjab Rented Premises Act, 2009 but illegalities likely to result in gross miscarriage of justice could be rectified through exercise of constitutional jurisdiction of High Court under Art.199 of the Constitution---Petition was allowed accordingly.

2010 YLR 3189 distinguished.

Haroon Irshad Janjooa for Petitioner.

Muhammad Amir Butt for Respondent.

Date of hearing: 15th February, 2011.

P L D 2011 Lahore 276

Before Sh. Azmat Saeed, J

Shahzada KHURRAM NAZIR and another---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary Industries, Punjab, Lahore and 4 others---Respondents

Writ Petition No.18309 of 2010, decided on 24th December, 2010.

(a) Land Acquisition Act (I of 1894)---

----Ss. 3(a), 4, 17(4), 43-A & 55---Punjab Land Acquisition Rules, 1983, Rr.10(2)(3) & 15(1)---Companies Ordinance (XLVII of 1984), S.42---Constitution of Pakistan, Art.199---Constitutional petition---Petitioner challenged the acquisition proceedings contending that their land being agricultural. in nature could not be acquired in view of R.10(3) of the Punjab Land Acquisition Rules, 1983 and that respondents company/Industrial Estate wholly owned by the Provincial Government could not transfer the acquired land to any other entity as such transfer would offend against S.43-A of the Land. Acquisition Act, 1894 and R.15(1) of the Punjab Land Acquisition Rules, 1983---Validity---Land Acquisition Act, 1894 permitted the acquisition of land without distinguishing culturable and non-culturable land, whether the land was situated in the vicinity of a town or not---Petitioner failed to point out any provision in the Land Acquisition Act, 1894 which exempted culturable land from acquisition---Rule 10(3) of the Punjab Land Acquisition Rules, 1983 purported to exclude culturable land in the vicinity of a town from the operation of the Land Acquisition Act, 1894 resulting in an obvious contradiction between R.10(3) and the provisions of the Land Acquisition Act, 1894---In case of contradiction or inconsistency between the parent statute and the rules framed thereunder, the statute would prevail and such rules would be ultra vires the statute and ineffective in law---Punjab Land Acquisition Rules, 1983 were, at best, guidelines for the officers conducting the acquisition proceedings but the same were not binding---Rule 10(3) of the Punjab Land Acquisition Rules, 1983 being inconsistent with. the provisions of the Land Acquisition Act, 1894 was ultra vires the Land Acquisition Act, 1894---Acquisition proceedings and the impugned notifications could not be struck down on the ground that the same might offend against R.10(3) of Punjab Land Acquisition Rules, 1983---Section 43-A of the Land Acquisition Act, 1894 and R.15(1) of the Rules did not prohibit the transfer of acquired land by a company to a third party rather conditioned such transfer with the permission and consent of the Provincial Government---No case for interference in or invalidation of acquisition in question had been made out---Petition was dismissed accordingly.

(b) Interpretation of statutes---

----In case of contradiction or inconsistency between the parent statute and the rules framed thereunder, the statute would prevail and such rules would be ultra vires the statute and ineffective in law.

Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806 fol.

(c) Punjab Land Acquisition Rules, 1983---

----R. 10(3)---Rule 10(3) of the Punjab Land Acquisition Rules, 1983 being inconsistent with the provisions of the Land Acquisition Act, 1894 was ultra vires the Land Acquisition Act, 1894.

Devinder Singh and others v. State of Punjab others AIR 2008 SC 261 and Nandipati Somireddy and others v. State of Andhra Pradesh and others AIR 1977 Andhra Pradesh 377 ref.

Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806; Suo Motu Case No.13 of 2007 PLD 2009 SC 217; Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others 2003 SCMR 370 and Excise and Taxation Officer, Karachi and another v. Burmah Shell Storage and Distribution Company of Pakistan Ltd. and 5 others 1993 SCMR 338 fol.

Province of Punjab through Collecltor, Jhang and 2 othrs v. Khan and 6 others 1988 MLD 1030 rel.

Hamid Iftikhar for Petitioner.

Faisal Zaman Khan, A.A.G' and Amir Iqbal Basharat for Respondent No.2.

Date of hearing: 15th December, 2010.

P L D 2011 Lahore 284

Before Muhammad Khalid Mahmood Khan, J

Mst. AMEER BEGUM through Special Attorney and others---Petitioners

Versus

ABID HUSSAIN (MINOR) and others---Respondents

Civil Revision No.423-D of 1995, heard on 13th December, 2010.

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

----Ss. 128, 131, 182 & 188---Civil Procedure Code (V of 1908), O.III, R.1---Specific Relief Act (I of 1877), S.42---Principal and agent---Liability of agent---Scope---Trial Court decreed the suit---Appellate Court accepted the appeal filed by defendant---Plaintiffs contended that the surety having died during the pendency of the suit, his legal heirs were not bound to honour his surety---Validity---`Agent' was the person employed to do any work for another or represent another in dealing with a third party---No particular formality was required to constitute the agreement of agency---Principal's authority to agent to represent or act for him or to act in bringing him into contractual relationship with the third party, constituted essence of agency---Such' authority or agency was not required to be necessarily in writing but the same could be inferred from circumstances---Principal was responsible for the acts done by the agent within the agency arrangement---Agent of defendant sold the property to plaintiffs while undertaking to make good for any loss incurred by plaintiffs due to any defect in the title of the property by transferring his own property in favour of plaintiffs---Attorney, while acting on behalf of his principal undertook to compensate the plaintiff personally and as such he became the guarantor or surety of his principal---Under S.128 of the Contract Act, 1892, liability of the surety was co-extensive with that of the principal debtor unless otherwise provided by the contract---Attorney could not escape liability, as S.131 of the Contract Act, 1872 applied only to future transactions---Both seller/principal and his attorney were jointly and severally liable to transfer their other land in favour of the plaintiffs in case of defective title of the seller/defendant---Order III, R.1, C.P.C. was not mandatory but the same was directory in nature---Object of O.III, R.1, C.P.C. was to ensure that the facts stated in the pleadings were duly owned by the parties presenting the same---Non-signing of the plaint by the principal was not fatal and the defect could be rectified at any stage of proceedings---After removal of defect, or rectification, the suit shall be deemed to have been instituted on the day of presentation of the plaint and its registration in the office---Legal heirs of deceased attorney/agent would inherit his estate subject to the first charge of plaintiff as the deceased attorney stood/surety/guarantor of the seller regarding the suit land---Legal heirs of deceased surety could not be absolved from the liability of their deceased father---Impugned judgment was set aside and the judgment of the Trial Court was restored.

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

----O. III, R.1---Nature and object of O.III, R.1, C. P. C. ---Order III, R.1, C. P. C. was not mandatory but the same was directory in nature---Object of O.III, R.1, C.P.C. was to ensure that the facts stated in the pleadings were duly owned by the parties presenting such facts.

Mumtaz Hussain v. Faizullah and 5 others 1999 YLR 981; Hakim Ali and another v. Atta Muhammad and others 1981 SCMR 993; Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314; Messrs Shadman Cotton Mills Ltd. v. Federation of Pakistan PLD 2009 Kara 169 and Mst. Fayyazi Begum and 6 others v. Ali Hassan and another 2009 CLC 1289 ref.

1981 SCMR 687 fol.

Sh. Ghaias ul Haq for Petitioner.

Malik Ghulam Murtaza and Ch. Muhammad Iqbal Ghazi for Respondents.

Date of hearing: 13th December, 2010.

P L D 2011 Lahore 292

Before Ch. Muhammad Tariq and Syed Akhlaq Ahmad, JJ

TANVEER SPINNING AND WEAVING MILLS and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petitions Nos. 19640 of 2010, I.C.As. Nos.350, 289, 316, 310, 290, 291, 292, 293, 298, 299, 301, 302, 311, 303, 309, 322, 320, 449, 304, 305, 315, 341 to 345, 300, 306 of 2005, 191, 96, 97 and 98 of 2006, Writ Petitions Nos.7940 of 2007, 17492, 17493, 19549, 18777, 18778, 19548, 19300, 19301, 21378, 17491, 15425 and 20677 of 2010, heard on 13th January, 2011.

(a) Good governance---

----Evils of society---Reasons---Energy shortfall, dearness, terrorism, unemployment and street crimes have made the whole nation embarrassed and short tempered---Heavy energy shortfall is contributing a lot towards most of the evils of the society such as terrorism, street crime etc.

(b) West Pakistan Finance Act (XXXIV of 1964)---

----S. 13---Punjab Finance Ordinance (VI of 2001), S. 4---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1977), S.2(xi)---Electricity Act (IX of 1910), S.22---Constitution of Pakistan, Art.157, Federal Legislative List, Part-I, Entry 44---Law Reforms Ordinance (XII of 1972), S.3-Intro-Court appeal---Private generation of electricity---Duty, levy of---Scope---Provincial Government issued a notification, whereby electricity duty on generation of electricity from generators of capacity more than 500 KW was levied---Validity---Government could levy tax provided Water And Power Development Authority and other licensees had been providing adequate energy to domestic and industrial consumers according to their satisfaction as well as according to terms and conditions executed between consumer and licensee at the time of installation of electricity connection; in such circumstances if anyone would generate energy, government had every right to impose tax thereon---When Water And Power Development Authority and other licensees badly failed to supply electricity to consumers, production of energy through private generators was not only a great help to the nation but it was also a positive step towards saving of thousands of families from starvation because close of one unit of industry meant to turn a number of employed persons jobless---Government was expected to extend incentives to the persons who were generating energy instead of levying tax thereupon and creating hurdles in the way of investment and prospective employment in such way---Levy of electricity duty on private generators was condemnable in such prevailing circumstances---Provincial Government was not just to levy tax on production of energy by individuals through private generators till the time Water And Power Development Authority and its licensees would provide electricity to individuals and industry according to their requirements---High Court set aside the judgment passed by Single Judge of High Court and operation of notification in question was held in abeyance till the time Water And Power Development Authority would provide sufficient energy to its consumers according to their requirements---Intra-Court Appeal was allowed in circumstances.

PLD 2005 Lah. 596; PLD 1966 SC 684, PLD 1999 CLC 66(sic.); 2005 MLD 1165; 2008 CLD 239; AIR 1988 SC 1737; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; PLD 2003 Lah. 531; PLD 1997 SC 582 and Kitab-ul-Ikhtiar ref.

PLD 2008 SC 591 distinguished.

(c) West Pakistan Finance Act (XXXIV of 1964)---

----S. 13 & Fifth Sched.---Punjab. Finance Ordinance (VI of 2001), S.4---Private generation of electricity---Duty, levy of---Charitable trust---Effect---Provincial Government imposed duty on private generation of electricity from generators of more than 500 KW capacity---Validity---Appellant was a charitable institution, thus it did not fall within the ambit of Fifth Schedule to West Pakistan Finance Act, 1964---Appellant was not liable to pay electricity duty as imposed through notification in question.

Imtiaz Rashid Siddiqui Barrister, Muhammad Ahmad Pansota, Wasif Majeed, (Vice Counsel) Ijaz Ahmad Awan and Komal Malik Awan for Appellants/Petitioners.

Aurangzeb Mirza for Respondents.

Shakeel-ur-Rehman, Additional Advocate General,' Punjab for the State.

Date of hearing: 13th January, 2011.

P L D 2011 Lahore 306

Before Ijaz Ahmad Chaudhry, C J

MUHAMMAD MAZHAR IQBAL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.12134-BC of 2010, decided on 20th December, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.20(4)---Dishonestly issuing a cheque---Pre-arrest bail, cancellation of---According to F.I.R. accused had availed a loan facility of Rupees twelve million from the Bank---Cheques issued by the accused towards repayment of this loan amount had been dishonoured on presentation in the Bank---Contention of the defence counsel was that the contents of the F.I.R. had depicted a matter of recovery of loan, which could be recovered by the complainant by filing a complaint under S.20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, so no criminal case could have been registered against the accused and he had been rightly allowed pre-arrest bail---Complainant, no doubt, could file a complaint under S.20(4) of the said Ordinance, but the Bank was not debarred from getting the criminal case registered against the accused under S.489-F, P.P.C.---Complainant had the prerogative to get redressed his grievance through efficacious and speedy remedy of his choice and no objection from the other side in this regard could be entertained---Ingredients of S.489-F, P.P.C. were fully attracted---Accused had not bothered to arrange for the return of loan according to agreement, which showed mala fides on his part---Dishonour slips issued by the Bank available on record had connected the accused with the offence---Parameters laid by superior Courts for grant of pre-arrest bail had been ignored by Trial Court---No ill-will or personal grudge on the part of the complainant or the police was pointed out on behalf of accused for his false implication in the case-Bail granted to accused was cancelled in circumstances.

Saeed ul Hassan Jaftri for Petitioner.

Abdus Samad, Addl. Prosecutor-General with Khurshid, A.S.I. Sahir Mahmood Bhatti for Respondent No.2.

P L D 2011 Lahore 311

Before Nasir Saeed Sheikh, J

EHSAN ABBAS---Petitioner

Versus

KHUSH ABBAS and others---Respondents

Writ Petition No.93 of 2011, decided on 15th March, 2011.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 19(4)---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant---Rent Tribunal rejected tenant's objection to submission of affidavits of witnesses by the landlord at a later stage---Tenant contended that use of word 'shall' in S.I9(4) of the Punjab Rented Premises Act, 2009 made submission of the affidavits at the first hearing mandatory-Validity-Despite the use of word 'shall', S.19(4) of the Punjab Rented Premises Act, 2009 had to be construed as directory in nature and not mandatory---Rent Tribunal rightly rejected the objection raised by tenant---Constitutional petition was dismissed in circumstances.

Muhammad Javaid Niazi for Petitioner.

Raja Muhammad Ashraf Zameer for Respondents.

P L D 2011 Lahore 313

Before Sh. Ahmad Farooq, J

MURAD AHMAD KHAN and 3 others---Petitioners

Versus

PAKISTAN GOLF FEDERATION, RAWALPINDI through Secretary and another---Respondents

Writ Petition No.16054 of 2010, heard on 28th February, 2011.

(a) Pakistan Sports Board Rules, 1981---

----Rr. 3, 4(ii)(a) & 17---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Sports Federations and Associations---Petitioners were golf players and permanent members of Lahore Gymkhana Club and participated in a tournament held abroad---Complaint was made against petitioners about their deceiving the organizers of the tournament---Pakistan Golf Federation initiated disciplinary action against petitioners and disqualified them for two years from all competitive Golf Tournaments---Plea raised by respondents was that they were private persons and not performing functions with the affairs of State, therefore, no writ could be issued against them---Validity---All National Sports Federations, including Pakistan Golf Federation were affiliated with Pakistan Sports Board and they were controlled, supervised and given grants-in-aid by the Board---Pakistan Sports Board had an authority under Rule 4(ii)(a) of Pakistan Sports Board Rules, 1981, to even approve, amend and repeal constitutions of all National Sports Federations and Associations---Pakistan Sports Board could also remove any office bearer of National Sports Organizations---Pakistan Golf Federation was a "person" performing functions in connection with the affairs of the Federation---Pakistan Golf Federation was amenable to constitutional jurisdiction and petitioners were aggrieved persons as the Golf Federation had passed an adverse order against petitioners giving them a locus standi to file constitutional petition---Pakistan Golf Federation was not vested with any lawful authority to pass any order against petitioners---If the petitioners had brought any bad name to country, the parent club, of which the petitioners were members might take necessary action against them in accordance with their rules---High Court, in exercise of constitutional jurisdiction, set aside the order passed by Pakistan Golf Federation against petitioners---Petition was allowed in circumstances.

Ajay Hasia v. Khalid Mujib AIR 1981 SC 487; Aitchison College, Lahore v. Muhammad Zubair and another PLD 2002 SC 326 and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman PLD 2010 SC 676 rel.

Muhammad Aslam v. Senior Member (Colonies), Board of Revenue, Punjab and others 2004 SCMR 1587 and Ziaullah Khan Niazi v. Chairman, Pakistan Red Crescent Society 2004 SCMR 189 ref.

Anoosha Shaigan v. Lahore University of Management Sciences PLD 2007 Lah. 568 distinguished.

(b) Constitution of Pakistan---

----Art. 4---Treatment in accordance with law---Public functionaries, duties of---Scope---Every citizen of Pakistan is supposed to be treated in accordance with law---Any action by any public functionary against any citizen must be backed by any law or rule.

Khawaja Saeed-uz-Zafar for Petitioners.

Imran Amjad Mehdi for Respondents.

Date of hearing: 28th February, 2011.

P L D 2011 Lahore 323

Before Ijaz Ahmad Chaudhry, C.J. and Ijaz ul Ahsan, J

M. ASLAM MOUVIA-Petitioner

Versus

HOME SECRETARY and others---Respondents

Writ Petition No.23836 of 2010, decided on 9th March, 2011.

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

----S. 21-F---Pakistan Prison Rules, 1978, Rr.214 & 215---Constitution of Pakistan, Art. I99---Constitutional petition---Remissions---Retrospective effect---Scope---Grievance of petitioner was that his case was prior to 15-8-2001, when insertion by way of amendment in S.21-F of Anti-Terrorism Act, 1997, was made, therefore, he was entitled to remissions under Pakistan Prison Rules, 1978---Plea raised by petitioner was that when a provision of law was altered during pendency of any action,' rights of parties were to be decided according to the law as it existed when the action was initiated and not under the law prevailing on the date of judgment/order---Validity---Trial of petitioner commenced before insertion of S.21-F in the Anti-Terrorism Act, 1997---Certain rights had already accrued in favour of petitioner by way of his entitlement to the benefit of remissions in accordance with law in field at relevant time i.e. the time that the alleged offence was committed, F.LR. was registered against him, he was arrested and his trial commenced---Any subsequent change in law would not have the effect of depriving him from the rights which were available to him at the time when the offence was committed and trial commenced---Nothing existed in S.21-F of Anti-Terrorism Act, 1997, to indicate even remotely that it had retrospective operation or that it had the effect of taking away the rights that were available to certain convicts under the prevalent law when the offence was committed, F.I.R. was registered or trial commenced---Provision of S.21-F of Anti-Terrorism Act, 1997,being prospective in nature, the same could not take away or affect the rights which were available to petitioner at the relevant time---Petitioner was entitled to remissions available to him under the provisions of Pakistan Prison Rules, 1978---High Court directed the authorities to grant such remissions to petitioner as he was entitled to under the provisions of Pakistan Prison Rules, 1978---Petition was allowed in circumstances.?

Mian Rafi ud Din and others v. The Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252; Hussain and others v. Fancy Foundation PLD 1975 SC 1; Sheikh Muhammad Shariff's case PLD 1978 Lah. 15; PLD 2009 SC 809; Pakistan Steel Mills Corporation v. Muhammad Azam Katper and others 2002 SCMR 1023; Commission of Income Tax Karachi v. Eastern Federal Union Insurance Co. PLD 1982 SC 247;Kumir Mondal and others v. Paramatha Nath Chowdhary and others PLD 1963 Dacca 886; Maxwell in his Interpretation of Statutes, 9th Edn. P.223; Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Commissioner, Sindh Employees Social Secrities Institutin and another v. Messrs E.M. Oil Mills and Industries and 2 others 2002 SCMR 39 and Molasses Trading and Export (Pvt.) Ltd. v. Federatin of Pakistan 1993 SCMR 1905 rel.

(b) Interpretations of statutes---

----Retrospective/prospective effect of a statute---Applicability---Where a law was altered during pendency of action, the rights of parties are to be decided in accordance with the law as it existed when the action was initiated and not under- the law prevailing on the date of judgment/order.?

Mian Rafi ud Din and others v. The Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252 and Hussain and others v. Fancy Foundation PLD 1975 SC 1 rel.

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

----S. 21-F---Pakistan Prison Rules, 1978, Rr.214 & 215---Constitution of Pakistan, Art.199---Constitutional petition---Remissions---Entitlement of convicts---Scope---Petitioner was arrested and his trial commenced under Anti-Terrorism Act, 1997, prior to insertion of S.21-F in the Anti-Terrorism Act, 1997, and after conviction he was denied benefit/remissions under Pakistan Prison Rules, 1978---Plea raised by petitioner was that according to Pakistan Prison Rules, 1978, the types of remissions were ordinary, special remissions, remissions for rendering special services and educational services, such remissions were akin to the earning of a convict and the same could not be withdrawn without express sanction of law---Validity---Remission under Pakistan Prison Rules, 1978, were granted under special circumstances and were in fact earned by the convict on the basis of some acts specified in rules 214 and 215 of Pakistan Prison Rules, 1978---Such remissions were in the nature of earning and could not be withdrawn arbitrarily unless provided in relevant law---Provisions of section 21-F of the Anti-Terrorism Act, 1997, were not attached to such remissions---Denial of remissions under Pakistan Prison Rules, 1978, could have been justified in view of the words "notwithstanding anything contained in any law or Prison Rules"---Provisions of S.21-F of Anti-Terrorism Act, 1997, had not retrospective effect and were not applicable to the case of petitioner---Petitioner was entitled to remissions available to him under the provisions of Pakistan Prison Rules, 1978-High Court directed the authorities to grant such remissions to petitioner as he was entitled to under the provisions of Pakistan Prison Rules, 1978---Petition was allowed in circumstances. ?

Qazi Misbah ul Hassan for Petitioner.

Munawar Hussain Sandhu, Assistant Advocate-General. Niaz Nazir, Asstt. Superintendent Jail from I.-G. Office. Wajahat, Asstt. Superintendent Jail, Central Jail, Lahore.

P L D 2011 Lahore 334

Before Ijaz Ahmad, J

NAJEEB AHMAD ABBASI---Petitioner

Versus

M.A.G. and others---Respondents

Writ Petition No.4957 of 2010, decided on 31st January, 2011.

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

----Ss. 2(1)(b) & 5---Pakistan Army Act (XXXIX of 1952), Ss.65(1)(h) & 171---Criminal Procedure Code (V of 1898), S.488---Constitution of Pakistan, Art.199---Constitutional petition---Family Court---Execution of decree---Armed personnel---Salary, attachment of---Petitioner was serving in armed forces and Family Court attached salary of petitioner during execution of decree passed against him---Plea raised by petitioner was that under S.171 of Pakistan Army Act, 1952, his salary could not be attached by direction of any civil or revenue Court in satisfaction of any decree---Validity---Salary of person serving Armed Forces was saved from seizure or attachment but that saving would come into play in case where direction was issued by a civil Court, revenue Court or revenue officer in satisfaction of a decree---Such saving clause did not cover decree passed and direction issued by Family Court---Salary and allowances of officer of Armed Forces, were not saved under S.488, Cr.P.C. and S.65 of Pakistan Army Act, 1952, in matter that related to maintenance of wife or child of such officer---Exemptions to salaries etc. of person serving Armed Forces of Pakistan as postulated under S.171 of Pakistna Army Act, 1952, was not available in case of decree passed by Family Court---High Court declined to interfere in order or attachment of salary passed by Family Court against petitioner---Petition was dismissed in circumstances.

Muhammad Fazil Siddiqui for Petitioner.

Ateeq-ur-Rehman Kiani, Standing Counsel.

P L D 2011 Lahore 336

Before Ijaz Ahmad, J

ATIQ-UR-REHMAN---Petitioner

Versus

SAEED ULLAH GONDAL and others---Respondents

Criminal Miscellaneous No.2115-BC-2010, decided on 2nd February, 2011.

Criminal Procedure Code (V of 1898)--

----S. 497(5)---Penal Code (XLV of 1860), Ss.365/109---Abduction, abetment---Bail, cancellation of---Detenus involved in various cases had been acquitted, but later on they had been incarcerated under the preventive detention law---Such detention was extended after the expiry of the prescribed period---Ultimately the said detainees were ordered to be released by High Court in exercise of its constitutional jurisdiction---Jail Authorities did not release the detenus on the receipt of the "robkar" and on the next day they were abducted in various vehicles to unknown places---Question was whether the accused respondents were privy to the said abduction or not---Nothing was available to show that the accused had resisted the abduction of the detenus from the jail premises, rather their abetment in the affair was glaring---Bail once granted to accused would not ordinarily be cancelled and courts had to be slow in doing so, but there was no absolute bar in this regard---Accused being the government servants could not be extended the relief of bail in all the cases irrespective of the gravity of their offence, only because their abscondence was not feared and they commanded respect in the society---Consideration that the accused being a government servants was more entitled to the concession of bail had to be farewelled---High Court observed that if the Government officials, like the present accused, were not brought to justice and were granted bail at the early stage even in the offences like the present one, the result would be lawlessness, which would spread like a contagious disease; longing of the aggrieved people to have resort to street power would be irresistible and the consequent anarchy would be irreversible---Bail granted to accused by sessions Court was cancelled by High Court, in circumstances.

Ilyas Ahmed Siddiqui for Petitioner/Complainant.

Malik Waheed Anjum for Respondents Nos. 1 and 2/accused.

Malik Riaz Ahmed Saghla, D.P.G.

Muhammad Sheraz A.S.-I. along with Record.

Respondents No.1 and 2 present in person.

P L D 2011 Lahore 340

Before Muhammad Khalid Mehmood Khan, J

RABART alias D.C.---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, MIAN CHANNU, DISTRICT KHANEWAL and 7 others---Respondents

Writ Petition No.5639 of 2010, heard on 24th December, 2010.

Illegal Dispossession Act (XI of 2005)---

----Ss. 7 & 3---Constitution of Pakistan, Art.199---Constitutional petition---Trial Court vide impugned order while acting under S.7 of the Illegal Dispossession Act, 2005, had granted interim relief to the complainant directing the S.H.O. to restore the possession of house to her---Words used in S.7 of the Act were "during trial", which showed that initiation of trial was the condition precedent for taking cognizance under the said section---Admittedly, charge in the case had not been framed and trial Court only after perusing the statements recorded by the complainant and her witnesses as well as the report of S.H.O., had passed the impugned order for restoration of possession---Impugned order, thus, was without lawful authority and was not sustainable---Said order was consequently set aside and the case was remanded to trial Court for deciding the same afresh after framing the charge in accordance with law---Constitutional petition was allowed accordingly.

Masood Riaz for Petitioner.

Muhammad Shafiq Aliana for Respondents.

Date of hearing: 24th December, 2010.

P L D 2011 Lahore 344

Before Ijaz Ahmad Chaudhry, C J

LAHORE CONSERVATION SOCIETY through President and 3 others---Petitioners

Versus

CHIEF MINISTER OF PUNJAB and another---Respondents

Writ Petition No.5349 of 2011, decided on 14th March, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---Jurisdiction of High Court, exercise of---Principles---Construction of flyover---Environmental impact---Factual controversy---Petitioners were aggrieved of construction of a flyover on one of the main roads and they contended that by the construction, number of plants and trees were to be eliminated and number of problems towards health of inhabitants would occur---Validity---By cutting trees and plants, beauty of the site was bound to go dim, however the same would be reinvigorated by planting new trees etc. after completion of the project and recently constructed some Flyovers and under passes could be quoted as precedent---For better future one had to lose something in the present---If public at large had suffered some inconvenience during completion of such project, the same would also be a blessing for them in future as they would get rid of undue traffic blockage and wastage of precious time, while standing on traffic signals---Petitioners raised factual controversy which could not be resolved in proceedings under Constitutional jurisdiction of High Court, rather the same could be competently dealt with after recording of evidence of both the parties in appropriate proceedings---Project in question was approved to eliminate difficulties of the masses qua traffic problems and petitioners could not be allowed to have the same declared illegal from High Court, rather case of any grievance, petitioners should have approached the concerned quarter---High Court had ample jurisdiction to adjudicate upon matters involving public interest litigation but the same should be exercised with due care and caution---Petitioners failed to make out a ground for exercise of jurisdiction by High Court on the ground of public interest litigation rather the same appeared to High Court as a device to delay construction on the site which High Court declined to allow in any manner whatsoever---Petition was dismissed in circumstances.

Shehla Zia v. WAPDA PLD 1994 SC 693; Sumera Awam v. Government of Pakistan 2008 CLD 1185; Dr. Muhammad Sadiq Saleem v. Secretary Health 2008 PLC (CS) 25; Maher Ali v. Pakistan PLD 1980 Kar. 609; Standard Chartered Bank v. Karachi Electricity Supply Company PLD 2001 Kar. 344; Nagina Silk Mills, Lyallpur v. The Income Tax Office PLD 1963 SC 322; Murree Brewery Co. Ltd. v. Pakistan PLD 1972 SC 279; Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty PLD 1961 SC 119; Adamjee Insurance Company Limited v. Pakistan 1993 SCMR 1798; Gatron Industries Ltd. v. Government of Pakistan 1999 SCMR 1072 and Khalid Mahmood v. Collector of Customs 1999 SCMR 1881 distinguished.

Secretary to the Government of Punjab v. Ghulam Nabi and 3 others PLD 2001 SC 415 and Mian Muhammad Jahangir and others v. Government of Punjab and others 2000 MLD 1196 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy---Scope---Remedy available to an aggrieved person cannot be bypassed on the ground that the same is not adequate or efficacious one.

(c) Constitution of Pakistan---

----Art. 199---Constitution petition---Discretionary relief---Scope---High Court while equipped with power to redress grievance of an aggrieved person, has simultaneous jurisdiction to refuse the relief to a party where granting whereof would tantamount to injustice.

Mian Muhammad Jahangir and others v. Government of Punjab and others 2000 MLD 1196 rel.

Ahmad Rafay Alam, Advocate.

P L D 2011 Lahore 349

Before Sagheer Ahmed Qadri, J

Sayyed HANAN KHALID GILLANI---Petitioner

Versus

DISTRICT JUDGE/PRESIDING OFFICER DISTRICT CONSUMER COURT, MULTAN and others---Respondents

Writ Petition No.12194 of 2010, decided on 4th April, 2011.

(a) Interpretation of statutes--

----Words occurring in a statute---Dictionary meanings---Principle---Firstly, if any word occurring in a statute has to be interpreted, its meanings should be searched and if it is defined in the definition clause or any other part of the statute with reference to that statute and with reference to the subject---If no such definition is provided in that statute/enactment, then its literal/dictionary meaning are to be taken into consideration.

(b) Punjab Consumers Protection Act (II of 2005)---

----Ss. 2(j), 25 & 28---Constitution of Pakistan, Art.199---Constitutional petition---Word "animal"---Scope---Claim against supplier---Dispute between the parties was with regard to supply of chicks---Consumer alleged that supplier did not supply him the chicks of grade "A" for which payment was made to him---Claim submitted by consumer under S.28 of Punjab Consumers Protection Act, 2005, was found to be maintainable by Consumer Court---Validity---Word "animal" in S.2(j) of Punjab Consumers Protection Act, 2005, was used in general sense, therefore, birds included the same and agreement reached between consumer and supplier for supply of chicks did not fall within the meaning of supply of any product---High Court set aside the order passed by Trial Court and claim submitted by consumer under S.28 of Punjab Consumers Protection Act, 2005, was not maintainable---Petition was dismissed in circumstances.

Chamber 21st Century Dictionary; Conscise Oxford Thesaurus, Third Edn. and Halsbury's Law of England, 4th Edn. Vol.2, para.201 ref.

Fakhar Raza Malana for Petitioner.

Mian Babar Saleem for Respondent No.2.

Sardar Farooq Ahmad Khan for Respondent No.3.

P L D 2011 Lahore 355

Before Nasir Saeed Sheikh, J

MUHAMMAD AKRAM BHATTI and others---Petitioners

Versus

Mst. GHULAM SUGHRA and others---Respondents

Civil Revision No.123 of 2005, decided on 22nd March, 2011.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Succession certificate---Defence Saving Certificates---Nominee, status of---Petitioners sought succession certificate on the ground that they were nominated by their deceased predecessor-in-interest, while respondents claimed their share under Islamic Law---In view of specific nomination in favour of petitioners, Trial Court issued the certificate in their favour to the exclusion of respondents---Lower Appellate Court allowed the appeal and held the respondents also entitled to their legal shares in the amount of Defence Saving Certificates---Validity---Lower Appellate Court, before whom the matter was taken up by respondents after relying upon the judgments passed by Supreme Court, rightly declared that effect of nomination made by deceased predecessor-in-interest in favour of specific nominees was only for the purpose of receiving the amount under Defence Saving Certificates Scheme but distribution of the amount had to be made in accordance with the respective legal shares amongst all legal representatives of the deceased---Judgment passed by Lower Appellate Court was perfectly in accordance with law and the same called for no interference---Revision was dismissed in circumstances.

Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185; Malik Safdar Ali Khan and another v. Public-at-Large and others 2004 SCMR 1219; Mukhtar Sultana v. Tasadq (Tasadaq Hussain) PLD 1979 Lah. 34; Imtiaz Shamim and others v. Muhammad Irfan-ul-Haq and others 2006 CLC 1189 and PLD 1991 SC 750 rel.

Malik Muhammad Kabir for Petitioners.

Muhammad Aslam Sheikh for Respondents Nos. 1 to 3.

P L D 2011 Lahore 362

Before Sh. Azmat Saeed, J

Mst. IRAM SHAHZAD and 2 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 2 others---Respondents

Writ Petitions Nos.4195 and 4460 of 2010, decided on 4th May, 2011.

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

----S. 25---Custody of minor---Determination of rival claims for custody---Invariably it is the welfare of the minor which is of paramount importance and sole determining feature/factor---Age, gender and marital status of the parties are only factors which are to be taken into consideration for arriving at a conclusion as to how the interest and welfare of minor can be best protected and such factors are not to be considered in contradistinction to the welfare of minor---Ostensible wealth of father can never be a ground entitling him to custody of his minor child---No absolute rule or mathematical formula is available to determine the welfare of minor---Court has to determine the welfare of minor on the basis of options that are available in the facts and circumstances of each and every case---Principles.

In determining the rival claims of the parties to the custody of minors, invariably it is the welfare of the minor which is of paramount importance and sole determining feature/factor. The age, gender and marital status of the parties are only factors which are to be taken into consideration for arriving at a conclusion as to how the interest and welfare of the minor can be best protected. Such factors are not to be considered in contradistinction to such welfare. Furthermore, no absolute rule or mathematical formula is available to determine the welfare of minor. Mere age of minor is not sufficient to return a finding for determining the right to custody. If that was so, the Judicature would not be required to agonizingly exercise its parental jurisdiction and leave the matter to a ministerial officer to merely examine the birth certificate of the minor.

The courts have to determine the welfare of the minor on the basis of options that are available in the facts and circumstances of each and every case.

The ostensible wealth of a father can never be a ground entitling him to the custody of his minor child. It is the bounden duty of a Muslim father to maintain his children, whether they are in his custody or of his spouse. In the present case, the father has not paid a penny of maintenance to the minor. No effort in this behalf appears to have been made. Furthermore, age of the minor more particularly the male child is no doubt a relevant factor but not necessarily the sole and only consideration for determining custody of a minor. In the eventuality of divorce and a mother on remarrying, the child being brought up in the care of the mother through the maternal grandmother is also not unacceptable and may be the preferred option. In the present case, this is exactly the situation as it exists today, wherein the child is being well looked after and educated. It has also been noticed that the father deliberately did not enter the witness box to dispute the claim of the opposite side to allow himself to be cross-examined about how he proposed to look after the minor abroad.

The options available, in the facts and circumstances of the case, are either to leave the child in the love and care of his mother through maternal grandmother with an atmosphere conducive to his well being or to dispatch the child to an unknown place outside the jurisdiction and supervision of the court in a foreign country to be brought up at best by a paid maid. Such a course of action would also amount to a fait accompli, leaving no room for a reversal of the situation, in case the welfare of the child is prejudiced that too outside the jurisdiction of the courts. In the circumstances, there is also no guarantee of any future contact with the mother as is apparent from the past conduct of the father, who has once already arranged for the abduction of the minor and his illegal transportation outside Pakistan requiring intervention of the High Court of Justice, Family Division, U.K. No mother deserves to be put through the agony of permanently parting with her offspring or forced yet again to invoke the jurisdiction of a foreign court. In the circumstances, the application under section 25 of the Guardians and Wards Act filed by father stands dismissed. However, the father, of course, is entitled to visitation rights. Consequently, he is allowed to meet the minor under the supervision of the Guardian Judge concerned on the first Saturday of each calendar month and will only be allowed to take the minor outside the court premises subject to furnishing of a surety bond for the safe return of the child to the satisfaction of the Guardian Judge concerned and by surrendering of his (father's passport) with the court.

Bashir Ahmad v. Mst. Rehana Umar 1976 SCMR 28; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838; Muhammad Shafique v. Additional District Judge 1991 MLD 774; Abdul Ghaffar v. Awwamun Nas and another 1988 CLC 670; Sh. Waseem Ahmad v. Mst. Wazir Begum and 2 others 2005 CLC 1755; Surraya Bibi v. Abdul Rashid 1980 CLC 785; Mst. Sajida Parveen v. Addl. District Judge 1991 MLD 745; Mst. Shumaila Akhtar and 2 others v. Abdul Rauf and 2 others 2004 YLR 1913; Mst. Zubaida Khanum v. District Judge, Karachi South and 2 others 1988 CLC 560; Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and another PLD 2003 SC 877; Fatima Bibi v. District and Sessions Judge 2004 YLR 652; Mrs. Sultana Begum v. Muhammad Shafi PLD 1965 (W.P) Kar. 416; Mst. Ayisha Bibi v. Safdar Ali Shah and another 2005 CLC 894; Mst. Aisha v. Manzoor Hussain and others PLD 1985 SC 436; Kousar Perveen alias Shameem v. Muhammad Fayyaz and 2 others 2009 CLC 566; Mst. Munawar Jan v. Master Muhammad Afasar Khan PLD 1962 (W.P) Lah. 142; Muhammad Bashir v. Fatima PLD 1953 Lah. 73; Mst. Chiragh Bibi v. Khadim Hussain PLD 1967 Lah. 382; Muhammad Yasin v. Shabbir Ahmad 1985 CLC 2111; Mst. Zar Jan v. Mst. Najmun Nisa and others PLD 1969 Pesh. 118; Haji Din Muhammad through L.Rs v. Mst. Hajira Bibi and others PLD 2002 Pesh. 21; Syeda Chaudhri's case PLD 2003 SC 377; Muhammadan Law by Mulla; Hedaya, Digest of Muhammadan Law by Baillies; Fatawa Alamgiri and Muhammadan Law by Syed Ameer Ali and Muhammadan Law by Tayabji ref.

Farooq Amjid Mir for Petitioners.

Mian Khalid Habib Elahi for Respondents.

Date of hearing: 22nd March, 2011.

P L D 2011 Lahore 372

Before Asad Munir, J

Maj. (Rtd.) MUHAMMAD AYYAZ KHAN DURRANI---Petitioner

Versus

SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN, ISLAMABAD and 6 others---Respondents

Writ Petition No.4928 of 2008, decided on 21st April, 2011.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---Notification No.4292-83/2537-CL-1, dated 9-8-1983---Constitution of Pakistan, Art.199---Constitutional petition---Grant of land under 'Animal Breeding Scheme' to father---Refusal of authorities to grant renewal of the lease to petitioner/son of allottee (father) who had died---Validity---Held, petitioner (son) had no right to seek the renewal of the lease even if his performance as horse breeder was satisfactory---Letter from G.H.Q. whereby the unexpired lease period was approved in favour of the petitioner could not be construed to confer a right on the petitioner to claim renewal of the lease and case of the petitioner was governed by Notification No.4292-83/2537-CL-1, dated 9-8-1983---Statement of conditions contained in the said notification had to be read into and was part of every Animal Breeding Lease which made it clear that no person shall be entitled as of right to receive a grant and Government shall have absolute discretion in the selection of tenancies and not to extend or renew the lease to the existing lessee and resume and allot the land to someone else---Constitutional petition was dismissed.

Muhammad Sultan v. Government of the Pakistan through Secretary Defence, Rawalpindi and 4 others 2003 YLR 2713; Mst.Zainab Khatoon v. Member (Colonies) BOR, Punjab and others 1998 SCMR 1188 and Lt. Col. (Retd.) M. Zahoor-ul-Haq v. Quarter Master General and others 1994 CLC 2449 ref.

Muhammad Zahid Rana for Petitioner.

Siraj-ul-Islam Khan, Addl. A.-G.

Tahir Mahmood Khokhar and Amjad Hussain Shah for Respondents.

P L D 2011 Lahore 377

Before Ijaz Ahmad Chaudhry, C J

JAMAL AKRAM---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Establishment, Government of Pakistan, Islamabad and 3 others---Respondents

Writ Petition No.11968 of 2010, decided on 21st March, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioner had sought a direction to the authorities to ban numerous websites which were showing pornography, sexual videos, printed material, mail addresses etc. as the same was not only against the interest of Muslim community of Islamic Republic of Pakistan but immoral, unholy, illegal and unconstitutional as well and to install firewall and heavy software on Internet to control the communication of pornographic websites through Internet---High Court, in circumstances, formulated guidelines for immediate and strict action by the authorities to the effect that Inter-Ministerial Committee constituted by the Prime Minister in the year 2006 would keep a vigilant eye on the websites and in the eventuality of any objectionable material concerning the religious faith of any group would take prompt action before it reaches to the public-at-large and in case of failure the concerned persons would be taken to task while initiating disciplinary action against them and the Government would also include some members from amongst the private persons in the said Committee; that the Crisis Cell working in the Services Division ICT Directorate and Enforcement Division shall be used as a tool to unearth such material and to block the relevant websites/URL forthwith and in case of failure stern action be taken against the delinquents; that the Government shall also see the viability of permanent blocking of the websites involved in unethical, unIslamic and illegal activities in the event that such material is again presented on Internet; that the Government shall strive for legislation in this regard on the lines already adopted by other Islamic Countries in addition to China; that the Government shall impart awareness amongst the public through different modes e.g. print and electronic media regarding use and misuse of such like websites; and that in case of repletion the Government shall sue concerned authorities before the appropriate forums.

S.H. Shahzad Azmat for Petitioner.

Naveed Inayat Malik, Deputy Prosecutor-General for Respondents Nos. 1 and 2.

Khalid Mian for Respondents No.3 and 4.

P L D 2011 Lahore 382

Before Ijaz Ahmad Chaudhry, C.J., Umar Ata Bandial, Ch. Iftikhar Hussain

and Ijaz-ul-Ahsan, JJ

PAKISTAN LAWYERS' FORUM through General Secretary---Petitioner

Versus

FEDERATION OF PAKISTAN, MINISTRY OF LAW AND JUSTICE PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS, ISLAMABAD and another---Respondents

Writ Petition No.19561 of 2009, decided on 12th May, 2011.

(a) Interpretation of Constitution---

----Constitutional issues are not resolved solely by reference to facts of a case or the literal meaning of the words of a provision in the Constitution read in isolation, but through an enlightened and harmonious construction of the Constitution as a whole.

Shahid Nabi Malik v. Chief Election Commission PLD 1997 SC 32 ref.

(b) Constitution of Pakistan---

----Arts. 41(1), 248 & 199---Constitutional petition---Petitioner sought enforcement of claimed constitutional mandate regarding the office of the President of Pakistan under Art.41(1) of the Constitution and prayed for a direction by the Court requiring the Federation of Pakistan to act in accordance with law and ask the President of Pakistan to surrender his office of Co-chairmanship of a political party---Held, duties and functions of the lofty office of the President of Pakistan is to be discharged by him with complete neutrality, impartiality and aloofness from any partisan political interest---Use of the premises of Presidency for partisan political activity is inconsistent with the sanctity, dignity, neutrality and independence of the Presidency---Participation of the President of Pakistan in political party decisions is extraneous to the duties and functions of his high constitutional office and therefore such participation and decisions cannot be treated as being done in the performance of his duties and functions as President and are not immune under Art.248 of the Constitution---Such actions of the President do not enjoy immunity from the judicial process and call for judicial intervention to enforce the Constitution---High Court observed that it was expected that the President of Pakistan would abide by the foregoing declaration of law to disassociate himself from political office at the earliest possible and would cease to use the premises of the Presidency for the purposes and political meetings of his party---Principles.

In the present case, constitutional petition is filed for the enforcement of the claimed constitutional mandate regarding the office of the President of the Islamic Republic of Pakistan under Article 41(1) of the Constitution. The petitioner has prayed for a direction by the Court requiring Federation of Pakistan to act in accordance with law and to ask the President of Pakistan to surrender his office of co-Chairperson of the political party.

The case of the petitioner translates to a simple question whether Article 41(1) of the Constitution can be given effect in the light of the other provisions of the Constitution. The view of the Supreme Court in Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473) that expects neutrality and impartiality to be a quality of the office of the President of Pakistan is predicated on the notion that contrary conduct will bring controversy to the office. That when the highest office of the State becomes controversial then such a state of affairs erodes the unity of the State.

Since government is the outcome of politics therefore political priorities, principles and objects define governmental actions. Proviso to Article 48(1) of the Constitution allows the President of Pakistan by exercise of his judgment to require a government decision to be reconsidered but he cannot reverse the same. Therefore, if there is a bad political decision by the Government, the President cannot be held responsible for it. The constitutional scheme of Article 48(1) therefore operates to protect the President against any political backlash and the executive government alone is made accountable for its controversial decision. It is often that in a scenario of political controversy and turmoil, governments face crises and some may even fall before the poital opposition. That the office of the President must survive such crises with pristine neutrality and be a unifying force in the polity is necessary for ensuring smooth transition of the parliamentary democracy to the next government under Article 91(7) of the Constitution. On the other hand, in a case where the President himself becomes embroiled in a political controversy or crises that surrounds the government then he becomes equally vulnerable to the consequence of political turmoil, thereby destroying the very purpose for which the lofty office of President is built in the Constitution.

The constitutional history of the country shows that both in 1993 and 1996 when the President of Pakistan exercised his constitutional power to dismiss the government and dissolve the National Assembly under Article 58(2)(b) of the Constitution, such a political decision made the incumbent controversial and ineffective, with the result that he could not survive to complete his term of office. It was during the circumstances of such an upheaval and controversy that Article 41(1) of the Constitution was interpreted by the Supreme Court in Mian Nawaz Sharif's case resulting in a prescient forboding about the essential attributes and qualities of the office of the President. That view cannot be lightly ignored merely because the presidential power of dismissal of government and dissolution of the National Assembly has been repealed. In rapidly changing times there can be other occasions and sources of political controversy that can surround the high office of the President of Pakistan whereby the trust and confidence of the people in the office is undermined and therefore the dignity and authority of the State is eroded. [p. 396] C

Every principle of law laid down by the Supreme Court of Pakistan has force of binding precedent under the provisions of Article 189 of the Constitution. The force of the Supreme Court's precedent is not subservient to the rule of ratio decidendi and holds good even in relation to obiter dicta so long as the principle of law is clearly laid down. Accordingly, both as a matter of its constitutional duty to follow the binding precedent of Supreme Court as well as the prudence and rationale of such precedent and on the criteria of Article 48(1) read with Articles 90, 91(7) & 99 of the Constitution, it is incumbent that the Court performs its duty under law to enforce principle of law laid down in Mian Muhammad Nawaz Sharif's case. To do so would fulfil the duty of the Court to enforce the Constitution.

High office of the President of Pakistan enjoys immunity from certain legal proceedings under Article 248 of the Constitution. Therefore it ought to be examined whether on account of the provisions of Article 248(1) of the Constitution any direction can be issued to the President of Pakistan in the present case.

In the absence of an express prohibition under the Constitution, the President of Pakistan is permitted to participate in the affairs of a political party. Therefore such permissible actions under the Constitution would enjoy immunity under Article 248(1) thereof. In the background of the interpretation given by the Supreme Court to the role, attributes and qualities the office of President of Pakistan such a view would be wholly inconsistent and misconceived. Therefore in the circumstances of the present case and on the material of newspaper cuttings that have been attached to the petition and have been filed on record, there is ample evidence that the meeting of the party in government, of which the President is a Co-chairperson, are regularly held in the Presidency. These meetings result in decisions that are announced to the public, otherwise have political repercussions and draw reactions that may be adverse. It is a longstanding principle that newspaper reports about the events that are not rebutted are treated as reliable evidence. The participation of the President of Pakistan in the above political party decisions is extraneous to the duties and functions of his high constitutional office and therefore such participation and decisions cannot be treated as being done in the performance of his duties and function as President and therefore immune under Article 248 of the Constitution.

The fact that the President of Pakistan in his capacity as a Co-chairperson of a political party is taking political decisions in the Presidency has two aspects. Firstly, such action is inconsistent with his obligations and attributes as envisaged by the Constitution. Secondly, such action involves property of the State, namely, the premises of the Presidency as a seat of partisan political activity aimed at strengthening and consolidating the political authority of a particular political party. Leaving aside any constitutional limitation imposed on the person of the President as the protagonist of such activity, the conduct of such activity within the Presidency breaches the sanctity, dignity, neutrality and lofty status of a highly revered State property. It is banal that the said public property can be used only for the purposes of State and not for any partisan purpose.

Present is clearly not a case for disqualification of the President. Equally, it is not a case for a prohibitory order as the President is engaging in an activity that is not barred under law. This is a case where the President is exposing himself and his lofty office to likely controversy that can erode the public trust and respect necessary for such office to represent the unity of the Republic. Also in this regard the premises of the Presidency that enjoy the highest sanctity in the public eye is being subjected to use of partisan political interest. That can lower its esteem and sanctity. These actions are being taken not in the discharge of the functions and duties of the President of Pakistan but on account of a personal and private association of the President with his political party. These actions therefore do not enjoy immunity from the judicial process and call for judicial intervention to enforce the Constitution.

The nature of intervention in the present case is, however, guided by a number of considerations, namely, notwithstanding adverse editorial opinion, there is no report of any political controversy or reaction, whether within the Parliament or in the public, against any action taken by the President in the discharge of his dual office as Co-chairperson of his political party. It is also relevant that the objection now being adjudicated by the Court has been raised for the first time for judicial consideration in the present factual matrix. The manifestation of the principle laid down in Mian Muhammad Nawaz Sharif's case occurred in a completely different environment of hostility, upheaval and judicial rejection on the merits of the action. No such environment exists in the present case. Therefore, this is also not a case for immediate prohibitory action.

Accordingly, in the circumstances of the present case, and on the basis of law declared by the Supreme Court in Mian Muhammad Nawaz Sharif's case, it is declared that the duties and functions of the lofty office of the President of Pakistan is to be discharged by him with complete neutrality, impartiality and aloofness from any partisan political interest. Consequently, it is expected that the President of Pakistan would abide by the foregoing declaration of law to disassociate himself from political office at the earliest possible.

Also in the foregoing respect, it is declared that the use of the premises of Presidency for partisan political activity is inconsistent with the sanctity, dignity, neutrality and independence of the Presidency. Here again it is expected that the President of Pakistan would cease the use of the premises of the Presidency for the purposes and political meetings of his party.

Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Muhammad Khan Achakzai v. Federation of Pakistan PLD 1997 SC 420; Zafar Ali Shah v. Gen. Pervez Musharaf PLD 2000 SC 869; Pakistan Tehrik-e-Inqilab v. Election Commission of Pakistan 1997 MLD 3167; Mian Shahbaz Sharif v. Altaf Hussain PLD 1995 Lah. 541; Shahid Nabi Malik v. Chief Election Commission PLD 1997 SC 32; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; Dr. Mubashar Hassan v. Federation of Pakistan PLD 2010 SC 265; Hakim Ali Zardari v. The State PLD 1998 SC 1; Mst.Amna Begum v. Mehr Ghulam Dastgir PLD 1978 SC 220; Ch. Zahur Ilahi v. Mr. Zulfiqar Ali Bhutto and 2 others PLD 1975 SC 383; Islamic Republic of Pakistan v. Abdul Wali Khan, MNA PLD 1976 SC 57; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah. 725 ref.

(c) Constitution of Pakistan---

----Art. 189---Every principle of law laid down by the Supreme Court of Pakistan has force of binding precedent under Art.189 of the Constitution---Force of the Supreme Court precedent is not subservient to the rule of ratio decidendi and holds good even in relation to obiter dicta so long as the principle of law is clearly laid down.

(d) Evidence---

----Newspaper reports about the events that are not rebutted are treated as reliable evidence.

A.K. Dogar for Petitioner.

Respondents: Ex parte.

Abid Hassan Minto, Senior Advocate Supreme Court/Amicus Curiae.

S.M. Zafar Senior Advocate Supreme Court/Amicus Curiae.

Dates of hearing; 8th October, 2009; 19th, 29th March, 3rd, 17th, 27th May, 15th, 21st, June, 7th July, 20th September, 4th, 7th, 22nd October, 24th November, 14th December, 2010; 10th, 19th, 20th 24th January, 9th, 14th February, 3rd, 8th, 9th and 10th March, 2011.

P L D 2011 Lahore 402

Before Syed Mansoor Ali Shah, J

ALLIED BANK LTD.---Petitioner

Versus

DISTRICT OFFICER (REVENUE) and others---Respondents

Writ Petition No.3681 of 2011, heard on 13th April, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Alternate remedy---Adequacy, satisfactoriness and acceptability of the alternate remedy is to be gauged in every case---Alternate remedy alone is not sufficient until it is also adequate---Considerations to adjudge adequacy of the remedy enumerated.

The remedy has to be adequate to the requisite relief, i.e. the removal, or lessening of the cause of distress or anxiety; the deliverance from that which was burdensome. It is evident that the trouble, expense and delay in getting 'what is wanted are all as much ingredients of the sum total of that what can be described as relief as the substance of that which is wanted. Taken in this light, the adequacy of the remedy must be judged in relation to three separate considerations;

(1) the nature and extent of relief;

(2) the point of time when that relief would be available, and

(3) the conditions on which that relief would be available particularly the conditions relating to the expense and inconvenience involved in obtaining it.

Judicial Review of Public Actions by Justice (R.) Fazal Karim, Pakistan Law House (p.963) qouted.

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

----S. 77---Punjab Finance Act (VI of 2010), S.6(4)(b)---Constitution of Pakistan, Arts. 199 & 23---Constitutional petition---Efficacious remedy---Refusal of Registrar to register sale-deed on the ground that capital value tax had to be paid at 2% on the recorded value of the entire immovable ,property in the instrument of sale---Contention of the counsel for the department was that constitutional petition was not maintainable as the petitioner had alternate remedy to institute a civil suit under S.77 of the Registration Act, 1908 against the impugned order of the Registrar---Petitioner had already paid the capital value tax besides other taxes and was entitled to an expeditious disposal of the matter, delay in registering property also unpaired the fundamental right of the petitioner to property which allowed petitioner to use and enjoy his property, subject only to reasonable restrictions---No cogent reason had been given by the Registrar for the deficiency in capital value tax under S.6(4)(b) of the Punjab Finance Act, 2010---In the present case, all such factors did not qualify the filing of the suit under S.77 of the Registration Act, 1908---Constitutional petition was allowed, in circumstances.

Messrs Julian Hoshang Dinshaw Trust and others v. Income Tax Officer, Circle XVIII South Zone, Karachi and others 1992 SCMR 250; Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer, Chittagong PLD 1971 SC 205; Edulji Dinshaw Limited v. income Tax Officer 1990 PTD 155 and Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others 2001 SCMR 209 ref.

(c) Punjab Finance Act (VI of 2010)---

----S. 6(4)(b)---Guidelines for Calculation of CVT on Urban Immovable Property issued by the Board of Revenue dated 7-7-2010, Illustration II(b)---Capital Value Tax for the purposes of commercial property situated in urban area, as per S.6(4)(b) of the Punjab Finance Act, 2010, has to be paid in the manner as 2% of the recorded value of the landed area (as opposed to the recorded value of the immovable . property inclusive of the constructed area) plus capital value tax at the rate of Rs.10 per Sqft. of the constructed area---Illustration II(b) of the Guidelines for Calculation of CVT on Urban Immovable Property issued by the Board of Revenue dated 7-7-2010 is incompatible with S.6(4)(b) of the Punjab Finance Act, 2010---Principles.

Reading of S.6(4)(b) of the Punjab Finance Act, 2010 shows that commercial immovable property has been divided into two distinct categories namely; (i) Landed Area and (ii) Constructed Area. Therefore under item No.(i) in the table in S.6(4)(b) of the Punjab Finance Act, 2010, CVT is 2% of the recorded value of the Landed Area. "Landed" means "consisting of land." Item number (ii) of the table, though not applicable to the present case, helps clarify item No.(i). In case the value of the immovable property is not recorded in the instrument of sale, CVT charged is on the basis of one hundred rupees per square feet of the landed area. Joint reading of items No.(i) and (ii) of the table shows that the emphasis is on LANDED AREA for the purposes of calculating CVT on immovable property. After this item No.(iii) adds further clarity when it charges CVT at the rate of ten rupees per square feet of the CONSTRUCTED AREA in addition to the value worked out. The term and phrase "Constructed Area" and "in addition to the value worked out" are important and make it clear that the CVT is to be charged separately for the CONSTRUCTED AREA, which is then to be added to the CVT calculated on the LANDED AREA. Therefore, immovable property for the purposes of CVT is divided into Landed Area and Constructed Area with different modes of calculation for working out the CVT. It is also incongruous to have two different modes of calculating CVT for the constructed Area. First @ 2% under item No.(i) and then @ Rs.10 per sq.ft of the constructed area under item No.(ii). This does not appeal to logic besides such discordant interpretation cannot be attributed to a taxing statute.

Illustration No.11(b) of the Guidelines, issued by the Board of Revenue dated 7-7-2010 is not in line with section 6(4)(b) of the Punjab Finance Act, 2010. By simply providing that 2% CVT is to be charged on the recorded value of the immovable property, the said Illustration fails to differentiate between LANDED AREA and CONSTRUCTED AREA as has been done by the law itself. Perusal of Illustration-II (a) Commercial Open plot where the value of the property is recorded of the same Guideline further shows that the Board of Revenue has maintained no distinction between the recorded value of a commercial open plot and that of a constructed commercial property. Illustration-II(b) of the Guidelines dated 7-7-2010 is, therefore, incompatible with section 6(4)(b) of the Punjab Finance Act, 2010.

CVT like any other tax cannot be charged twice on any transaction unless specifically provided by the legislature. Once while calculating 2% on the recorded value of the immovable property and then again on the constructed area at the rate of Rs.10 per sq.ft. This results in double taxation which is not permissible unless specifically provided by the legislature. "The rule of avoidance of double taxation is merely a rule of construction; therefore, it ceases to have application when the legislature expressly enacts a law, which results in double taxation of the same income. The law so made cannot be held to be invalid merely on the ground that it results in double taxation. In the absence of a clear provisions stipulating double or multiple levies, the courts would lean in favour of avoiding double taxation.

In the present case, the intention of the legislature to tax constructed area of a commercial immoveable property twice, is not visible from the legislation, in fact it is otherwise.

CVT for the purposes of commercial immoveable property situated in urban area as per section 6(4)(b) of the Punjab Finance Act, 2010 has to be paid in the following manner.

(i) 2% of the recorded value of the landed area (as opposed to the recorded value of the immovable property inclusive of the constructed area), plus

(ii) CVT at the rate of Rs.10 per sq.ft of the constructed area.

Black's Law Dictionary, 8th Edn. By Thomson-West p.894; Introduction to Interpretation of Statutes by Dr. Avtar Singh, reprint Edn. 2007 p.236 and Municipal Council, Kota v. Delhi Cloth and General Mills Co. Ltd. AIR 2001 SC 1060 ref.

(d) Words and phrases---

----Landed---Meaning.

Black's Law Dictionary, 8th Edn. By Thomson-West p.894 ref.

(e) Interpretation of statutes---

----Double taxation---Rule of avoidance of double taxation is merely a rule of construction; therefore, it ceases to have application when the legislature expressly enacts a law, which results in double taxation of the same income---Law so made cannot be said to be a valid law merely on the ground that it results in double taxation---In the absence of clear provisions stipulating double or multiple levies, the courts would lean in favour of avoiding double taxation.

Introduction to Interpretation of Statutes by Dr. Avtar Singh, reprint Edn. 2007 p.236 qouted.

Municipal Council, Kota v. Delhi Cloth and General Mills Co. Ltd. AIR 2001 SC 1060 ref.

Syed Ali Zafar along with Talib Hussain for Petitioner.

Nayyar Abbas Rizvi, Assistant Advocate General, Punjab, Khawaja Salman Mahmood, Assistant Advocate-General, Punjab and Tariq Saeed Khan, Senior Law ' Officer, Board of Revenue, Punjab, Lahore for Respondents.

Date of hearing: 13th April, 2011.

P L D 2011 Lahore 412

Before Syed Mansoor Ali Shah, J

SHER MUHAMMAD and others---Petitioners

versus

MUHAMMAD AFZAL and others---Respondents

Civil Revision No.4151 of 2010, heard on 7th February, 2011.

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

----Art. 33---Specific Relief Act (I of 1877), S.8---Suit for possession---Appointment of Refree with mutual consent of parties---Refree, functions of---'Statement of information'---Meaning and Scope---Any fresh inquiry or determination of facts requiring any act of assessment, verification or valuation to be undertaken goes outside the scope of 'statement of information' under Art.33 of Qanun-e-Shahadat, 1984 and transforms the Refree into either a Local Commission or an Arbitrator as the case may be---Principles.

Article 33 of the Qanun-e-Shahadat, 1984 deals with vicarious admissions i.e., admissions of persons other than the parties. When a party refers to a third person for some information or an opinion on a matter in dispute, the statement made by the third person is receivable as admissions against the person referring. The reason is that when a party refers to another person for a statement of his views, the party approves of his utterance in anticipation and adopts that as his own.

Article 33 of Qanun-e-Shahadat, 1984 provides that STATEMENT OF INFORMATION of a third person referred to by the party in dispute shall constitute the admission of' the referring party, Statement of Information means the information in possession of the Referee prior to his appointment as a Referee. The Referee cannot set out to find or cull out information by visiting the location, examining the record or by recording the statement of the witnesses. A Referee cannot procure determine or inquire into facts to obtain the information sought by the referring parties. Statement of information under Article 33 does not require that the Referee makes an effort to collect or decipher the said information. The information must be in his knowledge prior to his appointment as a Referee. Illustration to Article 33 clearly provides that "C knows all about it. This imputes prior knowledge of the relevant fact to the Referee. He can however, make an effort to juggle or refresh his memory by consulting his notes or going through his diary but cannot inquire or discover new facts and base his information on the same. He cannot embark on a fresh inquiry to determine the fact.

Any fresh inquiry or determination of facts requiring any act of assessment, verification or valuation to be undertaken goes outside the scope of statement of information under Article 33 of the Qanun-e-Shahadat, 1984. Any such act of determination or verification transforms the Referee into either a Local Commission or an Arbitrator as the case may be.

In the present case, the statements recorded before the trial court by the parties assigned a specific task of hadd bardari (demarcation of the boundary) to the Tehsildar. The statement of the parties repeatedly required the Tehsildar to determine the possession of the petitioners in a specific killa. This exercise set out the Tehsildar to collect and verify information by visiting the site indisputably implying that the Tehsildar did not have off the cuff information or knowledge of the said possession. For a Tehsildar to pass as a Referee, he should have had prior knowledge of possession of the parties and the trial court should have simply summoned the Tehsildar for a statement of information rather than sending him off on an assignment requiring determination of facts, The Report of the Tehsildar revealed that he collected field information and did not show that he had prior knowledge of the possession of the petitioners in the relevant killa.

The contention that petitioners participated in the process and never raised any objection does not carry force, as silence, consent or conduct of the parties cannot override the express mandate of Article 33 of the Qanun-e-Shahadat, 1984 besides the trial court never granted time to the petitioners to file objections. The statement was also based on verification and determination of facts showing that the Tehsildar did not have prior knowledge, and additionally, impugned order was solely based on the Report of the Tehsildar and not on the statement of the Referee.

Held, Tehsildar was acting as a Local Commission and not as a Referee, Therefore, the trial court was under an obligation to have fixed a date for filing of objections, if any, by the parties to the Report of the Local Commission but could not have hurriedly proceeded to decree the suit on the basis of the said Report.

Impugned judgments and decrees were set aside. Suit for possession was to be deemed to be pending before the trial court and will proceed from the stage when the Report of the Tehsildar was filed before the trial court. The parties were free to file their objections against the said Report, if so, advised in accordance with law.

Sarkar on Evidence (1999), S.20 of Indian Evidence Act, 1872; Hirachand Kothari v. State of Rajasthan AIR 1985 SC 998 (at 1001); Sher Zaman Khan v. Noor Zaman Khan and another PLD 1977 Lah. 672; Kashmira v. Mst. Malkho NLR 1992 Civil 318; Naveed Aziz and another v. Rauf Ali Syed 1996 CLC 1932; Wajid Ali and others v. Liaqat Ali and others 2000 YLR 2484; Abdullah and 5 others v. Abdur Rehman and 9 others 2004 YLR 295; Nazir Ahmad and others v. Muhammad Qasim and others 2004 SCMR 1292; Muhammad Ashraf v. Abdur Rehman 1993 CLC 1875; Kamaluddin v. Muhammad Shafi and another 1997 CLC 1555; Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763; Qamar-ud-Din v. Abdul Latif and others 2010 YLR 114; Province of Punjab through District Collector, Multan and 5 others v.. Messrs Khalid Hussain and Company Government Contractors 2007 MLD 1366; Mushtaq Ahmad v. Muhammad Ismail PLD 2002 190; Chiragh Din v. Muhammad Shafi 2002 YLR 2479; Zulifqar Ali Shah and 5 others v. Muhammad Hussain and 6 others 2002 YLR 1560; Faiz-ul-Haq and another v. Abdus Salam and 3 others 1990 MLD 106; Mst. Ayesha v. Matee-ur-Rehman and others 2007 MLD 1318; Haji Anwar Ali and others v. Bashir Ahmad 2002 CLC 421 and Muhammad Saeed v. Mst. Shamim Akhtar and others 2010 YLR 2987 ref.

Naveed Shaheryar for Petitioners.

Dr. Muhammad Mohy-ud-Din Qazi for Respondents.

Date of hearing: 7th February, 2011.

PLD 2011 Lahore 419

Before Ch. Muhammad Tariq, J

ASKARI AVIATION (PVT.) LTD. and others---Petitioners

Versus

CIVIL AVIATION AUTHORITY and others---Respondents

Writ Petition No.797 of 2009, heard on 28th March, 2011.

(a) Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----S. 6(3) & 16---Constitution of Pakistan, Art.199---Constitutional petition---Pakistan Army Troops (Defence Personnel) proceeding on United Nations Peace Keeping Mission on chartered aircrafts from Pakistan to various countries---Demand of embarkation charges by Civil Aviation Authority (CAA) on such troops treating same as passengers---Plea that such troops travelling without tickets would not fall within definition of passengers---Validity---Provision of S.6(3) of Pakistan Civil Aviation Authority Ordinance, 1982 would apply to airports, aerodromes and airfield exclusively owned by Federal Government and established for exclusive use of defence services, but not to those being used for commercial purposes for carrying passengers or goods from one place to another---Petitioner being a commercial organization was earning profit through business---Petitioner having entered into a business agreement with Civil Aviation Authority could not be allowed to violate its terms and conditions--. Except driver, pilot or crew, all other persons travelling in a plane would fall within definition of 'passenger'---Holding of ticket would not be essential for driver, pilot or crew, if declared as 'passenger'---Civil Aviation Authority had power to levy embarkation charges on passengers travelling by air including such troops---High Court dismissed constitutional petition, in circumstances.

Concise Oxford Dictionary ref.

(b) Words and phrases---

----"Passenger"-Meaning.

Concise Oxford Dictionary ref.

Aftab Ahmad Khan for Petitioners.

Attaullah Kundi for Respondents.

Date of hearing: 28th March, 2011.

P L D 2011 Lahore 423

Before Asad Munir, J

ROSHNI DESAI---Petitioner

Versus

JAHANZEB NIAZI and others---Respondents

Writ Petition No.7651 of 2011, decided on 15th April, 2011.

(a) Islamic law---

----Custody of minor---Common Law marriage by parents of the minor---Question of minor's custody has to be addressed by reference to his status under the applicable Pakistan law, more appropriately the Islamic law, which does not recognize a Common Law marriage or partnership as a valid marriage with the result that a child born to parents, having a Common Law marriage, is born outside marriage and cannot be regarded as a legitimate child---Under Islamic Law, father of an illegitimate child has no legal tie with the child even though he is the biological father and the blood tie between the two is undisputed---Mother of an illegitimate child is not only entitled to the custody of the child but is also regarded as the guardian of the child to the total exclusion of the father---Non-Muslin mother suffers no disability as Islamic Law allows a non-Muslim mother to exercise the same rights of custody as are enjoyed by a Muslim mother---Principles.

In the present case, the petitioner lady, who is a Canadian citizen of Indian extraction, is Hindu by faith while respondent man, a Pakistan citizen having a permanent residence in Canada, professes to be a Muslim. It is also undisputed that the petitioner and respondent have lived together but without any marriage or civil union solemnized or Contracted between them which is recognized or registered under the laws of Canada or more particularly those of Quebec. Their cohabitation was a de facto union instead of a de jure union which is described as a 'common law marriage' or partnership in many Commonwealth countries and is also sometimes referred to as conjoints de fait in Quebec (Canada).

The question of a minor's custody has to be addressed by reference to his status under the applicable Pakistan Law, more appropriately the Islamic law, which does not recognize a common law marriage or partnership as a valid marriage with the result that a child born to parents, having a common law marriage, is born outside marriage and cannot be regarded as a legitimate child. Under Islamic Law, the father of an illegitimate child has no legal tie with the child even though he is the biological father and the blood tie between the two is undisputed. Such a father has no legal relationship whatsoever with the minor so much so that the child does not inherit from his father or vice versa which is otherwise in the case of a legitimate offspring. However, an illegitimate child has a full legal tie with his mother and there is no obstacle in the way of the child inheriting from his mother or vice versa. In fact, the mother of an illegitimate child is not only entitled to the custody of the child but is also regarded as the guardian of the child to the total exclusion of the father.?

The custody of illegitimate children appertains exclusively to the mother and her relations.?

An illegitimate child is considered to be the child of its mother only and as such it inherits from its mother and her relations and they inherit from the such child and an illegitimate child does not inherit from its putative father or his relations.?

The right of custody of a minor illegitimate child can be enforced by his or her mother by means of a writ of habeas corpus.?

A non-Muslim mother suffers no disability as Islamic Law allows a non-Muslim mother to exercise the same rights of custody as are enjoyed by a Muslim mother.?

Right of a mother to the custody of her child is established if even she is a non-Muslim and is not even a Christian or a Jew. This only means that Islamic law protects the rights of custody of a non-Muslim mother regardless of whether the child is legitimate or is otherwise. In this perspective, even if a lawful marriage is presumed between the parties, father cannot claim custody over the minor on the ground of his legitimacy and/or on the plea that the petitioner is a non-Muslim.

?

The question of nationality, being irrelevant, can in no way affect the right of a mother to reclaim her lost custody of a minor. With regard to the welfare of the minor, it was contended by the counsel for respondent that the petitioner, being a non-Muslim mother is unfit to raise the minor. A non-Muslim mother is by no means disqualified to keep the custody of the minor. However, it was stated by the petitioner that she has every intention of retaining the present Muslim name of the minor and that she would ensure that the minor is brought up as a Muslim to which end she assured that the minor shall be imparted the basic Islamic teachings at the Islamic centre in Montreal, Canada. She also stated that she would convert and become a Muslim if she finds it necessary for the sake of bringing-up the minor as a Muslim. Such a statement should be reassuring to respondent.?

Amir Ali's Muhammadan Law, Vol. II, p.238; DF Mulla's Mohammedan Law 17th Edn., at p.94; Gulzar Begum v. Suggi (62). A.S.C. 93; Ameer Ali's Muhammadan Law, p.223 and Peggy Collin v. Muhammad Ishfaque Malik and 6 others PLD 2010 Lah. 48 quoted.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.491---Writ of habeas corpus---Custody of minor---Writ of habeas corpus can be sought in appropriate cases where the minor has been illegally removed from the lawful custody of another person---Availability of another legal remedy is not bar and the remedy under the Guardians and Wards Act, 1890, for obtaining custody of minor child is not a valid ground for refusing an application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody, where the minor is illegally detained by another party---In the present case, contesting parties were foreign nationals---Petitioner. mother had obtained warrant for the arrest of father for the abduction of the minor front Canada after she had been granted legal custody of the minor--Plea of father that provisions of S.13, C.P.C. should be invoked merited no consideration in circumstances as said remedy could not be regarded as efficacious enough to prevent High Court from exercising its constitutional jurisdiction in the circumstances of the case.

In the present case, through petition filed under Article 199 of the Constitution read with section 491 of the Criminal Procedure Code, 1898 the petitioner has sought the issuance of a writ of habeas corpus for the recovery of her son, aged about 3-1/2 years, who is stated to have been unlawfully and unauthorizedly removed from her lawful custody in Canada by respondent who is the father of the minor and who is also alleged to have brought the minor to Pakistan.?

The writ of habeas corpus can be sought in appropriate cases where the minor has been illegally removed from the lawful custody of another person.?

The jurisdiction of the court is not barred under section 491 Criminal Procedure Code, 1898 to pass an appropriate order with regard to the custody of a minor who has been illegally removed from the custody of a person on account of provisions of the Guardians and Wards Act, 1890.

The availability of another legal remedy is no bar and the remedy under the Guardians and Wards Act, 1890 for obtaining custody of a minor child is not a valid ground for refusing an application for habeas corpus by the parent or guardian of the minor who is entitled to have his or her custody, where the minor is being illegally detained by another person. In the present case, there is no doubt that the minor was unlawfully removed by respondent from the lawful custody of his mother with the result that a direction in the nature of habeas corpus can be issued under section 491, Criminal Procedure Code, 1898 as well as by way of a writ of habeas corpus provided under Article 199 of the Constitution. In the present case, habeas corpus jurisdiction of High Court in respect of the minor is being exercised not on account of the Canadian Court's order but independently as the circumstances of the case demonstrate that the minor has been illegally removed from the lawful custody of the petitioner. As such, the plea of respondent that the provisions of section 13 Civil Procedure Code, 1908, should be invoked merits no consideration. In any case, the said remedy cannot be regarded as efficacious enough to prevent High Court from exercising its constitutional jurisdiction in the circumstances of the case.?

Muhammad Khalil-ur-Rehman v. Shahbana Rehana and another PLD 1996 SC 633 and Nisar Muhammad v. Sultan Zarin PLD 1997 SC 852 ref.

Aftab Ahmad Bajwa with Petitioner.

Kaleem Ilyas, A.A.-G.

Ch. Binyameen Khalil and Muhammad Akhtar Rana for Respondent N4).1.

Muhammad Shoaib Cheema, D.S.P., Sialkot.

Anwar Farooq, Inspector/SHO, Mubarak Ali, S.-I. and Zulfiqar Ali, A.S.I., Police Station Nekapura.

P L D 2011 Lahore 432

Before Syed Mansoor Ali Shah, J

Kh. SUHAIL AHMAD and 7 others---Petitioners

Versus

Mst. SHABANA---Respondent

Civil Revision No.3657 of 2010, decided on 10th March, 2011.

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

----S. 5 & Sched.---Civil Procedure Code (V of 1908), O. VII, R.10---Specific Relief Act (1 of 1877), Ss.42 & 54---Return of plaint---Dower, recovery of---Plaintiff sought declaration of title in her favour to suit property on the ground that the same had been given to her in lieu of her dower---Defendants contended that suit was not maintainable before Court of plenary jurisdiction and only Family Court had the jurisdiction to deal with the recovery of dower---Validity---Family Court, under S.5 of West Pakistan Family Courts Act, 1964, had the exclusive jurisdiction to try matters enumerated in the First Schedule--Dower was an item mentioned in the Sched., the exclusive jurisdiction to entertain the suit was with Family Court---Jurisdiction vested in courts under special law i.e. West Pakistan Family Courts Act, 1964, ousted plenary jurisdiction of civil court---Such jurisdictional boundaries had to be maintained and any proceedings before a forum lacking jurisdiction could not be permitted to continue---Proceedings before civil court were coram non judice and void ab initio---High. Court, in exercise of revisional jurisdiction, set aside the order passed by Trial Court and application under O. VII, R.10, C.P.C. filed by defendants was allowed and plaint was returned to plaintiff to file the same before Family Court of competent jurisdiction---Revision was allowed in circumstances.

Dr. Hameed Ahmed Ayaz for Petitioners.

Rana Abdul Waheed Khan for Respondent.

P L D 2011 Lahore 435

Before Sh. Ahmad Farooq, J

SUMAIRA SAEED---Petitioner

Versus

DISTRICT OFFICER (REVENUE), LAHROE and another---Respondents

Writ Petition No.19465 of 2010, decided on 26th April, 2011.

Punjab Registration Rules, 1929---

----R.137---Constitution of Pakistan, Art.199---Constitutional petition---Registration of sale-deed---Sale-deed submitted by, the petitioner before Sub-Registrar for registration of the same was not registered due to the reason that Capital Value Tax at the rate of 2% was not paid by the petitioner, which was leviable with effect from 1-7-2006---Validity---Sale-deed in question was presented by the petitioner for registration prior to target date 1-7-2006, but same was deferred on the ground that it was not supported by any documentary proof of ownership of seller as required under R.137 of Punjab Registration Rules, 1929---Sale­deed was complete in all respect and the only delay in registration of the same was the cause of applicability of Capital Value Tax, which could not be attributed to the petitioner---Petitioner could not be required to pay Capital Value Tax on the registration of her sale-deed as she had presented same for registration prior to the imposition of said tax---Respondents were directed to register the sale-deed of the petitioner without levy of Capital Value Tax.

Rana Tahir Mahmood for Petitioner.

Jawad Hassan, Addl. A.G. and Arif Yaqub Khan, A.A.-G.

P L D 2011 Lahore 437

Before Nasir Saeed Sheikh, J

MUHAMMAD KASHIF CHAUDHRY and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 2 others---Respondents

Writ Petition No.13435 of 2010, decided on 8th February, 2011.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Transfer of Property Act (IV of 1882), S.52---Civil Procedure Code (V of 1908), O. VI, R.17---Constitution of Pakistan, Art.199-7-Constitutional petition---Lis pendens, principle of---Applicability---Pleadings, amendments in---Improvements during pendency of pre-emption suit---Vendees sought amendment in pleadings for inserting amount spent by them for improvements made by them during pendency of suit---Plea raised by vendees was that there was no injunctive order against improvements made by them---Validity---Such plea of vendees was not entertainable in view of the provisions of S.52 of Transfer of Property Act, 1882---Subject matter of a suit could not be dealt with in any manner during the pendency of suit and vendees did not seek any permission for making alleged improvements during "the pendency of suit and merely the fact that there was no injunctive order did not make any difference---Both the Courts below refused to allow amendment in written statement in accordance with law and belated application of vendees was rightly held to be not entertainable particularly keeping in view the alleged claim built up by vendees in amended application as against the original claim raised in written statement filed in year, 2007---High Court declined to interfere in the orders passed by two Courts below as the same were neither illegal or without lawful authority---No interference by High Court in exercise of Constitutional jurisdiction was called for in the orders passed by two Courts below---Petition was dismissed in circumstances.

Malik Muzaffar Qadir Thahim for Petitioners.

P L D 2011 Lahore 441

Before Sh. Ahmad Farooq, J

MUHAMMAD NAZIM-UD-DIN and others---Petitioners

Versus

FEDERAL SECRETARY and others-- -Respondents

Writ Petition No. 14248 of 2010. decided on 23rd March, 2011

Punjab Holy Quran (Printing and Recording) Act (XIII of 2011)---

---Preamble---publication of Holy Quran (Elimination of Printing and Recording Errors) Rules, 1973, R.4---Constitution of Pakistan, Part-II, Chapter 2 [Arts. 8 to 28], Arts. 29, 31 & 199---Constitutional petition-Principles of policy-Implementation-Publication of the Holy Quran---Grievance of petitioners was that authorities had not ensured printing of the Holy Quran on the best quality of paper and no arrangements were made for proper disposal of damaged papers of the Holy Quran--Plea raised by authorities was that correct printing of the Holy Quran was only a matter of Principle of Policy as envisaged in Art.31 contained in Part II, Chapter 2 of the Constitution and not enforceable by judicial process---Validity---Principles of Policy set out in Chapter 2 of Part-II of the Constitution were in fact the aspirations of the Constitution makers, which were intended to be considered as guiding principles of policy of the State---According to Art.31 of the Constitution, the State was to endeavour to secure correct and exact printing and publishers of the Holy Quran---Every organ of the State, under Art.29 of the Constitution, was conferred responsibility to act in accordance with Principles of Policy enshrined in Part-II, Chapter 2 of the Constitution---Constitutional obligation and commitment must be honoured to consolidate public confidence and non fulfilment of liabilities and obligations by the Government was violative of fundamental principles of policy guaranteed under the Constitution---Authorities were under a constitutional duty to secure correct and exact printing and publishing of the Holy Quran as provided in Art.31 of the Constitution--Law titled Punjab Holy Quran (Printing and Recording) Act, 2001, was enacted in the recent past and the rules under the same were yet to be made---High Court directed the Provincial Government to consider the proposals of petitioners in the Rule Framing process in the committee constituted by Chief Minister---Petition was disposed of accordingly.

Shahab Matloob v. Government of Province of Sindh through Chief Secretary, Karachi and 5 others PLD 1993 Kar. 83 and Mir Ghulam Abid Khan v. Pakistan through Secretary and another 2000 CLC 443 rel.

Mian Muhammad Sikander Hayat, Asad Manzoor Butt and Malik Allah Yar Khan for Petitioners.

Syed Iqbal Hussain Shah Gillani, Deputy Attorney General for Pakistan, Jawad Hassan, Additional Advocate General, Arif Yaqoob Khan, Assistant Advocate-General and Mian Amir Bashir for Respondents.

Date of hearing: 22nd March, 2011.

PLD 2011 Lahore 446

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD YAQOOB through Legal Heirs-Appellants

Versus

Sh. MUHAMMAD ANWAR through Legal Heirs---Respondents

Second Appeal from Order No.19 of 2011, decided on 1st June, 2011.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15---High Court (Lahore) Rules and Order, Vol. IV, Part-B, Chap.12-B, Rr.8, 9, 12, 14 & 15---Ejectment petition---Affidavit---Ejectment order passed by Rent Controller upheld by First Appellate Court---Objection of tenant that affidavits of landlord's witnesses not attested by Oath Commissioner, but notarized by Notary Public, could not be considered evidence of landlord---Validity---Affidavits, if not attested by Oath Commissioner, could be said to be written examination-in-chief of witnesses proposed to appear in court---When a witness after taking oath stated that he accepted contents of his written statement, then same would be considered his examination-in­-chief in absence of any objection---Rent Controller had administered oath from such witnesses while they appeared for cross-examination---Such witnesses in their statements on oath had submitted their affidavits and accepted contents thereof to be correct---Contents of such affidavits would be deemed examination-in-chief of such witnesses on oath---Tenant had not raised such objection while cross-examining such witnesses and also in first appeal---Appellant could not be allowed to take such objection in violation of his earlier stance taken before First Appellate Court---High Court dismissed second appeal in circumstances.

Nazir Ahmed v. District Council through Chairman, District Council Sargodha 2003 YLR 2052; First Capital Equities Ltd., Lahore v. Mrs. Ishrat Saleem PLD 2008 Lah. 193; Mt. Sumitra Kuer v. Ram Khair Chowbey AIR 1921 Patna 61; Abdul Karim v. Mst. Kohi Noor Begum and another 1981 .CLC 1055; Sri Mahabirji and others v. Ramath Kasarwani AIR 1936 Patna 634; Bashir Ahmad v. Abdul Wahid PLD 1995 Lah. 98 and Khadim Mohy-ud-Din v. Ch. Rehmat Ali Nagra PLD 1965 SC 459 ref.

Nazir Ahmed v. District Council through Chairman, District Council Sargodha 2003 YLR 2052 and First Capital Equities Ltd., Lahore v. Mrs. Ishrat Saleem PLD 2008 Lah. 193 distinguished.

(b) Appeal (Civil)---

----Objection not taken before original court of jurisdiction---Effect---Such objection could not be allowed at stage of appeal.

(c) Appeal (Civil)---

----Objection in second appeal in violation of earlier stance taken before first Appellate Court---Scope---Appellant could not be allowed to take such objection in second appeal---Principles.

Sh. Usman Karim-ud-Din for Appellants.

Shafqat Mehmood for Respondents.

Date of hearing: 1st June, 2011.

P L D 2011 Lahore 450

Before Muhammad Khalid Mehmood Khan, J

Mst. RAZIA BIBI---Petitioner

Versus

MUHAMMAD SHAREEF and another---Respondents

C.R. No.1405 of 2005, heard on 2nd June, 2011.

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

----Ss. 47, 151 & O.XXI, Rr. 33, 35---Transfer of Property Act (IV of 1882), S.52---Decree for recovery of possession of open plot through specific performance of sale agreement---Execution of sale-deed in favour of decree-holder through Court---Execution proceedings for recovery of possession of suit plot---Application under 5.151, C. P. C. by subsequent purchaser through registered sale-deed that he had constructed house over suit plot and was in possession thereof, thus, such decree being against an open plot could not be executed by demolishing his superstructure---Dismissal of such application by Executing Court upheld by Appellate Court---Validity---Decree-holder in plaint had claimed decree for an open plot against judgment-debtor and not building constructed thereon---House constructed on suit plot by subsequent purchaser was in knowledge of decree-holder---Decree­-holder had impleaded subsequent purchaser in suit by filing amended plaint, but without asking relief of cancellation of his sale-deed and demolition of his superstructure---Executing Court had to confine itself within four corners of decree and not beyond that---Words "person in possession" used in O.XXI, R.35, C.P.C. were subject to qualification of "being bound by the decree", which would mean judgment-debtor against whom decree was passed---Any other person in possession, even if be a tenant, could not be forced to deliver possession in execution of such decree---Judgment-debtor in the present case was in possession of suit plot even at time of filing of suit---Subsequent purchaser was neither a trespasser nor un-authorised occupant, rather he entered into suit plot on basis of registered sale-deed---Decree was against judgment-debtor and not subsequent purchaser---Executing Court in such circumstances could direct delivery of symbolic possession of suit plot and not more than that---High Court set aside impugned orders with directions to Executing Court to decide question of executability of decree to the extent of delivery of symbolic possession of suit land.

Muhammad Hassan and 6 others v. Pir Muhammad Younas Shah and 11 others 1994 CLC 1112 ref.

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

----S. 47---Powers of Executing Court---Scope---Executing Court had to confine itself within four corners of decree and not beyond that.

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

----O. XXI, R.35---Words "person in possession" and "being bound by the decree" as used in O.XXI, R.35, C.P.C.---Connotation---Such words would mean judgment-debtor against whom decree was passed---Any other person in possession, even if be tenant, could not be forced to deliver possession.

Rao Muhammad Naeem Hashmi Khan for Petitioner.

Muhammad Rashid Mirza for Respondents.

Date of hearing: 2nd June, 2011.

P L D 2011 Lahore 458

Before Asad Munir, J

ZULFIQAR ALI---Petitioner

Versus

Mst. YASMEEN MUKARRAM and another---Respondents

Writ Petition No.7854 of 2011, decided on 16th June, 2011.

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

----Ss. 10(3) & 12(1)---Muslim Family Laws Ordinance (VIII of 1961), S.7(3)---Dissolution of marriage on ground of Khula in consideration of wife's relinquishing her claim for maintenance was decreed and dissolution of marriage certificate was issued by the Chairman, Arbitration Council showing that reconciliation between the parties had failed---Record also showed that pre-trial reconciliation under S.10(3) of the West Pakistan Family Courts Act, 1964 was attempted but failed, similarly, efforts made under S.12(1) of the Act for post-trial reconciliation were not fruitful---Some more opportunities were provided by the Family Judge but the parties were unable to resolve their differences so much so the wife simultaneously resisted the husband's suit for restitution of conjugal rights which was dismissed by the judgment/decree---Judgment and decree dissolving the marriage had been acted upon as the requisite notice under S.9 of the Muslim Family Laws Ordinance, 1961 had been given and there was a long interval of more than 11 years since the dissolution of marriage during which the parties stayed away from each other as they had undoubtedly accepted the dissolution of their marriage---Marriage of the parties, in circumstances, stood dissolved when dissolution of marriage certificate was issued by the Chairman Arbitration Council---Desire of the couple to live together as husband and wife, could not invalidate or nullify the effect of the judgment and decree which had attained finality as the dissolution of marriage had become effective under S.7(3) of Muslim Family Laws Ordinance, 1961.

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

----S. 7(6)---Dissolution of marriage on the basis of Khula---Remarriage with same husband would be subject to the performance of another Nikah---Section 7(6) of Muslim Family Laws Ordinance, 1961 allows such reunion without 'Halals' and there is no restraint either in the Muslim Family Laws Ordinance, 1961 or the Injunctions of Quran and Sunnah not to allow the prayer of the husband for reunion with his wife when she is ready to live again as his wife within the limits of God---Couple, in the present case, has lived apart for the last 11 years on account of the dissolution of their marriage through a decree, they have an easy option and can annul the legal effect of the decree in question by solemnizing another marriage as there is no physical, moral or legal obstacle in there way to do so and such is the only legal course open to them.

Dr. Altaf Ahmad v. Mst. Neelofar Nazneen and another 2007 MLD 829 distinguished.

Gulzar Hussain v. Mst. Mariyam Naz 2000 MLD 447; Fazl-e-Subhan v. Mst Sabereen and 3 others PLD 2003 Pesh. 169 and Muhammad Ayub Khan v. Mst. Shehla Rasheed and another PLD 2010 Kar. 131 rel.

Tafheem-ul-Quran, Vol. 1 by Maulana Abul Ala Maudoodi quoted.

Abdul Ghaffar Mian for Petitioner.

Ali Zafar Syed, Amicus Curiae. Respondent No.1 (in person).

Date of hearing: 3rd June, 2011.

P L D 2011 Lahore 463

Before Nasir Saeed Sheikh, J

SHAHID ORAKZAI---Petitioner

Versus

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

Writ Petition No.464 of 2011, decided on 25th March, 2011.

Constitution of Pakistan---

----Arts. 185(2)(f), 132(3) & 199---Constitutional petition---Maintainability---Locus standi---Concept---Aggrieved person---Advice of 'Chief Minister---Certificate under Art.185(2) f of the Constitution by High Court---Petitioner assailed advice of Chief Minister to the Governor which resulted into removal of seven ministers from provincial cabinet---Plea raised by petitioner was that being citizen of Pakistan he had a right to challenge the advice of Chief Minister, thus he was an aggrieved person within the provision of Art.199(a)(i) of the constitution and sought issuance of a certificate by High Court under Art.185(2)(f) of the Constitution---Validity---Mere status of being a citizen of Pakistan could not be considered a sufficient reason for petitioner to assail advice of Chief Minister for removal of seven ministers---Petitioner being a candidate against Chief Minister, from where the Chief Minister was declared elected, also did not clothe the petitioner with a sufficient status and qualification to challenge constitutional performance of official duties, by the Chief Minister---Concept of locus standi was not fashioned by the Courts to apply uniformly---Question of locus standi was to be determined in the light of facts of each case---Any person, in order to qualify as an aggrieved person, might not have a right in strict juristic sense but nevertheless he had to establish that some interest of his was prejudicially affected by the action assailed---Courts were reluctant to allow just a "busy body" to interfere in the matters which did not concern him directly---Petitioner could not travel beyond the concept of "professional litigant" and "meddlesome interloper" and therefore, could not be allowed to maintain petition against action of Chief Minister---Petitioner was not an aggrieved party to institute petition, therefore, High Court declined to issue him certificate in view of Art.185(2)(f) of the Constitution---Petition was dismissed in circumstances.

Ikram Bus Service and others v. Board of Revenue, West Pakistan and 2 others PLD 1963 SC 564; Ch. Jalal-ud-Din and another v. Settlement Commissioner, Lahore and others 1968 SCMR 995; Ch. Muhammad Yunus v. The Islamic Republic of Pakistan through the Secretary, Ministry of Communication, Government of Pakistan, Islamabad and 3 others PLD 1972 Lah. 847; Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income Tax, Lahore Range, Lahore and 7 others PLD 1978 SC 151; Nisar Ahmad and 2 others v. Additional Secretary, Food, and Agriculture, Government of Pakistan and 3 others 1979 SCMR 299; Anjuman Araian Bhera v. Abdul Rashid and others PLD 1982 SC 308, Mst. Noor Jehan Begum v. Dr. Abdus Samad and others 1987 SCMR 1577; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi v. Federation of Pakistan and others PLD 1996 SC 324; Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division and others 1998 SCMR 1462; Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. through Secretary PLD 2007 SC 386; Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others v. Mian Muhammad Shahbaz Sharif and others PLD 2009 SC 237; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif PLD 2009 SC 531; 2010 CLC 1444; Black's Law Dictionary 9th Edn., p.12.32; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Muhammad Afzal and others v. Government of Pakistan 1987 SCMR 2778; Dr. Abdul Rauf v. Sh. Muhammad Iqbal 1991 SCMR 483; Judicial Review of Administrative Action 4th Edn., p.409 by De. Smith; Locus Standi and Judicial Review by S.M. Thio; Shri Schidan and Panday v. The State of West Bangal AIR 1987 SC 1190 ref.

Petitioner in person.

Razzaq A. Mirza, Addl. A.-G. Punjab.

Date of hearing: 22nd March, 2011.

P L D 2011 Lahore 473

Before Ijaz Ahmad Chaudhry, C. J. and Ijaz ul Ahsan, J

CHAND BAGH FOUNDATION through Authorized Representative---Appellant

Versus

STANDARD CHARTERED BANK LIMITED through Manager and another---Respondents

R.F.A. No.253 of 2008, heard on 16th March, 2011.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1, 2 & 3---Suit for Recovery of money---Application for leave to defend suit---Summary procedure---Plaintiff Trust filed suit against defendant bank for not encashing bank cheques for the reason that account in question was blocked---Trial Court dismissed the suit being not maintainable on the ground that relationship of debtor and creditor and existence of loan were absent---Validity---Where summary procedure was not attracted, the suit could be proceeded with as an ordinary suit and jurisdiction of Court in such regard was not barred---Reasons given by Trial Court for dismissing the suit of plaintiff Trust were neither sustainable nor line with dicta of superior courts---High Court refrained from recording any finding on the defences raised by defendants in their application for leave to appear and defend the suit as the same would be decided by Trial Court on its own merits---High Court set aside the judgment passed by Trial Court and remanded the case to trial Court for deciding suit as well as application for leave to defend the case afresh---Appeal was allowed accordingly.

Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi PLD 1988 SC 124; 2006 SCMR 631; PLD 1995 SC 362; 1984 SCMR 568; United Bank Ltd., Mianwali v. Muhammad Khan and another PLD 1988 Lah. 424; Syed Nazir Hussain Rizvi v. Zahoor Ahmad and another PLD 2005 SC 787; Sh. Muhammad Arshad v. Sh. Muhammad Asghar PLD 2007 Lah. 111; 2009 SCMR 1101; 2007 MLD 1215 and 2006 YLR 537 ref.

Dr. Abdul Basit for Appellant.

Sher Zaman Khan for Respondent.

Date of hearing: 16th March, 2011.

PLD 2011 Lahore 479

Before Nasir Saeed Sheikh, J

Kanwar MUHAMMAD NAEEM---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN through Chairman and 3 others---Respondents

Writ Petition No.1675 of 2011, decided on 14th February, 2011.

Constitution of Pakistan---

----Arts. 4, 25 & 199---Constitutional petition---Right of education---Discrimination---Petitioner was employee of Board and his grievance was that authorities declined him permission to .appear in B.A. Part II examination---Validity--Education was fundamental right of every citizen and authorities could not deny right of petitioner to acquire knowledge and to appear in B.A. Part-II examination---Two other employees were allowed to appear in B.A. examination thus denial of such right to petitioner to appear in B.A. Part-II examination was without any just and reasonable cause---Such act of authorities in denying the right to petitioner of appearing in B.A. Part-II examination was discriminatory in nature---High Court directed the Authorities to accord necessary sanction to petitioner in writing to appear in forthcoming examinations---High Court further directed the Authorities to facilitate petitioner while allowing appropriate leave for the purpose---Petition was allowed accordingly.

Punjab Road Transport Corporation v. Zahida Afzal and others 2006 SCMR 207; Professor Yameen-ud-Din Advocate v. Lahore Graveyard Committee and another 2003 CLC 1718; Naeem Ahmad v. Chief Administrator, Auqaf 2004 ,CLC 599 and Hazir (Pvt.) Ltd. v. Pakistan International Airlines Corporation and another 1993 MLD 1308 rel.

Syed Muhammad Aurangzeb Gilani for Petitioner.

Haji Muhammad Aslam Malik, Legal Advisor for Respondents.

Muhammad Ashfar Assistant Secretary Admin. B.I. & S.E. Multan.

Tariq Mahmood, Senior Superintendent Legal, B.I. & S.E. Multan.

Date of hearing: 14th February, 2011.

PLD 2011 Lahore 483

Before Syed Kazim Raza Shamsi, J

FARAZ AHMAD BHUTTA----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.13754 of 2006, decided on 31st May, 2011.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 2(c) & 13---Constitution of Pakistan, Art.199---Constitutional Petition---Ejectment petition---Power' of Rent Controller to conduct detailed inquiry into the fact of title of landlord---Scope---Expression "any person for the time being entitled to receive rent in respect of any building or rented land"---Word 'entitled' means the legal entitlement of the person, such person had to prove that he had legally been authorized to collect the rent or he was collecting the rent on his own account---Where the persons collecting the rent failed to produce any evidence showing that they were authorized by the landlords to collect rent on their behalf and had solely relied upon the sale-deed in their favour alienating the property (a waqf property) in their favour, Rent Controller, in such a situation, had to examine whether they were lawful owners and the property transferred in their favour was transferred by lawful means or that they had been legally authorized for the collection of the rent from the tenants---Rent Controller, though was not supposed to conduct detailed inquiry into the fact, but in order to satisfy itself, Rent Controller had to examine such facts before assuming jurisdiction under the law---Where relationship of landlord and tenant did not exist between the parties and findings of lower forums were based on sound appreciation of evidence, record and law as well, did not call for any interference by High Court, constitutional petition was dismissed.

Khalid Javed and others v. Qazi Masood-ur-Rehman, Additional District and Sessions Judge, Sialkot and 2 others PLD 1988 Lah. 541 ref.

(b) Islamic law---

----Waqf---Creation---Test---Waqf is a permanent dedication by a person professing the Muslim faith, of any property, recognized by Islamic law as religious, pious or charitable---Wagif has to Make a permanent waqf without limiting the period and waqf should be for religious, pious and charitable purposes and could be in favour of settlor's family, children and descendants.

Muhammadan Law by D.F. Mulla, , Ss.173, 174 & 178 ref.

(c) Islamic law---

----Waqf---Intention of waqif---Doctrine of cypress---Applicability---Creation of waqf by inter vivos or testamentary---Scope---Alienation of property---Prohibition---Powers of Mutwalli to sell or mortgage the waqf property---Principles.

Muhammadan Law by D.F. Mulla, Ss.184, 185, 186, 189, 193, 207 & 208 ref.

(d) Islamic law---

----Waqf---Charitable purpose of the waqf was explicit from the wordings of waqf deed which clearly established the intention of the waqif and prohibition from the alienation in future-Contention of the waqif that waqf was cancelled through a registered document, therefore, it would be deemed that property was never bequeathed by waqif through waqf deed had no legs to stand---When the property did not vest in the waqif and the possession had been delivered to Allah, then he was left with no authority to cancel the same---Waqf could not be revoked.

Ch. Khursheed Ahmad for Petitioner.

Mahmood Ahmad Bhatti for Respondent.

Date of hearing: 27th May, 2011.

P L D 2011 Lahore 490

Before Kh. Imtiaz Ahmad and Mamoon Rashid Sheikh, JJ

ASHIQ HUSSAIN SABRI---Appellant

Versus

SECRETARY HEALTH, GOVERNMENT OF THE PUNJAB and 8 others---Respondents

I.C.A. No.158 of 2010/BWP, heard on 4th May, 2011.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S.4 & Art.151---Intra Court appeal---Limitation---Holidays---Order assailed by appellant was passed on 6-7-2010 and stipulated 20 days for filing of Intra-Court appeal were to expire on 26-7-2010---On the last day of limitation, High Court's registry for non-urgent cases was closed due to summer vacations, which was due to last till 10-9-2010 and benefit of S.4 of Limitation Act, 1908, was made available in such like cases---Appellant was required to file Intra-Court appeal on 10-9-2010 but the appeal was filed on 20-9-2010, which was beyond the period of limitation prescribed under Art.151 of Limitation Act, 1908, even after giving the benefit to appellant of S.4 of Limitation Act, 1908---Even a single day's delay in filing of appeal could be fatal unless a plausible explanation as to cause of delay was given for condonation of the same---Infra-Court appeal was dismissed in circumstances.

Qaisar Mushtaq Ahmad v. Controller of Examinations and others PLD 2011 SC 174 and Food Department, Gujranwala through its Deputy Director and others v. Ghulam Farid Awan 2010 SCMR 1899 rel.

Shabbir Ahmad Bhutta along with Ms. Feroza Yasmeen Goraya for Appellant.

Nemo for Respondent.

Date of hearing: 4th May, 2011.

P L D 2011 Lahore 493

Before Mamoon Rashid Sheikh, J

MUHAMMAD YOUNAS---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, PASRUR and 2 others---Respondents

Writ Petition No.6928 of 2011, heard on 18th May, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Reappraisal of evidence---Scope---High Court in exercise of its extraordinary Constitutional jurisdiction does not normally undertake reappraisal of evidence.

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

-----S. 5--Constitution of Pakistan, Art. 199---Constitutional petition---Maintenance allowance---Annual increase---Principle---Grievance of father of minor was that Family Court while fixing monthly maintenance allowance also fixed 15% annual increase---Validity---Record did not establish that /father was equipped with means to discharge his liability towards annual increase in maintenance of minor as ordered by the Courts below---High Court declined to interfere in the award of maintenance awarded to minor but rate of annual increase of maintenance was reduced from 15% to 5% annual---Minor was at liberty to approach Family Court for increase in her maintenance due to any change in any circumstance---Petition was allowed accordingly.

Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 rel.

Javed Bashir for Petitioner.

Ch. Muhammad Irfan Nasir Sindhu for Respondents Nos. 2 and 3.

Date of hearing: 18th May, 2011.

P L D 2011 Lahore 497

Before Mamoon Rashid Sheikh, J

MUHAMMAD IQBAL---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAHIMYAR KHAN and others---Respondents

Writ Petition No.2222 of 2011, decided on 2nd May, 2011.

(a) Administration of justice---

----Stay of proceedings---Principle---Mere filing of appeal/revision/ representation before higher forum does not automatically operate as a stay of the order impugned.

Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983; H.M. Fazil Zaheer v. Kh. Abdul Harmed and others 1983 SCMR 906 and Government of Punjab through Secretary, Labour and Manpower, Civil Secretariat and others 2006 PLC (C.S.) 325(sic.) rel.

(b) Supreme Court Rules, 1980---

----O. XX---Petition for leave to appeal---Stay of proceedings---Principle--Filing of Civil Petition for Leave to Appeal' does not prevent, under O.XX of Supreme Court Rules, 1980, execution of a decree or order appealed against unless stay of execution of decree or order is passed by Supreme Court.

Hilbro Instruments (Pvt.) Ltd. through Chief Executive Lahore v. Mst. Sikandar Begum through Special Attorney PLD 2008 Lah. 57 ref.

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

----S. 128---Liability of surety---Scope---Liability of surety is co-extensive with that of principal debtor.

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

---Ss. 47, 51, O.XXI, & R.24, O.XXXVII, Rr.1, 2---Supreme Court Rules, 1980, O. XX---Constitution of Pakistan, Art.199---Constitutional petition---Execution. of decree---Stay of proceedings---Pendency of Petition for leave to appeal before Supreme Court---Money decree was passed against petitioner who had assailed before Supreme Court the judgments and decrees passed against him---Plea raised by petitioner was that till final adjudication of petition by Supreme Court, proceedings of execution of decree against him should be stayed---Validity---Petitioner's conduct was not above board, as he was provided opportunity to file an objection petition but he failed to do so and instead without a stay order having been issued by Supreme Court sought to have the execution proceedings stayed---Executing Court acting in accordance with law rightly declined to stay the proceedings---Petitioner having failed to avail of the opportunities granted to him left the Executing Court with no choice but to proceed further in the matter in accordance with law---High Court declined to interfere in the matter, in exercise of extraordinary constitutional jurisdiction under Art.199 of the Constitution---Petition was dismissed in circumstances.

Raja Muhammad Sohail Iftikhar for Petitioner.

Date of hearing: 2nd May, 2011.

P L D 2011 Lahore 502

Before Ch. Muhammad Tariq, J

SHAHID MAHMOOD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.20-M of 2011, decided on 1st March, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 382-B & 561-A---Pakistan Army Act (XXXI of 1952), Ss. 59 & 136---Official Secrets Act (VIII of 1923), S.3(a)---Benefit of S. 382-B, Cr.P.C., extension of---Accused had been convicted under S.59 of Pakistan Army Act, 1952, read with S.3(a) of Official Secrets Act, 1923, and sentenced to 4 years' R.I., but he was not given the benefit of S.382-B, Cr.P.C.---Judgment passed by Field Court Martial had not mentioned S.382-B, Cr.P.C. and as such it could not be said that benefit of the same had been denied to accused---Any person convicted and sentenced by Military Authorities was sent to civil prison to serve the sentence along with civil prisoners according to 5.136 of the Pakistan Army Act, 1952, and was governed by Jail Manual---L'6nial of the benefit of S.382-B, Cr.P.C. to accused was a glaring discrimination, which had been defined as "Zulm "---Said benefit could be allowed to the persons convicted under the Pakistan Army Act, 1952---Benefit of S.382-B, Cr.P.C. was granted to accused accordingly.

PLD 2010 FSC 1 and 2001 SCMR 1987 rel.

Raja Ghaneem Aabir Khan for Petitioner.

Nazeer Afzal for the Complainant.

Date of hearing: 1st March, 2011.

P L D 2011 Lahore 504

Before Abdus Sattar Asghar, J

ABDUL HAMEED and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No. 9 and Criminal Revision No. 18 of 2004/BWP, heard on 1st June, 2011.

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

----S. 302/34---Qatl-e-amd---Appreciation of evidence---Despite lengthy cross-examination from the defence side, no discrepancy could be surfaced as regarded nomination of accused with particular offence weapons and attributions of causing firearm injuries to deceased---Complainant and prosecution witness had furnished plausible and probable reasons of their presence at the time and place of occurrence, which could not be shattered by the defence during-cross-examination upon them---Testimonies being inline and corroborative to each other on vital dimensions of the prosecution case, made them confidence inspiring and reliable---Injuries attributed to all the three accused, were also corroborated through medical evidence and said medical evidence was sufficiently corroborated by the ocular account--Implication of one of accused, appeared to be resulting in widening the net to involve maximum members of the family of accused and had become highly doubtful in absence of any previous animosity with the complainant party---Benefit of doubt, was extended to said accused, whereas arraignment of remaining two accused persons was not shrouded in mystery---Testimony of prosecution witnesses could not be discarded merely on the ground that said witnesses were not being believed regarding implication of accused who had been given benefit of doubt---Prosecution had sufficiently proved the charges against remaining two accused by producing reliable and confidence inspiring testimonies of eye-witnesses bearing intrinsic value and inherent worth also corroborated by the medical evidence---Prosecution having successfully brought the guilt home to two accused persons, they were rightly convicted and sentenced---Accused who was given benefit of doubt, was acquitted of the charge and was released---Quantum of punishment i.e. life imprisonment granted to two accused was not interfered with by High Court in circumstances.

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

---S. 302/34---Qatl-e-amd---Appreciation of evidence---Motive, establishment of---Prosecution was not bound to establish motive in every case, however once it had alleged a particular motive, but failed to establish the same, it was the prosecution to suffer the consequence and not the defence.

Mian Muhammad Tayyab Watto for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor General' for the State.

Sh. Ikram ud Din for the Complainant.

Date of hearing: 1st June, 2011.

P L D 2011 Lahore 511

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD TANVEER---Petitioner

Versus

MUHAMMAD JAMIL through Legal Heirs---Respondent

Civil Revision No.407 of 2002, heard on 1st June, 2011.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.XXIII, Rr. 1 & 2---Suit for possession on basis of decree conferring title of suit land upon plaintiff---Defendant's plea that plaintiff had withdrawn earlier suit for possession without permission of court; and that present suit was time barred---Validity---Such decree passed in a suit for declaration between parties had attained finality for not challenged by defendant---Defendant had no right to claim suit property---Defendant had not pleaded that he was in adverse possession of suit land---Plaintiff was claiming decree for possession on basis of such decree, cause of action whereof arose to him on day to day basis---Plaintiff being owner of suit land could claim its vacation again and again---Earlier suit withdrawn without permission of court would not be an impediment in his way to get possession of his land---Suit was decreed in circumstances.

Mst. Maroof Jan and 2 others v. Yaqoob and 4 others 1990 CLC 19; Mst. Mehrunnisa v. Karachi Cantonment Board, through Cantonment Executive Officer another 1990 CLC 1334; National Bank of Pakistan v. Hashim Khan 1995 CLC 88; Muhammad Ali and others v. Province of Punjab and others 2009 SCMR 1079; Muhammad Yousuf Memon v. Karachi Stock Exchange (Guarantee) Ltd. 1995 CLC 183 and Sardar Muhammad Aziz Khan v. Messrs United Kashmir Flour Mills (Pvt.) PLD 2004 SC (AJ&K) 1 ref.

Muhammad Yousaf Asim for Appellant.

Ghulam Rasul Ch. for Respondent.

Date of hearing: 1st June, 2011.

P L D 2011 Lahore 516

Before Muhammad Farrukh Irfan Khan, J

TANVIR HUSSAIN---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SAFDARABAD, DISTRICT SHEIKHUPURA and 5 others---Respondents

Criminal Miscellaneous No.40-H of 2011, decided on 13th January, 2011.

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

----S. 491---Power to issue directions of the nature of a habeas corpus---Scope---Essentials---Person sought to be set free must be shown to be illegally or improperly detained in public or private custody against his will--High Court for exercise of its discretionary power under S.491, Cr.P.C., should in the first instance have been informed as to where the alleged detenu is detained.

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

----S. 491---Habeas corpus petition---Petitioner's brother, alleged detenu, had entered into some transaction with the respondents for sending hint abroad and for this purpose had paid a huge sum of money to them---Petitioner was not sure as to whether his brother had been murdered or was illegally confined by the respondents at some unknown place---Petitioner had not indicated or disclosed any place from where the recovery of his brother could be effected---Powers under S.491, Cr.P.C. could be exercised only in cases of illegal and improper custody and not for any other consideration including coming to the rescue of a party where the matter clearly fell under certain other provisions of law, for the sake of expediency---Petition was dismissed in limine in circumstances.

Sajjad Ahmad for Petitioner.

PLD 2011 Lahore 519

Before Sagheer Ahmed Qadri, J

ALI SARWAR and others---Petitioners

Versus

Syed SHUJAT ALI NAQVI and others---Respondents

Writ Petition No.1039 of 2007, decided on 25th May. 2011.

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

---O. XIII, R.9(b)---Constitution of Pakistan, Art.199---Constitutional petition---Application by defendant for return of original sale deeds exhibited in evidence---Plaintiff's objection that such return during pendency of suit would create complications---Order of Trial Court rejecting such application upheld by Revisional Court---Validity---Under first proviso to R.9(2) of O.XIII, C.P.C., Trial Court had discretion to return documents at any time even earlier to disposal of suit after obtaining certified copies thereof with undertaking to produce originals as and when required by court---Courts while exercising statutory discretionary powers would lean in favour of subject---Trial Court could impose further restriction on defendant not to use such sale deeds derogatory to rights of plaintiff---Placing on record certified copies of original sale deeds would not prejudice case of plaintiff---High court set aside impugned orders and accepted such application with direction to return original sale deeds to defendant after placing on record certified copies thereof with an undertaking to produce original sale-deeds at any subsequent stage of trial as and when required by Trial Court.

(b) Interpretation of statutes---

----Provision of a statute discretionary in nature---Duty of court.

While interpreting any provision of statute discretionary in nature, the courts are supposed to exercise these discretionary powers taking into consideration the principle of beneficial interpretation of statute i.e. leaning in favour of or facilitating the subject.

Abdul Rashid Awan for Petitioners.

Respondent No. 1 in person.

Date of hearing: 25th May, 2011.

PLD 2011 Lahore 522

Before Ijaz ul Ahsan and Ch. Shahid Saeed, JJ

MEHMOOD AHMAD and 8 others---Appellants

Versus

Malik ABDUL GHAFOOR---Respondent

Regular First Appeal No.683 of 2010, decided on 12th May, 2011.

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

----Ss. 12 & 22---Qanun-e-Shahadat (10 of 1984), Art.81---Suit for specific performance of agreement to Sell---Defendant's plea that agreement stood cancelled on failure of balance sale price and earnest money stood forfeited---Proof---Defendant during cross-examination admitted that he had not given notice to plaintiff regarding cancellation of agreement and forfeiture of earnest money---Defendant had not specifically denied receipt of earnest money---No further proof of agreement or receipt of earnest money would be needed---Defendant in agreement had stated that there was a dispute between him and a third party to be resolved through Arbitrator and that he had undertaken to inform plaintiff about his readiness to execute sale deed, but he had not given such intimation to plaintiff---Plaintiff was not required to prove existence of dispute between defendant and a third party---Plaintiff in plaint asserted that he all along remained ready and willing to perform his part of contract---Defendant had not specifically denied in evidence such assertion of plaintiff---Suit was decreed in circumstances.

Mst. Zainab Khatoon v. Amir Abdullah Khan PLD 2004 Lah. 330; Mst. Umatul Mobeen v. Muhammad Aziz 2010 YLR 1216; Inam Naqshband v. Haji Sheikh Ijaz Ahmad PLD 1995 SC 314 and Shabbir Hussain Shah v. Fazal Din and 4 others 2008 MLD 30 ref.

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 distinguished.

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

----Art. 81---Admission of execution of document required by law to be attested---Effect---Such admission would be sufficient proof of execution of such document as against a party having made such admission.

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

----O. XIV, R. 1 & O.XX, R.5---Appeal against decree---Objection of non framing of additional issues by Trial Court---Validity---Appellant neither raised such objection nor moved application for framing of additional issues---Both parties had ample opportunity to produce evidence in support of their respective pleas---Appellant did not allege to have been prevented from adducing evidence, which could have helped his case-Non-framing of issues would not constitute a ground for reversing decree, where both parties had opportunities to adduce evidence---Such objection was repelled in circumstances.

Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271; M. Akram and Raja v. Muhammad Ishaqe 2004 SCMR 1130; Eada Khan v. Mst. Ghanwar and others 2004 SCMR 1524; Laloo and another v. Ghulaman 2000 SCMR 1058; Malik Safdar Ali Khan v. Public at Large 2004 SCMR 1219 and Fazal M. Bhatti another v. Mst. Saeeda Akhtar and others 1993 SCMR 2018 ref.

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

----S. 12--Suit for specific performance of agreement to sell---Contradictions in statements of plaintiff's witnesses regarding place, time and venue of preparation of sale agreement---Validity---Defendant had admitted execution of agreement---Such discrepancies in statements recorded after 2-1/2 years after execution of agreement would not be helpful to defendant---Such objection was repelled in circumstances.

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

----S. 22---Suit for specific performance of agreement---Discretion of court to decree such suit---Scope.

The specific performance is a discretionary relief and a court is not bound to decree a suit for specific performance even if the agreement to sell is established. The discretion vesting in the court is not to be exercised arbitrarily. Such discretion is to be exercised on the principles laid down by the superior courts. The provisions of section 22 of the Specific Relief Act are also unambiguous and clear to the effect that the discretion of the court is not arbitrary but sound and reasonable and guided by the judicial principles.

Syed Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905 rel.

Rana Nasarullah Khan for Applicants.

Mehmood Ahmed Bhatti for Respondent.

Date of hearing: 11th May, 2011.

P L D 2011 Lahore 531

Before Ijaz Ahmad, J

MUHAMMAD NAWAZ SHEIKH---Petitioner

Versus

MANZAR HAS SAN and others---Respondents

Writ Petitions Nos.1110, 1111, 1112, 1115, 1116 and 1117 of 2011, heard on 13th June, 2011.

(a) Punjab Rented Premises Ordinance (XXI of 2007)---

---Ss. 19 & 24(4)---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment proceedings---Wilful default---Scope---Order for deposit of arrears and future rent---Deposit of arrears of rent in time, but delay of one day in deposit of future rent---Order of ejectment order passed by Rent Tribunal on ground of such default upheld by Appellate Court-,-validity---Consequences of default in payment of rent either occurred before filing of ejectment application or after passing of order under S.24 of Punjab Rented Premises Ordinance, 2007, were identical-Default in former case had to be proved by evidence, while in latter case same stands proved from record of proceedings---Eviction of tenant could be ordered in both such cases---In order to/characterize a default to be a wilful default, same had to be intention, deliberate, calculated and conscious with full knowledge of its consequences---Default in payment of rent occasioned on account of ignorance, accident or compulsion beyond control could not be termed 'wilful'---Person not well versed with technicalities of law could easily misconceive the order---Such delay of one day could not be termed as wilful default---High Court set aside impugned order and directed Rent Tribunal to decide ejectment application on merits.

Muhammad Yamin v. Mashroofullah Khan 1980 CLC 848; Mehdi Zafar v. Mrs.Fauzia Raqueeb 1989 MLD 3563 and Dr.Sheikh Fayyaz Anwar v. Sheikh Nemat Ullah and another 1988 CLC 245 ref.

Muhammad Tariq v. Sardar Khan and 9 others 1998 CLC 1054; Muhammad Arshad Khokhar v. Mrs. Zohra Khanum and others 2010 SCMR 1071 and Zhange Guogen v. Mst. Jahanzeba Begum, and others Writ Petition No.1728 of 2009 rel.

(b) Words and phrases---

----"Wilful default "---Connotation.

In order to characterize a default to be a "wilful" default, it has to be intentional, deliberate, calculated and conscious with full knowledge of its consequences. Any default including default in payment of rent that might have occasioned on account of ignorance, accident or compulsion beyond the control cannot be termed "wilful".

Muhammad Rariq v. Sardar Khan and 9 others 1998 CLC 1054 rel.

Abdul Naveed Khan for Petitioner.

Syed Zafar Ullah Salari for Respondent No. 1.

Date of hearing: 13th June, 2011.

P L D 2011 Lahore 534

Before Mamoon Rashid Sheikh, J

WAJID ASGHER CHEEMA---Petitioner

Versus

Mst. ANSHKA and another---Respondents

Writ PetitionNo.7925 of 2011, heard on 16th May, 2011.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Interlocutory orders---Principle---High Court does not normally interfere with interlocutory order in exercise of its constitutional jurisdiction, unless a case of grave miscarriage of justice is made out or where it is a case of lack of or excess of jurisdiction.

Mst. Sheren Masood v. Malik Nasirp Hassan, Judge Family Court, Lahore and another 1985 CLC 2758 rel.

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

----S. 25---Guardian, appointment of---Considerations---Duty of Guardian Judge---Welfare of minor is of paramount consideration---Guardianship proceedings are inquisitorial in nature and Guardian Judge has to go through all material available on record or which can be brought on record, in order to determine the question of welfare of minor---Technicalities of procedure are to be avoided.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Guardian, appointment of---Strike of lawyers---Right of cross­-examination---Closing of such right---Principle---During proceedings before Family Court, right of petitioner to cross-examine witnesses of respondent was closed---Validity---On two dates immediately prior to passing of order in question, even though witnesses of respondent and counsel for parties were present, the matter could not proceed as the members of Bar were on strike---As the adjournments were not granted at the request of petitioner, therefore, closure of petitioner's right of cross-examination was not called for---On each occasion when petitioner requested for adjournment or indeed on the dates when members of Bar were on strike there was no objection on the part of respondent to the adjournment being granted---Absence of any objection to petitioner's request for adjournment was deemed to be a routine adjournment not entailing penal action against petitioner---Rights of minor were involved and High Court granted one opportunity to petitioner to cross-examine Witnesses of respondent albeit at the cost of imposition of costs---High Court in exercise of constitutional jurisdiction set aside the order passed by Guardian Judge and case was remanded for recording of cross-examination on the witnesses of respondent---Petition was allowed accordingly.

Khalil Ahmad through Special Attorney v. Judge Family Court, Faisalabad and another 2010 YLR 336; Mst. Shaheen Akhtar v. Muhammad Arif and others 2008 YLR 1693; Sher Shah v. Mst. Rani Begum and 5 others 2010 YLR 308 and Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 ref.

Mubashir Khan v. Javaid Kamran alias Javed Iqbal 2007 MLD 1072 and Muhammad Hussain and 5 others v. Akram Baig and 3 others PLD 1988 Lah. 183 rel.

Aftab Ahmad Bajwa for Petitioner.

Masud Abid Naqvi and Qaiser Mahmood Sra for Respondent No.1.

Date of hearing: 16th May, 2011.

P L D 2011 Lahore 539

Before Sagheer Ahmed Qadri, J

Mst. TANIYA SYED---Petitioner

Versus

Sheikh IMRAN JALIL and others---Respondents

Writ Petition No.553 of 2007, decided on 25th May, 2011.

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

----O. I, R.10---'Necessary party'---Connotation---lf presence of a party is necessary to enable court to decide dispute between parties effectually and completely, then it can be termed as a 'necessary party'.

(b) Partition Act (IV of 1893)---

----S. 2--Civil Procedure Code (V of 1908), O. I, R.10---Constitution of Pakistan, Art.199---Constitutional petition---Partition of property---Necessary party---Agreement to sell---Scope---Petitioner filed suit for possession through partition against defendants/co-sharer in suit property and she wanted to get possession of her share in the property after partition---Respondent in application under O.I, R.10, C. P.C. only claimed the share of petitioner allegedly purchased from her through an agreement to sell and had also paid earnest money---Both the courts below found respondent as necessary party and order to implead in the suit---Validity---Respondent had yet to prove his stance, therefore, his presence before Trial Court in order to decide the matter between petitioner and other co-sharer was not necessary---Presence of respondent during partition proceedings would create certain complications resulting into multifariousness of litigation---Both the courts below had committed material illegality in exercise of their jurisdiction while allowing application under O. I, R.10, C.P.C. moved by respondent to implead him as one of the defendants in the suit pending before Trial Court---High Court in exercise of constitutional jurisdiction set aside the orders passed by two courts below and application under O.I, R.10, C.P.C. filed by respondent for impleading him as party was dismissed---Petition was allowed tin circumstances.

Messrs Jans Caterers v. The Islamic Republic of Pakistan through the Chairman, Pakistan Western Railway, Lahore and 2 others PLD 1972 Lah. 169; Mst. Hamida Fida Hussain Khoja and another v. Mst. Anees Iqbal 1986 MLD 443 and Muhammad Zubair v. Mrs. Irshad Begum 1999 CLC 1291 rel.

Avari Hotels Limited through Chairman and Chief Executive v. Investment Corporation of Pakistan through Managing Director/Principal Officer and 6 others 2002 CLC 1889; Hussain Mills Ltd. v. Abdul Rashid Khan and 2 others PLD 1980 Lah. 52; Ghulam Muhammad and 3 others v. Additional District Judge, Multan and 5 others 1999 YLR 469 and. Metropolitan Corporation of Lahore through Administrator v. Syed Bhais (Pvt.) Limited through Managing Director and 5 others 2004. MLD 1395 ref.

Ch. Muhammad Khan for Petitioner.

Sheikh Iftikhar Ahmed for Respondent No. 1.

Date of hearing: 9th May, 2011.

P L D 2011 Lahore 544

Before Sh. Ahmad Farooq and Muhammad Qasim Khan, JJ

Rana NASARULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2010 in Criminal Appeal No.805 of 2008, heard on 2nd June, 2011.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)(c), proviso---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Trafficking of narcotics---"Hardened, desperate" and "dangerous" criminal---Connotation---Suspension of sentence, petition for---Scope---Accused had sought suspension of sentence on the ground of statutory delay in decision of appeal---Provisoto S.426(1-A)(c), Cr.P.C., provided that a person who in the opinion of Appellate Court was "hardened", "desperate" and "dangerous criminal", was not entitled to get benefit of suspension of sentence---"Hardened criminal" was one who had developed rigid behavioural pattern toughened through experience; and not likely to change---All those persons, who had become rigid and devoid of any compassion, could also be termed as 'hardened'---Criminal could be considered "desperate", if he was willing to take risk fearlessly out of helplessness and despair---"Desperate criminal" could commit an act as a last resort without realizing its consequences---"Dangerous criminal" connoted a person, who was able to cause harm and injury having horrible effects against the society---Gravity of offence of whatsoever nature, would bring an offender within the category of a "dangerous criminal "---No previous criminal history of accused was on record and he was a first offender, such accused, in circumstances, could not be termed a "hardened criminal"---Accused being involved in drug trafficking, he could not be considered a "desperate person" for the reason that commission of such an offence required pre planning and meditation---Circumstances of the case, however led the court to hold accused a "dangerous criminal", as he was found in possession of a huge quantity of 15 kg. Charas; he seemed to be involved in drug trafficking at a large scale and had committed an offence which had a direct impact on the public at large, especially the young generation---Tendency of adopting drug trafficking as a profession was speedily increasing day by day and it was proving to be a great menace to the whole nation---To save innocent citizens to be the victim of drug traffickers, such tendency must be curbed; and persons involved in such like heinous offence should be dealt with iron hands---Case of accused, in circumstances, fell within the ambit of proviso to S.426(1-A)(c), Cr.P.C.---Accused was not entitled to be released on bail by way of suspension of his sentence.

Omair Ahmed Siddiqui v. State 1996 PCr.LJ. 22 rel.

Azam Nazir Tarar for Petitioner.

Tariq Mehmood Sipra and A. D. Sajid, Special Prosecutors for Anti-Narcotic Force.

Akhlaq Ahmad, Deputy Prosecutor General, Punjab (on Court call).

Date of hearing: 2nd June, 2011.

P L D 2011 Lahore 548

Before Amin-ud-Din Khan, J

Mst. CHOTO and others---Petitioners

Versus

MUHAMMAD ASHRAF and others---Respondents

Writ Petition No.2323 of 2011/BWP, decided on 31st May, 2011.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. XXXII, R. 15---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration and permanent injunction--Rejection of plaint---Application filed by defendants under O. VII, R.11, C.P.C. for rejection of plaint had concurrently been rejected by two courts below, defendant had challenged same in a constitutional petition---When defendant was alive plaintiff had no cause of action to file the suit against defendant---Plaintiff did not disclose the cause against defendant---If, as alleged by the plaintiff, that defendant was lunatic, then in accordance with the Mental Health Ordinance, 2001 and in accordance with the procedure laid down in O.XXXII, R.15, C.P.C., defendant could not be directly impleaded as defendant, or the suit could not be directly filed against her without impleading her through the guardian ad litem; in that way the plaint was barred by law---Both courts below, in circumstances, had ignored the legal position and while dismissing the application filed under O. VII, R.11, C.P.C., Trial Court failed to exercise jurisdiction vested in it by law and even failed to see the basic provisions of O. VII, R.11, C.P.C.---Re visional court, had also failed to exercise the jurisdiction vested in it by law---Orders passed by both the courts below were declared to be without lawful authority---Application moved under O. VII, R. 11, C.P.C., was accepted and plaint filed by the plaintiff was rejected.

Haji Rahim Bakhsh Khan for Petitioners.

Malik Habib Yasin Misson for Respondents.

P L D 2011 Lahore 551

Before Abdul Waheed Khan, J

MUHAMMAD SHAFI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, KHARIAN DISTRICT GUJRAT and 8 others---Respondents

Writ Petition No.9614 of 2011, decided on 9th June, 2011.

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

---Ss. 324/148/149/109---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan, Art.199---Attempt to commit qatl-e-­amd, rioting armed with deadly weapons, abetment---Constitutional petition---Prosecution evidence closed for non-appearance of prosecution witnesses---Validity---Record had revealed that on a number of dates of hearing statements of prosecution witnesses could not be recorded due to non-attendance of accused before the court---Trial Magistrate had been issuing orders for summoning the prosecution witnesses through non-bailable warrants mechanically without ascertaining and verifying if the same were in fact issued and served on the witnesses---Trial Court did not appear to have adopted any coercive measures such as attaching the properties of the prosecution witnesses under Ss.87/88, Cr. P. C. ---Trial Courts were not helpless in procuring attendance of witnesses and dealing with the process serving agencies which neglected the discharge of their duties---Petitioner being an injured witness in the case was an affected person and he was fully competent to assail the impugned orders before the higher' forum---Constitutional petition was converted into petition under S.561-A, Cr.P.C. by the High Court in the interest of justice--Impugned orders closing the prosecution evidence in the case were set aside in circumstances with the direction to petitioner to produce all the private witnesses in the Trial Court within a specified period---Trial Court was directed to adopt all possible measures to procure attendance of prosecution witnesses to conclude the trial possibly within one month---Petition was allowed accordingly.

(b) Criminal trial---

----Closing of prosecution evidence due to non-appearance of prosecution witnesses in Trial Court and failure of process serving agency to produce them in court---Guidelines for Trial Courts for action before closing prosecution -evidence.

If the prosecution witnesses do not appear and process serving agency fails to produce them before closing prosecution evidence, trial court was to follow the following guidelines.--

(a) The Presiding Officer shall verify if the summons/notices or the warrants of the prosecution witnesses are in fact issued and dispatched by Ahmad of the court.

(b) If the government officials, cited as prosecution witnesses do not appear before the court, after accepting service through summons/notices, the Presiding Officer may adopt coercive measures such as attachment of salary and also proceed to attach property of the private prosecution witnesses under S.87/88, Cr.P.C. after recording the statement of Process Server.

(c) In case service upon the prosecution witnesses is not effected by the subordinate staff, then the summons/notices or warrants of arrest of prosecution witnesses may be entrusted to the officers of the rank of A.S.-I. or S.I. of the Police Station concerned.

(d) If the Process Server is negligent in effecting service upon prosecution witnesses Presiding Officer may proceed against him under the provisions of Police Order, 2002 and also refer the matter to the District Police Officer concerned for initiating departmental proceedings under Efficiency and Discipline Rules and

(e) The Presiding Officer may also refer the matter to the District and Sessions Judge, for taking upon the matter in the monthly meeting of the Criminal Justice Coordination Committee.

Aurangzeb Haral for Petitioner.

Munir Ahmad Bhatti for Respondents.

Wali Muhammad Khan, A.A.-G. with Aamir, S.I. with record.

P L D 2011 Lahore 555

Before Mamoon Rashid Sheikh, J

MUHAMMAD ABDULLAH RIAZ---Petitioner

Versus

UNIVERSITY OF HEALTH SCIENCES (UHS), LAHORE and another---Respondents

Writ Petition No.5917 of 2010/BWP, decided on 27th July, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Admission in medical college---Admission policy---Candidate claimed that he was eligible to have admission in medical college on the basis of "Hifz-e-Quran" certificate---Contention of the candidate was that authorities did not allow him to append the certificate to his application---Validity---Contention of the candidate was not borne out from the record---Even if the candidate had appended his "Hifz-e-Quran" certificate to his application he could not have been considered as Hifz-e-Quran candidate because as per criteria laid down in the prospectus, candidate was required to have secured at least 75% or above marks weighted aggregate marks to be eligible to be called for the "Hifz-e-Quran" test---Candidate had only secured 66.5727% weighted aggregate marks, therefore, he was ineligible to be called for the test---Candidate failed to establish or make out a case for interference by High Court in exercise of constitutional jurisdiction---Petition was dismissed in circumstances.

(b) Educational institution---

---Criteria, fixing of---Examination/admission---Scope---In matters of examinations and/or admissions to educational institutions, authorities of the concerned institution are the sole judges of the criteria laid down by the institution in its prospectus and/or calendar---Courts normally do not interfere in such like matters unless a case of grave injustice is made out, otherwise it would be difficult for the institution to run its affairs.

Muhammad Ilyas v. Bahauddin Zakariya University Multan and another 2005 SCMR 961; Memoona Noureen v. The V.C. Fatima Jinnah Women University, Rawalpindi 2011 CLC 230; Maria Wazir v. Principal of UHS, Lahore and others Writ Petition No.22356 of 2009 and Rahila Shabbir v. University of Health Sciences Writ Petition No.1527 of 2010 rel.

A.K. Aurangzeb for Petitioner.

M.A. Hayat for Respondents.

Date of hearing: 11th May, 2011.

P L D 2011 Lahore 561

Before Muhammad Ameer Bhatti, J

KAMAL HUSSAIN and others---Petitioners

Versus

DISTRICT OFFICER (REVENUE), BHAKKAR and others---Respondents

Writ Petition No.7686 of 2009, decided on 17th-June, 2011.

Civil Procedure Code (V of 1908)---

----o. XXI, Rr.9 & 10-Constitution of Pakistan, Arts.199 & 187(2)---Constitutional petition---Maintainability---Execution of decree---Powers of High Court---Scope---Petitioners had sought the implementation of the decree which was outcome of the civil suit---High Court, no doubt, under Art.199 of the Constitution had powers for issuance of directions to the authorities functioning within its territorial jurisdiction to perform their duties in accordance with law; and could also take the cognizance regarding implementation of the orders, decrees and directions, but that did not include matter of execution of the decree in the sense as provided under O.XXI, C.P.C.-Constitutional petition was not maintainable as on the face of it, detailed inquiry was required for the execution of the decree, which could only be held by exercising the powers as per procedure prescribed by the Civil Procedure Code, 1908.

Muhammad Hanif Niazi for Petitioners.

Firdous Butt, A.A.-G.

Mian Shah Abbas Iqbal for Respondent No.2.

P L D 2011 Lahore 563

Before Syed Mansoor Ali Shah and Abdul Waheed Khan, JJ

SAMINA KANWAL-Appellant

Versus

DIRECTOR PUNJAB FORESTRY RESEARCH INSTITUTE, FAISALABAD---Respondent

Intra-Court Appeal No.281 of 2010 in Writ Petition No.285 of 2010, heard on 9th June, 2011.

(a) Constitution of Pakistan---

----Arts. 4, 9, 14 & 25---Civil service---Contractual appointment---Clause "without assigning any reason (No reason clause)" in contract---Validity---Such clause in a contract of appointment does not stand the test of due process and fundamental rights under Articles 4, 9, 14 and 25 of the Constitution, rule of law, reason, logic, ethics and good governance---While the modern world is moving towards accountability and transparency, the "no reason clause" reflects unfettered, un-muffled and unchecked discretion---Such a clause has no place in a constitutional democracy, which rests on the supremacy of rule of law-"No reason clause" can be a recipe for corruption, mismanagement, nepotism and jobbery---Foundations of good governance are based on reasons, accessibility, accountability, transparency, participation, consensus, inclusiveness, efficiency, ethics and responsiveness---Such clauses, therefore, ex facie lack the requirement of fairness and procedural due process thereby offending Article 4 of the Constitution---'No reason clause' is also facially discriminatory besides being liable to be used in a discriminating manner thereby violating Article 25 of the Constitution.

Dr. Mobashir Hassan v. Federation of Pakistan and others PLD 2010 SC 1 and Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 rel.

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

----S. 23---General Clauses Act (X of 1897), S.24-A---Law Reforms Ordinance (XII of 1972), S.3---Punjab Contract Appointment Policy, 2004, Clause, XVII(i)---Intra Court Appeal---Public policy---Civil service---Contractual appointment, termination of---Clause "without assigning any reason "---Petitioner was contract employee and her services were terminated by authorities under the clause of the contract whereby service could be terminated without assigning any reason---Validity---Such clause in the contract of appointment of petitioner was opposed to public policy and violated S.23 of Contract Act, 1872 as well as S.24-A of General Clauses Act, 1897---Punjab Contract Appointment Policy, 2004, to the extent of "without assigning any reason" was opposed to public policy, logic' and good governance---High Court struck down that portion of clause XVII(i) of Punjab Contract Appointment Policy, 2004, as unconstitutional and offensive to human dignity and reason and set aside the order of termination of appellant and declared the same to be unlawful and in violation of Punjab Contract Appointment Policy, 2004---High Court directed the authorities to consider the case of appellant for regularization in accordance with law---Intra-Court Appeal was allowed in circumstances.

Faisal Sultan v. E.D.O. (EDUCATION) and others 2011 PLC (C.S.) 419 rel.

Muhammad Ahmad Qazi for Appellant.

Kalim Ilyas, Asstt. A.-G Punjab and Muhammad Abdul Muqeel, DFO (PFRI) for Respondent.

Date of hearing: 9th June, 2011.

P L D 2011 Lahore 569

Before Asad Munir, J

Syeda ADRISH and another---Petitioners

Versus

Syed ANWAR-UL-HAQ and 2 others---Respondents

Writ Petition No.1525 of 2009, decided on 22nd June, 2011.

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

----S. 5 & Sched.---Past maintenance wife's claim for---Scope---Wife, if unwilling without any lawful excuse, would not be entitled to such maintenance.

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

----S. 5 & Sched.---West Pakistan Family Courts Rules, 1965, Rr. 5 & 6---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance and dowry articles---Suit decreed to extent of dissolution of marriage and maintenance of minor son, but plaint to extent of claim for dowry articles returned by Family Court for lacking territorial jurisdiction---Dismissal of appeal by Appellate Court---Validity---Suit categorized in Sched. of West Pakistan Family Courts Act, 1964 could be instituted in a court within whose local limits either cause of action wholly or in part had arisen or parties reside or resided together lastly---An omni bus suit could be filed combining therein causes of action of all suits mentioned in Sched. of West Pakistan Family Courts Act, 1964, and Family Court in such case could not divide plaint into causes of action falling within its territorial jurisdiction and those beyond its jurisdiction and return plaint in part for lacking such jurisdiction---Plaint could be returned as a whole for lacking territorial jurisdiction---Partial or piecemeal return of plaint like partial rejection of plaint was not envisaged by any Rule of West Pakistan Family Courts Rules, 1965 or provisions of the Act---Convenience of females would be an overriding consideration to disallow partial return of plaint in family suits---High Court set aside impugned judgment to extent of return of plaint with direction to Family Court to decide claim of dowry articles and maintenance for Iddat period of wife.

Atta Ullah and 6 others v. Sanaullah and 5 others PLD 2009 Kar. 38; EFU General Insurance Company pd. v. Zahid Jee Textile Mills Ltd: 2005 CLC 848 and Izhar Muhammad v. Messrs Memon Housin Services through Partner and another 2009 MLD 1378 rel.

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

----O0. VII, R.11---Partial rejection of plaint---Scope---Plaint could be rejected as a whole but not in part---Principles.

A plaint cannot be rejected in part if it cannot be rejected in its entirety.

The rule against partial rejection of plaint is based on the rationale that it saves the parties from the unnecessary multiplicity of legal proceedings.

Atta Ullah and 6 others v. Sanaullah and 5 others PLD 2009 Kar. 38; EFU General Insurance Company Ltd. v. Zahid Jee Textile Mills Ltd. 2005 CLC 848 and Izhar Muhammad v. Messrs Memon Housin Services through Partner and another 2009 MLD 1378 rel.

Rana Rashid Akram Khan for Petitioner.

PLD 2011 Lahore 573

Before Ijaz ul Ahsan, J

KHIZAR SAMI ULLAH---Petitioner

Versus

UNIVERSITY OF THE PUNJAB through Vice-Chancellor, Lahore and 3 others---Respondents

Writ Petition No.6972 of 2011, decided on 14th June, 2011.

(a) Educational institution---

----Student had no vested right to be treated in accordance with requirements prevalent at time of his embarking upon studies of respective course---Student would have to filful requirement prevalent at time he completed his degree.

Miss Sultana Khokhar and 2 others v. The University of the Punjab PLD 1962 SC 35; Amina Amjad and others v. University of the Punjab (I.C.A. 182 of 2009) and Rabia Moazam and 12 others v. University of the Punjab and others Writ Petition No.14929 of 2008 rel.

(b) Constitution of Pakistan---

----Art. 25---Discriminatory treatment---Scope---Two wrongs would not make one right---Degree granted erroneously to another person in a similar position would not entitle petitioner to same treatment and relief---Principles.

Mushtaq Ahmad Mohal for Petitioner.

Muhammad Shahzad Shaukat for Respondents.

Date of hearing: 7th June, 2011.

P L D 2011 Lahore 579

Before Asad Munir, J

Mst. NOREEN ASHIQ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KHARIAN and 2 others---Respondents

Writ Petition No.3203 of 2010, decided on 8th July, 2011.

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

----S. 5. Sched. & S.17---Civil Procedure Code (V of 1908), S.11 & O.XXIII, R.1---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles including gold ornaments---Withdrawal of claim for gold ornaments given to plaintiff as marriage gift by defendant. finding mention in Column No.17 of Nikahnama far realizing same not to be recoverable as part of dowry---Filing of separate fresh suit for recovery of ornaments---Defendant's plea that fresh suit for ornaments was not maintainable for being barred by S.11, C.P.C. as claim made therein had been withdrawn earlier unconditionally---Suit for ornaments decreed by Family Court dismissed by Appellate Court---Validity---Provisions of C. P. C. except Ss.10 & 11 thereof would not apply to proceedings before Family Court by virtue of S.17 of West Pakistan Family Courts Act, 1964---Res Judicata would not apply to earlier suit for having been withdrawn, but not decided---Such ornaments for being bridal gift had become personal property of plaintiff, thus, was recoverable by her through such suit---High Court set aside impugned judgment/ decree and restored that passed by, Family Court in circumstances.

Haji Mir Alam Shah v. Adam Khan and 16 others 2004 CLC 1100 ref.

Dr. Asma Ali v. Masood Sajjad and others PLD 2011 SC 20 and Ejaz Mahmood v. Mst. Humaira and another 1983 CLC 3305 rel.

Muhammad Akram v. Hajra Bibi and 2 others PLD 2007 Lah. 515 distinguished.

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

----Ss. 11, 12(1) & O.XXIII, R.1---Filing of fresh suit after withdrawing earlier suit unconditionally---Res Judicata applicability of---Scope---Res Judicata would not apply to earlier suit for having been withdrawn, but not decided---Fresh suit would be barred under S.12, C. P. C.

Nand Lal v. Mst. Lakhmi and others AIR 1939 Lah. 414 and Periaswami v. Vaidhilingan AIR 1937 Mad. 718 rel.

Miss Erum Sajjad Gul for Petitioner.

Faryad Ali Chaudhry for Respondent No.3.

P L P 2011 Lahore 583

Before Sh. Najam ul Hassan and Sardar Tariq Masood, JJ

MUHAMMAD YASIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.447-J, 1345, 1346 of 2004, and Murder Reference No.507 of 2004, decided on 13th January, 2011.

Criminal Procedure Code (V of 1898)---

---Ss. 366, 233, 367 & 537---Penal Code (XLV of 1860), Ss.302/324/337-F(iii)/337-A(ii)/148/149---Qatl-a-amd, attempt to commit qatl-e-­amd, causing Mutalahimah, and Shajjah-e-Mudihah---Delivering consolidated judgment in two separate trials---Irregularity and not illegality which could vitiate trial---Accused during trial of the case, filed private complaint from jail against the complainant of challan case---Trial Court after holding two separate trials in challan case and private complaint, in which separate charges were framed, separate evidence was recorded and separate set of accused were examined under S.342, Cr.P.C., wrote consolidated judgment---Judgment was a judicial verdict deciding a case filially which should contain points for determination, discussion thereon and the reasons for decision; and should specify the offence and section of law under which accused was convicted and sentenced---Judgment was a conclusion which the court made of the trial initiated with cognizance of the offence followed by charge; and the consequent judicial proceedings against the offender---Cognizance was always taken of an offence and not of the occurrence; in one occurrence there could be more than one offences committed at one time and the court should take cognizance of every offence and not only of the occurrence---Once cognizance was taken of the offence, the court was obliged to decide the case by full-fledged trial or by exercising powers provided by the Code---Presumption that since the occurrence was the same or that since the offence had been committed in the course of same transaction, there could have been a consolidated judgment, was a wrong approach which was not permissible; there must be a separate judgment in every trial and the judgment must contain the points for determination, the decision thereon and the reasons for the decision---Consolidated judgment could not have been written in two different trials---Writing of consolidated judgment, however, could by all means be said to be an irregularity only---Till the pronouncement of the judgment, no party had objected that the Trial Court had committed any illegality in holding the trials---Mere writing of a consolidated judgment had not prejudiced the case of either party or had misled accused as per S.233, Cr.P.C. or had occasioned the failure of justice as per S.537, Cr.P.C.---Where any illegality had been committed, which was not curable, re-trial had to be conducted, but not where irregularity had occurred, which was curable. without adverting to whole re-trial---Writing of consolidated judgment by the Trial Court in two separate trials, was not a material illegality which could have vitiated the whole trial---Same could be cured by re-writing two separate judgments in the said trials---Trials having been independently held and none of the parties had objected on the basis of any illegality, by re-writing two separate judgments, no failure of justice would be caused--Conviction and sentences of accused persons were set aside and matter was remanded to the Trial Court with a direction to re-write separate judgment of each trial in accordance with law.

Khizer Hayat and 5 others v. The Commissioner, Sargodha Division and another PLD 1965 (W.P.) Lah. 349; Nur Elahi v. The State and others PLD 1966 SC 708; Ghulam Hussain and others v. The State 1996 PCr.LJ 514 and Shahmand and 6 others v. The State 1991 PCr.LJ 833 rel.

Pir S.A. Rashid and Mehmood Ahmed for Appellant (in Cr.A.No.447 of 2006).

Mian Tajiq Shafiq Bhaudara and Rai Ijaz Mehmood for Appellants (in Crl. Appeals Nos. 1345 and 1346 of 2004)--Complainant.

Shahid Rashid Chaudhry, D.P.G. for the State.

Date of hearing: 13th January, 2011.

P L D 2011 Lahore 593

Before Asad Munir, J

SAMINA AKHTAR---Petitioner

Versus

IRFAN FAROOQ and 2 others---Respondents

Writ Petition No.2034 of 2009, decided on 24th June, 2001.

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

----S. 5, Sched., Ss.14 & 19-Constitution of Pakistan, Art.199--. Constitutional petition---Wife's suit for" recovery of dower on basis of entries in Nikahnama---Husband's suit for declaring such entries not to be binding upon him for having been made without his consent---Consolidation of both suits by Family Court on husband's application-Decision of both suits by Family Court by consolidated judgment dismissing wife's suit while decreeing husband's suit---Wife's appeal bearing court fee of Rs.15 dismissed by Appellate Court on her failure to make up deficiency in court fee while treating same to be a civil appeal seeking dismissal of husband's suit for declaration---Validity---Family suit and civil suit for being regulated by different laws could not be consolidated without presuming civil suit to be a family suit---Scope of "dower" mentioned at Sr. No.2 of Sched. of West Pakistan Family Courts Act, 1964 was not limited to wife's suit for recovery of dower, but would include husband's suit for declaration pertaining to issue of dower---Husband's suit relating to or involving dower was a family suit exclusively triable by Family Court---Both such suits could not be legally consolidated without regarding husband's suit as a family suit---Both such suits had been consolidated by Judge Family Court and by a Civil Judge---Wife's suit, after its consolidation with husband's suit, had not lost its character of a family suit and became a civil suit or merged into a civil suit---Wife's appeal had to be regarded as a family appeal not requiring payment of court fee applicable to a civil appeal---Appellate Court had required wife to pay deficiency in court fee without determining and specifying deficient amount---Wife was not required to file two separate appeals against consolidated judgment or pay court fee on her appeal---High Court set aside impugned judgment and remanded case to Appellate Court to decide wife's appeal on merits in accordance with law.

Aqqueeluddin and 5 others v. Muhammad Rafique 1984 CLC 2607 and Ghulam Farid v. Mst. Pathani and 2 others 1993 MLD 1023 ref.

Allah Wasaya v. Faiz Bakhsh and another 2001 YLR 2773; Muhammad Yousaf and another v. Nighat Fayyaz 1985 CLC 2609; Mst. Amina Begum and Ghulam Nabi and 2 others PLD 1974 Lah. 78, Tajoo v. Mst. Sataran PLD 1974 Lah. 104 and Zoran Bibi v. Manzoor Ahmad and 2 others PLD 1975 Lah. 318 rel.

Ch. Riaz Ahmad for Petitioner.

Respondent No.1 ex parte.

P L D 2011 Lahore 599

Before Ijaz Ahmad Chaudhry, C.J. and Mazhar Iqbal Sidhu, J

NASIR ALI---Applicant

Versus

UMAR DRAZ and others---Respondents

R.A. No.2-C of 2011 in Civil Revision No.3798 of 2010, decided on 15th June, 2011.

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

----S. 12---Exclusion of time while computing period of limitation---Scope---Time excludable would be date of pronouncement of judgment and decree in addition to time consumed by Copying Agency in preparing certified copies thereof.

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

----S. 115---Revision petition---Objection raised by office of High Court that revision was time barred---Non-removal of such objection within specified time by petitioner---Validity---In case of non-communication of such objection to petitioner, such period would be reckoned front date of knowledge of petitioner or his counsel---Spirit of law was that a matter would become time barred only if nature of objection was such that same could only be removed by defaulting party himself---Law never intended to make proceedings barred by time due to non-compliance of such objection by defaulting party in tinge---Revision petition, if filed within prescribed period of limitation, could not be dismissed at later stage on ground that such objection was either not removed or removed beyond period specified by office.

Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCMR 847 and Province of Punjab through District Collector Lodhran and 6 others v. Muhammad Khalid Khan 2005 CLC 1083 rel.

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

----Ss. 115 & 151---Limitation Act (IX of 1908), Ss. 5 & 29(2)---Revision petition---Delay, condonation of---Scope---Provision of S. 5 of Limitation Act, 1908 as per force of S. 29(2) thereof would not apply to revision petition---Delay in filing revision could be condoned by superior courts in exercise of their inherent jurisdiction, if petitioner established that delay was not intentional, but was due to unavoidable circumstances beyond his control.

Province of Punjab through District Collector Lodhran and 6 others v. Muhammad Khalid Khan 2005 CLC 1083 and Muhammad Bashir and another v. Province of Punjab 2003 SCMR.83 rel.

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

----S. 5---Civil Procedure Code (V of 1908), S. 151 ---Condonation of delay in cases not covered by S. 5 of Limitation Act, 1908---Scope---Superior courts had inherent powers to condone delay in such cases.

Hafiz Khalil Ahmad for the Applicant.

P L D 2011 Lahore 605

Before Mamoon Rashid Shaikh, J

SAHIBA DOST---Petitioner

Versus

CHAIRMAN ADMISSION BOARD/VICE-CHANCELLOR, UHS, LAHORE---Respondent

Writ Petition No.6076 of 2010/BWP, decided on27th July, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Admission in medical college---Admission policy---Order of preference---Candidate had only given choice of 3 medical colleges out of 18, at the time of filing admission form--Candidate could not come on the merit for the three medical colleges of her choice, therefore, she was not considered for other medical colleges and lost admission---Validity---Such was a policy matter and university had to follow the Policy enunciated by its prospectus and the same also had to be strictly adhered to by the candidates---If a candidate failed to make a choice, High Court in exercise of constitutional jurisdiction could not take the role of a policy maker---Candidate was not entitled to any discretionary relief for non-filing of the application form as per instructions given in the prospectus and/or the admission form---Candidate had made a conscious choice despite clear-cut warning contained in both the prospectus and admission form---Preferred choices engendered costs, in the present case, the denial of admission to the candidate---High Court declined to interfere in admission process---Petition was dismissed in circumstances.

Maria Wazir v. Principal of U.H.S., Lahore and others Writ Petition No.22356 of 2009; Shahid Sarwar v. Chairman, Admission Board/Principal, King Edward Medical College, Lahore 2005 YLR 344; Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961; Memoona Noureen v. The V.C. Fatima Jinnah Women University, Rawalpindi 2011 CLC 230 and Government of Punjab {Health Department) through Secretary Health, Lahore and another v. Naila Begum PLD 1987 Lah. 336 ref.

(b) Educational institution---

----Policy making---Jurisdiction---Interference by courts---Principle---Normally in academic matters university authorities are considered to be the best judges to interpret the rules and regulations framed by university authorities---Courts are to avoid interpreting the same unless a case of grave injustice is made out, otherwise it would be difficult for' university authorities to run their affairs.

Muhammad Iiyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961; Memoona Noureen v. The V.C. Fatima Jinnah Women University, Rawalpindi 2011 CLC 230 and Government of Punjab (Health Department) through Secretary Health, Lahore and another v. Naila Begum PLD 1987 Lah. 336 rel.

Syed Shaheen Masood Rizvi for Petitioner.

M. A. Hayat for Respondent.

Date of hearing: 11th May, 2011.

P L D 2011 Lahore 610

Before Asad Munir, J

GHAFOOR AHMED BUTT---Petitioner

Versus

Mst. IRAM BUTT and 6 others---Respondents

Writ Petition No.8514 of 2010, decided on 6th July, 2011.

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

----Ss. 5 & 17-A---Constitution of Pakistan, Art.199---Constitutional petition---Interim maintenance---Right of paternal grandfather---Counsel and client relationship---Statement of counsel---Minors filed suit for recovery of monthly maintenance against their father who was living abroad---During proceedings, counsel for paternal grandfather of minors made statement with regard to payment of interim maintenance---On failure of paternal grandfather to pay the maintenance, Family Court decreed the suit in favour of minors--Judgment and decree passed by Family Court was maintained by Lower Appellate Court--Validity---Father of minor children was alive and living abroad, who was unwilling or unable to discharge his obligation of maintaining his minor children---Paternal grandfather could be burdened with the liability to support his minor grand children who had no means or source of income to take care of their basic needs---Paternal grandfather was bound to maintain his son's minor children in need regardless of whether or not they were orphans---Paternal grandfather had a right to be reimbursed by the father of minors--Judgments and decrees passed by two courts below did not have any illegality or irregularity, therefore, High Court declined to interfere in the same---Petition was dismissed in circumstances.

Ghulam Nabi v. Muhammad Asghar and 3 others PLD 1991 SC 543 ref.

Abdul Ghani v. Muhammad Ashfaq and others 1994 CLC 444; Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930; Abdullah v. Jawaria Aslam and 2 others 2004 YLR 616 and Mavra Arshad v. Sheikh Ehsan Ghani 2005 SCMR 1293 rel.

Ali Hussain Mohsin for Petitioner.

Pervaiz I. Mir for Respondents Nos. 1 to 4.

P L D 2011 Lahore 615

Before Syed Kazim Raza Shamsi, J

Syed MUMTAZ HUSSAIN---Petitioner

Versus

Mst. NAZIMA NAQVI and others---Respondents

Writ Petition No.4502 of 2010, decided on 6th July, 2011.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

---Ss. 2(c) & 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant-Parties were brother and sister inter se and disputed premises was owned by their deceased father---Father of parties in his life time rented out the premises---Petitioner was attorney of his father and had been receiving rent from the tenant on behalf of his father---Respondent (sister) claimed that their father gifted the premises to her thus she had become the owner---Prior to receipt of any notice of change of ownership, the tenant de-hired the premises and handed over the possession to petitioner---Respondent filed ejectment application against her brother (petitioner) and tenant on the ground of wilful default---Rent Controller allowed ejectment application and passed eviction order, which was maintained by Lower Appellate Court---Validity---Petitioner could never be treated as a tenant in the house in question as he was receiving rent from the tenant on behalf of his father and he fell within the definition of "landlord" as provided in S.2(c) of West Pakistan Urban Rent Restriction Ordinance, 1959--Petitioner, being a family member of the deceased owner, was in occupation of the demised premises, as such could 'not be treated as a tenant in the house---No evidence was available on record that either the tenant or petitioner paid any rent to respondent, after termination of lease agreement, as such relationship of landlord and tenant did not exist between the parties---Necessary ingredients of execution of gift in favour of respondent lady were not completed as delivery of possession of the house had not taken place--Eviction orders passed by both the Courts below suffered from misreading and non-reading of material evidence available on record and judgments recorded by both the Courts below were not sustainable in the eyes of law---High Court in exercise of constitutional jurisdiction, declared eviction orders as illegal and of no legal consequences and the same were set aside---Petition was allowed accordingly.

2010 SCMR 446; 2009 YLR 2379 and 1949; 2009 CLC 34; 2009 YLR 1736 and 2007 MLD 732 rel.

Ch. Inayat Ullah for Petitioner.

Mian Hameed Ullah Khan for Respondents.

P L D 2011 Lahore 620

Before Muhammad Khalid Mehmood Khan and Syed Kazim Raza Shamsi, JJ

SHAHID SIDDIQUE---Appellant

Versus

SHARJA NATIONAL TRAVELS AND TOURIST AGENCY---Respondent

R.F.A. No.243 of 2005, heard on 28th June, 2011.

Civil Procedure Code (V of 1908)---

---Ss.13, 44-A, O.IX, X.13 & O.XXXIV--- Transfer of Property Act (IV of 1882), S.58---Ex parte decree---Foreign decree---Reliance---Mortgaged property, sale of----Trial Court proceeded ex parte against defendant and passed preliminary decree on the basis of decree passed in a foreign country and allowed sale of property for which there was an agreement to create a mortgage--- Validity---Nothing was available on file to show that United Arab Emirates was reciprocating territory within the meaning of Explanation 2 to S.44-A, C.P.C.---Fact of reciprocating territory was to be notified by Federal Government in official gazette declaring reciprocating territory as such---In absence of any such notification, a foreign judgment could not be treated as a conclusive in the matter within the meaning of S.13, C.P.C.---Judgment passed by court in Dubai and the decree granted there, unless same was established by way of separate suit in terms of S.13, C. P. C., could not be executed in Pakistan---Trial Court also committed another illegality while decreeing the suit by presuming the agreement to create mortgage which was in fact a mortgage deed---Such agreement manifested that it was an executory document which did not attain the form of mortgage deed---Only mortgages created in forms provided under S.58 and onwards of Transfer of Property Act, 1882, were enforceable through court---High Court set aside judgment and decree passed by Trial Court and case was remanded for deciding the same afresh after providing opportunity to defendant to contest the same on merits---Appeal was allowed in circumstances.

Tahir Naeem for Appellant.

Nemo for Respondent No.1.

Date of hearing: 28th June, 2011.

P L D 2011 Peshawar 1

Before Abdul Aziz Kundi and Yahya Afridi, JJ

Messrs GHANI CORPORATION through Chief Executive---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Industries Commerce, Mineral Development and 5 others---Respondents

Writ Petition No.707 of 2008, decided on 17th June, 2010.

(a) North-West Frontier Province Mining Concession Rules, 2005---

----Further extension of---Previous lease---Scope---Previous lessee would have no vested right to claim such extension.

(b) North-West Frontier Province Mining Concession Rules, 2005---

----Constitution of Pakistan, Art. 199---Constitutional petition---Lease for five years for mining chromites over 902 acres---Auction of such lease area in favour of respondent for Rs. 0860 million cancelled for not being transparent---Acceptance of respondent's offer of Rs.1.2 million instead of re-advertising auction as directed by Director General of Mines---Acceptance of respondent's appeal against cancellation of his bid of Rs.0860 million by Appellate Authority on the ground that re-auction would further delay mining process with a very little hope of enhancement in bid offer---Validity---Record showed that during relevant year, highest bid for an area of 774.11 acres in same District for Rs. 7.777 million had been accepted---Appellate Authority being Provincial Secretary, Mines was repository of public trust---Prime consideration in such auction would be public good, rather than individual financial interest---Where there was such a high bid offered for same mineral in same District, then accepting a lower bid of petitioner without advertising auction would be utterly illegal and blatantly absurd---Order of Appellate Authority accepting respondent's appeal had not been impugned in constitutional petition, but High Court would not be silent spectator to such an abuse of authority---Protection of public revenue would be a paramount obligation of every organ of State moreso of judiciary---High Court could mould relief in constitutional petition---High Court set aside lease in favour of respondent and directed Appellate Authority to decide appeal afresh.

Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 rel.

Muhammad Jarnil Khan for Appellant.

Naveed Akhtar A.A.-G. and Irfan Javed for Respondent No.6.

Date of hearing: 17th June, 2010.

P L D 2011 Peshawar 7

Before Zia-ur-Rehman Khan, J

FAZLUR RAHMAN---Petitioner

Versus

MUHAMMAD SADIQ---Respondent

Civil Revision No.919 of 2009, decided on 31st May, 2010.

Civil Procedure Code (V of 1908)---

----O. VII, R.2 & O.XLI, R.31---Suit for recovery of amount---Non­observance of the formality of provisions of O. XLI, R.31, C.P.C.---Effect---Under provisions of O.XLI, R.31, C.P.C., court of appeal being first court of facts, was obliged to state the points for determination, the decision thereon and the reasons of the decision---Appellate Court, in the present case had decided the appeal in a very slipshod manner without accepting its responsibility of dealing with each and every ground agitated in memorandum of appeal---Formality of O.XLI, R.31, C.P.C., in circumstances, stood unobserved and in that way the case of the appellant had been immensely prejudiced---Appellate Court had not taken the pain to take into consideration one by one all the grounds mentioned in the memorandum of appeal but after reducing the facts and narration of the parties to some extent, had easily agreed with the Trial Court with regard to the correctness of the stance of respondent, without paying any heed to the legal formalities---Agreeing in that manner with the lower court while maintaining the judgment appeal against, Appellate Court had fallen into a grave error---Counsel for the respondent had also admitted said legal position---Since, it was not a mere technically, but Appellate Court had avoided to perform its legal duty by not dealing with each and every aspect of the case and in that way the procedural law had been badly violated---Matter was remanded to the Appellate Court, first to consider all the grounds contained in memorandum of appeal; and thereafter re-write proper judgment, accordingly.

M. Qasim Khan Khattak for Appellant.

Taj Muhammad Khan for Respondent.

Date of hearing: 31st May, 2010.

PLD 2011 Peshawar 10

Before Shah Jehan Khan Yousafzai, J

Mst. RAZIA BEGUM and others---Petitioners

Versus

ASMAT KHAN---Respondent

Civil Revision No.303 of 2006, decided on 1st October, 2010.

(a) Suit---

----Administration of justice---Plaintiff and defendant, duties of---Scope---It is primary duty of plaintiff to substantiate averments of plaint through cogent evidence, thereafter defendant would adduce evidence in rebuttal.

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

----Arts. 117 & 120---Document, proof of---Beneficiary of any document was bound to establish its genuineness.

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

----S.17---Gift, registration of---Scope---Muslim belonging to Hanfi Sect can make a valid gift of his title even orally in favour of an heir but up to 1/3rd even without executing any document---Once gift is reduced into writing, its registration under Registration Act, 1908, is must when value of subject matter exceeds Rs. 100.

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

---S.42---Registration Act (XVI of 1908), S.17---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Gift, proof of---Non-registration---Death of donor---Effect---Concurrent findings of two Courts below---Plaintiff claimed to be owner of suit property on the basis of gift deed executed in his favour by deceased owners---Trial Court and Lower Appellate Court concurrently decided suit and appeal in favour of plaintiff-Validity-Deed regarding immovable property worth more than Rs. 100 was compulsory registerable but gift deed in question was never produced for registration nor it was produced to revenue authorities for incorporation in revenue record---Explanation offered by plaintiff in his deposition was that due to financial weakness he did not produce the same for registration or incorporation in revenue record but such explanation was not convincing as plaintiff in witness box had stated that he filed the suit for giving effect to gift deed in revenue record---Plaintiff had contradicted his stance in plaint wherein it was alleged that in view of interference of defendant he approached Civil Court for requisite declaration and consequential relief---Suit was brought after the death of owners of property in question and during their lifetime plaintiff did no overt act to assert a gift deed in his favour and suit was filed after the death of two alleged donors---Disputed gift deed though contained thumb impression of alleged donors with no identity card numbers or mark of identification, plaintiff could establish genuineness of thumb impression of alleged two donors by sending it for verification through comparison to Finger Print Expert with undisputed thumb impression alleged two donors but no such attempt was made---Gift deed bore signatures of two marginal witnesses but none of them was produced in witness box nor was their death asserted while submitting list of witnesses or during the course of plaintiff evidence---Neither Lower Appellate Court had gone through evidence of parties nor thoroughly scrutinized finding of Trial Court, therefore, judgment and decree passed by Lower Appellate Court did not qualify to be a concurrent finding of fact---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two Court below and suit filed by plaintiff was dismissed---Revision was allowed in circumstances.

Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai PLD 2005 SC 658; Anwar Ahad v. Mst. Nafis Bano 2005 SCMR 152; Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others 2006 SCMR 1144; Allah Diwaya v. Ghulam Fatima PLD 2008 SC 73; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Muhammad Ashraf and others v. Mst. Sairan Bibi and others 2008 SCMR 1442; PLD 1975 Pesh 12; Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154; 1987 SCMR 66; 1987 SCMR 1403; The Southern Gas Company Ltd. v. Messrs Karim Silk Mills Ltd., 1988 MLD 1640; Atta Muhammad v. Nasir-ud-Din PLD 1993 Pesh. 127; Noor Muhammad and another v. Habibullah Khan and 27 others PLD 1994 SC 650; Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; 1999 SCMR 1328; Mst. Hamida Bibi v. Wali Muhammad 1999 MLD 1687; Mst. Faiz Elahi v. Muhammad Anwar 2001 YLR 2174; Ghulam Siddique v. Mst. Ajaib and others 2002 CLC 1244; Muhammad Malik and 3 others v. Mst. Rasool Bibi and 6 others 2002 CLC 1327; Abid Hussain v. Mst. Kalsum 2003 CLC 110 and Mir Haji Ali Ahmad Khan Talur and 9 others v. Govt. of Sindh and 2 others PLD 1976 Kar. 316 ref.

(e) Islamic law---

----Gift---Validity---Three ingredients---Donor, a Pardahnashin lady---Points in the three ingredients of gift to be taken into account in case of Pardhanashin lady as donor, enumerated.

The following points in three ingredients of gift are to be taken into account.

(i) Whether the plaintiff had any friendly advice before executing the deed and by a person whom the court considers as being genuinely interest in her welfare?

(ii) Whether the document was explained to her and whether she really had the capacity to understand its consequences?

(iii) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it?

(iv) Whether the entire transaction was free from circumstances throwing any shadow of 'doubt or suspicion on the inception, execution and application of the deed?

M. Tariq Afridi for Appellant.

Abdur Raziq Khan for Respondent.

Date of hearing: 15th September, 2010.

P L D 2011 Peshawar 23

Before Syed Sajjad Hussain Shah, J

Mst. NISHAT alias SHATO---Petitioner

Versus

MUSLIM KHAN alias MUSALI and 6 others---Respondents

C.R. No.763 of 2007, decided on 28th June, 2010

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

----S. 42---Qanun-e-Shuhadat (10 of 1984), Arts. 79, 80, 102, 103, 127 & 129(g)---Registration Act (XVI of 1908), S. 60---Transfer of Property Act (IV of 1882), S.54---Contract Act (IX of 1872), S.16---Suit for declaration---Registered sale-deed by niece (plaintiff) in favour of her real uncle (defendant)---Plaintiff (pardah-nasheen orphan lady of 20 years age at relevant time) alleged sale-deed to be fake, fraudulent and without consideration; and that she was paid share in produce of suit land till filing of suit and she got knowledge of sale-deed from Patwari Halqa---Proof---Onus to prove such sale was on the defendant---Defendant's witness deposed that sale consideration paid in his presence to plaintiff in office of Sub-Registrar was Rs.6,000---Sale consideration recorded in sale-deed was Rs.2,000, which did not show thumb impression of defendant's witness---Such deposition of defendant's witness for being beyond terms of sale agreement was not admissible in evidence for being hit by Arts. 102 and 103 of Qanun-e-Shahadat, 1984---Lambardar, alleged witness before Sub-Registrar, had neither been examined nor produced, secondary evidence to prove his signatures nor brought on record proof about death of lambardar--Defendant had not examined scribe of sale-deed and Sub-Registrar being important witnesses, thus, presumption could be drawn against defendant under Art.129(g) of Qanun-e-Shahadat, 1984---Defendant had failed to prove execution of sale-deed as required under Arts. 78 & 79 of Qanun-e-Shahadat, 1984---According to expert report, signatures of plaintiff on sale-deed did not match with admitted signatures, whereas her thumb impression was similar to that of admitted thumb impression---Expert opinion being weak type of evidence could not be considered in supersession of other material available on record, whereby inference could be drawn altogether contrary to expert report---Nothing was available on record to prove sale consideration and payment of sale consideration, which seemed to be result of fraud and undue influence---Sale consideration being an essential element of a valid sale transaction, thus, without its proof, any transaction purported to be a sale would not be declared as such---According to defendant's attorney, plaintiff was being paid produce of suit land---Payment of produce of suit land to plaintiff after its alleged purchase by defendant, was sufficient to show that sale was fake and fictitious---Plaintiff asserted to have got knowledge of impugned sale few days before filing of suit, thus, suit was within time---Suit was decreed in circumstances.?

Chaudhry Munir Hussain v. Mst. Waziran Mai alias Mst. Wazir Mai PLD 2005 SC 658; PLD 2005 SCMR 1959; Abdul Rasheed and 5 others v. Haji Shaukat Ali 2009 MLD 262; 2005 YLR 74; PLD 2009 Lah. 41; PLD 2008 SC 140; 2008 SCMR 1384; 2004 SCMR 185; Anwar Ahmad v. Ms. Nafisa Bano 2005 SCMR 152; 2001 CLC 810; 1991 SCMR 1577; 2005 CLC 83; 2007 SCMR 996; 1991 SCMR 2300; 2004 CLC 1348; 2004 CLC 555; 2008 SCMR 1182; 2005 CLC 515; 2006 SCMR 170; 2001 SCMR 1700 and 2008 SCMR 418 ref.

Chaudhry Munir Hussain v. Mst. Waziran Mai alias Mst. Wazir Mai PLD 2005 SC 658; Anwar Ahmed v. Mst. Nafisa Bano 2005 SCMR 152; Syed Muhammad Umer Shah v. Bashir Ahmed 2004 SCMR 1859; Parshotam Das v. Yar Ali AIR 1928 Oudh 439 and Mst. Rasheeda Bibi and others v. Akhtar Ahmed and others 2008 SCMR 1384 rel.

(b) Pardanasheen lady---

----Illiterate person, old disabled, weak, ailing ignorant, inexperienced and unable to comprehend or conceive nature of business transaction--- Sale by---Burden or proof---Care and caution to be taken in execution of sale-deed by such lady highlighted.

Whenever, the transaction is accomplished with the pardanasheen lady, extraordinary care and caution is legally required to be taken in execution of the sale-deed, as after the sale transaction, whenever it would be challenged by the lady, the vendee may be able to prove the facts relating to the sale-deed by producing overwhelming evidence free from any doubt.

Notwithstanding that vendee is duty bound to prove the execution of registered sale-deed and that same must be read over and explained, but he might have to prove that the plaintiff/petitioner fully comprehended the terms and conditions of sale transaction, thus, was fully aware of the transfer of her ownership rights. He (vendee) has to prove that she was accompanied by her close relative having no clash of interest; sale transaction was concluded in presence of witnesses; sale consideration fixed was paid to the lady, and that she must be aware of the piece of land sold to the vendee. She appeared before the Sub-Registrar, and then was made to understand about the sale transaction, and after the satisfaction of the Registering Officer in the presence of witnesses, she had signed the sale-deed attested by the Sub-Registrar. Moreso she had the opportunity of independent advice. The vendor was also to discharge the burden of proof in good faith as required under Article 127 of the Qanun-e-Shahadat and being beneficiary of document, he was bound to prove the transaction of sale.?

Whenever registered sale-deed is challenged by a pardanasheen lady or similarly placed person i.e. old, disabled, weak, ailing, illiterate, ignorant, inexperienced and unable to comprehend or conceive nature of business transaction, they have been provided the cloak of protection, and in such circumstances onus of proof always rested on the shoulders of the person, who is the beneficiary of transaction to show that transaction was actually understood and put into practice by disposer himself, in such eventualities the party to the suit, who is the beneficiary of the transaction must establish by furnishing strong and most satisfactory proof that not only the document was executed, but the illiterate person or pardanasheen lady had fully understood, what was contained in the document. It does not matter that, the defence is taken that there was no duress, protest, lack of misunderstanding or want of comprehension is not in itself the real proof of true understanding mind of the executants, in fact the intent and purpose of the law is that evidence must have been brought on record in order to prove that document was read over and explained to the executants, inasmuch as in the language which the executants was unable to understand, was fully translated to make the executants to understand the details of sale-deed.

Besides, it is incumbent upon the beneficiary of the transaction to bring on record all available evidence, in order to show that onus of proof is discharged as required under the law.?

Chaundry Hussain v. Mst. Waziran Mai alias Mst. Wazir Mai PLD 2005 SC 658; Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others 2008 SCMR 2384; Irshad Khan v. Mst. Rasham Jan and others 2005 SCMR 1859 and Abdul Rasheed and 5 others v. Haji Shaukat Ali 2009 MLD 262 (Karachi) rel.

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

----Arts. 59 & 61---Handwriting expert, opinion of---Evidentiary value stated.

Mere expert evidence cannot be considered in supersession of other material available on record, whereby inference can be drawn altogether contrary to the expert report. When the party has failed to prove its case it is not entitled to be given the benefit of the sole opinion of expert, which by its nature is weak evidence.?

Syed Muhammad Umer Shah v. Bashir Ahmed 2004 SCMR 1859 and Anwar Ahmed v. Mst. Nafisa Bano through legal heirs, 2005 SCMR 152(m) rel.

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

----S. 60---Certificate of registration---Evidentiary value---Presumption attached to registered document under S. 60 of Registration Act, 1908 being rebuttable and having no universal application, could not be considered as gospel truth in each and every case---While extending such presumption, court must scrutinize all available evidence and jealously watch and look into attending circumstances of case---Principles.?

Qazi Altaf Hussain and another v. Ashfaq Hussain 1986 SCMR 1427 and PLD 1986 Lah. 414 rel.

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

----S. 54---Sale---Proof---Sale transaction without proof of its consideration would not be declared as valid---Principles.?

Ali Muhammad and others v. Chief Settlement and Rehabilitation Commission and others 1984 SCMR 94 rel.

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

----S. 115---Revision---Concurrent findings of fact by courts below---Validity---Such findings were not sacrosanct and could be examined in the light of record of case---Such findings, if found to be suffering from legal infirmities and jurisdictional errors, could be set aside.

?

Malik Muhammad Khaqan v. Trustees of the Port Karachi K.P.T. and another 2004 SCMR 1668 rel.

Abdul Sattar Khan for Petitioner.

Shaukat Ali for Respondent.

Date of hearing: 28th June, 2010.

P L D 2011 Peshawar 41

Before Syed Sajjad Hussain Shah, J

MIRZA MUHAMMAD and another---Petitioners

Versus

MUHAMMAD SHFRIN and 4 others---Respondents

Civil Revision No.313 of 2009, decided on 15th June, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42----West Pakistan Muslim Personal Law (Shariat Application) Act (V of 1962), Ss. 2 & 2-A---North-West Frontier Province Muslim Personal Law (Shariat Application) Act (VI of 1935), S. 3(2) --- Suit for declaration and possession --- Inheritance mutation of plaintiff's father attested in year 1937 according to prevailing custom depriving her from his inheritance --- Defendant's plea was that suit was time-barred---Validity---Provisions of S. 2 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 had already been declared to be violative of Injunctions of Qur'an and Sunnah---West Pakistan Muslim Personal Law (Shariat Application), Act, 1962 had retrospective effect---Plaintiff's father died in year, 1937, who, after enforcement of Act, 1962 would be deemed to have died under domain of Muslim Personal Law and his property would be divided even today in accordance with Shari share---Right of inheritance had no nexus with attestation of mutation---No impediment in distribution of inheritance under Islamic Law existed even before 15-3-1948---Plaintiff being daughter of deceased was entitled to 1/2 share in his inheritance-Non-payment of produce to legal heirs would be ineffective regarding right required through inheritance as all owners in property would be deemed to be interested in each and every inch thereof---Possession of one co-owner would be considered for benefit of remaining owners in Khata---Suit was decreed for being within time.

The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaq and another PLD 1983 SC 273; Mst. Fareeda and 2 others v. Rehmatullah and another PLD 1991 SC 213 and Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 205 rel.

Mir Alam v. Mst. Jane and others 1989 SCMR 1293 distinguished.

Abdul Sattar Khan for Petitioner.

Rahim Muhammad for Respondent.

Date of hearing: 15th June, 2010.

P L D 2011 Peshawar 47

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

KHAN ZAMAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior, Islamabad

and 5 others---Respondents

Writ Petition No.3359 of 2010, decided on 28th October, 2010.

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

----Ss. 17 & 18---Computerized National Identity Card---Order of surrendering/impounding/cancelling/confiscating such card---Powers of National Database and Registration Authority---Scope ---Authority could not pass such order without giving to holder of such card an opportunity of being heard---Principles.

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

----Ss. 17 & 18---Constitution of Pakistan, Art. 199---Constitutional petition---Computerized National Identity Card---Report of Special Branch verifying status of petitioner to be Afghan National---Notice issued by authority on basis of such report requiring petitioner to surrender such card without providing him an opportunity of hearing---Validity---Record showed that impugned notice had been issued to petitioner iii pursuance of his interview---Mere reference to interview in impugned notice would not be proof of fact that petitioner had been interviewed by authority---Authority had not cancelled petitioner's card through any specific order---Impugned notice could not be termed to be an order of cancellation of such card, thus, remedy of appeal under S. 18 of National Database and National Registration Authority Ordinance, 2000 was not available to petitioner---Petitioner in support of his being Pakistan National had produced mutation of his immovable property, arms licences, utility bills and such cards issued to his other family members---Authority before issuing impugned notice should have conducted full-fledged inquiry, after providing a chance of hearing to petitioner, verifying and scrutinizing such record produced by petitioner before court in proof of his being Pakistan National--Petitioner had neither been heard nor was interviewed under law---Authority could not pass an order against interest of a person without providing him opportunity of hearing, otherwise its order would become illegal---High Court accepted constitutional petition and directed petitioner to appear before authority for deciding such matter within specified time.

Writ Petition No. 2347 of 2009 distinguished.

(c) Natural justice, principles of---

----Order passed by an authority against interest of a person without providing him opportunity of hearing would be an illegal order--Illustration.

Astagfirullah for Petitioner.

Fazlur Rehman Khan, A.A.-G. and Hassan U.K. Khan for Respondents.

Date of hearing: 28th October, 2010.

P L D 2011 Peshawar 53

Before Yahya Afridi, J

MEHMOOD SHAH and others---Petitioners

Versus

TAMASH KHAN---Respondent

Civil Revision No.830 of 2006, decided on 1st December, 2010.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.XXVI, R.9, O.XLIII, R.1, Ss.47 & 115(4)---Suit for possession---Appointment of Local Commission---Earlier, case was remanded by High Court for appointment of Local Commission to verify as to whether land claimed by the plaintiff was in his possession or not and Trial Court appointed Local Commission who submitted report---Before the Trial Court could further proceed, plaintiff filed another application for appointment of another Local Commission to ascertain the improvement made by the plaintiff on suit property---Both Trial Court and Appellate Court dismissed said application---Validity---Order of rejection of appointing a Local Commission passed under O.XXVI, R.9, C.P.C. being not appealable under O.XLIII, R.1, C.P.C., such order passed by Appellate Court, would be deemed as a revision---Once revisinal jurisdiction had been exercised by Appellate Court below under S.115, C.P.C., High Court would lack jurisdiction to entertain revision against such order under its revisional jurisdiction as it would be against the clear command of S.115(4), C.P.C.---Revision petition was dismissed, in circumstances.

Mst. Noor Jehan v. Mst. Roshan Jehan and others 1994 SCMR 2265 ref.

Gohar Rahman for Petitioners.

Gul Sadbar for Respondent.

Date of hearing: 1st December, 2010.

P L D 2011 Peshawar 57

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan, J

Messrs LUCKY CEMENT LIMITED through General Manager---Petitioner

Versus

FEDERATION though Secretary Ministry of Petroleum and Natural Resources, Islamabad and others---Respondents

Writ Petitions Nos.3364, 1422, 3413 of 2009, 170, 180, 181, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 266, 267, 268, 269, 442, 497, 681, 682, 683, 2264, 2300, 3529, 3530 and 3830 of 2010, decided on 7th December, 2010.

(a) Agreement---

----Binding agreement---Scope---Only those agreements are binding on parties which are in accordance with law of land in general and provisions of the Constitution in particular.

(b) Constitution of Pakistan---

----Arts. 158, 172(3), 184(1) & 199---Constitutional petition---Maintainability---Supply of natural gas---Dispute between Federal and Provincial Governments---Petitioners sought direction to authorities to ensure uninterrupted supply of natural gas in conformity with mandate of Art. 158 of the Constitution---Plea raised by authorities was that it was a dispute between two governments and it could only be decided by Supreme Court under Art. 184(1) of the Constitution---Validity---No dispute between a Province and Federation was raised by petitioners, they only sought enforcement of mandate contained under Art. 158 of the Constitution---Federal Cabinet in its policy decision had provided that supply of gas would remain uninterrupted in the areas producing gas, therefore, Deputy Attorney General could not plead a case for restriction on its uninterrupted supply in the Province---High Court in exercise of constitutional jurisdiction directed the authorities to adhere to letter and spirit of Art.158 of the Constitution while dealing with petitioners and all stake-holders in the Province vis-a-vis the supply of gas---Petition was allowed in accordingly.

Athar Minaullah and Muddassar Amir for Petitioner.

Iqbal Mahmood Waqar Ali, D.A.G., Muhammad Shaoaib Jally with Khalid Pervez, S.N.G.P.L. and Bismillah Rai, Director for Respondents.

Date of hearing: 7th December, 2010.

P L D 2011 Peshawar 60

Before Yahya Afridi, J

SULTAN SHAH and another---Appellants

Versus

L.A.C. SWABI and others---Respondents

R.F.As. Nos. 153 and 156 of 2007, decided on 22nd November, 2010.

(a) Land Acquisition Act (I of 1894)---

---S. 23(1) [as amended by North-West Frontier Province Land Acquisition (Amendment) Ordinance (XVII of 2001) with effect from 22-8-2001/---Provisions of S. 23(1) as amended by Norte-West Frontier Province Land Acquisition (Amendment) Ordinance, 2001---Retrospective application---Scope---Such provisions not expressly provided to be retrospective would not apply to cases relating to period prior to introduction of such amendment.

(b) Land Acquisition Act (I of 1894)---

----S. 23(1)---Land acquisition---Compensation, determination of---Essential factor liable to be considered being potential value of acquired property in the light of future prospects of similarly placed property---"Yaksalas" or "Punjsalas" could and should not be only considered for such determination---Principles.

In order to determine the compensation for the acquired property, the determining factor should not only be the "market" value of sales taking place at the time of Notification, but it should also be with reference to the use to which the acquired property is reasonably capable of being put in future. In this regard, future sales can also be taken into consideration while determining the compensation for the acquired property.

Another reason for considering the future sales in determining the compensation for the acquired property is that there are long inordinate delays between the Notification and the actual announcement of Awards. Thus, if the future sales are not considered in cases where the awards are announced after a considerable delay from the date of Notification, the same would surely lead to exploitation of the proprietary rights of the owners, whose property is being acquired.

In determining the compensation for the acquired property, the Collector should not restrict his consideration only to the value of land determined in the "yaksalas" and the "punjsalas" prepared by the Revenue Department. The said values so determined are the guiding factors for determining the "market" value, which should form the bench marks, whereupon the "potential" value of the acquired property has to be determined and developed.

In determining the compensation for property being acquired, the "potential" value thereof can and should be considered, which would depend upon the future prospects of the similarly placed property. This can be determined by factors including the sale price or the market value of similarly placed property even on a future date subsequent to Notification, but not beyond the announcement of the award. The "yaksalas" and "punjsalas" can and should not be the only consideration for determining the compensation for the property being acquired under the Act.

(c) Land Acquisition Act (I of 1894)---

----S. 23---Land acquisition---Compensation, determination of--Issuance of Notification on 8-9-1997 and announcement of award on 17-6-1998---"Yaksala" of "Ghairmumkin land" showing price of Rs.58, 974/36 per kanal fixed by Government, while acquired land being "Mera" land--"Yaksala" of "Mera" land for year 1997-98 showing market value as Rs. 18,541/90 per kanal for similarly placed "Mera" land in locality---Statement of Patwari Halqa to the effect that acquired land was at a distance of 250 feet from boundary wall of an educational institution; and that there was a road and certain "Khotas" in close proximity to acquired land---Such statement of Patwari Halqa not challenged during his cross-examination by opposite party---Validity---"Yaksala" of "Ghairmumkin land" could not be applied to acquired land being "Mera" a different type of land---"Yaksala" of "Mera land" for year 1997-98 would be treated to be "potential value" of acquired land and could be considered while determining its compensation---Evidence produced regarding "potential value" of acquired property was reliable---Compensation of acquired land was fixed at Rs. 20,000 per kanal with 15% compulsory acquisition charges in circumstances.

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

----Art. 133---Assertions made by witness in examination-in-chief, if not contradicted or confronted during his cross-examination by his opposite party, would be deemed to be admitted---Principles.

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

----Art. 133---Site plan produced by Patwari Halqa during his evidence not showing the institution as claimed and admitted by him during examination-in-chief---Such fact neither objected nor confronted with or explained during cross-examination of Patwari Halqa---Effect-Such unrebutted assertions made by Pawari Halqa would be deemed admitted and would prevail.

Abdul Zakir Tareen for Appellants.

Shakirullah Afridi for Respondents.

Date of hearing: 22nd November, 2010.

P L D 2011 Peshawar 71

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

PAKISTAN MINERAL DEVELOPMENT CORPORATION (PVT) LTD. through General Manager-Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Industries, Commerce and Mineral Development Department, Peshawar and 4 others---Respondents

Writ Petition No.1724 of 2007, decided on 24th November, 2010.

(a) North-West Frontier Province Mining Concession Rules, 1976---

----Rr. 1(2), 15 & 93---North-West Frontier Province Mining Concession Rules, 2005, Rr. 102 & 183---Constitution of Pakistan, Art.199---Constitutional petition---Lease of Gypsum Mines in an area forming part of Salt Mines of petitioner---Grant of such lease to respondent by Appellate Authority vide order dated 1-7-2000---Petitioner's application for such lease rejected by Mining Committee vide order dated 31-3-2001 due to non-availability of area---Dismissal of petitioner's appeal on 12-4-2006 for being time-barred---Petitioner's plea that lease of Gypsum Mines had been granted to respondent without consulting petitioner; that such lease was capping petitioner's mining activities of rock sale in Salt Mines; and that he had no knowledge of impugned lease---Validity---Petitioner's plea that he had no knowledge of impugned lease stood belied by his own representation dated 10-10-2005 finding mention of impugned lease, thus, his appeal filed on 12-4-2006 was time-barred---Mining Committee had not considered "priority rights" in favour of a person having submitted prescribed application prior in time--Impugned lease had been awarded vide order dated 1-7-2000, thus, Appellate Authority while deciding appeal could not apply R. 102 of North-West Frontier Province Mining Concession Rules, 2005 for not being framed then--Petitioner's appeal was filed and decided by Appellate Authority after framing of Rules, 2005, thus, procedural provisions thereof relating to form, forum and procedure of appeal were applicable retrospectively---Substantive provisions of Rules, 2005 could not be given retrospective effect---Appellate Authority while deciding petitioner's appeal could not apply substantive provision of R. 102 of the Rules retrospectively---Authority had exercised its duties and discretion in accordance with law---Petitioner had been indolent in agitating and protecting his claim before competent authority at appropriate stage, which silence could not be ignored---High Court dismissed constitutional petition in circumstances.

NS Bindra's Interpretation of Statutes, 9th Edn. ref.

(b) Interpretation of statutes---

----Subordinate legislation and rules---Retrospective application---Scope---Substantive provisions of any subordinate legislation including rules would be applied prospectively, while procedural provisions thereof would be applied retrospectively.

(c) North-West Frontier Province Mining Concession Rules, 2005---

----R. 1(2)---Substantive provisions of North-West Frontier Province Mining Concession Rules, 2005---Retrospective effect could not be given to such provisions---Principles.

Substantive provisions of any subordinate legislation including rules are to be applied prospectively, while the procedural provisions contained therein are to be applied retrospectively.

The North-West Frontier Province Mining Concession Rules, 2005 are a creation of the powers vested in the Provincial Government under Mines and Oil-fields and Mineral Development (Government Control) Act, 1948. The parent statute does not expressly provide the Provincial Government to frame Rules having retrospective effect. Furthermore the Rules of 2005 expressly provide under Rule 1(2) to be prospective in nature as "they shall come in force at once". Thus, viewed from all angles, the substantive provisions of Rules of 2005 cannot be given retrospective effect.

NS Bindra's Interpretation of Statutes, 9th Edn. ref.

Nisar Ahmad for Petitioner.

Barrister Waqar Ali, D.A.G. for Government of N.-W.F.P. and Abdul Hakim Khattak for Respondent No.5.

Date of hearing: 11th November, 2010.

P L D 2011 Peshawar 78

Before Attaullah Khan and Sher Muhammad Khan, JJ

Maj. (Retd,) ABDUL AKBAR through Legal Heirs---Appellants

Versus

Mst. MARYAM KHUSHBOO and 5 others---Respondent

R.F.A. No. 11 of 2010, decided on 7th October, 2010.

(a) Islamic Law---

----Inheritance---Principle---Plaintiffs sought distribution of assets left by predecessor-in-interest of parties, who after his death, was survived by one daughter, one widow, one brother and two sisters---Suit was filed by brother of deceased on the ground that he along with sisters were also entitled to inherit legacy of their deceased brother---Validity---Under Islamic Law, as in all civilized system of law, child was to follow the bed, that was the paternity of a child, born in lawful wedlock was presumed to be in the husband or the mother without any acknowledgement or affirmation of parentage of his part and such child followed the status of father---Parties had entered into an agreement, therefore, High Court modified the judgment and decree passed by Trial Court and changed the shares of parties according to the settlement arrived at among themselves---Defendant was rightly declared to be legitimate child of deceased and plaintiffs were his legal heirs and were entitled in his legacy according to Sharia---Judgment and decree passed by Trial Court was modified according to the settlement arrived at between the parties---Appeal was dismissed in. circumstances.

Mst. Asma Naz v. Muhammad Younas Qureshi 2005 SCMR 401; Rahmat Khan and 3 others v. Rahmat Khan and another PLD 1991 SC 275; Manzur Hussain v. Zahur Ahmad and 4 others 1992 SCMR 1191; Bashir and others v. Alien Din PLD 1988 SC 8 and Mst. Hameeda Begum v. Murud Begun and others PLD 1975 SC 624 ref.

(b) Islamic Law---

----Inheritance---Acknowledgment, principle of---Applicability--where paternity of a child that is his legitimate descent front his father cannot be proved by establishing a marriage between his parents at the time of his conception or birth, Islamic Law recognizes "acknowledgment" as a method whereby such marriage and legitimate descent can be established as a matter of substantive law for purposes of inheritance.

Rustam Khan Kundi for Appellant.

Shah Nawaz Khan Sikandari and S. Fakhruddin Shah and Saleemullah Ranazai for Respondents.

Date of hearing: 22nd September, 2010.

P L D 2011 Peshawar 86

Before Dost Muhammad Khan, Abdul Aziz Kundi and Imtiaz Ali, JJ

Mian SHARIF SHAH---Petitioner

Versus

NAWAB KHAN and 5 others---Respondents

Writ Petition No.1436 of 2009, decided on 8th December. 2010.

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

----Preamble---Illegal Dispossession---Object and scope---Scheme of Illegal Dispossession Act, 2005, is to effectively curb such detestable and illegal activities of formidable, "MAFIA" and also of individuals, disturbing peace and tranquillity of society at large scale---Very stringent provisions have been inserted in Illegal Dispossession Act, 2005, and entire procedure for enquiring into and trial of such cases has been made summary in nature---In addition thereto, keeping in view potential threat associated therewith, higher forums, Chief Criminal Courts of District (Sessions Judges and Additional Sessions Judges) have been conferred upon exclusive jurisdiction to try such cases---Role of police has been also restricted in such cases because of prevailing circumstances as it invariably complained against police department of being in league with such "MAFIA" instead of bringing to book the law breakers and in some cases police was found protecting such elements---It was in such background legislature deemed it appropriate to exclude its role and Trial Courts have been empowered to take cognizance directly on complaint of aggrieved person.

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

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

----Ss. 3, 5 & 9---Criminal Procedure Code (V of 1898), S.404---Constitution of Pakistan, Art.199---Constitutional petition---Illegal dispossession---Right of appeal, absence of---Provisions of Criminal Procedure Code, 1898, applicability---Question raised before High Court was whether in view of the provisions of S.9 of Illegal Dispossession Act, 2005, right of appeal provided under Criminal Procedure Code, 1898 was available to cases under Illegal Dispossession Act, 2005---Validity---To provide quick justice/relief, right of appeal and revision was deliberately omitted from the provisions of Illegal Dispossession Act, 2005, so that such grave mischief was suppressed without any delay---For such reason, law breakers were deprived of remedy/right of appeal before High Court and finality was given to decision of Trial Courts to accomplish desired objectives---Legislature enacted S.9 of Illegal Dispossession Act, 2005, and provisions of Criminal Procedure Code, 1898, were made applicable to all provisions under Illegal Dispossession Act, 2005; as such the same did not convey intent of law maker conferring right of appeal on aggrieved person---If intention of Legislature was to confer such right, it would have, thus added express words "Including Proceedings before the Court of appeal"---Restricted applicability of Criminal Procedure Code, 1898, could not be given extended meaning and scope by incorporating right of appeal thereunder---Such right being substantive in nature was always conferred and taken away through express words---At least one right of appeal was invariably provided against judgment of Trial Court---High Court advised Federal Government to make 'immediate necessary. arrangements for suitably amending' Illegal Dispossession Act, 2005, through Parliament by providing one right of appeal to aggrieved person against final judgment of Trial Court---High Court permitted aggrieved persons to avail remedy by way of maintaining Constitutional petitions against final judgment of Trial Court, till the time law would be amended---High Court directed to fix all such petitions as Constitutional petitions.

Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166 and The State v. Hamtho 1971 SCMR 686 rel.

(c) Interpretation of statutes---

----Guiding Principles.

For centuries, the Courts of law, while interpreting Statutes, have laid down certain guiding principles which have undergone no radical change. These golden principles have been followed consistently with slight variation according to changed circumstances, in a particular' situation. Some of these principles may be stated below:--

(a) the Court is not concerned with the anomalies-save at least in those cases in which it will tend to favour an interpretation of a doubtful matter of law or an obscure language in an Act of Parliament or other instrument which will avoid anomalies. The duty of the Court is to discover the true intent of the legislature in the course of interpretation.

(b) that whenever the Court finds that what the legislature has said is clear and unambiguous and the provision of law leads to only one construction and to no other, the mere circumstance that giving the section its proper meaning and effect is likely to lead to certain anomalies or curious results is absolutely not a consideration for the Court to reject that construction.

(c) when the words of Statute are clear, it is not within the Province of a Court, simply with a view to avoid apparent anomalies to put such an interpretation on the words as they are incapable of bearing and it is for the legislature to step in and to remove the anomalies.

(d) the provisions of the Statute must be construed according to its plain meaning, neither anything can be added to it nor something can be subtracted therefrom.

(e) it is not the Province of the Court to legislate but interpret the law because the former is the exclusive domain of the legislature.

(f) a Judge is not at liberty in favour of a supposed intention, to disregard the express letter of the Statute, where, for any thing that appears, the wordings may correspond with the actual design of the legislature-the maxim, in cases of this description is "verbes legis non tecedendum est".

(g) it is also not open for the Court to supply omission which appears deliberate on the part of the legislature, simply on the ground that without supplying such omission, the Statute would create or cause hardship to anyone.

(h) that while legislating, the legislature cannot be attributed ignorance about the previous law and the remedies available under that law because of the established practice.

(i) the "Casus Omissus" is another maxim in the field which provides that when a given state of affairs does not come within the obvious meaning of the words of the Statute i.e. when certain contingencies are not provided for, or when the words do not embrace the particular question in hand, this maxim covers the situation.

(j) the intention of the legislature must not be probed into by the Judges, as grammarians of the written law and while proceedings to discover such intention of the legislature, the express words of the Statute must be looked into, the deficiencies which are left there, the intention essentially would be that the legislature did not intend to provide it and the Judges are not supposed to invent something to make the deficiencies good.

(k) the Courts, by supplying the omission in an Act of legislature, would certainly travel to a field, not allotted to it by the law, unless the omission is obvious and is to defeat the object of the Statute.

(l) that omission to provide for any remedy in a certain Statute could not be provided or filled up by borrowing a provision from another enactment injecting it into the new one from which it was deliberately omitted.

(d) Interpretation of statutes---

----Meaning of statute---Straining of meaning of Statute---Scope---Courts should not undertake process of straining meaning of statute by extending its meaning beyond permissible and legitimate field---Such approach would be dangerous providing `to scope to make construction in any case when express words of statute does not lead to meaning which the Court is to adopt---Court was not to act on the theory of hardship to change meaning of plain words of statute by providing additional or new remedies, not intended by statute itself.

(e) Interpretation of statutes---

----Enactment of criminal law-While enacting special criminal fawn it does not apply Criminal Procedure Code, 1898, with d view 'to channelize proceedings before Court or Tribunal instead of reproducing its various provisions in new law, object behind the same is to attain brevity, and convenience.

(f) Criminal Procedure Code (V off 898)---

----Ss.28 & 404---Criminal Courts---Hierarchy---Right of appeal--Scope---Hierarchy set up under criminal justice system is with object to streamline and channelize process of justice through check and balance system---Mere subordination of court to High Court by itself does not at all make its decision appealable to High Court unless, jurisdiction is expressly conferred on High Court.

(g) Constitution of Pakistan---

----Art.199----Constitutional jurisdiction of High Court---Scope--High Court, in its jurisdiction under Art.199 of the Constitution, has to guard against and check illegalities, jurisdictional or legal errors committed by subordinate Courts or Tribunals---Such jurisdiction and subordination of District Judiciary to High Court must be considered 'in that context alone.

(h) Interpretation of statutes---

----Transposition of statutes---General and special laws--Scope---Courts, duty of---Courts, under general principles are not entitled to widen scope of plain and express meaning of statute through process of undue straining, nor legal fiction' therein should be made ground for giving it extended meaning on the basis of obscure analogy `defeating clear intent of law makers---Transposition of statutes, would amount to legislation, which, is not the domain of Judges but that of the Legislatures alone.

(i) Appeal (Criminal)---

----Right of appeal---Scope---Right of appeal substitutive right which is expressly conferred by express language of statute and under no circumstances, it can" be assumed to have been conferred upon an individual---Such right cannot be imported to special statute from general law on' the ground of convenience unless it is clearly spelt out therefrom.

(j) Constitution of Pakistan---

----Art 199---Constitutional petition Evidence, reappraisal of High Court, under Constitutional jurisdiction; is' neither supposed, nor it is permissible for it to make reappraisal of evidence or determine controversy of facts and to draw conclusion therefrom like a Court of appeal.

Abdul Latif Afridi for Petitioner.

Astaghfirullah and Barrister Waqar Ali Deputy' Advocate General for Respondents.

Date of hearing: 8th December, 2010.

P L D 2011 Peshawar 98

Before Muhammad Safdar Khan Sikandri, J

MUHAMMAD RAMZAN---Petitioner/Plaintiff

Versus

Chaudhry SIRAJUDDIN and 2 others---Respondents/Defendants

Civil Revision No.138 of 2009, decided on 6th October, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Transfer of Property Act (IV of 1882), S. 52---Civil Procedure Code (V of 1908), O. VI, R. 17 & O. VII, R.11---Pre­emption suit---Talbs, performance op--Subsequent transfer of suit land by defendant (first vendee) through sale-deed before making of Talb-i-Ishhad and institution of suit by plaintiff---Plaintiff's application for amendment of plaint to implead therein subsequent vendee as party---Defendant's application under O. VII, R. 11, C.P. C., for rejection of plaint---Validity---Plaintiff had performed Talbs in respect of first sale in favour of defendant---Plaintiff could seek right of pre-emption against subsequent vendee after fulfilling mandatory requirements envisaged under S. 13 of North-West Frontier Province Pre-emption Act, 1987 in respect of subsequent sale before institution of suit, which he had not fulfilled---Plaintiff could not claim right of pre-emption against subsequent vendee by availing opportunity to implead hint as party in present suit in garb of requisite Talbs already exercised against defendant---Doctrine of lis pendens would not attract to present suit for same was not pending against defendant at time of subsequent transfer of suit land by him---Defendant did not remain owner of suit land after having sold same before performance of Talb-i-Ishhad by plaintiff in respect of first sale---Impleadment of subsequent vendee in present suit as defendant would not serve purpose---Application under O. VII, R.11, C.P.C., was accepted in circumstances.

2007 SCMR 741 ref.

2004 SCMR 1270 rel.

Muhammad Daud Khan for Appellant.

Saleemullah Khan Ranazai for Respondents.

Date of hearing: 23rd September, 2010.

P L D 2011 Peshawar 102

Before Attaullah Khan, J

Haji AMANULLAH and 4 others---Petitioners

Versus

ABDUR RASHEED---Respondent

Civil Revision Petition No.117 of 2010, decided on 8th October, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Ishhad, notice of---Defendant's plea that thumb impression of witness on such notice was fictitious for he being an educated person used to sign documents---Statement of such witness during his examination to have thumb impressed such notice---Effect---Such notice, if served and contained names of two witnesses, would be deemed to be in accordance with requirements of law---Witness as per his sweet will might either sign or thumb impress such notice---Non-signing or non-thumb impressing of such notice by witness would not make notice defective as witness himself had appeared in court and affirmed its issuance in his presence---Formalities required under law for such Talb stood duly complied with---Defendant's plea was repelled in circumstances.

Abdul Malik v. Muhammad Lateef 1999 SCMR 717; Abdur Rahim and another ,v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Talb-e-Ishhad, notice of---Requirements---Scope---Such notice, if served and contained names of two witnesses, would be deemed to be in accordance with law.

Abdul Malik v. Muhammad Lateef in 1999 SCMR 717 rel.

Muhammad Jahangir Awan for Appellants.

Muhammad Ayaz Khan Qureshi for Respondent.

Date of hearing: 8th October, 2010.

P L D 2011 Peshawar 105

Before Muhammad Safdar Khan Sikandri, J

AMAN ULLAH KHAN---Petitioner

Versus

GUL BADSHAH and another---Respondents

Civil Revision No.336 of 2005, decided on 1st November, 2010.

North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 20---Pre-emption suit between one pre-emptor and two vendees---Such three parties found by Trial Court to be having equal right of pre­emption---Effect---Under principle of per capita share, such three parties became entitled to share suit land equally to the extent of 1/3rd share each---Principles.

Muhammad Tariq v. Asif Javed 2009 SCMR 240 ref.

Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539 rel.

Haji Zafar Iqbal and Muhammad Tariq Qureshi for Petitioner.

Noor Gul Khan Marwat for Respondents.

Date of hearing: 1st November, 2010.

P L D 2011 Peshawar 108

Before Attaullah Khan, J

KIMYA GUL though Legal Heirs---Petitioners

Versus

KHAN MUHAMMAD and another---Respondents

Civil Revision No.168 of 2005, decided on 8th October, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-I-Ishhad, notice of---Non­-mentioning of date, time and place of performance of Talb-i--Muwathibat in such notice---Validity---Right of pre-emption would stand extinguished in case of non-making of demands of pre-emption in shape of Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khasoomat---Talb-i-Ishhad could be made by sending a simplicitor notice in writing through registered AD post to vendee confirming intention of pre-emptor to exercise right of pre-emption---No format of such notice was prescribed in S. 13 of North-West Frontier Province Pre-emption Act, 1987 except its attestation by two truthful witnesses and its sending through registered AD post---Non-mentioning of Talb-i-Muwathibat in such notice would not make same invalid---Mentioning of date, time and place in plaint and evidence of pre-emptor was necessary, but its repetition in such notice was not necessary.

2004 YLR 317 rel.

(b) North-West Frontier Province Pre-emption Act (X of 1987)----

----S. 28---Pre-emption suit---Market value, of suit land, determination of---Failure of vendee to prove price of suit land actually paid by him---Price of suit-laud claimed by plaintiff being more than average prices assessed in "Yaksala" and "Punjsala" prepared by Patwari Halqa---Validity---Price claimed by plaintiff was declared as market value of suit land in circumstances.

Saleem Ullah Khan Ranazai for Petitioners.

Sarwar Khan Kundi for Respondents.

Date of hearing: 8th October, 2010.

PLD 2011 Peshawar 112

Before Attaullah Khan, J

ABDUL KHALIQ---Petitioner

Versus

GUL FARAZ---Respondent

Civil Revisions Nos.239 and 240 of 2006, decided on 10th August; 2010. .

(a) Tort---

----Malicious prosecution---Damages, suit for---Burden of proof -Burden would lie upon plaintiff to establish that his involvement in criminal case by defendant was false, frivolous and for some motive---Absence of such evidence would disentitle plaintiff to damages---Acquittal from criminal case for reason of doubtful involvement or benefit of doubt would not be a ground for claiming damages for malicious prosecution---Acquittal of plaintiff by Magistrate for failure of defendant to establish criminal charge and on basis of plaintiff's oath showing his innocence would not entitle plaintiff to claim damages---Principles.

PLD 1993 Pesh. 72 and PLD 2006 Pesh. 206 ref.

(b) Oaths Act (X of 1873)---

---Ss. 8, 9, 10 & 11---Qanun-e-Shahadat (10 of 1984), Art. 163---Oath taken under Oaths Act, 1873 would be binding upon parties, but oath under Art. 163 of Qanun-e-Shahadat, 1984 would not be binding---In case of rebuttal of oath under Art. 163 of Qanun-e-Shahadat, 1984 by opposite party, Court would proceed to record evidence.

PLD 1993 Pesh. 72 ref.

Noor Gul Khan Marwat for Appellant.

Sajid Nawaz Khan Sadozai for Respondent.

Date of hearing: 10th August, 2010.

P L D 2011 Peshawar 116

Before Attaullah Khan, J

AMIR MUHAMMAD through Legal Heirs and 7 others---Petitioners

Versus

MUHAMMAD ASHRAF---Respondent

Civil Revision No.397 of 2004, decided on 20th September, 2010.

(a) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat, performance of---Plaint finding mention date, time, place of such Talb along with name of informer---Non-mentioning date of such Talb by plaintiff and his three witnesses during evidence---Omission of informer to disclose date, time and place of such Talb in examination-in-chief, but disclosing during cross-examination only time as "sham vela"---Validity---Informer should have stated specifically time in hours, but not "sham vela" for being a wider term-- Such Talb had become defective by not disclosing its date in evidence either by plaintiff or his three witnesses---Mentioning of date, time and place of such Talb in plaint was necessary, failing which right of pre-emption could not be enforced---Such Talb was not performed legally---Suit was dismissed in circumstance.

(b) North-West Frontier Province Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Ishhad, notice of---Copy of such notice available on record---Defendant's denial to have received such notice---Plaintiff's plea that he did not receive AD card of such notice---Non-examination of Postman by plaintiff in proof of service of such notice upon defendant---Validity---When AD card was not available or produced, then examination of Postman as, witness in support of service of such notice would become necessary---In case of failure to produce and examine Postman, presumption would be that such notice was not received by defendant---Talb-i-Muwathibat had become defective on account of non production of AD card and non-examination of Postman---Plaintiff had become disentitled to pre-empt suit land---Suit was dismissed in circumstances.

2010 YLR 1190 and 2010 SCJ 643 rel.

H. Abdul Rahim and Waheed Anjum for Appellants.

Rustam Khan Kundi for Respondent.

Date of hearing: 20th September, 2010.

P L D 2011 Peshawar 120

Before Dost Muhammad Khan and Yahya Afridi, JJ

KHALID MAHMOOD---Petitioner

Versus

N.-W.F.P. through Chief Secretary, Peshawar and 4 others---Respondents

Writ Petitions Nos.945 of 2009 and 327 of 2005, decided on 25th November, 2010.

(a) Delegated legislation---

----Concept---Levy of duty by delegated legislation---Scope---Concept of delegated legislation" had gained momentum with the mushroom population growth, the dire need for "good governance" and the ultimate aim to cater for the essential basic needs of every segment of the society to bolster and fulfil the attributes of an "Islamic Welfare State"---Present day Parliament could not possibly legislate on each and every detail of the vast legislative needs---"Delegated legislation", was whereby the legislature through legislation delegated to the Government or any other specified authority to legislate through rules, regulations, orders, instructions or any other instrument in conformity with the dictates of the parent statute---"Delegated legislation" could surely be challenged on the ground of being excessive, beyond the authority of the parent statute; further sub-delegating, what was delegated by the parent statute; and finally that the same was not properly made public to all---Levy of duty through `delegated legislation', was not ultra vires---All legislation, more so "delegated legislation", were to be prospective in the effect and applicability, unless same had been expressed to be otherwise; and that too with the backing of the parent statute---If an instrument of "delegated legislation", such as a notification, would impair or disturb or adversely affect or reduce any benefit or impose a liability or any other way affect the interest or right of a person, it would always be prospective in operation and not retrospective.

Chief Administrator Auqaf v. Mst. Amina Bibi 2008 SCMR 1717, Mst. Umatullah v. Province of Sindh PLD 2010 Kar. 236; Muhammad Ashiq v. Chief Administrator of Auqaf PLD 1977 SC 639; Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190; Mian Musarat Shah v. Government of West Pakistan PLD 1974 Pesh. 18; Imtiaz Ahmad v. Punjab Public Service Commission PLD 2006 SC 472; Commissioner of Sales Tax v. Messrs Kruddsons Ltd. PLD 1974 SC 180; ANOUD Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340; Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652; Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64; Burma Oil Company Ltd.'s case PLD 1961 SC 452; Tehsil Municipal Administration Faisalabad v. Secretary Local Government PLJ 2006 SC 783; Tehsil Municipal Administration v. Noman Azam 2009 SCMR 1070; Tehsil Nazim TMA, Okara v. Abbas Ali 2010 SCMR 1437; Pakistan Defence Officers Housing Authority v. Shamim Khan PLD 2005 SC 729 ref.

(b) North-West Frontier Province Forest Ordinance (XIX of 2002)---

----S. S6---Constitution of Pakistan, Art.199---Constitutional petition---Levy of duty and forest development charge on timber and other forest produce---Levy of duty through "delegated legislation" was not ultra vires---Authority of delegating the power to levy duty had to be clear, unambiguous and precisely rendered to a particular authority--Delegated authority to levy duty provided under S.56(1) of North-West Frontier Province Forest Ordinance, 2002, was "conditional" upon the rules to be framed on the manner, the place and the rates of the duty-.. North-West Frontier Province Forest Ordinance, 2002 being the parent statute, did not expressly delegate the authority to the Provincial Government to levy duty with retrospective effect---When the parent statute did not provide and expressly delegate such authority to the Provincial Government to levy the duty retrospectively, same could not be so exercised.

Amir Javed for Petitioners.

Lal Jan Khattak, A.A.-G for Respondent.

Date of hearing: 25th November, 2010.

P L D 2011 Peshawar 131

Before Dost Muhammad Khan and Imtiaz Ali, JJ

MUHAMMAD SHER SHAH, SESSIONS JUDGE and 18 others---Petitioners

Versus

GOVERNMENT OF N.-W.F.P. through Chief Secretary and another---Respondents

Writ Petition No.1098 of 2010, decided on 6th July, 2010.

(a) Administration of justice---

----Outmoded bureaucratic tactics could not be allowed to be super-imposed or to override principles of law and justice.

(b) National Judicial (Policy Making) Committee Ordinance (LXXI of 2002)---

----Ss. 3 & 4---Constitution of Pakistan, Art.199---Constitutional petition--Judicial Officers and staff of District Judiciary under Peshawar High Court---Claim for grant of Special Judicial Allowance at ratio of 3 times over and above basic pay from 1-1-2008---Ground for such claim being working of petitioners and their colleagues beyond office hours to decide old cases speedily in pursuance of New Judicial Policy---Proposal of Government to grant such allowance equal to one initial basic pay plus 50% of running basic pay with arrears of one initial pay from 1-7-2010---Validity---International Organization had appreciated target achieved by Peshawar High Court and District Judiciary by deciding huge number of old cases---Petitioners and their colleagues had not been paid salaries and allowances according to such cumbersome job being done by them and according to their duration of working hours---Expression "Judicial Officer of District Judiciary" herein used would include those working on ex-cadre posts including District & Sessions Judges, Additional District and Sessions Judges, Senior Civil Judges/Special Magistrates and Civil Judges/Magistrates, working under control and jurisdiction of Peshawar High Court and Qazies of all grades serving in Provincially Administered Tribal Areas---High Court directed Government to pay such agreed pay with arrears of one initial pay from 1-7-2009 to such Judicial Officers and staff of 'High Court---High Court allowed Government to pay such arrears from 1-7-2009 to 30-6-2010 in two instalments with monthly pay of September, 2010 and January, 2011---High Court directed Government officials to sit with Administrative Officers including Registrar of High Court to invent ways and means to levy and raise court fee on specified cases without burdening poor litigants.

Sharaf Faridi's case PLD 1994 SC 105 ref.

Abdul Sattar Khan, Muhammad Tariq Afridi, Qazi Jawad Ehsanullah Qureshi along with Qamar Sohail Lodhi, Secretary to HCJ for Petitioners.

Naveed Akhtar A.A.G., Shumail Ahmad Butt along with Sahibzada Saeed Ahmad, Secretary Finance, Masood Khan, Deputy Secretary and Amanat Ullah Khan, S.O. (L) Finance Department, Government of Khyber Pakhtunkhwa for Respondents No.1 and 2.

Muhammad Iqbal Mohmand, Deputy Attorney General for Respondents Nos. 3 and 4.

Date of hearing: 6th July, 2010.

P L D 2011 Peshawar 143

Before Ejaz Afzal Khan, C.J. and Mazher Alam Khan, J

Pir LIAQAT ALI SHAH---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Secretary and 7 others---Respondents

Writ Petitions Nos.2148 of 2008, 3267 of 2009, 810, 2148 and 3998 of 2010, decided on 1st February, 2011:

North-West Frontier Province Education Code (1934)---

----Art. 106(ii)---Constitution of Pakistan, Art. 199---Constitutional petition---Concession in fee---Petitioners had prayed for an appropriate writ directing the authorities to abide by Art.106(ii) of the N.-W.F.P. Education Code, which had provided that when two or more real brothers and sisters would attend the same school or different schools in the Province, only the brother or sister in the highest class would be required to pay full rate of fee; and that the fee payable by the other brothers and sisters would not exceed one half the ordinary rates---Said Code was enacted and compiled under the aegis of Government of N.-W.F.P. in 1934---Code being a set of regulations, had been accepted and acted upon ever since then---Case of the petitioners was that it was binding on all public and private schools; and there could be no exception to that---Stance of the authorities was that since the Code had no statutory sanction, it could not be enforced---Education Code though had not been adapted, but the practice had provided otherwise---Every business relating to the students, had been dealt with under the Education Code---No, objection had been raised at any junction about its efficacy or enforceability-Even if, it was assumed that it had not been given any statutory sanction, but decades and decades old practice had shown that it was not only taken as a time honoured norm, but a law having binding force---Efficacy or enforceability of the Code could not be disputed simply because it tended to deal with the brothers and sisters studying in the same or different schools in the Province with on element of equity or benevolence; nor could it be set at naught or declared ultra vires on any hype rte clinical ground in the exercise of extraordinary equitable discretionary constitutional jurisdiction of High Court at least at the instance of the authorities---Education Code was not a dead letter and had statutory force and could not be declared ineffective or ultra vires, in circumstances.

Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another PLD 1974 SC 291 ref.

Shah Nawaz Khan for Petitioner.

Shakila Begum, Amina Sajid, Abdur Rauf Rohila, Muhammad Ayub Khan, Fida Gul and Zafrullah Khan for Respondents.

Date of hearing: 1st February, 2011.

P L D 2011 Peshawar 148

Before Syed Sajjad Hassan Shah, J

LIAQAT ALI and others---Petitioners

Versus

Mst. MEHAR SHEDA and others---Respondents

Civil Revision No 474 of 2008; decided on 22nd October, 2010.

North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----S. 2---West Pakistan Muslim Personal Law (Shariat) Application (V of 1962), Ss. 2 & 2-A [added by West Pakistan Muslim Personal Law Shariat Act (Amendment) Ordinance (XIII of 1983)---Specific Relief Act (I of 1877), S.42--Suit for declaration---Plaintiff being daughter of deceased landowner claiming Shari share in his legacy---Plaintiff filed suit in the year 1998, while her father died in year 1934 and his inheritance mutations were attested in the years 1934 and 1937---Defendants' plea that suit was barred by law of limitation in view of S.2 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Validity---Shariat Appellate Bench of Supreme Court had declared S.2 of Act, 1962 as against Injunctions of Islam---Section 2-A added in Act, 1962 by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 was retrospective in effect and devolution taken place in year 1940 would not be deemed under custom and deceased would be deemed as to have died under domain of Islamic Law and his property would devolve upon all his heirs under law of Shariah---Period of limitation would not apply to rights of inheritance for law of Sharia being superior law---Person legally entitled for legacy of his propositus could not be deprived of same in wake of technical objections---Legal heirs would be deemed as owners of property left by their propositus irrespective of period of his death and of the fact that they had not been recorded as owner in Revenue Record---Revenue record being used for fiscal purpose would not create title in whose favour same had been attested---No lawful owner, whether female or male, would be deprived of his/her due rights devolved in law of Sharia---No law would bar remedy available to a person seeking right to inheritance in property of his/her father even if launched proceedings after passage of a long period---Plaintiff being daughter of deceased was entitled for her Shari share in suit land---Suit was not barred by law of limitation, thus, was decreed in circumstances.

The Federation of the Pakistan through Secretary Law and Parliamentary Affairs Islamabad v. Muhammad Ishaque and another PLD 1983 SC 273; Mst. Fareeda and 2 others v. Rehmatullah and another PLD 1991 SC 213; Muzaffar Khan's case PLD 1984 SC 394; Lal and 3 others v. Rehmat Bibi and another PLD 1991 SC 582; Muhammad Zubair and others v. Muhammad Shareef 2005 SCMR 1217; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 144 and Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905 rel.

Abdul Sattar Khan for Petitioners.

Saeedullah Khan Khalil for Respondents.

Date of hearing: 22nd October, 2010.

P L D 2011 Peshawar 160

Before Miftah-ud-Din Khan and Mian Fasih-ul Mulk, JJ

Khanzada HABIB-UR-REHMAN KHAN and 205 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Water and Powers, Islamabad and 9 others---Respondents

Writ Petitions Nos.107 of 2004 and 129 of 2007, decided on 24th February, 2011.

Land Acquisition Act (I of 1894)---

----S. 4---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition of land for construction of Tarbela Darn Project---Allotment of alternate land---Landed property of the petitioners was acquired for construction of Tarbela Dam Project---Government, in order to compensate the affectees, had laid policy of allotment of alternate land to them---Petitioners being acknowledged affectees of Tarbela Dam Project, had met the criteria laid down for issuance of eligibility certificate to them and many directives in that behalf were issued for implementation of said Policy regarding allotment of alternate land to affectees---Only 2400 persons were allotted alternate land, but the petitioners despite being eligible for such allotment were totally discriminated and were ignored for no reason---Statutory bodies and statutory corporations were required to act strictly within the defined -spheres of their authority under the law---In the cases of transgression of powers, abuse of powers or colourful exercise of powers by such functionaries, such exercise was open to correction in constitutional jurisdiction of superior judiciary---Authorities were directed to consider allotment of land to the petitioners as per Policy subject to their eligibility, in circumstances.

Khuda Bux Chandio v. Sattar and others 1999MLD 3199 ref.

Mushtaq Ali Tahirkheli and Ghulam Nabi for Petitioners.

M. Aslam Khan, Khurshid Ahmed and Khan Sanzeen, D.A.-G. for Official Respondents and Sajjad Ahmad A.bbasi for Respondents Nos.7 and 8.

Date of hearing: 24th February, 2011.

P L D 2011 Peshawar 164

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J

NAWAB KHAN---Petitioner

Versus

ASSISTANT POLITICAL AGENT and 4 others---Respondents

Writ Petition No.220 of 2003, decided on 17th February, 2011.

(a) Frontier Crimes Regulations (III of 1901)---

----S. 8---Constitution of Pakistan, Arts.199 & 247---Constitutional petition---Consideration of factual controversy---Constitutional jurisdiction of High Court---Scope---Petitioner had alleged that National Highway Authority through an illegal and unlawful acquisition of land, had damaged his remaining property by making changes in approved plan of the approach road and thereby had blocked petitioner's access to the main road causing irreparable loss to his property and that said changes in the approved design of the road had put the life of the petitioner and his family members at risk---Claim of the petitioner was of factual controversy, which could not be looked into or considered by High Court in exercise of its jurisdiction under Art.199 of the Constitution---Such questions of fact could only be answered after a proper inquiry into the facts by recording evidence pro and contra of the parties, which was outside the domain of High Court in its constitutional jurisdiction---Such an exercise was only possible by a competent court of law having plenary jurisdiction in the matter---Even otherwise, the petitioner was the resident of Tribal Areas and the matter under consideration pertained to the Tribal Areas---Article 247(7) of the Constitution barred the exercise of jurisdiction of the Supreme Court and High Court with regard to redressal of grievance of the petitioner---For redressal of grievance of the petitioner, a hierarchy was working under Frontier Crimes Regulations, 1901, which had the exclusive jurisdiction in the matter---Petition arising out of factual controversy and for want of jurisdiction, could not be entertained by High Court and was dismissed, in circumstances.

Qaum Bangash v. Qaun Turi 1991 SCMR 2400 and Shaukat Khan v. Assistant Political Agent PLD 2002 SC 526 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Extraordinary constitutional jurisdiction of High Court under Art.199 of the Constitution, was equitable and discretionary and was to be exercised only where substantial rights of a party had been invaded in flagrant violation of law and which could be established without any comprehensive inquiry into the facts.

Petitioner in person.

Sikandar Rashid for Respondents.

Date of hearing: 17th February, 2011.

P L D 2011 Peshawar 167

Before Ejaz Afzal Khan, C. J. and Mazhar Alam Khan Miankhel, J

NAWAB KHAN-Petitioner

Versus

D.C.O. POLITICAL AGENT and 3 others---Respondents

Writ Petition No.394 of 2009, decided on 17th February, 2011.

Frontier Crimes Regulations (III of 1901)---

----S. 8---Constitution of Pakistan, Arts.199 & 247(3)(7)-Constitutional petition---Acquisition of land---Determination of amount of compensation--Authorities acquired land owned by the petitioner and determined amount of compensation and fixed Rs. 1, 00, 000 per Kanal---petitioner dissatisfied with said determination, had contended that determination of compensation was not in accordance with law and compensation for lands previously acquired for different projects in the adjoining locality, which was Rs.4,45,000 per Kanal, had not been considered---Further contention was that acquired property, having the future prospects, was of the same properties previously and market value as the acquired for said projects---Petitioner, however, had failed to bring on record any such material suggesting that lands acquired for the purpose of other projects and the land owned by him were of the same potential and market value---Nothing was on record to reflect that both said properties were situated adjacent to each other or in the same locality-Other project was situated in the main village, which was a very valuable property as compared to the land of the petitioner, which was situated in the foot of hills in the south of the village---Mere claim of the petitioner in that regard without any substance available on the record, would not be sufficient for his entitlement for a higher price--Matters asserted before High Court were dealt with by the fora working under the hierarchy of Frontier Crimes Regulations, 1901 and nothing was on record to establish that findings given by the competent authorities,' were erroneous on the question of fact or law; or the authorities competent to determine the compensation had unlawfully exercised their jurisdiction tainted with mala fide or collusion---Such concurrent findings were normally immune from the scrutiny in exercise of constitutional jurisdiction of High Court---Matter between the parties related to a dispute of Federal Administered Tribal Areas; exclusively within the domain of a hierarchy provided in Frontier Crimes Regulations, 1901 jurisdiction of Supreme Court and the High Court was completely ousted by clause (7) of Art.247 of the Constitution.

Qaum Bangesh v.Quam Turi 1991 SCMR 2400 and Shaukat Khan v. APA PLD 2002 SC 526 ref.

Petitioner in person.

Sikandar Rashid for Respondents.

Date of hearing: 17th February, 2011.

P L D 2011 Peshawar 172

Before Zia-ur-Rehman Khan, J

SHAD MUHAMMAD KHAN and others---Petitioners

Versus

GOVERNMENT OF N.-W.F.P. and others---Respondents

Civil Revision No.1283 of 2006, decided on 17th January, 2011.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S.42---Limitation Act (IX of 1908), Art.120---Specific Relief Act (I of 1877), S.42---Suit for declaration---Rectification of adverse entries in the revenue record---Limitation---Person in possession of agricultural land would not be supposed to rush to court for such rectification---Period of limitation would stand arrested in case of a person in possession of land and preparation of each and every Jamabandi would confer upon him a fresh cause of action---Mere adverse entries of revenue record could never be presumed sufficient to deprive a person from his basic and original ownership.

(b) Possession---

----Custom (Swat area)---Documentary proof of possession---Scope of such proof in Sawat area stated.

For 'daftari' or 'serai' ownership in the area of Swat owners are never in possession of documentary evidence, rather the said ownership is based upon their customs and conventions. However, only Gujar caste is not supposed to be the original owner of any property in Swat and any member of the said caste is supposed to produce a deed in support of any claim about any immovable property.

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

----S. 96 & O.XLI, R.31---First Appellate Court, judgment of---Scope---Duty of such court for being first court of facts to state points for determination, decision thereon'and reasons therefore---Principles.

Under Order XLI, Rule 31, C.P.C. the appellate Court being first Court of facts is legally obliged to state points for determination, the decision thereon'and the reasons for the decision.

It is incumbent upon the Appellate Court to deal with each and every aspect of the case while hearing the appeal of an aggrieved person, so that all questions of facts are decided at the appellate stage. The obvious reason is that the Appellate Court is the first court of facts and the entire controversy re-opens and the whole evidence before it is supposed to be gone through and discussed threadbare to its satisfaction.

Petitioner in person.

Lal Jan Khattak, Addl. A.G. for Respondents.

Date of hearing: 17th January, 2011.

P L D 2011 Peshawar 178

Before Syed Sajjad Hassan Shah and Imtiaz Ali, JJ

GOVERNMENT OF KHYBER PUKHTOONKHWA through Secretary, B.O.R. and 3 others---Petitioners

Versus

Mst. KHAISTA JANA alias BILQUIS KHISRO and 2 others---Respondents

Writ Petition No.2295 of 2010, decided on 20th December, 2010.

(a) Public functionary---

----Duty of---Scope---Functionary of the State being custodian of rights of people would be responsible to safeguard and afford protection to persons and properties of citizens.

(b) Pleadings---

----Party to suit could not travel beyond his pleadings---Claim not asserted in pleadings of a party could not be entertained.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 2(c)---Landlord---Scope---Person entitled to receive rent, though never received rent from tenant, would be construed as landlord.

Syed Amjad All Shah v. Muhammad Afzal and others PLD 1987 Lah. 280 ref.

(d) Approbate and reprobate---

----Change in stance by a party from time to time in proceedings would amount blowing hot and cold at same time---Such conduct of a party would be hit by principles of approbation and reprobation not permissible in legal proceedings.

A.R. Khan v. P.N. Boga through Legal Heir PLD 1987 SC 107 and AIR 1933 PC 167 rel.

Muhammad Zahid Yousaf Qureshi, A.A.-G. for Petitioner.

Nemo for Respondents

Date of hearing: 20th December, 2010.

P L D 2011 Peshawar 187

Before Attaullah Khan, J

Haji MUHAMMAD AYAZ KHAN---Appellant

Versus

Malik KHAN AYAZ KHAN---Respondent

R.F.A. No.45 of 2007, decided on 4th January, 2011.

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

----O. XXXVII, R. 2---Suit for recovery of loan amount on basis of pro note along with agreement---Plea that execution of agreement would create doubt about genuineness of pro note--Validity---Both pro note and agreement contained undertaking of defendant to pay on demand amount mentioned therein---No illegality existed in executing two documents regarding amount payable by defendant---Such plea was repelled in circumstances.

PLD 2007 Lah. 114 rel.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 4---Stamp Act (II of 1899), S. 2(5)(b) & (22)---Qanun-e-Shahadat (10 of 1984), Art. 17(2)(a)---Pro note---Attestation by two marginal witnesses---Scope---Pro note, though not requiring such attestation under law, if so attested, would attain a legal status of pro note---Such marginal witnesses would be in capacity of just indorsees.

PLD 2007 Lah. 114 rel.

Rustam Khan Khundi for Appellant.

Saleemullah Khan Ranzai and Anwarul Haq for Respondents.

Date of hearing: 4th January, 2011.

P L D 2011 Peshawar 192

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

ABDUL REHMAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.110 of 2007 and Criminal Revision No.4 of 2008, decided on 22nd February, 2011.

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

----Ss. 302(b)/324/337-F(i)/337-F(ii)/34---Criminal Procedure Code (V of 1898), S.239---Qatl-e-amd, attempt to commit qatl-e-amd and causing Damiyah and Badiyah---Appreciation of evidence---Charges against accused were framed under separate three heads; i.e. causing murder; attempting to commit qatl-e-amd and causing injuries (Damiyah and Badiyah)---All accused persons had allegedly committed more than one offences in the same transaction---Said accused persons could be tried and charged together and case of framing charge against accused would be covered under S.239, Cr.P.C.---Charge, in circumstances, had correctly been framed by the Trial Court against accused persons---Ocular evidence coincided with other circumstances of the case and was free from any contradiction and discrepancies---Evidence was straightforward, true and confidence-inspiring---Witness was subjected to lengthy cross-examination, but he remained stuck to his stand---Nothing adverse had been brought out by the defence to prove him hostitle or having any ill-will to falsely implicate accused persons---Evidence of said witness could be safely relied upon---No contradiction was found between ocular evidence and medical evidence---Abandoning of two witnesses and not producing the other three injured witnesses would not affect the case of prosecution, because evidence of complainant who appeared as eye-witness, was sufficient to prove guilt of accused persons---Recovery of fifteen empties had been proved through witness as well as Investigating Officer---Same numbers of injuries were found on the dead bodies of two deceased---Recovery of empties and Kalashinkov and its examination by Forensic Science Laboratory were supporting the prosecution case---Weapon of offence, in circumstances had also been proved to have been used in the commission of offence by accused---Accused were aggressors, while the complainant party in the case was aggressed upon existence of cross case, would not help accused persons---Motive given by the complainant party was proved through evidence of the complainant---Prosecution had succeeded to prove case against accused persons on the strength of ocular evidence which was free from any ill-will contradiction and was trustworthy---Case against accused persons under S.302(b)/34, P.P.C. stood proved and they were rightly convicted and sentenced by the Trial Court to that extent---Five persons who allegedly were injured in the case had not been produced to prove their injuries at the hands of accused---Case against accused persons under Ss.324/337-F(i)/337-F(ii)/34, P.P.C., in circumstances, was not proved---Conviction recorded against accused persons under the said provisions of P.P.C., was not legal and being based on non-appreciation of evidence, conviction and sentence awarded to accused persons by the Trial Court under said sections, were set aside.

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

----S. 239---Charging accused jointly---Charges against accused were framed under separate three heads; i.e. causing murder; attempting to commit qatl-e-amd and causing injuries (Damiyah and Badiyah)---All accused persons had allegedly committed more than one offences in the same transaction---Said accused persons could be tried and charged together and case of framing charge against accused would be covered under S.239, Cr.P.C.

(c) Criminal trial---

----Interested witness---Relationship of witnesses with deceased---Mere relationship of a witness with the deceased would not mean that said witness was interested; and that his testimony not to be believed, when he was found reliable and trustworthy---Two conditions were attached with the evidence of related witness; first was his true deposition, and second was absence of hostility to falsely implicate accused---Mere relationship of prosecution witness with the deceased was no disqualification---Prosecution witness would be reliable when he would narrate the occurrence at the time of trial without exaggeration and contradiction, and the absence of enmity was proved---Relationship was not sufficient to discard the statement of interested witness---Related witness was to be believed provided he spoke truth and his evidence was corroborated by independent source.

2002 SCMR 1586; 2003 SCMR 522; 2007 SCMR 518; 1999 SCMR 141; PLD 2007 SC (AJ&K) 102 and Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23 ref.

(d) Criminal trial---

----Evidence---Quality and not quantity of evidence was to be counted---No rule or law existed in criminal cases prescribing as to how many witnesses were to be examined---Criminal cases had always based on the evidence which was true and trustworthy; it could be consisted of a single witness---If a number of witnesses were produced, but they were not trustworthy, then they would lose their credibility and evidentiary value---Only one witness was sufficient, if he was truthful and his evidence was corroborated by independent source.

2005 PCr.LJ 667; 2007 SCMR 1519; 1983 SCMR 697; 1992 SCMR 2037 and 2006 SCMR 1906 ref.

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

----Ss.302(b)/324/337-F(i)/337-F(ii)/34---Qatl-e-amd, attempt to commit qatl-e-amd, and causing Damiyah and Badiyah---Petition for enhancement of sentence---Complainant had moved for enhancement of sentence of accused from life imprisonment to normal penalty of death and also for enhancing the compensation amount---Trial Court was proper forum to decide the quantum of sentence to be awarded---Trial Court had given sufficient ground in the impugned judgment for awarding lesser punishment---Petition was dismissed.

Sanaullah Khan Gandapur and S. Fakhruddin Shah for Appellants.

Jehanzeb Ahmad Chughtai for the State.

Anwarul Haq for the Complainant.

Date of hearing: 22nd February, 2011.

PLD 2011 Peshawar 208

Before Syed Sajjad Hassan Shah, J

DILAWAR KHAN---Petitioner

Versus

Mst. BADSHAH ZADI and another---Respondents

Civil Revision No.369 of 2011, decided on 9th June, 2011.

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

----Ss. 54 & 55---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for possession, declaration, perpetual and directory injunction---Sale transaction of property with an illiterate and pardahnashin lady---Prerequisites---Transaction tainted with fraud and collusion--Limitation---Suit had concurrently been dismissed by the Trial Court and Appellate Court---Validity---Claim of plaintiff was that she being owner of suit property, had not entered into sale transaction with the defendants as alleged by them; and that entries with regard to sale transaction entered in the revenue record were on the strength of false and fictitious mutation---Defendants had failed to prove alleged sale transaction in their favour by the plaintiff---Alleged witness of sale mutation, had stated that at the time of attestation of mutation, plaintiff was not present; and that no sale consideration was paid by the defendants in his presence---Sale consideration was an essential component of sale---If any person claimed that he had purchased the property owned by the other person, he was duty bound to prove by cogent, convincing and confidence inspiring evidence that in pursuance of the sale transaction, the sale consideration was duly paid---Defendants who were the real brothers of the plaintiff, had failed to prove; that sale transaction was effected with the plaintiff; that plaintiff had received the sale consideration; that she made statement before the Revenue Officer; that she thumb impressed the mutation; and that the Revenue Officer made her to understand the nature of transaction as she was an illiterate and pardanashin lady---All prerequisites of transaction with a pardanashin lady were missing in the case---Defendants having failed to prove the genuineness of transaction of sale, same was not genuine and the result of fraud and collusion just to deprive the plaintiff of her valuable rights in the suit property---For setting aside a transaction tainted with fraud, no time limit was prescribed---In such circumstances the aggrieved person could approach the court for his redressal when the fraud discovered---Courts below had correctly appraised the factual and legal position of the case; and had arrived at just and proper conclusion---Judgments of the courts below were not the result of any illegality or material irregularity warranting interference of High Court in exercise of its revisional jurisdiction---Revision petition was dismissed, in circumstances.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519; Motilal Sahu v. Ugrah Narain Sahu and others AIR 1950 Pat. 288; Muhammad Murtaza Hussain v. Abdul Rehman AIR 1949 Pat. 364; Muhammad Nazir v. Khurshid Begum 2005 SCMR 941;Ghulam Ali and 2 othres v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Najabat and others v. Saban Bibi and others PLD 1982 SC 187 ref.

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

----Art. 140---Cross-examination as to previous statements in writing---Procedure---To prove the previous statement of the party/witness, relying on such previous statement, writing of other party/witness embodied in a document, should put that statement to him to give him opportunity to explain his position---Without complying with requirements of Art.140 of Qanun-e-Shahadat, 1984, such previous statement could not be used as legal evidence; and without complying the procedure laid down in said Art.140, if a document was not confronted to a person, such document could not be used as legal evidence.

Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65 ref.

(c) Pardanashin lady---

----Transaction with pardanashin lady-Conditions for protecting the rights and interest of pardanashin lady---Pardanashin lady enjoyed certain protections under the law and the person who entered into any transaction with pardanashin lady, he must satisfy the conditions laid down under the law---If he would fail to fulfil the requirements, the transaction could not be deemed as reflected in the document---Certain conditions for protecting the rights and interest of pardanashin ladies were as to what was the origin of her intention to act in the manner, the document, was set out; as to whether the transaction was a natural disposition or unnatural one; as to whether the disposition took place in a natural, normal manner; as to whether she kept any part of the property for herself or transferred the whole; as to whether the transaction was righteous in character; as to whether she had any friendly advice before executing the deed and by a person whom the court considered as being genuinely interested in her welfare; as to whether she had benefited from the money raised by the transaction; as to whether the document was explained to her; as to whether she really had the capacity to understand its consequences; as to whether it was a mental act, i.e. whether the mind accompanied the hand that executed it; as to whether the contract or deed was just in itself; and that whether the entire transaction was free from circumstances throwing any shadow of doubt or suspicious on the inception, execution and application of the deed---Wherever a transaction was challenged by a pardanashin lady on grounds of fraud, collusion and misrepresentation, the beneficiary of the transaction was under legal duty to prove by producing overwhelming evidence to establish the genuineness of the sale transaction.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 and Subedar Suleman Khan v. Mst. Makhmat Jan and another PLD 1974 AJ&K 106 ref.

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

----Art. 127---Proof of good faith in transaction---When question was as to the good faith of a transaction between the parties one of whom stood to the other in a position of active confidence, the burden of proving the good faith of the transaction was on the party who was in a position of active confidence.

Arshad Khanh v. Mst. Resham Jan and others 2005 SCMR 1859 ref.

Muhammad Amin Khattak Lachi for Petitioners.

Date of hearing: 9th June, 2011.

P L D 2011 Peshawar 218

Before Mazhar Alam Khan Miankhel, J

Mst. SHAHNAZ BEGUM---Petitioner

Versus

ZEESHAN ALI SHAH and others---Respondents

Civil Revision No.2021 of 2010, decided on 22nd April, 2011.

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Suit property was originally owned by paternal uncle of predecessor-in-interest of the plaintiffs---Said original owner, through a registered general Power-of-Attorney had authorized father of the plaintiff to act on his behalf as general attorney to look after his properties; and for alienating his properties by way of mortgage, sale, exchange, gift etc.---Father of plaintiff in view of said Power-of-Attorney disposed of the suit property in favour of his son/the plaintiff by way of registered gift deed---Defendant's occupation of suit property was declared as that of a licensee under the plaintiff---Physical possession of the plaintiff; in such circumstances, was neither possible nor necessary for validity of gift---Gift without delivery of possession could only be impeached by the donor and not by a third person as well as a person claiming hostile possession against donor and donee---Property in dispute was not owned by the defendant---Had he been the owner of the suit property, then the question of validity of gift and inheritance of the said property, would have been the valid and legal one, but when he was merely an attorney of the original owner, no question of his entitlement' or any other legal heir would arise---Defendant or any other, was bereft of locus standi to question the validity of the gift in favour of the plaintiff---Counsel for the defendant, was unable to make out a case for interference in revision---1n absence of any misreading or non-reading of evidence or jurisdictional defect in the concurrent findings of facts of the two courts below, High Court could not interfere in exercise of revisional jurisdiction.

Ashiq Hussain and another v, Ashiq Ali 1972 SCMR 50; Mst.Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Mst. Bandi v. Province of Punjab and others 2005 SCMR 1368; Haji Allah Bukhsh and others v. Muhammad Yar and others 2007 MLD 601; Fazal Hanan v. Mukarram Jan and others 2007 CLC 894; Gauhar Rehman v. Jan Ashbi and another 1990 SCMR 1586; Saida v. Pinnu and another PLD 1979 SC (AJ&K) 245; Habibullah Jan and others v. M. Hassan Khan and others 1991 MLD 25; Niaz Warian v. Gul Nawaz 2007 YLR 1723; Allah Dad v. Mehmood Shah 1990 CLC 33; Sahibzada Muhammad Salim and another v. Mst. Bibi Zuhra and others 1996 MLD 1409; Pardool and 3 others v. Gulzada and others PLD 1995 SC 410 and Asif Races Ahmad v. Mst. Zubaida Bibi 2005 YLR 2761 ref.

Waqar Ahmad Khan for Petitioner.

Nek Nawaz Khan for Respondents.

Date of hearing: 22nd April, 2011.

P L D 2011 Peshawar 224

Before Mazhar Alam Khan Miankhel, J

AMIR MUHAMMAD and another---Petitioners

Versus

Mst. BEGUM JAN and others---Respondents

Civil Revision No.100 of 2003, decided on 16th May, 2011.

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

----S. 12(2)---Specific Relief Act (I of 1877), S. 42--- Suit for declaration---Conversion of suit for declaration into application under. S.12(2), C.P.C.---Scope---Plaintiff through a suit for declaration had claimed ownership of suit property on the strength of unregistered gift deed by her husband---Plaintiff had also challenged the consent decree as ineffective against her rights as same was passed in her absence---Suit filed by the plaintiff was dismissed by the Trial Court, whereas the Appellate Court admitting claim of the plaintiff, converted her suit into an application under S.12(2), C.P.C.---Appellate Court allowed said application and passed a decree in her favour---Validity---Court had got power to convert an irregular proceedings into a regular one and a suit could be converted into an application under S.12(2), C.P.C.---Purpose behind the same was to decide and adjudicate the controversy between the parties on merits, than to knock them down on technicalities---Procedural laws were framed only for advancement of cause of justice and could not be used to refuse the dispensation of justice---Such an exercise, however, was always required to be done within the framework of law---Conversion of a suit into an application under S.12(2), C.P.C., would only be possible, if the circumstances of the case would attract the said provisions of S.12(2), C.P.C., because said provisions of law had a very limited scope---Application under S.12(2), C.P.C. could only be considered, if the question involved in the same, was of fraud or misrepresentation or want of jurisdiction---Acceptance of such an application would result into setting aside of the decree impugned therein, whereas a decree of court would have a binding effect only against the parties to the lis and the persons who were not parties in the case, legally could not be chained in and the same would have no binding or adverse effects against the rights of said persons---Person whose rights were affected by a judgment/decree so passed, could also challenge the decree through an independent suit.

Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744; Faqir Muhammad Khan and 18 others v. Ghulam Elahi and others PLD 1993 Pesh. 87 and Shah Muhammad v. Khurshid Alam 2006 YLR 2428 ref.

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

----S. 12(2)---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Conversion of suit into application under S.12(2), C.P.C. by Appellate Court---Scope---Suit for declaration filed by the plaintiff was dismissed by the Trial Court, but Appellate Court converted the suit into application under S.12(2), C.P.C.; and then allowed said application and passed a decree in favour of the plaintiff---First question for converting suit into application under S.12(2), C.P.C., would be as to whether the question of fraud or misrepresentation or want of jurisdiction was involved in the suit in question, which was converted into application under S.12(2), C.P.C.---If answer to said question was in affirmative, then the other question would be that after converting the suit into application under S.12(2), C.P.C. whether said application could be allowed straightaway by the same court converting the suit into an application while hearing the appeal; and then whether the claim of plaintiff could be allowed in the same sitting---Yet another important question with regard to S.12(2), C.P.C. would be that as to which court would have the jurisdiction to adjudicate the said application (so converted) under S.12(2), C.P.C.---All said questions had direct bearing on the merits of the case, which had not been considered by the Appellate Court while deciding the appeal---Unless said questions were answered, the decision regarding conversion of a civil suit into an application under S.12(2), C.P.C., could not be said to have been done after due application of mind---Without touching the merits of the case, judgment and decree passed 'by the Appellate Court was set aside and case was sent back to the Appellate Court, which should decide the appeal after hearing the parties and adjudicate the matter by answering all said questions.

Maazullah Barkandi for Petitioners.

H. Muhammad Zahir Shah for Respondents.

Date of hearing: 16th May, 2011.

P L D 2011 Peshawar 228

Before Shah Jehan Khan and Dost Muhammad Khan, JJ

MUHAMMAD SHABBIR---Petitioner

Versus

SUB-REGISTRAR, PESHAWAR DISTRICT COURT, PESHAWAR and 3 others---Respondents

Writ Petition No.1660 of 2005, decided on 26th May, 2011.

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

----S. 52---Civil Procedure Code (V of 1908), O.IX, Rr. 8 & 9---Transfer of suit property effected after dismissal of suit in default, but before its restoration---Validity---Such transfer for being hit by principle of lis pendens would be illegal and ineffective---Principles.

Ashutash Roay v. Seeta Ram (1919 I.0 727 fol.

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

----S. 41---Protection of S.41 of Transfer of Property Act, 1882---Essential pre-requisites---Vendee must inquire into title of his vendor right from point A to point Z---Entire chain of ownership of vendor must be probed into to see that there was no missing link in chain nor same was clouded by suspicious and doubtful circumstances.

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

----S. 7---Transferor having a better title in a property could convey same to transferee.

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

----S. 52---Title of purchaser in suit property adjudged by court to be hit by principle of lis pendens---Effect---Such purchaser having no title in suit property could not convey same to any other person and series of transaction so effected would be null and void and could not be legally protected.

Abdul Zakir Tareen for Petitioner.

Sadullah Khan for Respondents.

Date of hearing: 26th May, 2011.

P L D 2011 Peshawar 232

Before Syed Sajjad Hassan Shah, J

Syed AMIR HUSSAIN SHAH---Petitioner

Versus

Syed IMDAD HUSSAIN SHAH through Legal Heirs---Respondent

Civil Revision No.230 of 2010, decided on 2nd May, 2011.

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

----S. 152---Applicability of S.152, C.P.C.---Scope---Application for amendment in judgment and decree of Appellate Court upholding judgment of Trial Court---Change in area of suit land, prayer for --Validity---Area of suit land mentioned in plaint remained subject-matter in proceedings of oath offered by plaintiff, which was decreed as a result of taking of oath---Plaintiff had Mentioned area of suit land in plaint, appeals and revisions---Matter involved in suit had already been decided by Trial Court and Appellate Court in two rounds of litigation---Decree of Trial Court had merged into decree of Appellate Court, which had attained finality---Provisions of S.152, C.P.C., were meant to correct inadvertent clerical and arithmetical mistake crept in judgments, decrees or orders, if a same was floating on surface of record and for discovery of which court had not to go deep into merits of case---Errors pointed out by plaintiff was not an unconscious act or inadvertent mistake or omission---Where order was deliberate and represented intention of court, then same could not be said to be mistaken---Provisions of S.152, C.P.C., would not be of avail to plaintiff---Order of Appellate Court rejecting such application was upheld by High Court in revision.

Baqar v. Muhammad Rafique and others 2003 SCMR 1401 rel.

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

----S. 152---Amendment in judgment and decree of Appellate Court upholding judgment and decree of Trial Court---Scope---Such matter could not be reopened under S.152, C.P.C., otherwise same would amount to exercise of appellate and revisional jurisdiction not provided thereunder.

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

----S. 152---Amendment in judgment/decree/order---Scope---Where order was deliberate and represented intention of court, then same could not be said to be mistaken.

Malik Muhammad Bashir for Petitioner.

Muhammad Waheed Anjum for Respondents.

Date of hearing: 2nd May, 2011.

P L D 2011 Peshawar 238

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

Mst. SHAGUFTA SHAHEEN -Petitioner

Versus

MUHAMMAD ISMAIL QURESHI and 2 others---Respondents

Writ Petition No.298 of 2010, decided on 2nd March, 2011.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Ejectment of tenant---Tentative rent order---Object, purpose and scope---Sort of security is provided under such order to landlord for early decision of litigation and to save him from further expensive course of instituting a separate suit for recovery of arrears of rent which becomes due from tenant during pendency of eviction petition---Tentative rent order is an effective check against tenant to prolong ejectment proceedings---Direction for payment of rent is made on the principle that a person who seeks equity must do equity and come with clean hands and should not render himself as defaulter---Provision of S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, is not a vehicle of oppression against tenant---Deposit of rent in terms of S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, provides protection to both landlord and tenant and paramount consideration is to curb protracted litigation in between landlord and tenant.

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

----Art. 129(e)---Judicial proceedings---Presumption---Judicial proceedings are blessed with presumption of truth and court is bound to believe judicial record.

(c) West Pakistan Urban rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan, Art.199---Constitution petition--Ejectment of tenant---Tentative rent order---Determination---Powers of review---Rent Controller directed tenant to deposit arrear of rent and future rent every month but subsequently reviewed his order and directed the tenant to deposit partial arrears of rent---Validity---Purpose of S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, was to ward off the delay causing early disposal of cases, therefore, legislature intentionally . not provided for remedy of review and other alike nature against any interim order passed under West Pakistan Urban Rent Restriction Ordinance, 1959---Order of deposit of rent at an apportionate or tentative rate could not be reviewed by Rent Controller---Exact rate of rent was to be determined after order for deposit of tentative rent had been complied with and was to be determined in ensuing inquiry---Landlord had produced rent deed executed in between tenant and landlord, therefore, no such determination about rate of rent was required---Order passed by Rent Controller and maintained by lower Appellate Court was set aside and case was remanded to Rent Controller for decision afresh---Petition was allowed accordingly.

M.H. Musadiq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453; Aziz Ahmad Mughal v. Rent Controller and others 2006 CLC 1381 and Ch. Ijaz Sarwar v. Nadeem Farooq and another 2004 CLC 1525 ref.

Mr. Shaukat Amjad and others v. Sheikh Ahmad Saeed and others 2010 YLR 3137 and Haji Khudai Nazar and another v. Haji Abdul Bari 1997 SCMR 1986 distinguished.

Muhammad Saleh v. Muhammad Shall 1982 SCMR 33; Muhammad Kalim Akhtar v. Noor Hussain and 2 others 2003 YLR 1718 and Anjuman Ahle-e-Hadees, Khanewal through Amir of the Anjuman v. Rent Controller/Senior Civil Judge, Khanewal and another 2005 YLR 25 rel.

(d) Interpretation of statutes---

----Special statute---Remedy not provided---Principle---When a statute itself does not provide any remedy, the court cannot take shelter of any other enactment in order to undo its own order passed earlier, particularly in a special law governed by the procedure prescribed therein.

S. Abid Hussain Bukhari for Petitioner.

Muhammad Nisar Sokari for Respondent No.1.

P L D 2011 Peshawar 246

Before Yahya Afridi, J

Haji ABDULLAH JAN MARWAT---Petitioner

Versus

Prof. BURHAN UD DIN and 3 others---Respondents

Quashment Petitions Nos.65 and 67 of 2010, decided on 25th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 145---Procedure where dispute concerning land, etc. was likely to cause breach of peace---Prime object of proceedings under S.145, Cr.P.C.---Five stages through which Matter would proceed before the adjudicating Magistrate detailed:

The close reading of S.145, Cr.P.C. reveals that the matter before the adjudicating Magistrate proceeds through various stages and the same may be generally categorized as follows:

STAGE 1.

A competent Magistrate, on receiving information or on a police report, regarding the following two conditions precedent that:

(i) The matter relates to land or water or boundaries thereof, within his jurisdiction and

(ii) Apprehension of dispute is to lead to breach of peace.

In case the adjudicating Magistrate is satisfied that the two conditions precedent have been fulfilled then he has to pass an order stating his reasons of being so satisfied. However, in case, no such order is made by the adjudicating Magistrate, it would not vitiate the entire proceedings. The said infirmity is curable. The Magistrate can -pass the said order, at a later stage.

STAGE 2.

The competent Magistrate, after being satisfied about the two condition precedents, stated hereinabove, would seek written statements from the parties about their stance in regard to the possession of the disputed property, which is to be submitted within a specified time period.

The competent Magistrate may, in cases of emergency, at any stage of the proceedings order interim attachment of the disputed property till the final decision on the complaint.

STAGE 3.

After submitting their respective written statements, the parties are to produce their evidence in respect of their claims relating to possession of the disputed property.

It would be important to note that the proceedings before the Magistrate under section 145, Cr.P.C. are 'quasi civil' in nature, as the offence is against 'property' and not against the 'person'. Thus while considering the claims of the parties, the competent adjudicating

Magistrate has to decide the matter based on principles of civil dispensation of justice.

Ownership of the disputed property does not play any role in resolving and determining the complaint under section 145 of Cr.P.C.

STAGE 4.

In case, where the adjudicating Magistrate, receives information and is satisfied about the two conditions precedent stated in stage 1 above, he has to determine, who was in possession of the disputed property on the day the adjudicating Magistrate took cognizance of matter and passed the order regarding his satisfaction about the fulfilment of the two conditions precedent.

In cases, when a party files a complaint and claims to have been dispossessed, then the adjudicating Magistrate has to determine who was in possession of the disputed property two months prior to the filing of the complaint before the Magistrate.

STAGE 5.

In case, the adjudicating Magistrate comes to the conclusion that a party was wrongly and forcibly dispossessed of the disputed property, within two months prior to the filing of the complaint or when cognizance was taken by the Magistrate, then possession thereof, is restored to the said party. And that party is to retain the same until he is evicted by orders of a competent civil court.

The end result of proceedings under section 145 of Cr.P.C. is-to prevent breach of peace and not decide 'proprietary' or 'possessory' rights of the parties. However, the adjudicating Magistrate has the authority to hand over possession of the disputed property to a party, who has been dispossessed thereof. But the intention, scope and purpose of this provision of law is not to determine the title of the disputed property.

For determination of title of the disputed property, the parties are to approach the competent civil courts.

Thus the scheme of proceedings envisaged in section 145 of Cr.P.C. and as explained hereinabove, is in fact, a means to an end rather than an end in itself.

The prime object of the proceedings under section 145, Cr.P.C. is to prevent a breach of peace and to maintain status quo till the controversy is decided by the civil court of competent jurisdiction. The purpose of proceedings under section 145, Cr.P.C. is to meet an emergent situation in order to maintain peace and further to enable the parties to set the controversy at naught through civil court qua the title or claim of the property in dispute. It is mandatory requirement of section 145, Cr.P.C. that there must not only a dispute but it is essential that a dispute is likely to cause breach of peace and in case the dispossession of property is not coupled with apprehension of breach of peace then the parties concerned should, approach the civil court for the redressal of their grievances.

Malik Fateh Muhammad Khan Tiwana v. The Crown PLD 1949 Lah. 397; Arshad Mehmood v. Masood Khan PLD 1969 Lah. 74; The State v. Muhammad Azam and others PLD 1960 Pesh. 470; Chaudhri Munir v. Mst. Surayya PLD 2007 SC 189; Abdur Rahim v. Jainuddin Sardar 1970 PCr.LJ 677; Shahzada and 53 others v. Malik Shamsuddin and others 1978 PCr.LJ 431; Muhammad Shafi v. Addl. District and Sessions Judge and others 2002 SCMR 1280; Mst. Munira 1{hatoon v. Ashfaque Zai and others 2003 PCr.LJ 918 and Fazal Haq v. Muhammad Latif PLD 1985 SC 294 rel.

Shah Faisal Utman Khel for Petitioner.

Mian Zamrud Shah for Respondents.

F.M. Sabir for the State.

Date of hearing: 25th April, 2011.

PLD 2011 Peshawar 256

Before Mazhar Alam Khan Miankhel, J

DILAWAR SHAH---Appellant

Versus

NASRULLAH KHAN---Respondent

R.F.A. No.296 of 2006 and C.R. No.1068 of 2007, decided on 9th May, 2011.

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

----Ss. 5 & 14---Civil Procedure Code (V of 1908), S.96--- Regular first appeal---Delay, condonation of---Preliminary objection was raised regarding maintainability of appeal being barred by law of. limitation; contending that appellant who had filed appeal on the wrong advice of his counsel in the wrong forum having no pecuniary jurisdiction, was not entitled to claim the benefit of condonation of delay under S.14 of the Limitation Act, 1908; as wrong advice of counsel was not a valid ground for condonation of delay---Validity---Initial and foremost duty of the office of the court was to see and check whether the appeal filed was within the period prescribed by law; and then it would become the duty of the court to see and determine as to whether it had got jurisdiction to entertain and hear the appeal---If the office reported the appeal to have competently been filed, and the court also issued notices to the respondents after hearing of the same, then appellant and its counsel could not be responsible and appellant could not be refused the benefit of condonation of delay---Appeal having been kept on pending adjudication for about 16/17 months, its return for want of pecuniary jurisdiction, would be nothing else, except the negligent and careless attitude of the office and then of the court---None could be prejudiced by the act of the court---Case of appellant was fully covered under S.5 of Limitation Act, 1908---Delay occasioned in filing of appeal was condoned and appeal was declared to have been filed within the prescribed period of limitation.

Masud Ahmad and 2 others v. United Bank Limited 1992 SCMR 424; Furqan Habib and others v. Government of Pakistan and others 2006 SCMR 460; Monazah Parveen v. Bashi). Ahmad and 6 others 2003 SCMR 1300; Mehtab Khan and others v. Faiz Muhammad PLD 2003 Pesh. 46 and M.C. Tank through Town Nazim Town II, Tank and another v. Waris Khan and 2 others 2005 CLC 154 distinguished.

Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504 rel.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 and Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504 ref.

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

---Ss. 5 & 14---Proceedings in wrong forum---Exclusion of time---Scope---Sufficient cause---Delay, condonation of---Language of S.14 of Limitation Act, 1908, no, doubt reflected that it would apply to suits and applications only; and appeal was not mentioned therein but refusal of condonation of delay to a party, who was in a wrong forum, would amount to an injustice to the party who had the only fault that it chose a wrong forum at the advice of its counsel, but vigilant enough that it approached the said forum well within the prescribed tinge---Had appeal been returned there and then, the party would have filed its appeal before proper forum---Relief would be granted to appellant who acted in good faith by considering the provisions of S.5 of Limitation Act, 1908---Appellant was required to show that there was sufficient cause within the meaning of S.5 of Limitation Act, 1908 for not preferring appeal within the prescribed period of time.

S.M. Attique Shah and Manzoor Khan Khalil for Appellant.

Shakeel Azam Awan and Haji Muhammad Zahir Shah for Respondent.

Date of hearing: 9th May, 2011.

P L D 2011 Quetta 1

Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J

PAKISTAN PETROLEUM LTD.---Petitioner

Versus

DIRECTOR-GENERAL MINES AND MINERALS MINES AND MANPOWER BUILDING and 2 others---Respondents

C.P. No.511 of 2010, decided on 23rd October, 2010.

(a) Balochistan Mineral Rules, 2002---

----Rr. 2, 7(1), 46(2), 70, 75(3)(b) & 90---Constitution of Pakistan, Arts.199, 4 & 18---Constitutional Jurisdiction of High Court---Scope---Petitioners were granted prospecting licence of iron ore---Mining lease was executed in favour of petitioners but authorities, subsequently, issued one month notice to petitioners to show-cause for not utilizing the lease---However, before expiry of the period allowed in the notice, authorities issued prospecting licence of the area included in petitioners' lease to another company/respondent---Validity---Authorities violated the terms of their own notice and condemned the petitioners unheard against principle of audi alteram partem by issuing prospecting licence to another company/respondent before expiry of the time provided in the show-cause notice---Awarding of the prospecting licence of the area included in petitioners' lease smacked of bias, mala fide and favouritism of authorities depriving petitioners of peaceful and quiet enjoyment of the demised right under the lease agreement---Where a statutory functionary acted with mala fide or with partiality or in unjust or oppressive manner, ample power were vested in the High Court to issue appropriate direction under Art. 199 of the Constitution---Issuance of the prospecting licence and permission to the other company to undertake prospecting mining operations in the area leased to the petitioner violated R. 75(3)(b) of the Balochistan Mineral Rules, 2002---Article 18 of the Constitution, conferred on every citizen right to conduct any lawful trade or business; in the event of infringement of such right by a public functionary, High Court could enforce such right under Art.199(1)(3) of the Constitution---Every citizen's right to be dealt with in accordance with law was safeguarded by Art.4 of the Constitution, which barred any action to a person's property except in accordance with law---Appropriate direction and declaration could be made by the High Court under Art.199 of the Constitution to the authorities who did not deal with/treat the petitioners in accordance with law---Authorities acted in blatant disregard of Balochistan Mineral Rules, 2002---Officials of the department was obligated to decide the appeal of petitioners promptly but he omitted to exercise appellate powers vested in him under R.70(5) of the Balochistan Mineral Rules, 2002 by adjourning the appeal indefinitely---Impugned orders having been passed in violation of Balochistan Mining Rules, 2002 were declared to be void ab initio and without legal effect---Petition was accepted.

(b) Constitution of Pakistan---

----Art. 199---Jurisdiction of High Court---Scope---Where a statutory functionary acted with mala fide or with partiality or in unjust or oppressive manner, ample powers were vested in the High Court to issue appropriate direction under Art.199 of the Constitution---Article 18 of the Constitution, conferred on every citizen right to conduct any lawful trade or business; in the event of infringement of such right by a public functionary, High Court could enforce such right under Art. 199(1)(3) of the Constitution of Pakistan.

Hazara (Hill Tract) Improvement v. Qaisar Elahi 2005 SCMR 678 and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 fol.

M.D. The Bank of Punjab v. Shahzad Hussain 2006 SCMR 1023 ref.

Muhammad Riaz Ahmed for Petitioner.

Syed Ayaz Zahoor for Respondents.

Date of hearing: 15th September, 2010.

P L D 2011 Quetta 11

Before Qazi Faez Isa, C J

ABDUL HAMEED---Petitioner

Versus

JUDICIAL MAGISTRATE and 2 others---Respondents

Criminal Miscellaneous Quashment No.36 of 2010, decided on 23rd December, 2010.

(a) Balochistan Sea Fisheries Ordinance (IV of 1971)---

----Ss. 3 & 9---Balochistan Sea Fisheries Rules, 1971---Balochistan Sea Fisheries Act (X of 1994), Ss.9, 9-A & 9-B---Criminal Procedure Code (V of 1898), S.517---Illegal fishing---Trial Court sentenced the accused to pay the fine of Rs.15000---Confiscated trawler and fishing equipment, except the prohibited fishing net, were returned to the, accused---Additional Sessions Judge dismissed revision seeking restoration of the said fishing nets---Validity---Trial Court was empowered to sentence the accused to imprisonment and order confiscation of the fishing equipment, rather, confiscation of the fishing equipment was mandatory under S.9 of Balochistan Sea Fisheries Ordinance, 1971---Prohibited fishing net being an instrument of offence, could be ordered to be confiscated even in the absence of any specific provision to that effect---Trial Court was empowered under S.517, Cr. P. C. to order disposal by destruction, confiscation or delivery to any person of the property used for the commission of any offence---Return of the prohibited fishing net "gujja" to the accused would result in misuse of the same for committing crimes under the Balochistan Sea Fisheries Ordinance, 1971---Illegal fishing was a serious threat to marine environment and fish population---Despite their confession, accused were not sentenced to imprisonment, instead, lesser punishment of fine was imposed on these---Vessel used in the commission of offence was also restored to them---Use of prohibited nets was a crime against society and nature---No case for invoking inherent powers of High Court had been made out---Petition was dismissed with order of destruction of confiscated prohibited nets in order to prevent the reuse of such nets.

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

----S. 517---Power of Trial Court to dispose of property used in commission of any offence---Trial Court was empowered under S.517, Cr.P.C. to order disposal by destruction, confiscation or delivery to any person of the property used for the commission of offence.

Criminal Revision No.6 of 2009 distinguished.

Jahanzaib Jadoon for Petitioner.

Liaquat Ali for the State.

Date of hearing: 27th August, 2010.

P L D 2011 Quetta 18

Before Ghulam Mustafa Mengal, J

MUHAMMAD KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.135 of 2010, decided on 8th February, 2011.

West Pakistan Arms Ordinance (XX of 1965)---

---Ss. 8, 9 & 13(e)---Explosive Substances Act (VI of 1908), Ss.3/4---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Possessing arms and explosive substances and terrorism---Appreciation of evidence---Counsel for accused had mainly contended that neither the recovered weapon was sealed at the spot; nor the same was sent to the Ballistic Expert for his opinion, as to whether same-was in working condition or not---Validity---Recovered weapon was not required in any other case, so that it could have been sealed at the spot---No question had been suggested to the witnesses by the defence Counsel that the weapon produced in court was not in working condition---In the present case recovery of weapon (pistol) having been denied, contention raised by counsel for accused that pistol was neither sealed at the spot nor it was in working condition had no force---Weapon which required licence could not be kept in possession, even if it was not in working condition---Non-sending of pistol to expert for opinion, was an omission on the part of Investigating Officer; and was not fatal to the prosecution case---In absence of any illegality or infirmity in the impugned judgment warranting interference by High Court, appeal filed by accused was dismissed and impugned judgment was maintained.

Mujeeb Ahmed Hashmi for Appellant.

Sardar Ahmed Halimi and Qazi Abdul Malik for the State.

Date of hearing: 26th January, 2011.

P L D 2011 Quetta 21

Before Jamal Khan Mandokhail and Mrs. Syeda Tahira Safdar, JJ

MUHAMMAD KHALIL and another---Petitioners

Versus

EXECUTIVE DISTRICT OFFICER, REVENUE, PISHIN and another---Respondents

Constitutional Petition No.212 of 2009, decided on 13th January, 2011.

(a) Words and phrases---

----"Domicile", meaning, types and purposes, explained.

(b) Pakistan Citizenship Act (II of 1951)---

----S. 17---Certificate of domicile---Nature and scope---Domicile certificate was a prima facie, proof of the place of permanent residence of a person, who intended to permanently reside at a particular place---First stage of domicile certificate was that when the person intended to permanently reside at a particular place, would apply for a domicile certificate and second stage was after obtaining a domicile certificate, the holder of certificate, would continue to permanently residing at a particular place---In the first circumstance, when a person would apply for a domicile certificate, the authority had to consider as to whether the applicant relinquished his earlier permanent place of residence before selecting his new place of domicile while the second was that the authority on its own or on the objection of any person concerned, could conduct an inquiry with regard to a permanent residence of holder of a certificate for a particular place.

(c) Words and phrases---

----"Permanent" defined and explained.

(d) Words and phrases---

----"Residence", defined and explained.

(e) Pakistan Citizenship Act (II of 1951)---

----Ss. 16 & 17---Constitution of Pakistan, Art.l99---Constitutional petition---Issuance and cancellation of domicile certificate---Scope---Authority's hands were not tied---Once, the Authority had issued domicile certificate, it had the powers to cancel it, in case it was proved that same had been obtained by means of fraud, misdeclaration, misrepresentation or concealment of any material facts---In such a situation, an action was to be taken in accordance with the provisions of the Pakistan Citizenship Act, 1951---In the present case, it had been proved that the certificate had been obtained by the petitioners by means of concealment and misrepresentation of facts; and on a false declaration---Certificate, in circumstances, was rightly cancelled---Petitioners had failed to point out any illegality, irregularity or any jurisdictional defects in the impugned order to interfere---Constitutional petition filed by the petitioners, was dismissed.

Ghulam Mustafa Buzdar for Petitioner.

Abdul Aziz Khilji, Additional Advocate-General for Respondents.

P L D 2011 Quetta 26

Before Jamal Khan Mandokhail, J

CHAKAR KHAN and 3 others---Petitioners

Versus

AZAD KHAN and 5 others---Respondents

Civil Revision No.50 of 2009, decided on 10th January, 2011.

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

----S. 96---Single appeal against common judgment/decree passed in two suits consolidated by Trial Court---Maintainability:--Two suits once consolidated would cease to have independent existence, wherein only once judgment/decree could be passed to regulate both suits---Trial Court had framed consolidated issues in both suits relating to same subject-matter---One appeal under S. 96, C.P.C., was allowed from a decree---Common judgment/decree of Trial Court could be challenged through a single appeal, for appeal being a continuation of suit---Such appeal was maintainable---Principles.

Allah Bakhsh v. Mst. Shamshad Zohra and others 1985 SCMR 959 rel.)

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

----S. 151---Consolidation of suits---Scope---Suits involving common questions of law and facts should be consolidated in order to avoid multiplicity of litigation and conflicting findings---Disposal of such suits through one and same court would be proper---Purpose of consolidation of suits would be to minimize cost of litigation---Two suits once consolidated by an order of court would cease to have independent existence, thus, only one judgment/decree could be passed to regulate both suits.

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

----Ss. 8 & 42---Balochistan Tenancy Ordinance (XXI of 1978), Ss.33, 44---Civil Procedure Code (V of 1908), S. 9---Suit for declaration and possession---Non-payment of share in agricultural produce by defendant-tenant---Defendant denied relationship of landlord and tenant between parties and claimed ownership over suit land for being in possession thereof for a considerable long period---Defendant's plea that plaintiff could claim possession of suit through Revenue Court, but not civil court---Validity---Had there been any relationship of landlord and tenant between the parties, then remedy under Balochistan Tenancy Ordinance, 1978 could have been filed---Cause of action under S. 42.of Specific Relief Act, 1877 accrued to plaintiff on denial of his title to suit land by defendant --- Such suit was competent in circumstances.

(d) Possession---

----Mere possession over a land for any long period would not entitle a person to become its owner.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Such jurisdiction could be exercised only in case of violation of any law by courts below.

Khushnood Ahmed Khan for Petitioner.

Muhammad Sadiq Ghuman for Respondents.

Date of hearing: 3rd December, 2010.

P L D 2011 Quetta 32

Before Mrs. Syeda Tahira Safdar, J

Mst. SHAHZADI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.112 of 2010, decided on 22nd March, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154 & 157---Penal Code (XLV of 1860), Ss.379 & 453---Theft, lurking house-trespass and house-breaking---Registration of case---Powers of Justice of Peace---Application filed under S.22-A, Cr.P.C. for registration of criminal case, was disposed of by Justice of Peace in terms that S.H.O. was directed to conduct inquiry under S.157(2), Cr.P.C., and that if a cognizable offence was made out, F.I.R. be registered as per law---Petitioner had filed revision petition against such orders of Justice of Peace contending that it was obligatory on Justice of Peace to issue direction to S.H.O. concerned for lodging of F.I.R., but instead he directed for conducting of inquiry under S.157(2), Cr.P.C. which was absolutely contrary to law--Validity-Held, there was no concept of making inquiry before registration of F.I.R.---Justice of Peace, while exercising the powers under S.22-A, Cr.P.C., had completely failed to understand the nature of the powers conferred on him under S.22-A, Cr.P.C.-Initial requirement which was to be seen by an Officer Incharge of Police Station, was whether commission of cognizable offence was made out on basis of the information received by him while the second step would be to reduce the same into writing, whereafter, investigation was to be carried out and report submitted to the concerned court---By directing S.H.O. to conduct inquiry under S.157(2), Cr.P.C. before registration of the case, Justice of Peace had failed to exercise the powers vested in him---Impugned order being in complete negation of law, could not remain in field---Impugned order was set aside and S.H.O. was directed to register F.I.R. and proceed with the case, strictly in accordance with law.

Muhammad Bashir v. Station House Officer PLD 2007 SC 529 ref.

Muhammad Wassay Tareen for Petitioner.

Miss Noor Jahan Kahoor for the State.

P L D 2011 Quetta 40

Before Jamal Khan Mandokhail, J

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.29 of 2010, decided on 14th March, 2011.

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

----S. 431---Penal Code (XLV of 1860), Ss.409/420/467/468---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust by public servant, cheating, forgery, corruption---Death of accused, a government employee---Abatement of appeal---Scope---Ordinarily, a criminal appeal would abate on the death of appellant/accused, but S.431, Cr.P.C. had provided an exception to that general rule---Under S.431, Cr.P.C. an appeal against sentence of fine would not abate by reason of death of accused, because it was not a matter, which would affect his person, but would affect his estate---Upon death of accused, his appeal to the extent of a portion of sentence of an imprisonment, would abate, whereas the appeal to the extent of sentence of fine, affecting the property of accused, would not abate---Sentence awarded to a government officer or employee would certainly affect his service; in such an eventuality, his conviction would also affect his pensionary benefits---On that score as well, appeal would not abate---In the present case, the amount of fine had been ordered to be recovered from the properties of accused---Accused being a government employee, his conviction and sentence, would certainly have an impact not only upon his estate, but also upon his pensionary benefits---Appeal to the extent, in circumstances would not abate on death of accused.

Anwar Hussain Khan v. The State 1970 PCr.LJ 279; AIR 1957 All. 20=58 Cr.LJ 16 and AIR 1962 Mys. 275 ref.

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

----S.494---Penal Code (XLV of 1860), Ss. 409/420/467/468--Prevention of Corruption Act (II of 1947), S.S(2)---Criminal breach of trust by public servant, cheating, forgery, corruption---Withdrawal from prosecution---Scope---Allegations levelled against accused for misappropriation had not been supported by any witness---To the contrary, the reports exhibited by the prosecution favoured accused, which had shown that whatever amount was allocated to him, was properly spent---Evidence available on record, was not sufficient to connect accused with the commission of alleged offence---Even otherwise, the Trial Court was also requested by the Prosecutor, through application for withdrawal of case against accused---Trial Court declined such request without assigning any reason--Section 494, Cr. P. C. empowered a Public Prosecutor to withdraw the case on ground of insufficient evidence---Court had a supervisory jurisdiction to see that said power could not be used by an authority arbitrarily or contrary to the public interest-Court must satisfy itself about the request for withdrawal by assigning its reasons for the acceptance or rejection of an appeal---For the purpose of allowing or disallowing a request for withdrawal and assigning the reasons, the court must not necessarily record evidence and such discretion could also be exercised on the basis of material available on record--Prosecution had not been able to prove its case against accused---Trial Court had not only failed to properly appreciate the evidence, but had also failed to exercise its jurisdiction for not granting permission for withdrawal of the case on the ground of meagre evidence---Trial Court had not advanced any reason while rejecting the application for withdrawal, which would mean that court had not considered the evidence and material available before it---Act of Trial Court not only amounted to misreading and non-reading of the evidence, but also amounted to non-exercise of jurisdiction vested in it, which was an illegality and irregularity---Impugned judgment was not sustainable, in circumstances which was set aside.

Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451 ref.

Naeem Akhtar Afghan for Appellant.

Abdul Sattar Durrani, Addl. P.G. for the State.

Date of hearing: 26th November, 2010.

P L D 2011 Quetta 48

Before Mrs. Syeda Tahira Safdar, J

Messrs LASBELLA INDUSTRIAL ESTATE DEVELOPMENT AUTHORITY, HUB through Managing Director and another---Appellants

Versus

Messrs PRISM PRINTER (PVT.) LTD. through Director---Respondent

R.S.A. No.1 of 2009, decided on 31st March, 2011.

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

----Ss. 2(2), 33, O.XX, Rr. 6, 7 & 8---Decree---Necessary ingredients---Decree should follow judgment and it should not only contain number allotted to the suit but also complete names and description of the parties with particulars of claim and also relief specified clearly therein---Decree should agree with the judgment.

(b) Electricity Act (IX of 1910)---

----Ss. 2(c), 2(h), 24, 36 & 54-C---Electricity Rules, 1937, Abridged Conditions of Supply, Conditions, 19 & 25 ---Specific Relief Act (I of 1877), Ss.42 & 54---Electricity charges---Dispute, resolution of---Bar on jurisdiction of civil court---Plaintiff was aggrieved of disconnecting electricity connection by defendant due to non-payment of disputed electricity dues---Validity---There existed relationship of licensee and consumer between the parties, therefore, dispute arising between them, which was with respect to electricity dues, was to be referred to Electricity Inspector in accordance with the provisions of Electricity Act, 1910---Plaintiff admitted that electricity charges were paid by him but notice of disconnection was issued in respect of non-payment of dues which was received by plaintiff---Notice issued by defendant was within the meaning of provisions contained in S.24 of Electricity Act, 1910, thus dispute was to be referred to Electricity Inspector appointed under S.36 of Electricity Act, 1910---Bills of electricity charges were issued as per Condition No.19 of Abridged Conditions of Supply attached to Electricity Rules, 1937---While Condition No.25 of Abridged Conditions of Supply provided the procedure for resolving of disputes arising between the department and consumer; there was a bar on jurisdiction of civil court, as contained in S.54-C of Electricity Act, 1910---Trial Court lacked the jurisdiction to the extent of determination of electricity charges and liability of its payment---Relief to the extent of issuance of 'No Objection Certificate' of no dues and restoration of electricity supply based on payment and clearance of dues, therefore, relief to that extent could not be granted until and unless matter was decided by relevant authority under provisions of relevant law and rules---Lower Appellate Court as well as Trial Court failed to consider legal aspect of the case thereby arrived to the decision which was contrary to relevant law, thus not sustainable---Judgments and decrees passed by two courts below were set aside and suit filed by plaintiff was dismissed---Appeal was allowed in circumstances.

Malik Sarwar Awan for Appellants.

H. Shakil Ahmed for Respondent.

Date of hearing: 17th September, 2010.

PLD 2011 Quetta 57

Before Jamal Khan Mandokhail, J

SHAH MUHAMMAD alias SHAH KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.23 of 2010, decided on 1st June, 2011.

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

----S. 225---Resistance or obstruction to lawful apprehension of another person---Establishment of offence---To attract S.225, P.P.C., a lawful apprehension, was a condition precedent---In order to bring the case within the purview of S.225, P.P.C., the custody of a person must be lawful, through a warrant of arrest, issued by a competent court; or the person having custody of an accused must have the authority to lawfully detain him/her.

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

----S. 225---Resistance or obstruction to lawful apprehension of another person---Appreciation of evidence---No evidence had been produced to prove the fact that prosecution had adopted a lawful means to arrest or to detain person in custody---Detention of said alleged escaped prisoner with Police Official, in circumstances, had not been proved to be lawful---Rescue of said person, even if believed to be true, no offence under S.225, P.P.C. was made out F.I.R. in the case had been lodged after about 8 hours of the alleged occurrence and no explanation was available of said delay and it seemed that after the occurrence the complainant went to the Police Station and after consultation and deliberation, nominated the accused in the F.I.R., being brother of said person, which had created doubt---F.I.R. had stated that nominated the accused along with accused attacked and started firing upon the Police party, which had damaged the Police vehicle, but the complainant, who appeared in the court, was not only silent about the damages allegedly caused to the Police vehicle, but had also failed to produce the vehicle in the court, which had belied the story narrated in the F.I.R.---Contradiction existed on the point of release of detained person as the complainant and the alleged eye-witness, did not corroborate each other on that point---Manner, in which the story was alleged, did not appeal to a prudent mind and it was unbelievable that after such a heavy firing, none from either side was injured; nor any damage to the Police vehicle had been proved---False involvement of accused in the case, could not be ruled out in circumstances---Impugned judgment passed by the Trial Court was set aside and accused was acquitted of the charge.

Public Prosecutor v. Annadham Annamalai and others AIR 1954 Mad. 321 ref.

Baz Muhammad Kakar for Appellant.

Abdul Sattar Durrani, Addl. P.G.

Date of hearing: 8th October, 2010.

P L D 2011 Quetta 62

Before Abdul Qadir Mengal, J

Syed MUHAMMAD JAWAD---Petitioner

Versus

ABDUL NABI and another---Respondents

Civil Revision No.411 of 2007, decided on 17th June, 2011.

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

----S. 144---Specific Relief Act (I of 1877), Ss. 42 & 54---Declaration of title---Restitution of benefit---Variation of order---Illegal possession---Defendant, right of---Principles---Plaintiff claimed ownership of truck in question and after passing decree in his favour he took over the possession of the truck---High Court remanded the matter to Trial Court making good the deficiencies in court-fees-Trial Court in post remand proceedings, directed the defendant to hand over the possession of truck to defendant---Validity---Defendant could only restitute a benefit in the light of S.144, C. P. C., where any such benefit had been taken from his possession in result of a decree, for which he was entitled---If any benefit, for which defendant was not legally entitled to keep it in possession, being trespasser or illegal occupier, he could not agitate to get any benefit in view of S.144, C.P.C.---Defendant was prima facie a trespasser or grabber, who took the law in his hands, therefore, he was not entitled to restitution against person, who took the property in possession through a lawful direction--Judgments passed by Lower Appellate Court as well as of Trial Court were set aside being illegal.

AIR 1941 PC 128 rel.

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

----S. 144---Restitution---Pre-conditions---From any act of any court no suitor should be injured, therefore, any benefit, which is refundable and returnable to a party entitled to such benefit through restitution upon variation or reversal of a decree take the benefit of principle of restitution reflected in S.144, C.P.C.---Main conditions, which are to be fulfilled for invoking provisions of S.144, C.P.C. being that (i) restitution must be in respect of a decree, which has been varied or reversed; (ii) party applying for restitution should be entitled to a benefit under a reversing or variation decree; and (iii) relief claimed must be properly consequential on reversal of variation of decree.

Habib Tahir for Petitioner.

Taj Muhammad Mengal for Respondents.

Date of hearing: 10th June, 2011.

P L D 2011 Quetta 67

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

ATLAS CABLES (PVT.) LTD.---Petitioner

Versus

QUETTA ELECTRIC SUPPLY COMPANY LTD. through Chief Executive Officer---Respondent

C.P. No.27 of 2011; heard on 7th June, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil suit, filing of---Petitioner, a contractor was blacklisted by authorities and the order was assailed before High Court whereas a civil suit for recovery of damages was also filed---Plea raised by authorities was that petition was not maintainable as petitioner had filed a civil suit---Validity---Petition before High Court was filed earlier in time, disclosure of petition was made in the plaint and no declaration with regard to blacklisting had been sought in the suit---Filing of suit did not disentitle petitioner from approaching High Court in its constitutional jurisdiction for enforcement of fundamental rights---Petition was maintainable in circumstances.

Budhu Shah v. Chief Administrator Auqaf 1991 CLC 1445 distinguished.

(b) Constitution of Pakistan---

----Arts. 18 & 199---Constitutional petition---Right of business---Blacklisting of a contractor---Petitioner was a manufacturer of electric cables and conductor etc. and authorities 'blacklisted the petitioner on account of breach of contract and failure to supply material on time---Plea raised by petitioner was that such reasons were not a sufficient cause to necessitate blacklisting and circulation of letter of blacklisting had infringed Fundamental Right of carrying on lawful business guaranteed by Art.18 of the Constitution---Validity---Registration procedures that had been relied upon by both sides, which permitted different actions to be taken against delinquent firms, including blacklisting, removal and placing of embargo---Blacklisting could only be resorted to after obtaining approval of Registration Committee---Authorities did not file any document to show that Registration Committee was constituted to consider blacklisting the petitioner and had granted an opportunity of hearing to petitioner before passing order approving blacklisting---Reasons stated by authorities in the letter for blacklisting the petitioner did not come within any of the categories listed in Registration Procedures---Petitioner manufactured cables and conductors which were mostly used by power generating and distribution companies and National Transmission Distribution Company and an extreme action of blacklisting petitioner effectively prevented it from carrying on with its lawful business and consequently would drive petitioner out of business---Such action of authorities had violated Fundamental Rights of carrying on a lawful business guaranteed by Art.18 of the Constitution---Authorities had also violated their own Registration Procedures---High Court, in exercise of constitutional jurisdiction, declared the letter issued by authorities as unlawful and of no legal effect and petitioner would not be considered as blacklisted or treated as such---High Court directed the authorities to circulate letter of recall of blacklisting to all those to whom letter of blacklisting of petitioner was circulated---Petition was allowed accordingly.

New Jubilee Insurance Co. LW. v. National Bank of Pakistan PLD 1992 SC 1126 ref.

Munir A. Malik and Aamir Raza Naqvi for Petitioner.

Ghulam Mustafa Buzdar and Khan Muhammad for Respondent.

Date of hearing: 7th June, 2011.

P L D 2011 Quetta 76

Before Muhammad Hashim Khan Kakar, J

SHAHID HAKEEM---Appellant

Versus

ALTAF HUSSAIN AGHA and another---Respondents

Criminal Appeal No.14 of 2009, decided on 5th August, 2011.

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

---S. 1(3)---Applicability and scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005 was not be applicable to the cases of unauthorized occupants pending before any other forum on the date of promulgation of the said Act---If case of the illegal occupant was not already pending before any other forum on the date of enforcement of Act, same would squarely fell within the ambit of said Act.

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

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

----S. 3(2)---Illegal possession of property---Appreciation of evidence---Ocular account furnished by the complainant's witness would show and suggest to believe that company of accused, without any lawful authority, had occupied an excess area belonging to the complainant, the vacant possession whereof was handed over to the complainant by the Official Assignee of the High Court---Findings of the Trial Court up to that extent seemed to be made after proper appraisal of evidence, which needed no interference by High Court---Initially the complaint was instituted against Managing Director of the company that he in his capacity of Managing Director had encroached upon the property, whereas accused was not on the scene at the relevant time and had joined later on---Accused, in circumstances, could not be held criminally liable under the provisions of the Illegal Dispossession Act, 2005---In order to constitute an offence under S.3(1) of the Act, complaint must disclose existence of both unlawful act and criminal intent---Mere encroachment was something different from illegal possession as the former did not involve intention of grabbing of the property---Name of accused was inserted in the complaint after its institution without any legal justification---Conviction and sentence awarded to accused by means of impugned judgment, was set aside and ' he was acquitted of the charge.

H. Shakil Ahmed for Appellant.

Munir Ahmed Lango for Respondent No. 1.

Abdul Sattar Durrani, D.P.G. for the State.

Date of hearing: 29th July, 2011.

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P L D 2011 Supreme Court 7

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez Khan and Ghulam Rabbani, JJ

SECRETARY, MINISTARY OF LAW, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS, GOVERNMENT OF PUNJAB and others-Appellants

Versus

MUHAMMAD ASHRAF KHAN and others---Respondents

Civil Appeal No.555 of 2008 and HR Cases Nos.23115-S and 16229-S of 2010, decided on 5th November, 2010.

(On appeal against the judgment dated 3-4-2008 of the Lahore High Court, Lahore passed in Writ Petition No.8932 of 2007).

(a) Constitution of Pakistan---

----Art. 140---Punjab Law Department Manual (1938), R.1.18 [as substituted by notification No.8-16/93/5671 dated 3-11-1994]---Advocate-General, appointment of---Article 140 of the Constitution does not envisage requirement of consultation by the Governor with the Chief Justice while making the appointment of Advocate-General---By no stretch of imagination could R.1.18 of the Law Department Manual (Punjab), 1938 (as amended by the notification dated 19-10-1993 and suspended by the notification dated 3-11-1994), which provided for consultation by the Governor with the High Court in the matter of appointment of Additional Advocate-General or Assistant Advocate General, be made applicable to the appointment of Advocate-General of the Province, which was a constitutional office and was governed by the express provisions of the Constitution---Such would be a clear case of non-reading of the relevant legal instrument.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 off the mark.

Manendra Nath Rai v. Virendra Bhatia AIR 2004 Allahabad 133; Malik Hamid Sarfraz v. Federation of Pakistan PLD 1979 SC 991; Basu's Constitution of India; Justice (Retd) Fazal Karim's Book "Access to Justice", P.14; Muhammad Khurshid Khan v. Returning Officer 1998 SCMR 425; G.D. Karkare v. T.L. Shevde AIR 1952 Nagpur 330; Atlas Cycle Industries Ltd. Sonepat v. Their Workmen 1962 Supp. (3) SCR 89 and State of Uttaranchal v. Balwant Singh Chaufal, decided on 18th January, 2010 ref.

(b) Constitution of Pakistan---

----Art. 140---Advocate General, appointment of---Person appointed as Advocate-General has to be one who is qualified for appointment as a Judge of the High Court, but that does not mean that he also does not suffer from the disqualifications or disabilities envisaged in respect of the office of Judge---Such a person cannot be deemed to be under the same disability as has been placed by the Constitution on a Judge of the High Court in other respects.

Malik Hamid Sarfaraz v. Federation of Pakistan PLD 1979 SC 991 ref.

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Maulvi Anwarul Haq, Attorney General for Pakistan, Mazhar Ali Chaudhry, DAG, Asadullah Khan Chamkani, AG, Khyber Pakhtunkhwa, Syed Arshad Hussain Shah, Addl. AG Khyber Pakhtunkhwa, Muhammad Hanif Khatana, Addl. AG Punjab, Ch. Khadim Hussain Qaiser, Addl. AG. Punjab, Abdul Patch Malik, Addl. AG Sindh and M. Sarwar Awan Addl. A.G., Sindh (On Court Notice).

Date of hearing: 5th November, 2010.

P L D 2011 Supreme Court 17

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

HUMAN RIGHTS CASE NO.1356-P: In the matter of

(Human Rights Case No.1356-P of 2009, decided on 8th October, 2010.

(Application of Bibi Fatima for recovery of her daughter Mariam).

Constitution of Pakistan---

----Art. 184(3)---Human Rights case---Violation of fundamental rights of citizens---Administration of justice---Courts and all institutions have to work under the provisions of law and the Constitution; no sooner a case is registered, law enforcing agencies are required to take full interest and involve all the concerned authorities for the purpose of concluding the investigation of the case in just and proper manner---Supreme Court desired that law enforcing agencies with full zeal and commitment shall make efforts to extend relief to the aggrieved persons at the preliminary stage of the happening of an incident instead of waiting for direction of the court of law to put the machinery into motion.

Applicant (In person).

Mazhar Ali Chaudhry, DAG, Rahmatullah Khan Niazi, Director (Crimes) Balochistan, Ch. Arshad Ali, AIG, Bl., Rafiaullah Shah, DSP, Khalid Hussain, ASI, Muhammad Ramzan, H.C., Ms. Zubeda, Lady Constable with Abdullah Zehri (accused), and Bibi Mariam (minor) (On court Notice).

Muhammad Azam Khan, Director (Law) for FIA.

P L D 2011 Supreme Court 22

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez Khan and Ghulam Rabbani, JJ

EJAZ AKBAR KASI and others---Petitioners

Versus

MINISTRY OF INFORMATION AND BROADCASTING and others---Respondents

Constitutional Petitions Nos. 42, 48, 50 and 62 of 2009, decided on 4th November, 2010.

(Petition under Article 184(3) of the Constitution).

Constitution of Pakistan---

----Arts. 184(3), 9 & 25---Constitutional Petition before Supreme Court under Art.184(3) of the Constitution---Contentions of the petitioners (Pakistan Television employees on contract basis) were that the organization be directed to protect their period of service as they had served the organization for the last more than ten years with performance more than satisfactory, therefore, their case was clearly covered under Art.9 of the Constitution; it was further pointed out that some of the resourceful persons whose names were mentioned, who had joined the organization after petitioners' appointment and despite the fact that they were junior to the petitioners, their services had been regularized which clearly indicated that Art.25 of the Constitution was violated---Held, there was no doubt that policy in respect of such employees for regularization of service was to be framed by the organization, but at the same time it was to be borne in mind that there should not be any discrimination and such like employees who were on contract basis for a period of more than 10 years etc. deserved to be considered for regularization as they were working against the existing sanctioned vacancy for which budgetary allocations were also made annually out of -which they were being paid regularly---Board of Directors of the organization might not have declined the petitioners' regularization, however, it was a fact that regularization of contract employees, if it all was to be made was to depend upon the performance---Petitioners, in the present case, had qualified the test and their performance as well was up to the mark which was evident that for the last more than 10 years they had been allowed to continue work against the vacancies which they were holding without any interference and there was, now, no question of performance at all as they had already shown their performance---Petitioners, in circumstances, could not be discriminated without any cogent reason by violating the provisions of Art.25 of the Constitution and it was the duty of the organization to protect their fundamental rights enshrined in Art.9 of the Constitution---Petitions of the petitioners were accepted by the Supreme Court and their cases were sent to the organization for considering their cases for purpose of regularization or otherwise in view of the observations made in the present judgment.

Ikram Bari and others v. National Bank of Pakistan through President and another 2005 SCMR 100 ref.

Petitioners in person (in Const. Ps. Nos.42, 48 & 62 of 2009).

Ibad-ur-Rehman Lodhi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in Constitutional Petition No.62 of 2009).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondents.

P L D 2011 Supreme Court 26

Present: Javed Iqbal, Muhammad Sair Ali and Tariq Pervez Khan, JJ

JAVED IQBAL and others---Appellants

Versus

EMPLOYEES' OLD-AGE BENEFITS INSTITUTION, GOVERNMENT OF PAKISTAN through Regional Head and others---Respondents

Civil Appeals Nos.621 and 622 of 2007, decided on 15th March, 2010.

(On appeal against the judgment dated 24-2-2005 passed by the Peshawar High Court, Abbotabad Bench in W.P. No.27 of 2004).

Land Acquisition Act (I of 1894)---

----Ss. 4 & 17---Employees' Old-Age Benefits Act (XIV of 1976), Ss. 4, 6, 7, 17, 18, 19 , 44 & 45---Employees' Old-Age Benefits (Board of Trustees) Rules, 1977, R. 6--Employees' Old-Age Benefits (Investments) Rules, 1979, Rr. 3(h)(i), 4(1)(h) & 5---Constitution of Pakistan, Arts. 24, 185(3) & 199---Notification for acquisition of residential bungalow for Regional Office of Employees Old-Age Benefits Institution (EOBI)---Staying of acquisition proceedings by Commissioner due to pendency of suit filed by EOBI for specific performance of sale agreement regarding such bungalow---Plaint in such suit rejected by civil court not challenged by EOBI---Order of Commissioner de-notifying such bungalow set aside by High Court in constitutional petition filed by EOBI---Validity---Employees Old-Age Benefits (Investments) Rules, 1979 to purchase or acquire immovable property was bound to show that money needed for such investment was surplus as not required for expenses under Employees Old-Age Benefits Act, 1976; and that such investment did not exceed limits placed under R. 4(1) of Employees Old-Age Benefits (Investments) Rules, 1979---Nothing was available on record to show that for such purchase or acquisition, EOBI had either obtained approval of its Board or Government or allocated and approved any budget thereto---Minutes of meeting placed on record showed only holding of negotiations between parties on proposal for purchase of such bungalow, but same did not relate to necessary approvals or price or concluded agreement between the parties---Employees' Old-Age Benefit Institution on basis of such minutes had unwisely filed such suit---In absence of any such approval, acquisition proceedings initiated at behest of EOBI were coram-non-­judice and of no legal effect---Employees' Old-Age Benefits Institution had involved landowners in unnecessary litigation for a period of 15-16 years by depriving them of benefits and proprietary rights over such bungalow---Such actions of EOBI and its functionaries were patently unlawful, unfair and legally and factually mala fide---Land Acquisition Collector had acted mechanically without an inquiry or satisfaction as to existence of public purpose or welfare---Commissioner had validly declared acquisition proceedings to be contrary to public purpose and financial feasibility---Such acquisition proceedings were violative of provision of Art.24 of the Constitution---Supreme Court set aside order of High Court and directed Chairman of EOBI to pay compensatory costs of Rs. 5,00,000 to landowners of such bungalow.

Raja Muhammad Ibrahim Satti, Sr. Advocate Supreme Court for Appellants.

Muhammad Ikram Chaudhry, Sr. Advocate Supreme Court for Respondents Nos. 1 to 3.

Ex parte Respondents Nos. 4 to 9.

Date of hearing: 15th March, 2010.

P L D 2011 Supreme Court 37

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez Khan and Ghulam Rabbani, JJ

H.R. CASES NOS.16360 OF 2009, 1859-S & 14292-P OF 2010: In the matter of

H.R. Cases Nos.16360 of 2009, 1859-S & 14292-P of 2010, decided on 4th November, 2010.

(Applications by Lady Health Supervisors/Workers etc.)

West Pakistan Minimum Wages for Unskilled Workers Ordinance (XX of 1969)-

----S. 6---Constitution of Pakistan, Arts.9 & 25---Payment of minimum wages---Government employees---Scope---Equality of citizens---No such agreement/order notification/law/award/contract of service violating the provisions of law with regard to the payment of minimum wages shall be adhered to---Although West Pakistan Minimum Wages for Unskilled Workers Ordinance, 1969 is not applicable on the persons engaged by the Government or any of its organizations but as a State it is bound to follow the same principle, which is applicable to private organizations---If the minimum wages cannot be paid. under any agreement then it would be in violation of Arts.9 & 25 of the Constitution---Notwithstanding their relationship either as permanent or contractual employee, whatsoever may be, following the law/policy prevailing in the country for fixing minimum wages, they are entitled for the same on the basis of policy, which is presently prevailing i.e. Rs. 7,000 pm.---Government is duty bound to ensure that discriminatory policies are not applied as far as its employees are concerned, either enjoying permanent status or working on contractual basis---Any agreement which is against the public policy is not enforceable---Supreme Court directed that present judgment shall be considered a guideline for all the executive departments in future while fixing the wages of the employees being engaged by the government organizations on contract basis or under any other programme funded by the government or any other agency.

Applicants (In person).

Maulvi Anwar ul Haq, Attorney-General for Pakistan (On Court Notice).

P L D 2011 Supreme Court 44

Present: Javed Iqbal, Muhammad Sair Ali and Anwar Zaheer Jamali, JJ

PAKCOM LIMITED and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos.662-663 of 2009, decided on 27th May, 2010.

(On appeal from the judgment dated 6-4-2009 of the Islamabad High Court, Islamabad in W.P. No.1298/2008 and F.A.O. No.6/2008)

(a) Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal---New plea/ground---Scope---Plea not raised before the High Court during hearing of appeal cannot be agitated before Supreme Court---Point which was not taken before Lower Court or Tribunal or where plea was not raised before Trial Court or Appellate Authority or in revision before High Court in a petition under Art.199 of the Constitution or which was neither taken before the lower Court or Tribunal, cannot be raised at the hearing---Grounds which should have been taken and urged in previous petition but had not been urged, cannot be permitted to be agitated between sane parties in second round of litigation, notwithstanding the plea that the petitioner was ignorant about them---New point involving investigation into facts cannot be taken up at the stage of leave to appeal.

Khairati v. Aleem-ud-Din PLD 1973 SC 295; Ghulam Muhammad v. Abdul Qadir Khan PLD 1983 SC 68; Neelam Mawaz v. The State PLD 1991 SC 640; Mad Ajab v. Awal Badshah 1984 SCMR 440; Mairaj Sons v. United Bank Limited 1985 SCMR 987; Muhammad Ahmed v. Aziz Begum 1985 SCMR 1962; Sardaro v. Nazran Begum PLD 1985 SC 274; Muhammad Idrees v. Safia Begum 1986 SCMR 795; Muhammad Urfan v. N.-W.F.P. PLD 1984 SC 253; Gul Zairn v. Faizullah 1979 SCMR 501; S.B. Insurance Employees' Union v. Sindh Labour Court 1975 SCMR 49; Nisar Ahmad v. Fazal Muhammad 1975 SCMR 190; Khalid Sharif v. The State 1975 SCMR 178; Begum Zahoorul Haq v. Muhammad Younus 1985 SCMR 1657; Muhammad Ibrahim v. Allah Bakhsh 1968 SCMR 143; Ghulam Haider v. Settlement Commissioner 1972 SCMR 559; West Pakistan Transport Co. v. Transport Appellate Authority PLD 1965 SC 248; Nasir Ahmad Shaikh v. Nahid A. Shaikh 1986 SCMR 1621; Akhtar Iqbal Puri v. Settlement Commissioner, Lahore PLD 1977 Lah. 249; Abdul Rashid v. Bank of Tokyo Ltd. PLD 1974 Kar. 411; Muhammad Ismail v. Settlement Commissioner 1992 CLC 282; Ghulam Ali v. Muhammad Siddique PLD 1982 Lah. 69; Allah Ditta v. Member, Board of Revenue PLD 1976 Lah. 897; Financial Adviser and C.A.O. v. PB.LAB. PLD 1985 Lah. 420; Abdul Sattar v. Additional District Judge, Rawalpindi 1984 SCMR 925; Jahangir Khan v. Sibtul Hassan 1990 CLC 1659; Khushi Muhammad v. Board of Revenue PLD 1973 Lah. 829; Abdul Hai v. Chief Election Commissioner 15 DLR 678; Abdul Qadir v. Lahore Commercial Bank Ltd. 1980 SCMR 280; Khanizaman v. M. Maqsood Khan PLD 1985 Pesh. 69; Postmaster General, Eastern Circle (E P), Dacca v. Muhammad Hashim PLD 1978 SC 61; Crescent Jute Products Ltd., v. Muhammad Yaqub PLD 1978 SC 207; Crescent Jute Products Ltd., Jaranwala v. Muhammad Yaqub PLD 1978 SC 295; Ghulam Rasool v. Allah Bachaya 1985 SCMR 416 and IG of Police Punjab v. Mushtaq Ahmad Warraich PLD 1985 SC 159 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---New plea/ground---Scope of interference---Ordinarily petitioner cannot be allowed, while invoking High Court's constitutional jurisdiction, to raise a completely new point for the first time before it.

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

----Ss.8, 20 & 22---Pakistan Telecommunication Rules, 2000, Rr.6, 7 & 8---Renewal of licence---Licence shall be renewed on terms and conditions consistent with policy of the Federal Government at the relevant time.

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

---Ss. 14, 15, 16, 17, 18, 20, 21 & 22---"Coercion", "undue influence ", "fraud", "misrepresentation", "mistake"-Scope-"Consent"-Ingredients-Where all the terms and conditions enumerated in the contract have been accepted by the parties freely and at their own, contract does not fall within the ambit of "coercion" as defined in S.15 or "undue influence" as defined in S.16 or "fraud" as defined in S.17 or "misrepresentation" as defined in S.18 or "mistake" as enshrined in Ss.20, 21, 22 of the Contract Act, 1872---All agreements or contracts are made by the free consent of parties---"Consent" is said to be free as provided under S.14 of the Act, when it is not caused by coercion, undue influence, fraud, misrepresentation and mistake subject to the provisions of Ss.20, 21 & 22 of Contract Act, 1872---Principles.

In order to bind persons by their agreements, the consent must be full and free. Where a party is not a free and voluntary agent, or is unable to -appreciate the full import of what he does, write or say, an important ingredient, which can render his act or words concurrence in what is done or proposed by another. It signifies to be of the same mind; to agree to give assent; to yield; to comply. It necessarily implies agreement as a free agent with the presence of the free mind and free will. In the Dictionary of English Law by Earl Jowitt the word "consent", which is an essential ingredient of an "agreement", has been defined to mean "an act of reason accompanied with deliberation, the mind weighing, as-in a balance, the good or evil of either side. Consent presupposes three things a physical power, a mental power, and a free and serious use of them, Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as delusion, and not as a deliberate and free act of the mind".

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

---S. 19---Provision of S.19, Contract Act, 1872 does not entitle a party to the contract to insist on an entirely different contract being performed---Liabilities under a contract cannot be avoided for the simple reason that contract was caused by one of the parties to it being under a mistake as to a matter of fact.

AIR 1929 Nag. 254 ref.

(f) Contract---

---- "Quid pro quo", principle of----Applicability---Quid pro quo is used in law for giving one valuable thing for another and it is nothing more than mutual consideration which passes between the two parties to a contract and which renders the contract valid and binding.

Black's Law Dictionary ref.

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

----S. 16---Undue influence---Things to be proved before a contract can be said to be induced by undue influence, enumerated---Onus of proving that contract was not induced by undue influence rests on the person in a position to dominate the will of the other.

On careful survey of section 16 of Contract Act, 1872 it seems clear that under subsection (1) of the said section, three things must be proved before a contract can be said- to be induced by undue influence, namely: -

(1) that the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other;

(2) that he uses that position; and

(3) that an unfair advantage over the other has been obtained by the use of that position.

Subsection (2) lays down rules for determining under what circumstances a person can be said to be in a position to dominate the will of another, enters into a contract with him and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the onus of proving that the contract was not induced by undue influence rests on the person in a position to dominate the will of the other.

PLD 1965 Lah. 729 ref.

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

----S. 14---Free consent---Concept---Contract, in absence of free consent, is not sustainable or enforceable as it does not depict the true intent with the application of mind---General averment that consent was not freely obtained is not enough to set up the plea that there was one of the vitiating elements enumerated under S.14, Contract Act, 1872.

In the absence of free consent, contract is not sustainable or enforceable as it does not depict the true intent with the application of mind. Consent is free, when the activity of man, by which it is effective, works without obstacles to impede its exercise. The law upon the question of free consent is given in the statute itself, and therefore, the court has to administer the law to a case when it comes within its provisions irrespective of the consideration whether the application of the provisions would or would not disfavour the abuse of moral influence or encourage moral cowardice. Consent obtained under duress, whether duress is physical or moral is not free consent. Consent should not only be free but informed. Consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake. Consent can be regarded as informed, when it is act of reason accompanied with deliberations of mind which knows right or wrong, good and evil, and also rights and obligations of the parties involved in the commission of the act. When the oral consent is not informed, it cannot be set up as valid defence. General averment that 'consent was not freely obtained is not enough to set up the plea that there was one of the vitiating elements enumerated under section 14.

AIR 1945 Cal. 218 and AIR 1985 HP 88 ref.

(i) "Fee" and "tax"---

----Distinction-Principle of quid pro quo---Availability.

The "fee" and "tax" are not synonymous and interchangeable terms and there is a difference between the two. The distinction between the "tax" and a "fee" is well established. A tax is a compulsory exaction of money by public authorities for public purposes enforceable by law and is not a payment for services rendered. The main distinction between them lies primarily in the fact that a tax is levied as a part of common burden, while a fee is a payment for a special benefit or privilege.

A tax is a compulsory exaction of money by a public authority for a purpose and is not a payment for any specific service rendered. In respect of fee there is quid pro quo while in a tax it is absent.

The distinction between a tax and fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is payment for special benefit or privilege.

A fee is charge for the services rendered by the Government to the persons from whom the fee is received. It is a consideration for the services provided by the Government or its agencies to the persons from whom the fee is collected.

Both tax and fee are compulsory exactions. But the difference between the two lies in the fact that a tax is not co-related to particular service rendered but is intended to meet the expenses of the Government and a fee is meant to compensate to Government for expenses incurred in rendering services of a special nature.

"Fee" can be levied by any authority only for some service rendered by it to the person from whom the levy is exacted. Fee levies by any local authority can be justified only if there is some special service rendered to the person from whom fee is collected and the sum total of the activities of the public body like the Municipal Council cannot be taken into account for this purpose.

In some cases it will not be possible to show with mathematical exactitude the precise co-relation between the amount realized as fee from one particular person and the services rendered to him. In a given case, it is also possible that the fee is realized from hundreds or thousands of persons and the corresponding services are also rendered to hundreds or thousands. In that situation it may not be possible to show any strict correlation qua an individual except to indicate that the person who had paid the fee has derived a benefit in return. In such a case correlation between the fee levied and the services rendered may have to be determined having regard to the services rendered to the various persons and the benefits derived by an individual.

There is always quid pro quo in fee but such element is missing in tax which is compulsory exaction of money.

AIR 1915 PC 7; The Commissioner, Hindu Religious Endowments, Madras v. Sir Lakshmindr Thirtha Swamiar of Shirur Mutt AIR 1954 SC 282; Sudhindra Thirtha Swamiar and others v. The Commissioner for Hindu Religious and Charitable Endowments, Mysore and another AIR 1963 SC 966; Nagar Mahapalike, Varanasi v. Durga Das Bhattacharya and others AIR 1968 SC 119; The State of Maharashtra and others v. The Salvation Army, Western India Territory AIR 1975 SC 746; Messrs Khyber Electric Lamps Manufacturing Limited and others v. Chairman, District Council, Peshawar 1986 CLC 533; Trustees of the Port of Karachi v. Gujranwala Steel Industries and another 1990 CLC 197; Abdul Majid and another v. Province of East Pakistan and others PLD 1960 Dacca 502; Mahboob Yar Khan and another v. Municipal Committee, Mian Channu PLD 1975 Lah. 748; Sh. Muhammad Ismail and Co. Ltd. v. Chief Cotton Inspector, Multan Division, Multan PLD 1966 SC 388; Indian Mica and Micanite Industry Ltd. v. Bihar (71) ASC 1182, 1186; Maharashta v. Salvation Army (1975) 3 SCK, 475; Government of N.-W.F.P. v. Rahimullah 1992 SCMR 750 and Government of Andhra Pradesh yr Hindustan Machine Tools AIR 1975 SC 2037 ref.

(j) Discretion---

----Exercise of discretion by an authority or forum as entrusted by legislature on it---Interference in such discretion by higher forum or court---Scope.

When the Legislature entrusts to an authority the power to pass an order in its discretion, an order passed by that authority in exercise of that discretion is, in general, not liable to be interfered with by any higher forum and court unless it can be shown to have been based on some mistake of fact or misapprehension of the principles applicable thereto.

Corporation of Calcutta v. Mulchand Agarwala PLD 1956 SC Ind. 231 ref.

(k) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Decisions of forums created under statute such like Administrative Tribunals and Authorities---High Court, in exercise of its jurisdiction under Art.199 of the Constitution, cannot sit as a court of appeal and pronounce upon the sufficiency, quality or quantum of evidence on which the finding of an Administrative Authority is based---Principles.

The special forums created under statute such like Administrative Tribunals and Authorities are "judges of the sufficiency of evidence and necessity, expediency and reasonableness of the action to be taken. The High Court, in exercise of its jurisdiction under Article 199, cannot sit as a court of appeal and pronounce upon the sufficiency, quality or quantum of evidence on which the finding of an Administrative Authority is based. The High Court in writ jurisdiction can only examine the legality of the impugned order. Where discretion is vested under the law in a statutory body the mode of exercising the discretion cannot be interfered with by the court.

Muzaffar Ali Shah v. Registrar Co-operative Societies PLD 1968 Kar. 422; Abdul Hafeez v: Chairman, Municipal Corporation PLD 1967 Lah. 1251; Hassan Muhammad v. Settlement Commissioner 1982 SCMR 969 Budhu Ram v. Peare Lal AIR 1952 All. 916 ref.

(l) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Interference in decision of statutory body---Scope---Power as conferred upon High Court under Article 199 of the Constitution cannot be exercised to examine the merits of the decision of the statutory bodies and to see whether the action taken or the order passed is correct on merits---Court, however, can examine as to whether the Authority has performed its functions within the jurisdiction so conferred and bona fidely---When a statutory functionary acts ex facie in an unjust and oppressive manner, High Court may exercise its constitutional jurisdiction to grant relief to an aggrieved party keeping in view the circumstances of each case and nature of order passed, to determine whether a particular case was justiciable or not.

Brundaban Chandra v. State of Orissa AIR 1953 Orissa 121 and A.F. Abadan v. Government of Balochistan PLD 1990 Quetta 70 ref.

(m) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contractual rights, commitments, undertakings and obligations have to be enforced through courts of ordinary jurisdiction and should not be interfered with by the High Court while exercising its constitutional jurisdiction especially in those matters arising out of a contractual obligations---Normal remedy under law, in such like eventualities, being a suit for enforcement of contractual rights and obligations, would be availed instead of invocation of Art.199 of the Constitution merely for the purpose of enforcing contractual obligations.

Millat Tractors E.T. v. Government of Pakistan PLD 1992 Lah. 68; Ahmad Hassan v. Pakistan Machine Tools Factory 1990 CLC 2007; Sufi Muhammad Ramzan v. Secretary, Local Government and Rural Development Department, Punjab, Lahore PLD 1987 Lah. 262; Pakistan Mineral Development Corporation Ltd v. Pakistan WAPDA PLD 1986 Quetta 181; Lutfonnessa Ibrahim v. Province of East Pakistan PLD 1969 Dacca 779; Muhammad Din and Sons v. Province of West Pakistan PLD 1969 Lah. 823; Muzaffar-ud-Din v. Chief Settlement Commissioner 1968 SCMR 1136; Miajan Ali v. Province of East Pakistan 22 DLR 235; Momin Motor Co. v. R.T.A. Dacca PLD 1962 SC 108; Chandpur Mills Ltd. v. District Magistrate Tippera PLD 1958 SC 267; The State of Pakistan v. Mehrajuddin PLD 1959 SC 147 and Raghavendra Singh v. State of Vindhya Pradesh AIR 1952 Vindh Pra. 13 ref.

(m) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Violation of contract or failure to abide by the terms and conditions mentioned therein---Scope of interference---Violation of a contract or failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of constitutional jurisdiction and such controversies should be resolved" by approaching the appropriate forums provided by law.

Abdul Rahim v. Town Committee 1985 CLC 2805; Haji Noor Din v. C.C.I. and E NLR 1978 Civ. Lah. 1114; Ashraf Ali v. Abdul Awal PLD 1968 Dacca 962 and A.F.M. Abdul Fateh v. Province of East Pakistan PLD 1966 Dacca 178 ref.

(n) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Investigations of disputed question of fact which necessitate taking of evidence---Scope.

The superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent.

Ataur Rehman Khan v. Dost Muhammad 1986 SCMR 598; Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt 1981 SCMR 291; Mian Muhammad v. Government of West Pakistan 1968 SCMR 935; Abdur Rashid Bhhiya v. Province of East Pakistan PLD 1970 Dacca 633; Zuhra Begum v. Sajjad Hussain 1971 SCMR 697; Landale and Morgan (Pak) Ltd. v. Chairman, Jute Board Dacca 1970 SCMR 853; Mahboob Alam v. Secretary to Government of Pakistan 1969 SCMR 217; Umar Daraz v. Muhammad Yousaf 1968 SCMR 880; Saghir Ali v. Mehar Din 1968 SCMR 145; Abdur Rehman Khan v. Deputy Commissioner Jessore PLD 1968 Dacca 367; Lutfonnessa Ibrahim v. Province of East Pakistan PLD 1969 Dacca 779; Mainuddin Ahmed v. Delimitation Officer PLD 1965 Dacca 263; Province of East Pakistan v. Kshiti Dhar Roy PLD 1964 SC 636; Abdur Rab Choudhury v. Registrar of Joint Stock Companies PLD 1960 Dacca 541; Md. Nur Hussain v. Province of East Pakistan PLD 1960 Dacca 31; Chand Miah v. IT and Sales Tax Officers PLD 1960 Dacca 523; Parbatipur Industries v. Chief Secretary East Pakistan 12 DLR 255; Md. Noor Hussain v. Province of East Pakistan 11 DLR 367; State Life Insurance Corporation of Pakistan Tobacco Co. PLD 1983 SC 280 and Md. Ibrahim v. Province of East Pakistan 15 DLR 703 ref.

(p) Constitution of Pakistan---

----Art. 185---Powers of Supreme Court to do justice---Scope.

Supreme Court has complete power to do justice without fettering itself with any self-imposed restrictions.

However, the Supreme Court should not interfere with such findings where it is satisfied that same are reasonable and were not arrived at by disregard of any accepted principles relating to the appraisal of evidence in the interest of justice.

Supreme Court will not hesitate to interfere where the court whose judgment is complained of has made no real endeavour to judge the case or having made such endeavour, has arrived at a result so atrocious or ludicrous that no reasonable man could possibly approve of it. In all such cases the Court will interfere because in the circumstances assumed a principle of natural justice has been contravened and the very basis of justice choked.

Noora v. State PLD 1973 SC 469; United Bank of India Ltd. v. Azirannessa Bewa PLD 1965 SC 274; Kaushal Kishore v. Ram Dev AIR 1958 SC 999; Jumman v. The State of Punjab AIR 1957 SC 469; Pandurang v. State of Hyderabad AIR 1955 SC 216; Muhammad Aslam v. State PLD 1978 SC 298; Yara v. State 1985 SCMR 1861; Pirzada v. Abdul Marjan 1986 SCMR 1052 and Dilwar v. Crown PLD 1952 FC 108 ref.

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

----Ss. 8, 20, 22 & .23---Pakistan Telecommunication Rules, 2000, Rr.6, 7 & 8---Pakistan Telecommunication Authority (Functions and Powers) Regulations, 2004, Reglns. 37, 38 & 39---Constitution of Pakistan, Arts. 185 & 199---Renewal of licence---Telecommunication Authority had examined the entire controversy with diligent application of mind---No justification whatsoever was available for any interference or exercise of jurisdiction under Art.199 or 185 of the Constitution.

(r) Pakistan Telecommunication (Reorganization), Act (XVII of 1996)---

----Ss. 8, 20, 22 & 23---Pakistan Telecommunication Rules, 2000, Rr.6, 7 & 8---Pakistan Telecommunication Authority (Functions and Powers) Regulations, 2004, Reglns. 37, 38 & 39---Mobile Cellular Policy, 2004---Constitution of Pakistan,Arts.18, 23, 24 & 25---Licence fee---Such fee, which was to be paid for Radio Frequency Spectrum and was owned by State as one of its precious resources, by no stretch of imagination was either confiscatory or ex proprietary or violative of Arts. 18, 23, 24 & 25 of the Constitution---Provisions of Art.18 of the Constitution were not attracted in the matter of licence fee because the right guaranteed by Art.18 was not an absolute right and was always subject to restriction in accordance with the provision itself or any other law made in that regard---No guarantee to the effect that "what was regarded as an object of trade would continue to be so regarded for ever"---When a certain article became contraband and ceased to be a legitimate object of trade, there could be no question of any Fundamental Right to trade in that article.

Sheoshankar v. M.P.State Government AIR 1951 Nag. 58 ref.

(s) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Regulation of trade---Licence fee---Competence---Scope---Right of freedom of trade, business or profession guaranteed by Art.18 of the Constitution is not absolute or unfettered, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law---Regulation of any trade or profession by a system of licencing empowers the Legislature as well as the authorities concerned to impose restrictions on the exercise of the right---Such restrictions must be reasonable and bear true relation to "trade" or "profession" and for purposes of promoting general welfare---Principles.

Right of freedom of trade, business or professions guaranteed by Art. 18 of the Constitution is not absolute, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law. Such right is therefore not unfettered. The regulation of any trade or profession by a system of licensing empowers the Legislature as well as the authorities concerned to impose restrictions on the exercise of the right. They must, however be reasonable and bear true relation to 'trade' or profession and for purposes of promoting general welfare. Even in those countries where the right to enter upon a trade or profession is not expressly subjected to conditions similar to this Article, it was eventually found that the State has, in the exercise of its police power, the authority to subject the right to a system of licensing, i.e., to permit a citizen to carry on the trade orprofession only if he satisfies the terms and conditions imposed by the prescribed authority for the purposes of protecting and promoting general welfare.

The competent authority is at liberty to regulate its affairs and "a form of regulation is unconstitutional only if it is arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. This principle of regulation of trade has been given judicial sanction in Pakistan.

The imposition of a licence-fee and requirement of a licence from person desiring to carry on any occupation, trade or business is a restriction on the right to carry on the occupation, trade or business and its validity is liable to be questioned and tested. The requiring of licence and imposition of a licence fee would be valid only if it is reasonable and in the interest of the general public.

Article 18 does not guarantee a monopoly to a particular individual or association to carry on any occupation and if other persons are also allowed the right to carry on the same occupation and an element of competition is introduced in the business that does not, in the absence of any bad faith on the part of the authorities, amount to a violation of the Article.

PLD 1989 Kar. 219; Muhammad Yasin v. Town Area Committee, Jalalabad AIR 1952 SC 115; Ramjilal v.' I.T. Officer AIR 1951 SC 97; T.K. Abraham v. State of TRA. Co. AIR 1958 KER 129; In Re Parameswaran Pillai AIR 1955 Trav-Co 268 and Harnam Singh and other v. Regional Transport Authority Calcutta Region and other AIR 1954 SC 190 ref.

(t) Constitution of Pakistan---

----Art. 23---Right as to property---Word "property" used in Art.23 of the Constitution means the property in respect of which a right of proprietorship may be asserted---"Property" includes both movable and immovable and every possible interest which a party may have in property, including abstract and concrete rights.

Raza Kazim v. District Magistrate, Lahore PLD 1958 Lah. 706; State of Bomaby v. F N Balsara AIR 1951 SC 318; Narasimha v. District Magistrate AIR 1953 Mad. 476 and S.M. Transports (P) Ltd., v. Sankabaswamigal Mudd AIR 1963 SC 864 ref.

(u) Constitution of Pakistan---

----Arts. 18 & 23---Freedom of trade, business and profession--Imposition of fee---Validity---Fee can only be questioned where it is not imposed in accordance with law and the prescribed procedure and infringed the fundamental rights guaranteed under Art.18---Where, however, a fee is imposed by a competent authority under a valid law, rules made thereunder or policy formulated, it cannot be said that it is capricious, administrative or executive affair and should be held to violate Art. 23 of the Constitution.

Gopal Narain v. State Uttar Pradishair 1964 SC 370 and Amalgamated Coalfields v. Janapada Sabha AIR 1964 SC 1013 ref.

(v) Constitution of Pakistan---

----Art. 24---Protection of property rights-"Licensee"---Article 24 of the Constitution recognizes as a matter of fundamental right and sanctity of private property---Licensee which is only an incidental right attached to a substantive interest, will not be "property" for the purpose of Art.24.

A.B. Awan v. Govt. of Punjab PLD 1983 FSC 23 ref.

(w) Constitution of Pakistan---

----Art.25---Equality of citizens---Concept, scope and extent---Classification which is not arbitrary, capricious or in violation of the doctrine of equality cannot be questioned---Principles---Where P had executed an agreement wherein all the liabilities and privileges had been incorporated and it had to remain within defined sphere laid down in the agreement and could not claim those privileges conferred on W or M as they had to be treated in accordance with their agreement executed subsequently with the Authority and admittedly the agreement of P was not similar to the agreement executed by W and M similar treatment could not be expected or asked by P who had got its own package of privileges and liabilities enumerated and specified in the agreement.

Article 25 of the Constitution enjoins that all citizens are equal before law and are entitled to equal protection of law, i.e., all persons subjected to a law should be treated alike under all circumstances and Conditions both in privileges conferred and in the liabilities imposed. The equality should not be in terms of mathematical calculation and exactness. It must be amongst the equals. The equality has to be between persons who are placed in the same set of circumstances. The dominant ideal common to both the expressions is that of equal justice. The guarantee contained in this right is only that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons or other classes in like circumstances.

It must, however, be kept in view that though the persons similarly situated or in similar circumstances are to be treated in the same manner but the "equality clause particularly the provision about the equal protection of the laws does not mean that all citizens shall be treated alike under all set of circumstances and conditions; both in respect of privileges conferred and liabilities imposed. Whatever else the expression 'equal protection of law' may mean it certainly does not mean equality of operation of legislation upon all citizens of the State. Equality of citizens does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. It means that among equals the law should be equal and should be equally administered and that the like .should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land.

Classification which is not arbitrary, capricious or in violation of the doctrine of equality cannot be questioned. It is the basic requirement of law that all persons shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.

In the present case P had executed an agreement wherein all the liabilities and privileges had been incorporated and it had to remain within the defined sphere laid down in the agreement and could not claim those privileges conferred upon W or M as they had to be treated in accordance with their agreement executed subsequently with the Authorities and admittedly the agreement of P was not similar to the agreement executed by W and M therefore, similar treatment could not be expected or asked by P who had got its own package of privileges and liabilities enumerated and specified in the agreement.

Saeed ud Din v. Secretary to Govt. of N.-W.F.P. 1990 CLC 8; Pak Petroleum Workers Union v. Ministry of Interior 1991 CLC 13; Sheoshankar v. M.P. State Government AIR 1951 Nag. 58; Gul Khan v. Government of Balochistan PLD 1989 Quetta 8; Muhammad Hussain v. Abdul Rashid PLD 1975 Lah. 1391; F.B. Ali v. State PLD 1975 SC 506; Mubarik Ali Khan v. Government of Punjab 1990 CLC 136; Zakaria v. Trustees of the Port of Karachi PLD 1968 Kar. 73; Mohd Mukhtar v. Special Tribunal PLD 1977, Lah. 524; Rifat Parveen v. Selection Committee Principal, Bolan Medical College PLD 1980 Quetta 10; Sheoshankar v. M.P. State Government AIR 1951 Nag. 58; Sheoshankar v. The State ILR 1951 Nag. 646; O.M. Parkash v. The State AIR 1955 All. 275; Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7; Jibendra Kishore Achharyya Chaudhory and 58 others v. The Province of West Pakistan and Secretary Finance and Revenue Depatt. Govt. of East Pakistan PLD 1957 SC 9 and Golam Sarwar Mollan v. Election Tribunal PLD 1965 Dacca 86 ref.

(x) Constitution of Pakistan---

----Art. 25---Equality of citizens-"Discrimination"-Connotation-Discrimination involves an element of unfavourable bias and it is in that sense that the expression "discrimination" has to be understood in this context.

Discrimination which means "making 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. But discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context.

Shirin Munir v. Government of Punjab PLD 1990 SC 295 ref.

(y) Constitution of Pakistan---

----Art. 18---Freedom of trade, business and profession---No enactment shall be enacted and policy formulated which is discriminatory, in violation of the Constitution---Such enactment or policy would be void to the extent of the violation.

(z) Constitution of Pakistan---

----Art. 25---Equality before law---Discriminatory legislation or a policy formulated---Well entrenched principles on the subject of discriminatory legislation enumerated.

It would not be enough to say that a piece of legislation or a policy formulated thereunder is discriminatory but it is to be substantiated by applying certain well entrenched principles on the subject of discriminatory legislation which are as follows:

(i) The expression 'equality before law' or the 'equal protection of law' does not mean that it secures to all persons the benefit of the same laws and the same remedies. It only requires that all persons similarly situated or circumstanced shall be treated alike.

(ii) The guarantee of equal protection of law does not mean that all laws must be general in character and universal in application and the State has no power to distinguish and classify persons or things for the purpose of legislation.

(iii) The guarantee of equal protection of laws forbids class legislation but does not forbid reasonable classification for the purpose of legislation. The guarantee does not prohibit discrimination with respect to things that are different. The State has the power to classify persons or things and to make laws applicable only to the persons or things within the class.

(iv) The classification, if it is not to offend against the constitutional guarantee must be based upon some intelligible differential bearing a reasonable and just relation to the object sought to be achieved by the legislation.

(v) Reasonableness of classification is a matter for the courts to determine and when determining this question, the courts may take into consideration matters of common knowledge, matters of common report, the history of the times and to sustain the classification, they must assume the existence of any state of facts which can reasonably be conceived to exist at the time of the legislation.

(vi) The classification will not be held to be invalid merely because the law might have been extended to other persons who in some respect might resemble the class for which the law is made because the legislature is the best judge of the needs of particular classes and the degree of harm so as to adjust its legislation according to the exigencies found to exist.

(vii) One who assails the classification must show that it does not rest on any reasonable basis.

(viii) Where the legislature lays down the law and indicates the persons or things to whom its provisions are intended to apply and leaves the application of law to an administrative authority while indicating the policy and purpose of law and laying down the standards or norms for the guidance of the designated, authority in exercise of its powers, no question of violation of Article 25 arises. In case, however, the designated authority abuses its powers or transgresses the limits when exercising the power, the actual order of the authority and not the State would be condemned as unconstitutional.

(ix) Where the State itself does not make any classification of persons or things and leaves it in the discretion of the Government to select and classify persons or things, without laying down any principle or policy to guide the Government in the exercise of discretion, the statute will be struck down on the ground of making excessive delegation of power to the Government so as to enable it to discriminate between the persons or the things similarly situated.

Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7 and Ziaullah Khan v. Government of Punjab PLD 1989 Lah. 554 ref.

(aa) Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----Preamble---Constitution of Pakistan, Art.25---Equality before law---Licence, renewal of---Pakistan Telecommunication (Reorganization) Act, 1996 and policy made thereunder is not discriminatory.

(bb) Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----Ss. 8, 20, 21, 22 & 23---Constitution of Pakistan, Art. 25---Equality of citizens---Licence, renewal of---Allegation of legislation being discriminatory---Validity---Presumption is that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds---Whether a statute was discriminatory and such discrimination was not referable to any classification which was rational and which had nexus with the object intended to be achieved by the statutes must be established---Where no categoric allegations could be levelled and the petitioner had failed to honour its final commitment and had rightly been proceeded against for violation of the terms and conditions as enumerated in the agreement the only unescapable conclusion, in circumstances, would be that the Policy formulated by the Authority could not be considered, discriminatory.

There is a strong presumption that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. The legislature is free 'to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. 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 to be existing at the time of the legislation.

It must be shown that the impugned statute is based on discrimination and that such discrimination is not referable to any classification which is rational and which has nexus with the object intended to be achieved by the statute. Under the law it is for the person who assails a legislation as discriminatory to establish that it is not based on a valid classification and this burden is all the heavier when the legislation under attack is a taxing statute.

In the present case, no categoric allegations could be levelled except a few and the only un-escapable conclusion would be that the Policy formulated by the Authority cannot be considered as discriminatory.

The petitioner, in the present case, had selected a spectrum of its own choice but failed to honour its final commitment and had rightly been proceeded against for violation of the terms and conditions as enumerated in the agreement, it could not be argued that the' concerned law and policy were discriminatory.

The evasion of financial liabilities could not be allowed under the garb of untenable pleas.

AIR 1951 SC 41; 1950 SCR 869; AIR 1953 SC 215; AIR 1958 SC 956; M. H. Qureshi v. State of Bihar AIR 1958 SC 731; Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendulkar 1959 SCR 279; East India Tobacco Company v. State of Andh Pra. AIR 1962 SC 1733; Dauran Khan v. Naseer Muhammad Khan PLD 1964 SC 136; W. H. King v. Emperor AIR 1950 Boma 380; Hayat Muhammad v. Election Authority 1985 SCMR 1909 and Jai Singh v. State AIR 1952 All. 991 ref.

(cc) Constitution of Pakistan---

----Art.185(3)---Petition for leave to appeal---Impugned judgment being well based wherein all the contentions had been dilated upon and decided in a comprehensive manner did not warrant any interference by the Supreme Court---Petition for leave to appeal was dismissed.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and Uzair Karamat Bhandari, Advocate Supreme Court for Petitioners.

Raja Aleem Abbasi, D.A.-G. Muddassar Hussain, Director Ministry of Information for Respondent No.1.

Muhammad Akram Sheikh, Senior Advocate Supreme Court Assisted by M/s. Raheel Akram Sheikh and Hafiz Naeem for Respondent No.2.

Mian Shafqat Jan, Director Litigation.

Ali Raza Asstt. Director Litigation in both cases.

Ahmad Khudayar Binder, Asstt. Dir. Moble.

Date of hearing: 27th May, 2010.

P L D 2011 Supreme Court 116

Present: Raja Fayyaz Ahmed and Tariq Parvez Khan, JJ

GHULAM DASTAGIR and 3 others---Petitioners

Versus

THE STATE---Respondents

Criminal Petition No.45 of 2010, decided on 28th October, 2010.

(On appeal from the judgment/order dated 9-2-2010 passed by Lahore High Court, Lahore in Cr. Revision No.103 of 2010).

Criminal Procedure Code (V of 1898)---

----S.514---Constitution of Pakistan, Art. 185 (3)---Surety amount, forfeiture of---Scope---Petitioners stood surety to accused persons who were released on bail by High Court but later on they absented themselves---Trial Court commenced proceedings under S. 514 Cr.P.C. against petitioners for forfeiture of surety bonds---Validity---Supreme Court showing great concern to law and order situation prevailing in the country and deterioration of moral values in the society in past 3/4 decades observed that provisions of S.514, Cr.P.C. should not only be adhered to strictly but in case of non-appearance of accused surety should be held liable for forfeiture of full amount of its bonds for the reason that moral values of society as were in the sixties were different then---Where a court allowed bail to accused with condition that he would furnish bail bonds in a particular amount through sureties and if such sureties failed to produce the accused when required by the Court, any leniency shown in case of failure of surety in production of accused would tantamount to violating law and would encourage non-production of accused who was allowed bail on the basis of bonds furnished by sureties---Both the petitioners were closely related to two accused and it was impossible for them that despite knowing factum of cancellation of bail of accused by Supreme Court, accused remained outlaws and petitioners (sureties) did not make any effort to procure their attendance as was required by Supreme Court and by Trial Court---Petitioners failed to make out any case for interference by Supreme Court in the order passed by High Court, confirming judgment/order of Trial Court---Petition for leave to appeal was refused.

Dildar v. State PLD 1963 SC 47; Muhammad Ashraf v. State 1997 SCMR 1387 and Ghulam Qadir Siyal v. State 1997 PCr.LJ 554 distinguished.

Zeshan Kazmi v. State PLD 1997 SC 267 rel.

Tahir Munir Malik, Advocate Supreme Court for Petitioners.

M. Irfan Malik, Addl. P.-G. for the State,.

Aaliya Nelum, Advocate Supreme Court for the Complainant.

Date of hearing: 28th October, 2010.

P L D 2011 Supreme Court 119

Present: Nasir ul Mulk and Mian Saqib Nisar, JJ

GHULAM RASOOL through L.Rs. and others-Appellants

Versus

MUHAMMAD HUSSAIN and others---Respondents

C.M.A. No.2678 of 2010 and Civil Appeal-No.694 of 2007, decided on 6th December, 2010.

(On appeal from the judgment dated 6-12-2000 passed by Lahore High Court Lahore in RSA No.273 of 1984).

(a) Constitution of Pakistan---

----Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether judgment of High Court and courts below suffered from misreading and non-reading of evidence on record.

(b) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of Supreme Court--Appreciation of facts---Principle---Different conclusion---Scope---Appreciation of facts/evidence on record is the privilege and domain of courts of facts---View set out by such courts cannot be interfered by Supreme Court while examining decisions in its appellate jurisdiction, only for the reason that a different conclusion possibly be drawn on account of same set of facts/evidence---To interfere in factual findings of courts at such stage is permissible under the law only if such findings suffer for any vice of misreading or non-reading.

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

----O. XLI, R.22-Appeal-Cross-objections, non filing of---Effect---Though respondent can verbally challenge findings on any issue going against him at the time of hearing of appeal while supporting decree but it is not legally permissible to assail decree without cross-appeal.

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

----O. VIII, Rr. 3, 4 & 5---Written statement---Evasive denial---Effect---Evasive denial in written statement, expressing lack of knowledge in that regard, is no denial as per provisions of O. VIII, Rr. 3, 4 & 5 C.P.C.---Such denial may be construed as admission on the part of defendant.

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

----S. 22---Specific performance---Rule of discretion---Applicability---Principle---Rule of discretion in specific enforcement cases should not be arbitrarily applied rather it should be invoked to promote fairness and equity.

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

----Ss. 12, 22 & 27 (b)---Specific performance of agreement to sell--Bona fide purchaser for valuable consideration without notice---Proof---Rule of discretion---Applicability---Plaintiffs entered into agreement to sell with vendor and paid earnest money but vendor sold land in question to defendant---Defendant claimed to be the bona fide purchaser for valuable consideration without notice of earlier agreement to sell in favour of plaintiffs---Validity---Plaintiffs established on record to have entered into agreement for purchase of suit-land and payment of Rs.5000 as earnest money to vendor---Was not established if plaintiffs were delinquent or failed to perform any of their obligation under sale agreement and thus were disentitled to the equitable relief---Only for the reason that defendants had made full payment to vendor but when they did not establish to be the bona fide purchasers, discretionary relief should not be withheld from plaintiffs, otherwise the same would tantamount to giving undue premium to subsequent vendee, who though had purchased the property with notice of prior agreement to sell and was found disentitled by the courts to protection under section 27 (b) of Specific Relief Act, 1877, which was the only provision in law to safeguard the rights, yet he be given guerdon and rewarded and plaintiffs who otherwise proved their case and were not at fault in any manner whatsoever must be non-suited---Supreme Court found it to be a sheer arbitrariness, which was sworn foe of discretion---Supreme Court declined to interfere in the judgment and decree passed by High Court---Appeal was dismissed.

Tariq Mehmood, Advocate Supreme Court for Appellant(s) (in both cases).

Ch. Mehdi Khan Chohan, Advocate Supreme Court for Respondent (2) (in both cases).

Nemo for Legal Heirs of Respondents (1 a-e & 1) Nemo for Legal Heirs of Respondent No.1(d). Date of hearing: 6th December, 2010.

P L D 2011 Supreme Court 126

Present: Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

EVACUEE TRUST PROEPRTY BOARD through Deputy/Assistant Administrator, Evacuee Trust Property, Peshawar---Appellant

Versus

ALI BAHADUR---Respondent

Civil Appeal No.148 of 2006, decided on 6th May, 2010.

(On appeal from the judgment dated 19-12-2003 passed by Peshawar High Court, Peshawar in C.R.No.457 of 2003).

(a) Evacuee Trust Properties (Management and Disposal) Act (XII of 1975)---

----S. 14---Constitution of Pakistan, Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether suit filed by plaintiff was barred by law as such civil court had no jurisdiction to grant declaration prayed for in view of bar contained in 5.14 of Evacuee Trust Properties (Management and Disposal) Act, 1975, and such plea was raised before Trial Court and as such issue was also framed and finding of suit on relevant issue was to the effect that court had no jurisdiction to entertain the suit, yet the suit was decreed and declaration was granted declaring suit property to be non-evacuee.

(b) Evacuee Trust Properties (Management and Disposal) Act (XII of 1975)---

----Ss. 8 & 14---Specific Relief Act (I of 1877), S. 42---Evacuee property---Determination---Jurisdiction---Plaintiff sought declaration from civil court with regard to suit property as Evacuee Trust Property---Judgments and decrees passed by both the courts below in favour of plaintiff were maintained by High Court---Validity--When question had arisen at any point of time about status of property, it was the Chairman of Evacuee Trust Property Board alone who, under Evacuee Trust Properties (Management and Disposal) Act, 1975, was competent and empowered to determine and decide the question---Civil court in view of bar contained in S.14 of Evacuee Trust Properties (Management and Disposal) Act, 1975, had no jurisdiction in the matter---Courts while considering and appreciating evidence of parties on record had come to the conclusion that property was not established by defendant to be attached to any charitable, religious trust etc. and was not an evacuee trust property---Such determination was within the exclusive domain of the Chairman and adjudication thereof by courts was an encroachment and circumvention on his empowerment, therefore, bar of S.14 of Evacuee Trust Properties (Management and Disposal) Act, 1975, was duly attracted---Judgments and decrees passed by all the courts below were set aside and suit filed by plaintiff was dismissed due to lack of jurisdiction---Appeal was allowed.

Evacuee Trust Property Board through Assistant Administrator, Evacuee Trust Property Board at Mirpurkhas v. Abdul Aziz Khan and 6 others 2000 SCMR 1371; Evacuee Trust Property Board and others v. Ahmed and others 2004 SCMR 440; Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262; Auqaf Department through Chief Administrator Auqaf, Punjab, Lahore v. Secretary, Ministry of Religious Zakat, Ushar and Minorities Affairs, Government of Pakistan, Islamabad and 3 others 2009 SCMR 210 and Evacuee Trust Property Board v. Sheikh Abdul Sattar and another 2009 SCMR 1223 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Zawar Shah, Patwari for Appellants.

Abdul Samad Khan Ziada, Advocate Supreme Court/Advocate­-on-Record for Respondent.

Date of hearing: 5th May, 2010.

P L D 2011 Supreme Court 132

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez Khan and Ghulam Rabbani, JJ

PAKISTAN TELECOMMUNICATION CO. LTD. through Chairman-Appellant

Versus

IQBAL NASIR and others---Respondents

Civil Appeals Nos.468, 471-474, 632, 633, 852-859, 883-892, 899-901, 950 and 974 of 2010, decided on 23rd, December, 2010.

(On appeal from the judgment dated 22-12-2009 passed by the High Court of Sindh at Hyderabad in C.P. of 2009; judgment dated 29.10.2009 passed by the Peshawar High Court, Peshawar in W.Ps. Nos. 2140 of 2006, 144 & 398 of 2007, 1938 of 2008 and 2190 of 2009; judgment dated 16-3-2010 in C.P. No.D-297 & 299 of 2008; judgment dated 5-5-2010 passed by the Lahore High Court, Multan Bench in W.Ps. Nos. 4811, 5325, 5425, 5728 & 5798 of 2006, 551 of 2007 and 6143, 6691 & 9257 of 2009; judgment dated 3-6-2010 passed by the High Court of Sindh, Karachi in C.Ps. Nos.D-750 & 751 of 2006, 1695 & 1696 of 2008, 98, 298, 300, 682, 1950 & 1951 of 2009; judgment dated 15-6-2010 passed by the Peshawar High Court in W.P. No. 339 of 2006; order dated 14-6-2010 passed by the Lahore High Court, Lahore in W.P. No. 21202 of 2009; and judgment dated 17.06.2010 passed by the Lahore High Court, Multan Bench in I.-C.A. No. 219 of 2009).

(a) Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----S. 6---Constitution of Pakistan, Arts. 185(3) & 199(5)--- Leave to appeal was granted by Supreme Court to consider whether writ in the matter could not be issued to Pakistan Telecommunication Corporation , Limited, as it was not performing functions in connection with affairs of Government and even if it was assumed to be performing such functions, still subject matter of judgment passed by High Court was not connected with affairs of Government; and whether rules framed by Pakistan Telecommunication Corporation Limited were statutory or not.

(b) Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----S. 6--- Constitution of Pakistan, Arts. 185(3) & 199(5)--- Leave to appeal was granted by Supreme Court to consider whether there was no statutory right in favour of employees to continue in service despite retrenchment, which aspect was not adverted to by High Court.

(c) Pakistan Telecommunication Corporation Act (XVIII of 1991)---

----S. 6---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1 (g)--- Constitution of Pakistan, Art.199---Pakistan Telecommunication Corporation Limited---Status---Non-­statutory rules---Master and servant, principle of---Applicability---Constitutional jurisdiction of High Court, exercise of---Contract employees---Vested right---Respondents were contract employees and on completion of contracts, Pakistan Telecommunication Corporation Authority terminated their services---High Court in exercise of constitutional jurisdiction, directed the Corporation to reinstate respondents in service---Validity---Federal Government first sold 12% shares of Pakistan Telecommunication Corporation Limited through public subscription and then it sold 26% [all B class shares] to foreign company and remaining 62% shares of Pakistan Telecommunication Corporation Limited were still owned by Federal Government---As long as Government owned majority shares in the Corporation, either in its own name or whether wholly or partially in the name of any other organization or entity controlled by Government, Pakistan Telecommunication Corporation Limited was and should continue to be amenable to jurisdiction of High Court under Art.199 of the Constitution---Pakistan Telecommunication Corporation Limited was a person within meaning of Art.199 (5) of the Constitution---In the absence of statutory rules, principle of "Master and servant" was applicable and respondents were entitled to seek remedy permissible before court of competent jurisdiction---Employees of Pakistan Telecommunication Corporation Limited were governed by principle of "Master and servant" and in absence of statutory rules, constitutional petitions filed by employees were not maintainable---All employees having entered into contract of service on the same or similar terms and conditions had no vested right to seek regularization of their employment, which was discretionary with the master---Master was within his rights to retain or dispense with services of an employee on the basis of satisfactory or otherwise performance---Contract employees had no right to invoke constitutional jurisdiction, where their services were terminated on completion of period of contract---As all respondents were covered under the definition of workman, they were entitled to one month's notice or salary in lieu thereof, as permissible to them under the rule of master and servant---Supreme Court set aside the judgment passed by High Court in favour of contract employees of Pakistan Telecommunication Corporation Limited---Appeal was allowed.

PTCL v. Muhammad Zahid 2010 SCMR 253; PIAC v. Tanweer-ur-Rehman PLD 2010 SC 676; Executive Council Allama Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484; Masood v. PIAC 2001 PLC (C.S.) 41; Ikram Bari v. National Bank 2005 SCMR 100; Muhammad Asam v. PTCL 1997 PLC (C.S.) 1131; Nazir Ahmed Panhwar v. Government of Sindh 2009 PLC (C.S.) 161; Municipal Committee, Arifwala v. Muhammad Ramzan 2005 SCMR 1721; Sharifan Begum v. Abdul Aziz PLD 1975 SC 475; Pakistan International Airlines v. Sindh Labour Court No.5 (PLD 1980 SC 323; Ch. Muhammad Ashraf v. State Life Insurance 2002 PLC (C.S.) 948; Hameed Akhtar Niazi v. Secretary, Establishment Division Government of Pakistan 1996 SCMR 1185; PIAC v. Samina Masood PLD 2005 SC 831; Principal Cadet Collage Kohat v. Muhammad Shoaib Oureshi PLD 1984 SC 170; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Engineer Naraindas v. Federation of Pakistan 2002 SCMR 82 ref.

(d) Constitution of Pakistan---

---- Art. 185 (3)--- Law Reforms Ordinance (XII of 1972), S.3---Infra Court Appeal, non filing of--- Effect---Requirement of filing Infra Court Appeal is a rule of practice for regulating exercise of discretion which does not oust or abridge constitutional jurisdiction of Supreme Court and in certain exceptional circumstances Supreme Court can entertain petitions, or as the case may be, direct appeals even where remedy of Infra Court Appeal under S.3 of Law Reforms Ordinance, 1972, has not been availed by a party.

Imtiaz Ali Malik v. Mst. Surrya Begum 1979 SCMR 22; Pakistan International Airlines Corporation v. Samina Masood PLD 2005 SC 831; Accountant General for Pakistan (Revenue) through Auditor-General v. Zia Mohy-ud-Din PLD 2008 SC 164; Mst. Shohrat Bano v. Ismail Dada Adam Soomar 1968 SCMR 574; Punjab Employees Social Security Institution Lahore and others v. Manzoor Hussain Khan 1992 SCMR 441; Province of Punjab through Secretary Excise and Taxation, Government of Punjab v. Sargodha Textile Mills Ltd., Sargodha PLD2005 SC 988 and Commissioner of Income Tax v. Messrs Media Network PLD 2006 SC 787 rel.

(e) Order---

----Bad order---Non-implementation---Scope---Non-implementation of bad order makes no difference.

Muhammad Munir Piracha, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record with Ms. Zahida Awan, GM (Legal) and Syed Yamin Shah, Manager (HR) for Appellants (in C.As. Nos. 468, 471-474, 632, 633, 853-859, 899-901, 950 & 974/2010).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Appellants (in C.A.852 of 2010).

Nazar Ahmed Bhutta, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in C.As. Nos.883-892/2010).

Muhammad Rafique Rajwana, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.As. Nos.852-859/2010).

Ejaz Faroze, Advocate Supreme Court for Respondents (in CAs. Nos.882-892 of 2010).

Mir Afzal Malik, Advocate Supreme Court for Respondents (in C.A.No.899 of 2010).

M.A. Ghani, Advocate Supreme Court for Respondents (in C.A.No.900 of 2010).

Malik Qamar Afzal, Advocate Supreme Court for Respondents (in C.As. Nos.471 & 950 of 2010).

Ishatiaq Haider, Advocate Supreme Court for Telecom Foundation (in CAs. Nos.472-474 & 950 of 2010).

Iqbal Nazir, Naqi Butt, Izhar-ud-Din, Syed Ahsan Ali, Shakeel Ahmed and M. Adnan Pasha for Respondnets (in person).

Dates of hearing: 4th 22nd, 24th 29th and 30th November, 2010.

P L D 2011 Supreme Court 151

Present: Mian Shakirullah Jan, Nasir ul Mulk and Mian Saqib Nisar, JJ

MUHAMMAD TARIQ and others---Petitioners

Versus

Mst. SHAMSA TANVEER and others---Respondents

Civil Petition No.1160 of 2009, decided on 30th November, 2010.

(Against the judgment dated 24-4-2009 passed by Peshawar High Court Bench, D.I. Khan in C.R.No.85 of 2009).

(a) Pleadings---

----New plea---Absence of facts---Effect---In civil litigation, a party thereto has to set out its / his case in pleadings especially which relates to facts---In absence of any fact, no plea can be allowed to be raised, agitated and set forth at a later stage---Raising of such plea is beyond the scope and is impermissible as per the law.

(b) Constitution of Pakistan---

----Art. 185---Civil Procedure Code (V of 1908), O. XLI, R. 27---Additional evidence---Supreme Court, jurisdiction of---Scope---On the authority / power of Supreme Court to do complete justice and allowing additional evidence, there cannot be any cudgel, however, such power should not be exercised as a matter of course to favour a delinquent litigant, rather than in genuine cases---Additional evidence can only be allowed by court when it is in consonance with, and within the scope of pleadings of parties and not otherwise.

Tajul Mulk v. Mst. Zaitoon Bibi and 3 others PLD 1994 SC 356; Muhammad Hanif and another v. Sultan 1994 SCMR 279; Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051; Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 and Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1778 ref.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Constitution of Pakistan, Art. 185(3)---Pre-emption right, exercise of---Talb-e-Muwathibat---Sale---Non-attestation of mutation---Effect---Suit filed by pre-emptor was decreed in her favour by Trial Court and Lower Appellate Court as well as High Court maintained the judgment and decree passed in favour of pre-emptor---Plea raised by vendees was that suit was pre-mature as Talb-e-Muwathibat was made by pre-emptor prior to attestation of sale mutation in favour of vendees---Validity---Sale was deemed to have been complete on the day it was affected and parties acknowledged thereof made statements before revenue official and not on the date on which mutation in revenue record was entered/sanctioned---As per definition of "sale" given in Pre-emption law, sale would come into existence on payment of sale price and transfer of possession---Vendees failed to show the Supreme Court from evidence already on record that prior to making of Talbs by pre-emptor and filing of suit such two conditions were lacking---Supreme Court declined to interfere in judgment and decree passed by High Court---Leave to appeal was refused.

Muhammad Amin Khan v. Mst. Parveen Ramzan and others 1999 SCJ 450 and Zulfiqar and others v. Shandat Khan PLD 2007 SC 582 rel.

Gul Zarin Kiyani, Senior Advocate Supreme Court and Sardar Muhammad Ghazi, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

P L D 2011 Supreme Court 155

Present: Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

MUBARAK ALI and others---Appellants

Versus

KHUSHI MUHAMMAD and others---Respondents

Civil Appeal No.69 of 2006, decided on 23rd December, 2010.

(On appeal from the judgment dated 24-11-2005 of the Lahore High Court, Lahore passed in Civil Revision 708 of 2005).

(a) Constitution of Pakistan---

----Art. 185(3)---Leave to appeal was granted by Supreme court to consider inter alia, whether conclusions drawn by the High Court as well as the courts below suffered from misreading and non-reading of evidence particularly when they were not in conformity with the pleadings.

Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696 ref.

(b) Constitution of Pakistan---

----Art. 185---Appeal to Supreme Court---Scope---Factual findings of the courts below were founded upon no misreading or non-reading of the evidence, rather the decisions were based on appreciation of evidence by the two courts of fact, which had been duly endorsed by the revisional court and no specific error in reading the evidence had been established/pointed out---Held, judgment and decrees of the subordinate courts could not be interfered in the appellate jurisdiction by the Supreme Court, only on the ground that another conclusion on the basis of appreciation of evidence could possibly be reached.

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

----S. 119---Interpretation, scope and application of S.119, Transfer of Property Act, 1882---Right of party deprived of thing received in exchange---Deprivation must be on account of the defect in the title alone and not otherwise---When important and essential ingredient regarding defect in title was not in issue of lis, S.119, Transfer of Property Act, 1882 was not attracted---Principles.

According to the plain reading and interpretation of section 119, Transfer of Property Act, 1882 which is based upon principles of equity, it has two parts. The first part which may be described as substantive is the governing portion of the section and the later part being remedial in nature is regulated and controlled by the first. The substantive part clearly prescribes that if one of the exchangers, including person claiming through or under him, is deprived of the property received in exchange from the other person because of the defect in the title of the latter, only in that eventuality the section would be attracted. This means that the deprivation must be on account of the defect in the title alone and not otherwise. If an exchanger is deprived of the property for some other reason, the first part of the section shall have no application. The second part only provides for the remedies; however, subject to the proof of such a defect and it gives two options to the party at loss, either to enforce for the loss occasioned on account of such deprivation, not restricted to the pecuniary compensation but also from some other property of the delinquent exchanger as well OR to seek the return of that very property from which the exchanger has been deprived. This second option is again circumscribed by the clear expression of the section i.e. "if still in possession of such other party" meaning thereby that possession could only be sought if that is being retained by the 'exchanger, having a defective title and not otherwise.

In any case the said provision being founded on the principles of equity shall not be attracted for the benefit of a person, who is, a privy to the fraud and has been so adjudged by the courts of competent jurisdiction. In the present case, it is not established on the record if there was any defect in the title. Therefore, as the important and essential ingredient regarding defect in the title being not an issues of lis, would hot attract section 119. The principles of equity are meant to promote justice, fairness and fairplay and cannot be allowed to give premium to the party, who has played fraud and foul and yet may seek invocation of equitable rules to his advantage which shall be a mockery thereof.

Notwithstanding the above, as regards the exercise of option envisaged by the remedial part of the section seeking restoration of property from which a person is deprived, as asked by the appellants, in the present case. Leaving apart if this option can be enforced through defence or such deprived party has to bring independent legal action, suffice it to say that according to the clear wording of the section, restoration can only be made if the property is still with the other side and the deprived party has set out a case in this behalf. In the present case, from the contents of the written statement of the appellants, their memo of appeal, the revision petition before the High Court, this is not spelt out. Rather from the contents of the written statement, it is propounded by the appellants themselves that their exchanged land has been sold in favour of a third party. This takes the case out of the preview of section 119 and the possession cannot be returned to the appellants. Beside in defence, they emphatically have defended of having validly exchanged their property with the suit property which has been adjudged by the three courts to be a fraudulent transaction, the vice practiced by the appellants. Appellants cannot assert a stance of defective title. No one can be allowed to plead and seek relief from the Courts on a plea not founded and embedded in his pleadings. This case is an apt example of the above rule. The proposition in the present case, is not purely of law and Supreme Court declined to grant relief to the appellants in terms of section 119 at the present stage.

(d) Pleadings---

----No one can be allowed to plead to seek relief from the courts on a plea not founded and embedded in his pleadings.

Shahzad Shaukat, Advocate Supreme Court for Appellants.

Ch. Irshadullah Chatta, Advocate Supreme Court for Respondent No. 1.

Other respondents: Ex-parte.

P L D 2011 Supreme Court 161

Present: Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

NAZIR AHMAD and another---Appellants

Versus

YOUSAF---Respondent

Civil Appeal No.81 of 2006, decided on 21st December, 2010.

(On appeal from the judgment dated 27-7-2005 passed by Lahore High Court, Multan in C.R.No.462-D of 1996).

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

----S. 51---Specific Relief Act (I of 1877), S.8---Suit for possession---Direction to defendants to remove superstructure raised on the suit plot---Application of S.51, Transfer of Property Act, 1882---Ingredients---Defendants though had shown some bank transaction qua the plaintiff but had not been able to establish, if the amount was credited to the latter and more so, if it was paid as a sale consideration pursuant to any sale transaction---No documentary evidence about the sale which could not be legally concluded except in accordance with S.54 of the Transfer of Property Act, 1882 and S.17, Registration Act, 1908 was available on record---No oral independent evidence had been led to establish the exact day, date, month, year, the venue as to when the sale transaction was allegedly negotiated and finalized between the parties and in whose presence---Factual findings of fact given by the three courts below did not suffer from any misreading or non-reading of the evidence---Provision of S.51, Transfer of Property Act, 1882 was not attracted to the case because in order to enforce the provision of S.51, a specific plea thereunder had to be taken in the written statement, an issue should be joined and evidence to that effect must be led---In the absence of said requisites being accomplished in the seriatim, no benefit could be attained under S.51, Transfer of Property Act, 1882---Application of S.51, Transfer of Property Act, 1882 was not a question of law simpliciter which could be agitated at any stage of the proceeding, rather the factual foundation within the parameters of S.51 had to be laid at the very inception of the case i.e. the pleadings of the parties so that the right conferred thereby could be legally enforced.

Ihsan ul Haq, Advocate Supreme Court for Appellants.

M. Arif Raja, Advocate Supreme Court for Respondent.

P L D 2011 Supreme Court 163

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khalil-ur-Rehman Ramday, JJ

HUMAN RIGHTS CASE NO.56878-P OF 2010: In the matter of

Human Rights Case No.56878-P of 2010, decided on 23rd December, 2010.

(Application by Azeem Ullah Khan and others Resident of Venus Housing Scheme 17-Kilo Meter, Feroze Pur Road, Lahore).

Constitution of Pakistan---

----Art. 184---Human Rights case---Launching of Housing Scheme---On account of complaints' of dishonesty, cheating and malfeasance against the sponsors of Housing Scheme by a fairly large number of residents/owners and purchasers of plots of the scheme and similar grievances voiced by the like residents of other such-like schemes that the Supreme Court took up the matter in discharge of the obligations cast on Supreme Court under Article 184 of the Constitution being a matter of public importance involving, inter alia, breach of the fundamental rights of the people to life and to property---Some sponsors of Housing schemes were not scrupulous, induce people to part with their hard-earned life savings on the strength of the sanctions procured for their schemes from the concerned local authorities e.g. the Development Authority, the Cantonment Boards and such-like other regulatory authorities and the people so trapped, find them, to their horror that the lands on which such schemes were claimed to be developed either did not belong to the developers or were under litigation and where the lands did belong to such-like promoters, then the promised indispensable and requisite facilities such as internal roads, connectivity to and access to public roads, sewerage, electricity and gas etc. were not provided---Whenever and wherever such-like frauds were committed, it was not just the sponsors of the concerned schemes who were liable for the same but even the concerned sanctioning and regulatory authorities were equally liable and responsible for that---Supreme Court, having noticed not just in the present case, but in some other cases also, which had come up before the Supreme Court that the Court felt the need of issuing some guidelines and directions to protect the interests and the rights of the innocent victims of the unscruplous sponsors of such-like schemes---Supreme Court stated and ordered that (a) since the sanctioning of the housing schemes fall within the competence of the concerned and legally designated local authorities and since it is on account of such-like sanctions and permission accorded by these regulatory authorities that the people feel assured of the genuineness of the schemes and the reliability of the sponsors and consequently invest their moneys therein, therefore, such-like sanctioning and regulatory authorities are required, legally and morally, to exercise the maximum care, caution and the due diligence in their matter of granting sanctions and permissions for the launching of such schemes; (b) and after the requisite sanction has been accorded, it becomes the obligation of the sanctioning authority to ensure that the conditions on which such a sanction was granted and the terms and conditions on which the plots were then sold to the people were honestly, scrupulously and fully satisfied and where it was not so done, then such an authority must, immediately and effectively, intervene to rectify the wrong; (c) while processing an application for the grant of such a sanction, the sanctioning authority must ensure that the area of land on which such a scheme is proposed to be established was a viable unit; that the land was undisputably available for the setting up of such a scheme and was free from all kinds of litigation and encumbrances and that the same was available to be validly and legally transferred to the purchasers of the plots; (d) the concerned regulatory authority must also examine the financial capacity of the sponsor/sponsors to find out whether he/they would be able to undertake the project and should also find out the know-how available with them for the purpose; (e) it would also be one of the essential duties of the sanctioning authority to ensure that the land where a housing project was sought to be set up was not land-locked and free access to the main public roads outside was available for the residents and others before such a scheme was sanctioned because Court has come across cases where the housing colonies get land-locked causing immeasurable hardship to the residents which then leads to un-ending litigation with other housing schemes for passage through them; (f) there are cases where a sanctioned scheme exists and then sanction is granted to another housing scheme which blocks access to the residents and visitors of their earlier existing colony to the main public roads, while according sanction to a housing scheme, it must also be ensured that it does not cause land-locking of another scheme and in such a situation a condition of guaranteeing free passage to the earlier scheme could be imposed or some other reasonable arrangement should be made for the purpose; and (g) likewise the sanctioning authority must also check the provision for sewerage disposal of the connectivity of the sewerage disposal with some main drain---Supreme Court clarified that the guidelines and directions above-noticed were only illustrative and should not be taken as exhaustive of all the steps which would be required to be taken in the matter in issue---Sanction and the regulatory authorities need to be vigilant and diligent to check exploitation of the people by unscruplous exploiters in the name of housing schemes and moreso by abusing the trusted names of the regulatory and sanctioning authorities---Supreme Court observed that the obligation cast on the sponsors of housing schemes were being regulated by the sanctioning authorities only through mere agreements between the said authorities and the sponsor/promoters of the said schemes---Concerned authorities must examine, under the guidance of the Secretaries of the concerned administrative departments and ministries and also under the guidance of the Chief Secretaries of the respective governments, whether such-like agreements were sufficient to ensure protection of the rights of the purchasers of plots and of the residents of such-like societies in such-like schemes and also to ensure due discharge by the sponsors of their obligations, if not, then the respective governments might consider regulation of the matter through legislation---Supreme Court directed that copies of present order shall be sent to the Chief Secretaries of all the Provinces and also to the Chief Commissioner of the Islamabad Capital Territory who shall circulate copies of the same to all the authorities within their respective jurisdiction which are involved in and are empowered to sanction private housing schemes and they were also directed to ensure compliance of the same---Director-General of Lahore Development Authority shall send monthly progress reports to the Registrar of Supreme Court in the matter of the Housing Scheme in question and also a report about the facilities and amenities made available to the residents of other housing schemes within his jurisdiction.

Applicant in person.

Iftikhar Ahmed Mian, Advocate Supreme Court along with Omer Rasul, D.G., L.D.A.

For owner Mian Shahbaz in person (In custody) (On Court's notice).

Date of hearing: 23rd December, 2010.

P L D 2011 Supreme Court 171

Present: Muhammad Sair Ali and Asif Saeed Khan Khosa, JJ

AYAZ AHMAD KHAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.586 of 2010, decided on 3rd January, 2011.

(On appeal from the order dated 12-11-2010 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Miscellaneous No.733-CB of 2010).

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Corruption Act (II of 1947), S.5---Penal Code (XLV of 1860), Ss.161/409/420---Bribery and cheating---Bail, grant of---Case of further inquiry---Pendency of civil suits---Challan, filing of---Accused was arrested for fraudulently getting some property transferred in his and his co-accused favour, in connivance of some revenue officials---Pre-arrest bail granted by Trial Court was cancelled by High Court---Validity---Four civil suits filed by rival parties against each other revolving around same transactions of alienation of property were already sub judice before local civil court and, thus, presuming any criminal intent on the part of accused in that regard before any final outcome of that civil litigation would amount to putting the cart before the horse---Investigation of the case had already been finalized and challan was submitted in Trial Court and, thus, physical custody of accused was not required by investigating agency at such stage---Depriving accused of his liberty at such stage merely for wreaking vengeance of complainant party would not serve any beneficial purpose---Accused joined investigation and nothing was to be recovered from his custody at the time when he was admitted to pre-arrest bail by Trial Court---There was no allegation against accused of misuse or abuse of concession of bail and authorities did not seek cancellation of his bail---Trial Court was justified in admitting accused to pre-arrest bail and, therefore, High Court should not have cancelled his bail---Supreme Court set aside the order passed by High Court and accused was admitted to bail---Appeal was allowed.

Muhammad Ilyas Siddiqui, Advocate Supreme Court with the petitioner in person and Mehmood A. Sh., Advocate-on-Record for Petitioners.

Ch. Zulfiqar Ahmad Farooq, Additional Prosecutor-General, Punjab and Shoukat Ali, Circle Officer Anti-Corruption, Attock for the State.

Zulfiqar Abbas Naqvi, Advocate Supreme Court for the Complainant.

Date of hearing: 3rd January, 2011.

PLD 2011 Supreme Court 174

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Mian Saqib Nisar, JJ

QAISAR MUSHTAQ AHMAD---Appellant

Versus

CONTROLLER OF EXAMINATIONS and others---Respondents

Civil Appeal No.586 and C.M.A. No.6182 of 2005, decided on 13th December, 2010.

(On appeal from the judgment dated 16-12-2004 passed by Lahore High Court, Lahore in R.F.A. No.378 of 1999).

Constitution of Pakistan---

----Art. 185(2)(d)(e)---Supreme Court Rules, 1980, O. V, R.24 (14)---Limitation Act (IX of 1908), S.5---Direct appeal---Condonation of delay---Sufficient cause, non-mentioning of---Appellant in his plaint himself fixed value of suit as Rs.8.3 million and decree to the tune of that amount was passed by trial Court in his favour---Judgment and decree passed by Trial Court was reversed, by High Court---Appellant earlier filed petition for leave to appeal before Supreme Court and then filed direct appeal---Appellant sought condonation of delay on the ground of earlier filing petition for leave to appeal---Validity---Proper remedy available to appellant was to file direct appeal before Supreme Court in terms of Art. 185 (2)(d)(e) of the Constitution and that too within prescribed period of limitation---Appellant himself for unexplained reasons allowed his appeal to become time barred, thus filed petition for leave to appeal, in which his request for conversion etc. was specifically disallowed and the same could not be considered a ground for condonation of delay---No mention of any sufficient cause in application for condonation of delay which was evasive and vague, no explanation had been given as to why appellant waited till 4-6-2005, for filing of appeal after order dated 9-5-2005, passed by Supreme Court whereby conversion of petition for leave to appeal was disallowed---Appeal was not promptly and immediately instituted and there was no explanation for each and every day's delay---Supreme Court declined to condone delay of 142 days occurred in filing of appeal against judgment and decree passed by High Court---Appeal was dismissed.

Zulifqar and others v. Shahadat Khan PLD 2007 SC 582 and Chairman, N.-W.F.P. Forest Development Corporation and others v. Khurshid Anwar Khan and others 1992 SCMR 1202 distinguished.

Mian Allah Nawaz, Senior Advocate Supreme Court for Appellant.

Shahzad Shaukat, Advocate Supreme Court for Respondents.

Date of hearing: 13th December, 2010.

P L D 2011 Supreme Court 178

Present: Muhammad Sair Ali and Asif Saeed Khan Khosa, JJ

ASMATULLAH---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.604 of 2010, decided on 27th December, 2010.

(On appeal from the judgment dated 29-11-2010 of the Peshawar High Court Peshawar passed in Criminal Miscellaneous No.1738 of 2010).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302---Constitution of Pakistan, Art.185(3)---Qatl-e-Amd---Bail, cancellation of---Case of further inquiry---No weapon was recovered from possession of accused during investigation and post-mortem examination report in respect of deceased showed that deceased had received only one fire shot---Solitary fire shot was attributed by prosecution to three accused persons and High Court released the accused on bail---Validity---Was not clear at bail stage as to whether any injury had been caused by accused to deceased or not---F.I.R. itself referred to pending litigation between parties and, therefore, possibility of spreading net wide by complainant party so as to falsely entangle accused was a possibility which could not safely be ruled out of consideration at bail stage---In respect of same occurrence local police had also registered another F.I.R. and police officer getting injured in the same incident did not incriminate accused in his deposition made before Trial Court in connection with that case---Case against accused surely called for further inquiry into his guilt---Supreme Court declined to interfere with exercise of jurisdiction and discretion in the matter by High Court---Considerations for grant of bail and those for its cancellation were entirely different---No allegation was levelled against accused regarding misuse or abuse of concession of bail granted to him by High Court---Supreme Court refused to cancel the bail---Leave to appeal was refused.

Muhammad Ikram Ch., Senior Advocate Supreme Court for Petitioner.

Muhammad Moazzam Butt, Advocate Supreme Court for Respondent No.2.

Lal Jan Khattak, Additional Advocate-General, KPK for the State.

P L D 2011 Supreme Court 181

Present: Javed Iqbal, Jawwad S. Khawaja and Anwar Zaheer Jamali, JJ

WAQAR ALI and others---Appellants

Versus

THE STATE through Prosecutor/Advocate-General, Peshawar and others---Respondents

Civil Appeal No.16 of 2010, decided on 23rd December, 2010.

(On appeal from the judgment dated 29-10-2009 of the Peshawar High Court, Abbottabad Bench passed in W.P.No.429 of 2009).

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

----S. 3---Constitution of Pakistan, Art.185 (3)---Leave to appeal was granted by Supreme Court to consider; whether assumption of jurisdiction by Trial Court was violative of Illegal Dispossession Act, 2005.

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

----S.3---Illegal dispossession, offence of---Pre-conditions---In order to constitute offence, complainant must disclose existence of both an unlawful act (actus rea) and criminal intent (mens rea).

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

----Ss.3 & 5---Complaint---Investigation by police---Object, purpose and scope---Enabling power of court under S.5 of Illegal Dispossession Act, 2005, can only be exercised on the basis of and after considering contents of complaint---Power to direct investigation under S.5 of Illegal Dispossession Act, 2005, has to be exercised judicially and not as an unconsidered or mechanical action undertaken on every complaint filed under Illegal Dispossession Act, 2005, regardless of the merits of the same---Purpose of investigation under Illegal Dispossession Act, 2005, is to ascertain prima facie, the authenticity of what has been stated in complaint---Complaint itself has to show that an offence cognizable by Court has been committed by accused named therein---Aim of directing investigation to police is not to add to allegations or grounds raised in complaint---Purpose of such investigation, if resorted to by Trial Court, is to inquire into correctness of allegations made in complaint itself-Court need not order investigation under S.5 of Illegal Dispossession Act, 2005, if it concludes from complaint and material furnished by complainant in support thereof, that all essential elements of offence under S.3 of Illegal Dispossession Act, 2005, are or not sufficiently disclosed and established---Court is not to become a party in gathering information or evidence in support of complaint to justify existence of mens rea, when none can be made out from complaint itself.

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

----Ss. 3 & 5---Illegal dispossession---Quashing of complaint---Word Tajawuz'---Effect---Criminal or civil matter---Distinction---Complaint filed against accused persons was forwarded to police for investigation, such assumption of jurisdiction by Trial Court was assailed but High Court declined to interfere in the matter---Validity---WordTajawuz' was used by complainant, which could only be translated as `encroachment' rather than criminal trespass or unlawful entry with intention of grabbing disputed land or of dispossessing complainant---Complainant claimed to have become aware of encroachment only after demarcation made by revenue functionaries---Various investigations undertaken by police or by local commissioner could only be treated as prima facie evidence of a civil dispute between parties, which dispute was to be decided by competent Civil or Revenue Courts having jurisdiction in the matter---Trial Court observed that mere encroachment was something different from illegal dispossession as the former did not involve intentional grabbing of property, however not finding element of mens rea in complainant, Trial Court travelled outside the complaint---Trial Court was required under Illegal Dispossession Act, 2005, to act as a sieve and to filter out those complaints which did not disclose requisite criminal intent---Courts which were authorized to try cases under Illegal Dispossession Act, 2005, had responsibility to see that persons named in complaint had a case to answer, before they were summoned to face trial---In order for the Court to exercise its jurisdiction by taking cognizance, certain facts must first be held to exist---Facts which constituted an offence under S.3 of Illegal Dispossession Act, 2005, had to be evident from complaint and documents filed in support thereof---If necessary ingredients of offence under S.3 of Illegal Dispossession Act, 2005, were not disclosed through complaint and accompanying documents, Trial Court was not justified in exercising jurisdiction and taking cognizance---Judgment passed by High, Court and order passed by Trial Court were set aside by Supreme Court and complaint was dismissed---Appeal was allowed.

Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450; Jehandad and 2 others v. The State and another PLD 2006 SC 270 and Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508 ref.

Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969; Shahabauddin v. State PLD 2010 SC 725; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCMR 1066 and Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 distinguished.

(e) Criminal trial---

----Complainant, duty of---Scope---Complainant is to state facts which, without extraneous considerations or evidence, satisfy Court of the existence of every ingredient of alleged offence---Without such, a complainant is not entitled to invoke aid of Court and to foist travails of criminal trial on person accused by him.

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

----S. 3---Complaint---Cognizance---Duty of Court---Scope---Courts are duty bound to scrutinize complaints and, if necessary, examine complainants to protect hapless victims of false complaints or complaints which do not show existence of all necessary elements of alleged offence---Bald assertion in complaint alleging mens rea may not (depending on facts of a case) justify 'assumption of jurisdiction, if the attendant circumstances set out in complaint or ascertainable from material filed in support thereof, do not bear out such allegation---In the event, if Court does not find sufficient material in complaint to justify cognizance, it may dismiss the same without proceeding to order an inquiry or investigation and without summoning the accused.

(g) Constitution of Pakistan---

----Art. 185---Interlocutory orders---Supreme Court, jurisdiction of---Principle---Supreme Court is possessed with jurisdiction to interfere even in interlocutory orders passed by a lower Court---In order to regulate its jurisdiction, Supreme Court ordinarily does not interfere with interlocutory order passed by a Court which has rightly assumed and exercised jurisdiction in a pending matter.

Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508 rel.

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

----Ss. 3 & 5---Cognizance of case---Administration of justice---Being aware of problems faced by accused persons in criminal trials, Courts have to be sensitive to their difficulties---Such difficulties can be avoided or mitigated through proper and conscious exercise of power to take cognizance of a complaint under Illegal Dispossession Act, 2005.

Tariq Mahmood, Senior Advocate Supreme Court for Appellant.

Syed Arshad Hussain (Addl. A.-G.) KPK for Respondent Nos.1, 3.

Gulzarin Kiyani, Advocate Supreme Court for Respondent No.2.

Date of hearing: 23rd November, 2010.

P L D 2011 Supreme Court 195

Present: Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaka, Khilji Arif Hussain

and Tariq Pervez Khan, JJ

JUSTICES HASNAT AHMAD KHAN AND SYED SHABBAR RAZA RIZVI: In the matter of:

Criminal Miscellaneous Applications Nos. 1 and 2 of 2011 in Criminal Original Nos. 97 and 98 of 2009, decided on 2nd February, 2011.

Constitution of Pakistan---

----Art. 204-Contempt of Court---Disobedience of order passed by seven-Member Bench of Supreme Court dated 3-11-2007---Contention of the applicants/two Judges of High Court who took oath under Provisional Constitution Order, 2007 in disobedience of the order of the seven-Member Bench of the Supreme Court, was that notices be also issued to other persons including the then Chief of Army Staff who was also the President of Pakistan and the then Prime Minister because said persons were equally liable for disobeying the order passed by seven-Member Bench of Supreme Court---Validity---Held, contempt alleged against said persons was primarily consequent to issuance of the three instruments viz. Proclamation of Emergency; Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007 and thereby launching an assault on the independence of the Judiciary---Prima facie, these instruments were issued prior to the passing of the order of the seven-Member Bench of the Supreme Court dated 3-11-2007 and not in disobedience of the same---Case for contempt of Court of said persons materially different from the charge to be faced by the applicants which had arisen on account of their disobedience of the order passed by the seven-Member Bench of Supreme Court on 3-11-2007---Proceedings therefore, against the said persons may proceed independently and on their own facts, and it was not necessary to link or club the proceedings against the applicants with those which may be taken against the said persons.

P L D 2011 Supreme Court 197

Present: Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Khilji Arif Hussain

and Tariq Parvez Khan, JJ

Proceedings Against: JUSTICES (R) IFTIKHAR HUSSAIN CHAUDHRY, KHURSHID ANWAR BINDER, HAMID ALI SHAH, ZAFAR IQBAL CHAUDHRY, HASNAT

AHMED KHAN, SYED SHABBAR RAZA RIZVI, YASMIN ABBASEY, JEHAN ZAIB RAHIM, (R) ABDUL HAMEED DOGAR, SAYED ZAHID HUSSAIN AND SAJJAD HUSSAIN SHAH

Criminal Original Petitions Nos.93 to 98, 100 & 104 of 2009 and 2, 3 & 4 of 2011 and Criminal Miscellaneous Applications Nos.178, 311, 225, 179, 619, 168, 282, 283, 169, 148, 226 of 2010, 1 and 2 of 2011 and C.M.As. Nos. 4234, 4224, 4255, 4288 to 4290, 4292, 4281, 4486, 4504 of 2009 and 1258 of 2010, 9, 10, 12 of 2011, 4487 of 2009, 35 of 2011, and 1104, 1105 and 1174 of 2010 in C.M.A. No.2745 of 2009 in C.R.P.No. NIL of 2009 in Constitutional Petition No.9 of 2009, decided on 2nd February, 2011.

Constitution of Pakistan---

----Art.204---Contempt of Court Ordinance (V of 2003), Ss.3 & 18(2)---Contempt of Court---Disobedience of order passed by seven-Member Bench of Supreme Court dated 3-11-2007 by respondents/Judges of Supreme Court and High Courts by taking oath under Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Sufficient material was available to justify charging the respondents (except the two), for committing contempt of the Supreme Court on account of their disobedience of Order passed by a seven-Member Bench of the Supreme Court which was indeed passed on 3-11-2007---Held, in the facts and circumstances of the matters, the Constitution and law did not prohibit proceedings under Art.204 of the Constitution against the respondents even though they might be Judges of the Supreme Court and the High Courts; they were not immune from proceedings under S.204 of the Constitution and the Contempt of Court Ordinance, 2003 for committing contempt of the Supreme Court---Propriety thus required that proceedings should be taken against the respondents and they with the exception of two, be put to trial in accordance with the law---Supreme Court, having noted the submissions made on behalf of said two respondents and contents of their replies, found that even though said two respondents took oath under the Provisional Constitution Order, 2007 on 14-12-2007, since they were not Judges of the High Court whether on 3-11-2007 or at any later point in time, they did not violate the letter of the order dated 3-11-2007 even though they might have violated its spirit---Conduct of said two respondents in taking oath under Provisional Constitution Order, 2007 and purporting to act as Judges subsequent thereto, was deprecated in terms of S.18(2) of the Contempt of Court Ordinance, 2003---Said two respondents, in circumstances, shall not be charged to face trial under Contempt of Court Order, 2003.

Dr. Khalid Ranjha, Senior Advocate Supreme Court for Applicants (in Crl.O.P.93 of 2009).

Wasim Sajjad, Senior Advocate Supreme Court for Applicants (in Crl.O.P.94 of 2009).

Raza Kazim, Advocate Supreme Court and Nadeem Ahmed Sheikh, Advocate Court and G.N. Gohar, Advocate-on-Record for Applicants (in Crl.O.P.95 of 2009).

Dr. Khalid Ranjha, Advocate Supreme Court and G.N.Gohar, Advocate-on-Record for Applicants (in Crl.O.P.96 of 2009).

Dr. Abdul Basit, Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Applicants (In Cr.O.Ps. 97 and 98 of 2009).

Syed Ali Zafar, Advocate Supreme Court for Applicants (in Crl.O.P. 100 of 2009).

Syed Naeem Bokhari, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Applicants (in Crl.O.P. No.104 of 2009).

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court, Sahibzada Ahmed Raza Qasuri, Senior Advocate Supreme Court, Rai Muhammad Nawaz Kharal, Advocate Supreme Court and Raja Muhammad Usman Ibrahim Satti, Advocate for Applicants (in Crl. O.P.2 of 2011).

S.M. Zafar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Applicants (in CrI.O.P.3 of 2011).

Sh. Zamir Hussain, Senior Advocate Supreme Court for Applicant (in CrLO.P. 4 of 2011).

Dates of hearing: 29th, 30th November, 1st, 2nd, 6th, 13th, 14th, 15th December, 2010; 3rd, 4th, 5th, 10th, 11th, 12th, 13th 14th, 17th, 18th, 19th, 20th, 21st, 24th, 25th and 26th January, 2011.

P L D 2011 Supreme Court 205

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Raja Fayyaz Ahmad, Anwar Zaheer Jamali, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

HUMAN RIGHTS CASES NO.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P AND 58118-K OF 2010 AND SMC NO.24 OF 2010

Human Rights Cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010 and SMC No.24of 2010, decided on 28th January, 2011.

(Regarding Corruption in Hajj Arrangements in 2010)

Civil Servants Act (LXXI of 1973)---

----S. 2(1)(b)(ii)---Federal Investigation Agency Act, 1974 (VIII of 1975), S.4---Constitution of Pakistan, Art. 184(3)---Constitutional petition---Investigation---Contract employee---Investigation of case was being conducted by a regular officer of Police under the supervision of Director-General of Federal Investigation Agency (FIA) who was on contract basis---Effect---In disciplinary forces, particularly like police and FIA, where people had to work in well defined discipline, persons supervising the forces had been permitted and were holding charge on contract basis---In terms of definition of S.2 (1)(b)(ii) of Civil Servants Act, 1973, person who was employed on contract did not even fall within the definition of a "civil servant"---Authority of such contract employee to command and maintain discipline could be imagined from the fact that if a person himself was not a civil servant, he was considered only bound by the terms and conditions of his contract and not by statutory law---If any condition laid down in contract was violative to statutory law, such contract employee would only be subject to action under the contract--Supreme Court asked Attorney-General that it was in the interest of Government to promote junior officers, who were waiting for promotion and rather they should be encouraged instead of employing persons on contract basis unless their services were indispensible, particularly with regard to disciplined forces like Police and FIA etc.

Nemo for Member of Committee of Parliamentarians.

Afnan Karim Kundi, Advocate Supreme Court with Senator Muhammad sAzam Khan Sawati for former Minister S&T.

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for former Minister Religious Affairs.

Shaukat Hayat Durrani, Secretary for Ministry of Religious Affairs.

G.N. Gohar, Advocate-on-Record for former Secretary Religious Affairs.

M. Ijaz Ghani, Dy. Secretary and Muhammad Arshad, Dy. Secretary for Establishment Division.

Muhammad Akbar Tarar, Addl. PGA and Fauzi Zafar, ADPDA for NAB.

Syed Jawed Ali Bukhari, Incharge Investigation, M. Azam Khan, Director (Law), Khizar Hayat, S.I., Police with Rao Shakeel, former DG Hajj (in custody) for MA.

M. Ikram Chaudhry, Advocate Supreme Court (in C.M.A.. No.218 of 2011).

Nemo for Tour Operators.

P L D 2011 Supreme Court 210

Present: Anwar Zaheer Jamali and Asif Saeed Khan Khosa, JJ

ABDUL RASHEED KHAN---Petitioner

Versus

ZAHOOR AHMED MALIK and others---Respondents

Criminal Petition No.627 of 2010, decided on 13th January, 2011.

(On appeal from the order dated 11-11-2010 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Miscellaneous No.840-BC of 2010).

Criminal Procedure Code (V of 1898)---

---S. 497(5)---Penal Code (XLV of 1860), Ss.406/420/468/471/411/109/34---National Accountability Ordinance (XVIII of 1999), S.18---Constitution of Pakistan, Art.l85(3)---Criminal breach of trust, cheating and forgery---Bail, cancellation of---Post-arrest bail granted to accused was maintained by High Court and complainant sought cancellation of the same on the plea that National Accountability Bureau was investigating the case when Additional Sessions Judge released the accused on bail---Validity---Accused had already repaid relevant amounts to most of the affected persons and he had also deposited remaining amount with investigating agency in order to establish his good faith in the matter---Complainant did not cooperate during investigation and physical custody of accused was not required by investigating agency at such juncture---State or National Accountability Bureau did not seek cancellation of bail allowed to accused by Additional Sessions Judge, thus bail could not be cancelled merely to wreak vengeance of complainant party---Considerations for grant of bail and those for its cancellation were entirely different---Challan had already been submitted in Trial Court and Supreme Court declined to cancel the bail at such stage---No allegation was levelled by complainant, the State or National Accountability Bureau regarding any misuse or abuse of concession of bail by accused---Supreme Court refused to cancel the bail when custody of accused was not even required by investigating agency---Leave to appeal was refused.

Muhammad Ilyas, Chief Manager/Attorney of Allied Bank Ltd. v. Shahid Ullah, and others PLD 2009 SC 446 ref.

Mian Muhammad Athar, Advocate Supreme Court and Altaf Elahi Sheikh, Advocate Supreme Court for Petitioner.

M. Amjad Iqbal Qureshi, Advocate Supreme Court for Respondents Nos. 1 and 2.

Fowzi Zafar, Additional Prosecutor-General for the State.

P L D 2011 Supreme Court 213

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

Mir MUHAMMAD IDRIS and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Finance and others -Respondents.

Constitutional Petition No.58 of 2010 with Civil Miscellaneous Application No.3387 of 2010, decided on 14th January, 2011.

Constitution of Pakistan---

----Arts. 70, 73(2) & 184(3)---Banks (Nationalization) Act (XIX of 1974), S.11(3)(d) [as amended by Finance Act (IV of 2007)]---Petition under Art.184(3) of the Constitution---Amendment by Finance Bill---Grievance of petitioner was that re-appointment of President _ of National Bank for fifth time was made after amending S.11(3)(d) of Banks (Nationalization) Act, 1974, by Finance Act, 2007---Validity---Bill or amendment under Art.73(2) of the Constitution was deemed to be a Money Bill if it contained provisions dealing with all or any of the matters enumerated in cls. (a) to (g) of para.2 of Art.73 of the Constitution---Reappointment of Chairman, President and other members of Board of National Bank of Pakistan did not fall within the ambit of cls. (a) to (g) of Art.73(2) of the Constitution---Amendment of S.11(3)(d) of Banks (Nationalization) Act, 1974, could not have been introduced by way of Finance Act, 2007, as it lacked Constitutional requirement envisaged by Art.70 of the Constitution i.e. approval by two Houses of Parliament---As the amendment made in S.11(3)(d) of Banks (Nationalization) Act, 1974, by Finance Act, 2007, was unconstitutional and illegal, the appointment of President of Bank made under unconstitutional and illegal legislation would not remain unaffected as the foundation on which its superstructure rested stood removed---Supreme Court directed that President of National Bank of Pakistan would cease to hold the office with immediate effect---Petition was allowed.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 fol.

Dr. Mobashir Hasan v. Federation of Pakistan PLD 2010 SC 265; Abul Ala Maudoodi v. Govt. of West Pakistan PLD 1964 SC 673 and Haji Muhammad Hussain v. Province of Blochistan NLR 1995 Cr.LJ 313 ref.

Manzoor Qadir, Advocate Supreme Court and G.N., Gohar, Advocate-on-Record for Petitioners.

Barrister Zafarullah Khan, Advocate Supreme Court for the Applicant (in C.M.A. No.3387 of 2010).

Maulvi Anwar-ul-Haq, Attorney-General for Pakistan (On Court's Notice).

Abid S. Zubairi, Advocate Supreme Court, Kh. Muhammad Farooq, Senior Advocate Supreme Court, Dr. Ibrar Baig, SEVP, Fazal­ur-Rehman, EVP, Tariq Zafar Iqbal, Regional Chief and Saeed Khan, Legal Head for Respondent No.3.

M. Bilal, Senior Advocate Supreme Court, Babar Bilal, Advocate Supreme Court, Syed Safdar Hussain, Advocate-on-Record and Amjad Iqbal, Joint Director for Respondent No.2.

Ali Sher, S.O. for Respondent No.1.

Date of hearing: 5th January, 2011.

P L D 2011 Supreme Court 221

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Tariq Parvez Khan, JJ

Dr. ASMA ALI---Appellant

Versus

MASOOD SAJJAD and others---Respondents

Civil Appeal No.80-P of 2009, decided on 10th January, 2011.

(On appeal from the judgment/order dated 14-1-2009 passed by Peshawar High Court, Peshawar in W.P.No. 1513 of 2005).

Per Tariq Parvez Khan, J

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

----S.5---Recovery of dower---Immovable property---Proof---Description, non-mention of---Oral evidence---Claim of wife to the extent of recovery of possession of immovable property as dower was rejected by the Courts below on the ground that no description of the property was given in Nikahnama---Plea raised by wife was that she was entitled to house measuring 2 Kanals and 100 Kanals of agricultural land---Validity---Regarding the house, there was oral evidence in the shape of statements of witnesses and wife herself and in a document brought on record by husband it was clearly recorded about a house situated in a specific village measuring 2 Kanals, of which market value was given as Rs. 700,000---No successful suggestion was made to wife by husband when she was subjected to cross-examination by specifying entries made in Nikkahnama to be incorrect except a general suggestion and not specific in respect of the house and agriculture land---Against denial of husband about entries in respect of house and agricultural land, there was sufficient evidence both quantitative and qualitative, in favour of wife, who was entitled to receive as dower a house measuring 2 Kanals or its market value, she was also entitled to agriculture land measuring 100 Kanals because of overwhelming evidence---In view of absence of particulars of 100 Kanals of land, Supreme Court directed Trial Court to appoint commission by directing a member of Revenue Hierarchy to determine average price of per Kanal agriculture land in village in question and after such determination wife would be entitled to receive 100 Kanals of land or its market value so determined---Judgment and decree passed by High Court was set aside and suit of wife was decreed accordingly---Appeal was allowed.

Per Mian Shakirullah Jan, J agreeing with Tariq Pervez Khan, J

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

----S. 5---Recovery of dower---Immovable property---Proof---Description, non-mention of--Dispute was with regard to immovable property claimed by wife as dower, description of the same was not mentioned in Nikahnama---Effect---If property / house mentioned in Nikahnama on account of lack of sufficient description leading to its identification then its price, if mentioned in Nikkahnama, could be awarded then in the same way value of other property (agriculture), the price of which had not been mentioned in documentation/Nikkahnama, could also be granted if evolvement of a mechanism for determination of value was possible, as the same was not in conflict with any provision of law rather in consonance with established principles for determining the value of property, then the same could be resorted to.

Mst. Maimoona Nabi v. Saad Seth and others (C.P.No.769-P of 2003 distinguished.

Per Nasir-ul-Mulk, J--

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

----S.5---Constitution of Pakistan, Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider the contentions of petitioner that evidence on record was not appreciated in its true perspective; father of respondent in respect of Nikah of parties executed an Iqrarnama in favour of petitioner concerning prompt dower and also personally bound himself as surety for respondent and dower amount was still outstanding against respondent and judgment passed by High Court was not in consonance with dictum laid down by Supreme Court in an earlier case.

Mst. Maimoona Nabi v. Saaed Seth and others (C.P.No.769-P of 2003 ref.

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

----S. 17---Civil Procedure Code, (V of 1908), Preamble---Applicability of C.P.C.---Principle---Provisions of Civil Procedure Code, 1908, have been excluded by S.17 of West Pakistan Family Courts Act, 1964, to proceeding under it---Such provisions are not stricto sensu applicable to proceedings before Family Court.

Per Nasir-ul-Mulk, J, not agreeing with Tariq Pervez Khan, J

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

----S. 5---Civil Procedure Code (V of 1908), O. XXII, R. 19---Execution of decree---Recovery of dower---Immovable property--Description, non-mention of---Dispute was with regard to immovable property claimed by wife as dower, description of the same was not mentioned in Nikahnama---Effect---For such purpose one could refer to O.XXII, R.19, C.P.C. mandating that decree for recovery of immovable property would contain its description sufficient for its identification---Such was only possible if property was sufficiently described in plaint or in evidence---Identification of immovable property was necessary for execution of decree by Executing Court as it could not go beyond terms of decree---Agriculture land measuring 100 Kanals claimed by wife as part of her dower was not identifiable---Describing property in terms of area in a particular village, without giving its exact location, would not be sufficient description for grant of decree for its recovery---Decree granted in such ambiguous terms would be incapable of exercise of execution, it was on such premises that all the three Courts below had consistently held that on account of lack of proper description of 100 Kanals of agricultural land, no decree could be granted to wife for its recovery---Even money decree in alternative could not be awarded in absence of identity of property as there existed no basis for evaluation---As regards claim of wife of 2 Kanals house, its market value at the time of marriage had been mentioned in Nikahnama---Though the house was not sufficiently described in Nikahnama but it had been evaluated therein, wife could be granted a decree based on such evaluation and all the Courts below overlooked such aspect of the matter---To compensate wife for inflation in currency and increase in real property, interest could be granted on the decree for recovery of Rs. 700,000 from the date of Nikahnama.

Mst. Maimoona Nabi v. Saaed Seth and others (C. P. No.769-P of 2003 distinguished.

M. Ajmal Khan, Advocate Supreme Court/Advocate-on-Record for Appellant.

Shahzad Akbar Khan, Advocate Supreme Court for Respondents.

Date of hearing: 26th August, 2010.

P L D 2011 Supreme Court 235

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Mian Saqib Nisar, JJ

PETROSIN CORPORATION PVT. LTD. and others---Applicants/Petitioners

Versus

OGDC through Managing Director---Respondents

C.M.As. Nos.2892 & 2878/2009 in C.R.P. Nos.75 & 76/2009 in Civil Appeal Nos. 1241. and 1242 of 2007 and Cr.O.P. No.122 of 2010 decided on 7th January, 2011.

(Against the judgment of this Court dated 24-9-2008 passed in Civil Appeals Nos.1241 and 1242 of 2007).

(a) Constitution of Pakistan---

----Arts. 185, 188, 184 & 199---Appeal---Review---Scope---Short order of court disposing of matter finally without supporting reasons would be treated as final order/judgment of court for all intents and purposes---Party aggrieved of such order could challenge same in appeal or review without waiting for detailed reasons and allowing limitation to pass by, and could reserve himself a right to add therein further grounds of attack after getting detailed judgment---Principles.

The State v. Asif Adil and others 1997 SCMR 209; Criminal Review Petition No.9 of 2008 in Cr.M.As. No.181/2007 and 282/2006 in Cr.P. No.361-L/2004); Abdul Hameed Dogar v. Federation of Pakistan and others 2010 SCMR 312 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 rel.

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

----S. 114 & O. XLVII, R. 1---Review---New facts/evidence discovered after expiry of period of ?imitation prescribed for filing review petition---Delay, condonation of---Scope---Period of limitation for review would not be reckoned from date of such discovery---Such facts/evidence must have nexus to merits of decided case and/or issue involved therein, which if known/available earlier, then decision of case would have been otherwise---Such facts/evidence not having such nexus would not be considered as sufficient cause/reason for condonation of delay---Principles.

Sindh High Court Bar Association's case PLD 2009 SC 879 ref.

Abdul Hafeez Prizada, Sr. Advocate Supreme Court, Mian Gul Hassan Aurangzeb, Advocate Supreme Court and Mahar Khan Malik, Advocate-on-Record for Applicants/Petitioners (in C.R.Ps. Nos.75 and 76 of 2009).

Wasim Sajjad, Sr. Advocate Supreme Court and Mahmood A. Shaikh, Advocate-on-Record for Respondents (in C.R.Ps. Nos.75 and 76 of 2009).

Mian Gul Hassan Aurangzeb, Advocate Supreme Court for Petitioners (in Cr.O.P. 122 of 2010).

Date of hearing: 15th December, 2010.

P L D 2011 Supreme Court 241

Present: M. A. Shahid Siddiqui and Mian Saqib Nisar, JJ

Hafiz TASSADUQ HUSSAIN---Appellant

Versus

MUHAMMAD DIN through Legal Heirs and others---Respondents

Civil Appeal No.1-L/2009, decided on 21st December, 2010.

(On appeal from the order dated 12-11-2003 passed by Lahore High Court, Multan Bench in C.R.No.805-D of 2002)

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

----Arts. 17, 72 & 79----Constitution of Pakistan, Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether scribe of agreement having appeared as witness to prove agreement to sell could assume the role of attesting witness; and whether in the light of judgment passed by Supreme Court in another case, testimony of one marginal witness was enough to prove execution of such agreement, if his statement otherwise was confidence inspiring.

Abdul Wali Khan v. Muhammad Saleh 1998 SCMR 760 ref.

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

----Art. 17(2)---Document, proof of---Number of attesting witnesses---Pre-condition---In order to bring case within the purview of Art.17 of Qanun-e-Shahadat, 1984, two ingredients must co-exist firstly there must be an instrument, secondly, it should pertain or relate to a matter either of a financial or future obligations---If such two conditions are met, it is mandated that the instrument must be attested in terms of Art.17 of Qanun-e-Shahadat, 1984---Agreement of sale or to sell immovable property being a written document is an instrument within the meaning of law.

Black's Law Dictionary, Fifth Edn. ref.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17, 72 & 79---Agreement to sell---Execution---Proof---Scribe of document, evidence of---Requirement of two attesting witnesses---Suit filed by plaintiff was dismissed by Trial Court on the ground that he failed to produce two marginal witnesses in proof of execution of agreement to sell---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court and High Court---Validity---Transaction of sale of immovable property (if not a conditional sale) was the conclusive transfer of an absolute title and ownership of property unto the vendee in presentee, while agreement to sell was meant for accomplishing the object of sale in futurity and for all intents and purposes it pertained to future obligations of the parties thereto---Sale agreement/agreement to sell was. duly covered and fell within the pale of Art.17 of Qanun-e-Shahadat, 1984---Purpose and object of attestation of document by certain number of witnesses and its proof through them was meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and thus legislature in its wisdom had established class of documents which were specified in Art.17 of the Qanun-e-Shahadat, 1984---For validity of instruments falling within Art.17 of Qanun-e-Shahadat, 1984, the attestation as required therein was absolute and imperative---For the purpose of proof of such a document, attesting witnesses had to be compulsorily examined as per requirement of Art.79 of Qanun-e-Shahadat, 1984, otherwise it was not to be considered and taken as proved and used in evidence---Such principle of law was in line with the principle that where law required an act to be done in a particular manner, it had to be done in that way and not otherwise---Scribe of a document could only be a competent witnesses in terms of Arts.17 and 79 of Qanun-e-Shahadat,1984, if he had fixed his signature as an attesting witness of the document and not otherwise---Signing of document in the capacity of a writer did not fulfil and meet mandatory requirement of attestation by him separately---Scribe of document could be examined by concerned party for corroboration of evidence of marginal witnesses or in the eventuality those were conceived by Art.79 of Qanun-e-Shahadat, 1984, itself not as a substitute---Mandatory provisions of law had to be complied and fulfilled and only for the reasons or the perception that such attesting witness if examined would turn hostile did not absolve the concerned party of its duty to follow the law and allow the provisions of Qanun-e-Shahadat, 1984, relating to hostile witness take its own course---Supreme Court declined to interfere in the judgments and decrees passed by the Courts below---Appeal was dismissed.

Abdul Wali Khan v. Muhammad Saleh 1998 SCMR 760 distinguished.

Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639; Mst. Noor Bibi and 9 others v. Ghulam Rasool 1991 SCMR 1281; Muhammad Sharif v. Mst. Sardaran Bibi and others, 2002 MLD 1002; Mst. Allah Jawai and others v. Maqbool Shah and others 2005 MLD 261; Jalal Din and 4 others v. Sardaran Bibi and 7 others 2006 YLR 2959; Nazir Ahmed v. Muhammad Rafiq 1993 CLC 257; Bonaventure Paul v. Ali Muhammad 1991 MLD 145; Habib Bank Limited v. Mubarak Alam Syed 1987 CLC 1914; Fiazyab Khan v. Aziz Ali Chishti 1982 SCMR 358; Malik Din and another -v. Muhammad Aslam PLD 1969 SC 136; Muhammad Samar and others v. Jahangir Ahmad and others 2002 CLC 1865; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Black's Law Dictionary, Fifth Edn.; Beni Chand v. Smt. Kamla Kunwar and others AIR 1977 SC 63; Maqsood Ali Khan v. M. Tehseen Khan 2003 YLR 1866; N. Kamalamand another v. Ayyasamy and another (2001) 7 SCC 503; Sheikh Karimullah v. Gudar Koeri and others AIR 1925 All. 56; Ram Samujh Singh v. Mt. Mainath Kuer and others AIR 1925 Qudh 737; Badri Prasad and. another v. Addul Karim and others 1913 (19) IC 451; Qasim Ali v. Khadim Hussain through Legal Representatives and others PLD 2005 Lah. 654 and Shamu Patter v. Abdul Kadir Rowthan and others (1912 (16) IC 250) ref.

Talib H. Rizvi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Appellant.

Mushtaq Ahmed Mohal, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondents Nos. 2-6.

Ex-parte for Respondent No.1 (i-ii).

Date of hearing: 21st December, 2010.

P L D 2011 Supreme Court 250

Present: Javed Iqbal, Raja Fayyaz Ahmed, Anwar Zaheer Jamali and Asif Saeed Khan Khosa, JJ

GOVERNMENT OF N.-W.F.P. through Secretary, Housing and Physical Planning, Peshawar and others---Petitioners

Versus

Haji JAMSHER KHAN and others---Respondents

Civil Appeal No.933 of 2003 and Civil Petition No.405-P of 2000, decided on 25th January, 2011.

(On appeal from the consolidated judgment dated 1-5-2000 of the Peshawar High Court, Peshawar passed in R.F.As. Nos.67 and 63 of 1998).

Civil Procedure Code (V of 1908)---

----O. VII, R.2---North-West Frontier Province Urban Planning Ordinance (IV of 1978), S.52---North West Frontier Province Muqarraridars (Conferment of Proprietary Rights) Act (III of 1995), S.2(1)(ii)---Acquisition of land---Suit for recovery of compensation with damages for the loss suffered on account of failure of payment of compensation in time---Award in the present case, was announced by the Land Acquisition Collector on 17-7-1994 and undisputedly till that time the Provincial Government was the exclusive owner of the relevant property and such exclusive ownership of the Provincial Government was duly recorded and reflected in the revenue record---Despite the Provincial Government's ownership of that land, proceedings had been undertaken to acquire the land by the Urban Development Board for creating and then recognizing some interest of the respondents in that land so that they could claim compensation for such acquired land---Award announced was in favour of only "persons having hissadari possession keeping in view their shares entered in the ownership column" (Khana Malkiat) and the said award was not in favour of any other person having any other interest in the acquired land---Provincial Government was the recorded owner of the land in issue and there was nothing available on the record to show or establish that the Provincial Government had even conferred any muqarraridari rights or transferred any other interest qua the land in favour of the respondents so as to entitle them any benefit under the N.-W.F.P. Muqarraridars (Conferment of Proprietary Rights) Act, 1995---For proving the respondents as "muqarraridars" as defined in S.2(1)(ii) of the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights) Act, 1995, they had-to establish some facts mentioned in the definition, but no such proof was brought on record---Respondents, at the time of announcement of award were not owners of the land having their hissadari possession entered in the ownership column (Khana Malkiat) of the relevant revenue record, as expressly required by the award---Held, suit for recovery under the award filed by the respondents was not maintainable because the respondents had no right to recover anything under the award as long as the award stood as it did---Reference in some documents by different authorities mentioning the respondents as "owners" of the acquired land could not work as estoppel because there was no estoppel against facts or against the law---Impugned judgments and decrees passed by High Court and Civil Judge were set aside and consequently the suit for recovery filed by the respondents was dismissed---Supreme Court observed that as a consequence of enactment of the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights) Act, 1995 some compensation had statedly been received by the Provincial Government from the respondents and in return proprietary/ownership rights of the land in issue had been conferred upon them; as the respondents' recognition as muqarraridars under the North-West Frontier Province Muqarraridars (Conferment of Proprietary Rights) Act, 1995 and the North-West Frontier Province (Conferment of Proprietary Rights on Muqarraridars) Rules, 1995 had been found to be factually and legally laconic besides being nullity in the eyes of law, therefore, proprietary/ownership rights could not be granted to the respondents under the Act by treating them as muqarraridars---Transaction in issue, therefore needed to be rescinded and the Government of the Province of Khyber Pakhtoonkhwa was directed to do the needful forthwith and it shall only be fair that the amount of compensation deposited by the respondents for grant of such proprietary/ownership rights ought to be refunded to them and, keeping in view the factor of fluctuating rate of interest over the last many years, the respondents shall be entitled to payment of yearly interest at the rate of 10% (ten per centum) on the amount to be refunded to them. ?

Haq Nawaz Khan and others v. Rab Nawaz and others 1992 SCMR 993; Ghulam Khan v. Dullah and another AIR 1944 Lah. 181; Mst. Anwar Jan v. Hazrat Din PLD 1967 Pesh. 386; Buta Singh v. Gurdit Singh 1896 PRC No.10 and A. M. Dunne Receiver to the Bhukoilash Ghosal Family Estate v. Nobo Krishna Mookerjee Binod Behari Mookerjee and another ILR 1917 Cal 144 ref.

Athar Minallah, Advocate Supreme Court for Appellants (in C.A.No.933 of 2000) and for Respondent No.1 (in C.A.No.933 of 2000)

Kh. Muhammad Farooq, Senior Advocate Supreme Court for Petitioners (in C.A.No.405-P of 2000).

S.M. Zafar, Senior Advocate Supreme Court for Respondents Nos.2 to 7 (in C.A.No.933 of 2000).

Zahid Yousaf, Addl. A.-G., KPK for Official Respondents (in C.P.No.405-P of 2000).

Dates of hearing: 24th and 25th January, 2011.

P L D 2011 Supreme Court 260

Present M.A. Shahid Siddiqui and Mian Saqib Nisar, JJ

Syed MUKHTAR HUSSAIN SHAH---Appellant

Versus

Mst. SABA IMTIAZ and others---Respondents

Civil Appeal No.1704 of 2008, decided on 24th December, 2010.

(On appeal from the order dated 8-7-2008 passed by Lahore High Court, Lahore in W.P.No.8341 of 2008).

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

----S. 5 & Sched.---Constitution of Pakistan, Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether condition of payment of sum of Rs.100,000 by husband in the event of giving divorce to wife as stipulated in Nikahname was a valid one and recoverable by filing a suit before Family Court and to resolve the conflict of judgments of High Court in the cases of Nasrullah v. District Judge PLD 2004 Lah. 588 and Muhammad Akram v. Hajra Bibi PLD 2007 Lah. 515.

Muhammad Bashir Ali Siddiqui v. Sarwar Jehan Begum 2008 SCMR 186; Nasrullah v. District Judge PLD 2004 Lah. 588 and Muhammad Akram v. Hajra Bibi PLD 2007 Lah. 515 ref.

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

----Ss. 5 & Sched., Item No.9---Civil Procedure Code (V of 1908), S.9---Family Court, jurisdiction of---Words "personal property and belonging of the wife-Scope-Civil Procedure Code, 1908---Applicability---Damages, recovery of---Parties entered into agreement stipulating that in case husband would divorce the wife, then he was obliged to pay a sum of Rs.100,000 as damages to her---Validity---West Pakistan Family Courts Act, 1964, was special law meant to cater for specific object and special kind of cases strictly covered by items mentioned in Sched. thereto---Civil courts were the courts of inherent and plenary jurisdiction competent to adjudicate all disputes of civil nature between litigating parties but such jurisdiction in terms of S.9, C.P.C. had been ousted either expressly or by necessary implication--In order to evaluate whether such jurisdiction had been taken away, the special law under which it was so done, must not only be strictly construed but also be accordingly applied---If provisions of S.5 of West Pakistan Family Courts Act, 1964, were read with the entries of the Schedule, there was no confusion or ambiguity about cases falling within item Nos-1 to 8 thereto while entry No.9 was incorporated by way of amendment---Words "personal property and belonging of wife" as appearing in item 9 of Sched. to West Pakistan Family Courts Act, 1964, could not be interpreted to mean that suit for specific performance, declaratory suits of any nature or any other civil litigation between wife and husband was amenable to special jurisdiction of Family Court, as such was not the intent of law---According to literal approach of reading a statute, the statute had to be read literally by giving the words used therein, ordinary, natural and grammatical meaning---Addition and subtraction of a word in a statute was not justified, except where for interpretation thereof principle of reading in and reading down could be pressed into service in certain cases---When in entry No.9, of Sched. to West Pakistan Family Courts Act, 1964, "actionable claim" had not been provided by legislature, it would be improper and was impinge upon the legislative intent and rules of interpretation to add such expression to the clause/entry---Judgments and decrees passed by all Courts below in favour of wife were set aside and her suit was dismissed---Appeal was allowed.

Nasrullah v. District Judge PLD 2004 Lah. 588 dissented.

Muhammad Akram v. Hajra Bibi PLD 2007 Lah. 515 approved.

(c) Interpretation of statutes---

----Literal approach of reading a statute---Statute had to be read literally by giving the words used therein, ordinary, natural and grammatical meaning---Addition and subtraction of a word in a statute was not justified, except where for interpretation thereof principle of reading in and reading down could be pressed into service in certain cases.

(d) Interpretation of statutes---

----Words of a statute---Meanings of---Section and definition clause---Scope---Definition clause or a section in a statute is meant generally to declare what certain words or expressions used in that statute would mean---Object of such clause is to avoid necessity of frequent repetition in describing all subject matters to which the word or expression so defined is intended to apply---When a word or expression is given a definite meaning in one Act of Parliament (statute) it does not mean that the same would ipso facto have the same meaning in another Act of Parliament, except in the cases in which Parliament has declared that two or more Acts be read together as one Act, or where on the rule/principle of legislation by reference, a definition of any earlier law may be borrowed or adopted as definition for constructing the operative provisions of later law---Definition appearing in one Act cannot be used to interpret the same words appearing in the another Act, until it is specifically so referred and borrowed with a clear command of law, because context, purpose, object and requirements of every statute may vary from other---Definition of a word from one statute cannot be safely imported to another, which if so resorted to without ascertaining the clear intention of legislation by following rules of interpretation, just as a matter of routine and course, it may not only be hazardous, rather may distort and frustrate the object of law and violate legislative intent which is impermissible in law.

Sh. Naveed Shahryar, Advocate Supreme Court for Appellant.

Syed Nazeer Hussain Shah, Advocate Supreme Court for Respondents.

P L D 2011 Supreme Court 269

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, Rehmat Hussain Jafferi, Tariq Parvez Khan, Mian Saqib Nisar, Asif Saeed Khan Khosa, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

SUPREME COURT BAR ASSOCIATION through Secretary---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Miscellaneous Nos.2479, 2481 and 2484 of 2010 in Constitutional Petition No.14 of 2010, decided on 30th August, 2010.

Constitution of Pakistan---

----Art. 184(3)---Miscellaneous application in constitutional petition under Art.184(3) of the Constitution before Supreme Court---Completion of period of one year tenure of Additional Judges of High Courts while their matter was sub judice before the Supreme Court under its constitutional jurisdiction and hearing of the case was still continuing and it could not be said with certainty as to how much time would be required to conclude the case---Chief Justices of the High Courts had requested that Supreme Court take steps so that said Judges may continue performing their duties as Additional Judges---Contention of the applicants was that facts and circumstances of the case necessitated for passing an interim order to avoid any legal and constitutional complications because the Judges who had served for a period of one year had got expectancy for their permanent appointment but their cases could not be taken up as the matter was sub judice before the Supreme Court---Held, non-appointment of the Additional Judges on completion of period of one year was likely to give rise to constitutional complications, particularly with reference to Balochistan and Khyber Pakhtunkhwa as per circumstances---Supreme Court, in order to avoid any constitutional void; and other complications, directed that let the Additional Judges of all the High Courts continue to perform their functions as Additional Judges till further orders subject to final decision of the case in the constitutional petitions before the Supreme Court.

Wukala Mahaz v. Federation of Pakistan PLD 1998 SC 1263 ref.

Rashid A. Rizvi, Senior Advocate Supreme Court, Qazi Muhammad Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners/Appellants.

Baz Muhammad Kakar, Advocate Supreme Court and Amanullah Kanrani, Advocate Supreme Court.

Moulvi Anwarul Haq, Attorney General for Pakistan (on Court Notice).

Salahuddin Mengal, A.-G. Balochistan.

Mahmood Raza; Addl. A.-G. Balochistan.

Asadullah Khan Chamkani, A.-G., Khyber Pakhtunkhwa.

Syed Arshad Hussain Shah, Addl. A.-G. KPK.

Khawaja Haris Ahmed, A.-G. Punjab.

Ch. Khadim Hussain Qaisar, Addl. A.-G. Punjab.

Yousaf Leghari, A.-G. Sindh.

Mahmood A. Sheikh, Advocate-on-Record for Federation.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for the Province of Khyber Pakhtunkhwa.

P L D 2011 Supreme Court 274

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Mian Saqib Nisar, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

JUSTICE HASNAT AHMED KHAN and another---Appellants

Versus

FEDERATION OF PAKISTAN/STATE---Respondent

Intra-Court Appeals Nos. 3 and 4 of 2011, decided on 18th February, 2011.

Constitution of Pakistan---

----Art. 204---Contempt of Court Ordinance (IV of 2003), S.19(iii)---Contempt of Court---Intra-Court appeal---Registrar Supreme Court had put up a note before the Supreme Court that "the Registrar, Peshawar High Court informed hint that Mr. Justice Jehanzeb Rahim had passed an order on 17-2-2011 in his Chambers to issue contempt notices to some Judges of the Supreme Court, even though no such contempt proceedings were pending in the Peshawar High Court, however, the Chief Justice, Peshawar High Court initially took up the matter on the administrative side and passed an order on the same day saying that the order was passed in vacuum, hence need not be acted upon by the office, and that the matter was examined on the judicial side by a 3-Member Bench, of the Peshawar High Court which set aside the said order---Supreme Court observed that it seemed that the persons whose cases were pending before the 4-Member Bench of Supreme Court, instead of obeying the orders of the Court had started making attempts to undermine the authority of the Judges of the Supreme Court, particularly the Members of the said Bench and had issued notices to all of then to appear, as had been done by Justice Jehanzeb Rahim of the Peshawar High Court---Although the order passed by the said Judge had been set aside by the Peshawar High Court on the judicial side, but in order to preserve and protect the dignity and respect of the Judges of the Bench seized with the matter as well as other Judges of Supreme Court, and in order to ensure that system of administration of justice and honour of the Supreme Court including High Courts and District Courts was preserved, Supreme Court ordered that all the six Judges, namely, Syed Shabbar Raza Rizvi, Hasnat Ahmed Khan, Syed Hamid Ali Shah and Syed Sajjad Hussain Shah (Lahore High Court), Justice Ms. Yasmeen Abbasey (High Court of Sindh), Justice Jehanzeb Rahim (Peshawar High Court) and Justice Sayed Zahid Hussain (Supreme Court) shall not pass any such order against the Members of the Bench or the Judges of the Supreme Court, and if any such order is passed by them, the same shall have no legal or binding effect upon the Supreme Court as well as any other functionaries in the country and shall be deemed to be an order, which was not in existence at all.

Dr. A. Basit, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants.

Nemo for Respondent.

P L D 2011 Supreme Court 277

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Raja Fayyaz Ahmed, Muhammad Sair Ali, Anwar Zaheer Jamali, Asif Saeed Khan Khosa, Ghulam Rabbani, and Khalil-ur-Rehman Ramday, JJ

SUO MOTU CASE NO.24 OF 2010 AND HUMAN RIGHTS CASES NOS. 57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P & 58118-K OF 2010

Suo Motu Case No.24 of 2010 and Human Rights Cases Nos. 57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010, decided on 27th January, 2011.

(Regarding corruption in Hajj arrangements in 2010).

Civil Servants Act (LXXI of 1973)---

----S. 14---Estacode, Vol. 1 (2007 Edn.) Instructions---Employment after retirement---Record in the present case, showed that prima facie, while re-employing the retired civil servants/persons in the police department the provisions of law i.e. S.14 of the Civil Servants Act, 1973 as well as Instructions contained in Estacode, Vol. I, Edn, 2007 under the heading "Re-Employment" and the judgments of the superior courts on the subject were not considered/adhered to---Effect---Held, for establishing rule of law and Constitutionalism, it was necessary that the relevant provisions should be followed strictly in letter and spirit otherwise it would not be possible to provide an effective machinery in law particularly in Police Department to ensure law and order, so the peace in the country, at the same time to avoid violation of the relevant provisions of law which was tantamount to blocking the promotion of the Officers who had also served in the Forces and Were waiting for their promotion but they were not getting chance because of the re­employment/contract awarded to the retired Officers---Such was not only in the Police Department but for the purpose of achieving good governance; the same principle should be followed and strictly applied in other Departments as well---Supreme Court observed that Attorney General shall take up the matter with the Government/Competent Authority so that it may take necessary steps to rectify if any omission had been committed---Attorney General shall convey present order to the Secretary, Establishment Division and the Chief Secretaries of the Provinces to ensure that if any civil servant or other person who had been re-employed, his case be also examined in terms of the provisions of law and both Federal and Provincial Governments should take necessary steps to ensure that re-employment or employment on contract basis were not made in violation of the relevant law.

Moulvi Anwar-ul-Haq, Attorney General for Pakistan (on Court Notice).

Shaukat Durrani, Secretary for M/o Religious Affairs.

Sardar Khurrum Latif Khan Khosa, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Ex-Minister of Religious Affairs.

Afnan Karim Khan Kundi, Advocate Supreme Court for Ex-Minister, S&T.

Fauzi Zafar, ADPGA for NAB.

Iftikhar Gillani, DS, Aamir Khan, DS, Muhammad Arshad Khan, DS and Zakaullah Jan, SO for Establishment Division.

Syed Javed Ali Bokhari, Addl. DG FIA, Azam Khan Director Law FIA for FIA.

Ghulam Shabbir S.-I. with Rao Shakeel Ahmed, former DG Hajj (in custody).

Contract Officers on Court Notice:

Raja Muhammad Irshad, Senior Advocate Supreme Court with Muhammad Mehmud Ahmed, D.I.G. Spl. Branch, Rawalpindi.

Anwar Mansoor Khan, Senior Advocate Supreme Court with Sultan Salahuddin Khattak, PPO Sindh.

Asif Ali Abdul Razzak Soomro, Advocate Supreme Court, Mehr, Khan Malik, Advocate-on-Record with:

(i) Major (R) Khyrram Gulzar, DIG Traffic Government of Sindh, Karachi.

(ii) Nadir Hussain Khoso, DIG Training Government of Sindh, Karachi.

(iii) Din Muhammad Baloch, DIG Larkana Range, Larkana.

M. Rafiq Khan, In person, Warif Khan, In person.

Anwar Subhani, AIG Legal, In person, Wseem Ahmed, In person. DG. FIA, Islamabad.

Tariq Jamil, In person.

Joint Director-General Sindh, Provincial Head Quarters, IB, Karachi, Asghar Mahmood, In person Deputy Director General, Intelligence Bureau, Islamabad.

Khurshid Anwar Butt, In person. Intelligence Bureau.

Lt.-Col (R) Farman Ali, In person. DIG Head Quarter Gilgit.

Mian Akhtar Hayat, In person. AIG, Pak Railways Police, Lahore.

Naveed Ellahi, SSP Special Branch Lahore, In person.

P L D 2011 Supreme Court 282

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

DAOUD SHAMI---Appellant

Versus

Messrs EMIRATES AIRLINES and another---Respondents

Civil Appeal No.1266 of 2003, decided on 27th October, 2010.

(Against the judgment of the Lahore High Court, Lahore dated 13-1-2003 passed in R.F.A. No. 745 of 2001)

(a) Carriage by Air (International Convention) Act (IX of 1966)---

----First Sched., Chap. II, R.3---Warsaw Convention (1929), Arts.17 & 33---Contract Act (IX of 1872), S. 2---Liability of a carrier---Scope---Passenger ticket under R.3.2, of Chap. II, of First Sched. of Carriage by Air (International Convention) Act, 1966 constitutes, prima facie, evidence of a contract and terms prescribed on the ticket would be terms of the said contract---Under Art. 17 of the Warsaw Convention (1929), a carrier is liable only for the injury in an accident during the operations of embarkation or disembarkation or in the carriage of the passenger---Carrier has no liability for mental anguish or agony as it does not fall within the meaning of "bodily injury"---"Bodily injury" has to be manifested of deep vein thrombosis which could occur in long haul flights, particularly in economy class---Liability of an Airline under the law was limited to the sector for which it issued the ticket and to the terms and conditions attached with the ticket---In the present case, there was privy of contract between the Airline and the passenger for carriage from Lahore to London---Airline refused to the passenger to board the flight as the passenger was unable to perform his part of the contract which was a mandate of law i.e. he was in transit in London; did not have a U.K. visa; his onward flight from London to Washington-DC (USA) had been cancelled; he had no alternate arrangements and he could not stay beyond 48 hours in transit---Besides conditions of the Airline in terms of Art.33 of the Warsaw Convention, (1929), the carrier may refuse to carry a passenger and perform its part of the contract if the travel documents were not complete---If the carrier had permitted the passenger to board the flight it would have been violative of the U.K. Immigration Rules and a contract against law could not be enforced.

Sidhu and others v. British Airways Plc Abnett (known as Sykes) v. British Airways Plc (1997) 1 All. ER 193; King v. Bristow Helicopters Ltd. (2002) 2 All ER 565 and (2006) 1 All ER 786 ref.

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

----S. 73---Carriage by Air (International Convention) Act (IX of 1966), First Sched. Chap.II, R.3---Warsaw Convention (1929), Art.17---Airline and passenger---Breach of contract---Award of damages---Essential principles.

When the contract is broken, the party who suffers such a breach is entitled to receive compensation from the party who has breached the same, compensation for any loss or damage suffered by him provided it naturally arose in the usual course of things from such breach or which the parties knew when they made the contract to be likely to result from the breach of it.

When two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach should be either such as may fairly be considered as arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both the parties at the time the contract was entered into as a probable result of the breach.

There are two essential principles for award of damages which are as follows:

(i) such damages as naturally arose in the usual course of things, as a result of the breach, (ii) and if he claims special damages for any loss sustained (which would not ordinarily flow from the breach) he must prove that the other party knew at the time of making the contract that the special loss was likely to result from the breach of the contract.

Only such damages could be recovered which would naturally arise in the usual course of things from such breach or the parties at the time of making the contract know that loss or damage was likely to be result from the breach.

In the present case, although the loss was being claimed by the appellant-plaintiff on the basis of special circumstances i.e. that the former had to attend his graduation ceremony in Washington D.C., the said circumstance was not brought to the notice of the defendant airline. In the entire body of the plaint, there was no averment that defendant-airline was informed that he had purchased the ticket and was proceeding to U.S. to attend the graduation ceremony. Even in the evidence led before the Supreme Court, no reference was made that respondent-airlines had notice of the aforementioned special circumstances.

The present case did not fall within the ambit of Article 17 of the Warsaw Convention, 1929 and the contract to which the airline was privy inter alia included application of the Conditions of Carriage for Passengers and Baggage. A passenger in possession of ticket of airline was mandated to obey laws, regulations and other requirements of all countries which he will enter or exit during journey; the airline could refuse boarding if the passenger was not in possession of the requisite documents. In refusing the passenger to board the flight in question, the airline was merely complying with the terms of the contract. It was the responsibility of the passenger to have in possession all travel documents including a visa. The airline in the present case, was not liable because the boarding was not refused on any omission or negligence on its part. The freedom of refusing the carriage for carriers is embodied in the International Conventions, IATA Rules, Regulations and the terms of the ticket itself. When one part of the agreement which could not be separated from other part becomes impossible to perform, then the entire agreement becomes voidable at the option of the parties and the airline in these circumstances, rightly refused to issue boarding card to the passenger not only to avoid inconvenience that may be caused to him at London Airport but to avoid penal consequences in terms of municipal law of U.K., which prohibit stay in transit to a passenger more than 48 hours at Airport by imposition of the penalties on the airlines.

The passenger neither in the plaint nor in the evidence led, mentioned the date of graduation ceremony which he was to attend, how his non-participation had made the degree of less value or how he was assured a job if he had attended the ceremony or how it injured his feelings. He never made any attempt to have fresh booking for travel to U.S. which would have been reflective of his bona fides qua the claim the being agitated. He even never bothered to ear himself before court and have his statement recorded.

Hadley v. Baxendale (1854) 9 Exch. 341; Syed Ahmad Saeed Kirmani v. M/s Muslim Commercial Bank Ltd., Islamabad 1993 SCMR 441 and Mohindra Lall Sen v. Union of India AIR 1960 Pat. 411 ref.

Syed Najam ul Hassan Kazmi, Advocate Supreme Court for Appellant.

M.A. Sheikh; Advocate Supreme Court for Respondents.

Date of hearing: 27th October, 2010.

P L D 2011 Supreme Court 296

Present: Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

Hafiz TASSADUQ HUSSAIN---Appellant

Versus

LAL KHATOON and others---Respondents

Civil Appeal No.2-L of 2009, decided on 21st December, 2010.

(On appeal against the order dated 12-11-2003 passed by Lahore High Court, Multan Bench in C.R.No.834-D of 2003).

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

----S. 27(b)---Constitution of Pakistan, Art.185(3)---Subsequent vendee asserting to be a bona fide purchaser having no knowledge/notice of the prior agreement to sell---Leave to appeal was granted to consider, if the view set out by the appellate and revisional courts was in consonance with the law laid down by Supreme Court regarding the proposition in question.

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

----S. 27(b)---Qanun-e-Shahadat (10 of 1984), Art.117, 118, 119 & 120---General Clauses Act (X of 1897), S.3(20)---Subsequent vendee asserting to be a bona fide purchaser having no knowledge/notice of the prior agreement to sell---Onus of proof---Ingredients and principles---Law regarding the rule providing protection to bone fide purchaser for value without notice and the standards of proof thereof elucidated.

In a dispute between the parties in a civil litigation, the resolution whereof is dependant upon the existence of certain facts which are not self evident, and a party to the lis wants the Court to believe about the existence of those and seek verdict in his favour, the onus to prove shall be on the shoulder of such litigant who asserts the existence of the fact. In the cases pertaining and relating to the protection under section 27(b) of the Specific Relief Act, 1977, undoubtedly, it is the subsequent vendee who asserts and avows in the defence that his case falls within the purview and parameter of the noted section i.e. he is a transferee for value; the money (consideration) has been paid in good faith; and that he had no notice of the original (earlier) contract between the plaintiff and the vendor. In other words that he is a bona fide purchaser without notice. Obviously the existence of the facts aforementioned and the ascertainment thereof is an issue between the parties which requires resolution from the Court. It is therefore, in such like cases by applying the rules regarding burden of proof as emerging from the Articles, especially 117 and 118 of Qanun-e-Shahadat, 1984 the initial onus to prove the same is on the shoulder of the subsequent vendee. In civil disputes the onus to prove a fact however does not remain constant or stagnant, thus once the initial onus on a proposition of fact has been discharged by the side upon whom it was originally placed, it would shift over to the other party for the rebuttal thereof or for the proof otherwise.

The subsequent vendee thus has to discharge the initial onus as follows:

(1) that he acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise.

(2) there was no dishonesty of purpose or tainted intention to enter into the transaction which shall settle that he acted in good faith or with bona fide;

(3) he had no knowledge or the notice of the original sale agreement between the plaintiff and the vendor at the time of his transaction with the later.

From the above it is depicted that section 27(b), Specific Relief Act, 1877 merely enacts the English equitable rule which allows later legal title to prevail Over an equitable interest in case of bona fide purchaser for value without notice. And this principle has to be kept in view by the Courts while analyzing and appreciating the evidence on the record for the discharge of the requisite burden.

In the afore-noted context, it is thus required that a subsequent vendee should adduce in evidence his sale instrument or the mutation of his transaction, if not otherwise on the record having been brought by the plaintiff himself, or any other proof in this connection such as the receipt of payment made to the vendor or the bank record etc. or should lead credible ,oral evidence in this behalf; these are some conceivable modes of proving the transfer for value and shall be a sufficient discharge of onus in this respect in ordinary cases. If however, a specific attack has been made in the plaint or the replication by the plaintiff that the subsequent transaction is without consideration, or the value given is colourable, understated, underpaid and illusionary, it becomes the bounden duty of the subsequent transferee to establish through positive evidence that adequate price was paid, because this factum shall also have a close nexus to the good faith and the bona fides of the said transferee as well; when it is so done, the onus shall switch over to the plaintiff to prove otherwise.

The second ingredient "good faith" is the term which reflects the state of mind and according to section 3(20) of the General Clauses Act, 1897 "a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not." Good faith as defined above is equivalent to honesty of dealing and does not entail upon the purchaser the necessity of searching the registry, even assuming that there were facts indicative of negligence in investigating title, that by itself was not predicative of a lack of bona fides. Therefore, the second condition shall stand settled if the subsequent vendee has acted as a man of ordinary prudence in making inquiries expected from a purchaser who want to acquire a good title for the price/value he is paying. This may include the checking of the Revenue record or obtain the copies thereof to verify about the title of the vendor or any third party in right, interest or charge over the property or any endorsement in such record about any pending litigation or an injunctive order etc; this may be a good and adequate exercise of investigative process, in case of rural/agriculture property. And for the same purpose, regarding urban property, the Excise and Taxation record may be examined coupled with the verification and obtaining the original documents of title from the vendor, if those are available. However, the subsequent vendee is not obliged to run from the pillar to post in conducting rowing and fishing inquiries, to ascertain if a third party has any interest etc in the property which otherwise is visibly lacking. But if there exist some overt, prominent and conspicuous indicators about the third party interest, which are so patently noticeable and manifest that those could not and should not be missed and ignored by a purchaser, such as the possession not with the vendor but some one else, who if approached, or its nature investigated would lead to discover such interest, the purchaser is obliged to probe about it, otherwise he may not be able to take resort of the noted equitable rule.

If therefore, a subsequent vendee has taken due care in the above manner and there are no indicators to put him to a notice of third party, interest, he shall be said to have acted in good faith, thus satisfying the second condition of the rule.

The last and the utmost important ingredient of section 27(b) is the lack of knowledge or the notice of the subsequent vendee about the original contract between the plaintiff of the case and the vendor. This undoubtedly is the negative fact which cannot be conclusively proved in positive terms, as it is inconceivable that such fact could be established by affirmative means. To illustrate the point; if the marriage between the parties is an admitted fact but due to the subsequent assertion of the husband that it has been terminated on account of divorce pronounced by him; the wife who refutes it and in order to safeguard her marital status and the rights flowing therefrom is constrained to institute a suit 'for jactitation, in which the man sets out (obviously) the defence of divorce; the factual proposition with reference to the noted facts which would emerge for the resolution and determination of the Court would be whether the plaintiffs is still the wife of the defendant and/or whether the defendant has divorced the plaintiff? Viewing it from any angle the fact that the marriage on account of divorce by the husband stands dissolved is a negative fact for the wife to prove. Another example may further elucidate the point, in an ejectment petition, the landlord seeks the eviction of his tenant on the ground of default in the payment of rent, which fact is denied by the tenant, now it shall not be possible for the landlord to prove in the positive term that the rent has not been paid, which again is a negative proof of fact, thus the landlord shall be said to have discharged the initial burden of proof by making statement on oath about the lack of payment of rent, which shall be subject to cross-examination by the other side, thereafter, the onus shall be on the tenant to prove in positive terms that the rent has been paid. The above example shall also be true with reference to the first illustration, because if a wife makes a statement on oath about the subsistence of marriage between the parties and deny the divorce, she shall be considered in law to have discharged the initial onus, which shall switch over to the husband for the proof otherwise, by positive evidence. Because such a negative fact the law of evidence universally recognize is not capable of proof positively.

The onus of proving that the subsequent purchaser had no notice of a prior claim lies on such purchaser; and the onus of such a negative issue is ordinarily discharged by a denial and by a negative evidence.

Under section 27(b) of the Specific Relief Act negative is to be proved by the subsequent transferee: If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contract.

Since in civil suits an issue is to be decided by preponderance of evidence, the initial burden would be on the plaintiff to prove his prior contract, which if discharged, the burden of proving the subsequent bona tide transfer for value without notice would be on the party alleging it. Very little evidence and in certain circumstances a mere denial regarding want of knowledge of the earlier contract would discharge this burden and shift the onus on the plaintiff to prove that the subsequent transferee had the notice of the earlier contract.

Though the initial onus is on the subsequent vendee, however, it is light one, and once it is discharged by abiding by the criteria set out hereinabove, it shall be the burden and duty of the plaintiff to prove positively that the subsequent vendee had the notice of his sale. agreement; besides, the subsequent transaction is without the passing of the due consideration; it is a colourable or a fraudulent transaction entered into with dishonesty of purpose by the vendor and the subsequent vendee in order to cause prejudice his rights under the sale agreement. This to an extent should settle the law regarding the rule providing protection to bona fide purchaser for value without notice and the standards of proof thereof.

Rasool Bakhsh Naich v. Syed Rasool Bakhsh Shahi 2010 SCMR 988; M. Din v. Mst. Sabira Bibi 2003 SCMR 956; Mst. Surraya Begum and others v. Mst. Suban Begum 1992 SCMR 652; M. Ahraf v. All Zaman 1992 SCMR 1942; Mst. Khair-ul-Nisa v. Malik M. Ishfaque PLD 1972 SC 25; Haji Abdul Rehman and others v. Noa Ahmed and others PLD 1974 Baghda-ul-Jadid 25; M. Shafi v. M. Sarwar 1997 CLC 1231; Bakhtawar v. Shah Muhammad 1984 CLC 22; M. Yousaf Ishaque v. Abdul Majid Khan and others 1984 CLC 243 and Malik M. Ishaque and others v. Mirza Alain Ali Bage and others PLD 1969 Lah 762 ref.

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

----Arts. 132 & 133-Examination-in-Chief-If a material fact has been deposed in the examination-in-Chief and it is not subjected to the cross-examination, same shall be deemed to have been admitted.

Talib H. Rizvi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Appellant.

Mian Muddasar Bodla, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Respondents Nos.1-6, 8 and 9.

Respondents 7, 10: Ex parte.

P L D 2011 Supreme Court 308

Present: Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Khilji Arif Hussain

and Tariq Pervez Khan, JJ

MUNIR HUSSAIN BHATTI and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Law and another---Respondents

Constitutional Petitions Nos. 10 and 18 of 2011, decided on 4th March, 2011.

Constitution of Pakistan---

----Arts.175-A & 184(3)---Appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court---Constitutional petition under Art.184(3) of the Constitution before Supreme Court challenging, inter alia, decision of Parliamentary. Committee disagreeing with the recommendations for extension in tenure of Judges of High Courts by Judicial Commission and deciding not to recommend the names of said Judges for appointment as Judges---Held, decision of the Parliamentary Committee, whereby the names of the said Judges were not confirmed for extension in their tenure, was not in accordance with the provisions of the Constitution; as a result, the said decision of the Parliamentary Committee was set aside---Supreme Court directed the respondents/authorities to implement the recommendations of the Judicial Commission in respect of the said Judges and to issue notifications for the appointment of the said Judges in consonance with the recommendations of the Judicial Commission.

Makhdoom Ali Khan, Senior Advocate Supreme Court (in C.P. No.10 of 2011), Arshad Ali Ch., Advocate assisted by Faisal Hussain Naqvi, Advocate Supreme Court, Khurrum Hashmi, Utnair Malik, Hyder Ali Khan and Saad Hashmi Advocate for Petitioners.

Anwar Mansoor Khan, Senior Advocate Supreme Court (in C.P.No.18 of 2011), Abid S. Zuberi, Advocate Supreme Court assisted by Asim Mansoor Klian, Advocate for Petitioners.

K.K. Agha, Addl. A.G., Pakistan and M.S. Khattak, Advocate-­on-Record for Respondent No.1.

Iftikharullah Babar, Acting Secretary Senate for Respondent No.2.

Maulvi Anwar-ul-Haq, Attorney General for Pakistan On Court call.

P L D 2011 Supreme Court 310

Present: Javed Iqbal, Tassaduq Hussain Jillani and Raja Fayyas Ahmed, JJ

Mir SALEEM AHMED KHOSA---Petitioner.

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Petitions Nos.298-Q & 299-Q of 2010, decided on 23rd February, 2011.

(On appeal against the judgment dated 26-11-2010 and 12-11-2010 passed by High Court of Balochistan, Bench Sibi at Quetta in Const. P.Nos. 114 and 116 of 2010 and C.M.A. No.1207 of 2010 in Election Petition No.13 of 2008).

Representation of the People Act (LXXV of 1976)---

----Ss. 46, proviso, 52, 55 & 63---Constitution of Pakistan, Art.185(3)---Allegation of malpractices---Order of recounting of votes of disputed polling stations by Election Tribunal---Election petition was pending for the last more than two years---Supreme Court on agreement by both the counsel disposed of petition for leave to appeal in terms that order of recount passed by Election Tribunal was modified and it was directed that while carrying out the exercise in terms of order of Election Tribunal, the Commission (appointed under the said order) shall ensure that it proceeds strictly in terms of S.46(1) of Representation of the People Act, 1976 and in particular, the proviso attached to said section; that both the parties shall be allowed to raise objection qua the report of recount and may lead evidence and that Election Tribunal shall consider the report, the evidence led and the relevant law while deciding all the issues framed in the main petition along with miscellaneous application---Supreme Court observed that as the election petition was pending for more than two years and almost half of the term of the Assembly was over, Election Tribunal was directed to decide the petition within 30 days of the receipt of present order of the Supreme Court--Petitions for leave to appeal were converted into appeals and disposed of accordingly.

Muhammad Asim Kurd v. Mir Lashkari Khan Raisani 1998 SCMR 1597; Zahid Sarfraz v. Nadir Pervez Khan 1987 SCMR 1107 and Fahmida v. State 1997 SCMR 947 ref.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Amanullah Kanzani, Advocate Supreme Court and Kamran Murtaza, Advocate Supreme Court for Petitioner.

Tariq Mehmood, Senior Advocate Supreme Court for Respondents.

Date of hearing: 23rd February, 2011.

P L D 2011 Supreme Court 315

Present: Iftikhar Muhammad Chaudhry, C.J:, Javed Iqbal, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Mian Saqib Nisar, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

ABDUL HAMEED DOGAR, FORMER JUDGE/CJP and others---Appellants

Versus

FEDERATION OF PAKISTAN/STATE---Respondent

Intra-Court Appeals Nos. 9, 10, 3, 4, 6 to 8 and 11 of 2011, decided on 3rd March, 2011.

(a) Contempt of Court Ordinance (V of 2003)---

----Ss. 5(2) & 19---Supreme Court Rules, 1980, O.XXXIII, Rr. 5 & 6---Contempt of Court---Intra Court appeal---Appellant, Judge of High Court and thereafter that of Supreme Court, had taken oath in violation of judgment of a Seven-Member Bench of the Supreme Court wherein a restraint order was passed to block imposition of unconstitutional rule in - the country---Said Judge after having regretted, opted for retirement and addressed a letter to the President of Pakistan in that behalf, competent authority had acceded to his request and notification in that respect was issued---Counsel of the appellant/Judge had moved an application under O.XXXIII, Rr.5 &6 of Supreme Court Rules, 1980 and categorically stated that "he was extremely sorry for having taken oath on 3-11-2007 under a misunderstanding and had regretted for the same"---Counsel further submitted that the Judge, for the sake of the dignity and respect of the Institution of Judiciary, had sacrificed his four years' service as a Judge of the apex Court and henceforth he would be no more adorning the Bench, as the notification of his retirement had already been issued, therefore, while exercising jurisdiction available to the Supreme Court to decide not to proceed against a person facing the charge of contempt who offered regrets, the proceedings against him be terminated---Attorney General stated that regrets so expressed by the Judge may be accepted, particularly keeping in view that he had stood retired and was no more of the Supreme Court---Held, in a case of contempt of Court like the present one, all that the Court was required to be satisfied was that the dignity and authority of the Court by flouting its judgments/orders were not put at stake---Law of contempt . was primarily intended to ensure that the majesty of the law was upheld and the dignity of the Institution of Judiciary, which was a most important pillar of the State, was protected and it also restored confidence of the general public in the due and proper administration of justice in the country---Courts were vested with an extraordinary jurisdiction to punish a person for committing contempt of Court, and armed with a powerful weapon, but the same was to be exercised/used judiciously and sparingly depending upon the facts and circumstances of each case---Supreme Court emphasized that seven-Member Bench of Supreme Court passed a restraint order not only to save the dignity of the judiciary, but also to protect Constitution as it was the duty of Judges of Superior Courts who had taken oath to preserve and protect it; thus, it was all the more necessary for the Judges of the Superior Courts to respect the order of Seven-Member Bench in all. circumstances---Appellant/Judge having realized that he had taken oath under a misunderstanding had regretted for his action and decided to quit in the larger interests of the Institution and he would not be adorning the Bench, therefore, the request so made by him was accepted by Supreme Court; appeal was allowed and proceedings for contempt of Court to his extent pending before a Bench of Supreme Court were terminated.

(b) Contempt of Court Ordinance (V of 2003)---

----Ss. 5(2) & 19---Contempt of Court-Intra-Court appeal---Supreme Court, in its judgment in Sindh High Court Bar Association's case PLD 2009 SC 879 had declared that Mr. Justice (Retd.) Abdul Hameed Dogar, in view of violation of judgment of a Seven-Member Bench of the Supreme Court, was never a constitutional Chief Justice of Pakistan and all the appointments of the Judges made in consultation with him were declared to be unconstitutional---Subsequent thereto, notices for contempt of Court were issued to Mr. Justice (Retd.) Abdul Hameed Dogar and others, who contested and ultimately a Bench of Supreme Court decided to proceed against him for contempt---Counsel for Mr. Justice (Retd.) Abdul Hameed Dogar submitted that he had already retired on 21-3-2009; he was no more a Judge of Supreme Court; he was not enjoying good health and while feeling sorry and expressing regrets he had stated that he could not comply with the order of the Seven-Member Bench of the Supreme Court under confusion, misconception and misunderstanding, besides he had placed himself at the mercy of the Supreme Court, therefore, his regrets may be accepted and his appeal may be disposed of accordingly---Attorney General for Pakistan had stated that as Mr. Justice (Retd.) Abdul Hameed Dogar had placed himself at the mercy of the Court, therefore on account of the realization that he ought to have complied with the order of Seven-Members Bench of the Supreme Court, the request so made by him be accepted---Held, as against the past practice, the order was passed by a Seven-Member Bench for the first time in the history of Supreme Court whereby Judges of Supreme Court and High Courts including Chief Justices of High Courts were restrained not to take oath under Provisional Constitution Order or any other extra-constitutional act with a view to block the imposition of martial law and abrogation of the Constitution as the dignity and respect of the Institution of Judiciary were to be guarded first of all by its own members-Admittedly, Mr. Justice (Retd.) Abdul Hameed Dogar. violated the order of Seven-Member Bench as it was evident from the conclusion drawn by Supreme Court in the case of Sindh High Court Bar Association---However, in the case of Mr. Justice (Retd.) Abdul Hameed Dogar much water had already flown under the bridges, during course whereof all the actions taken by the then Chief of Army Staff had been declared unconstitutional including appointment of Judges of Supreme Court and High Courts---Mr. Justice (Retd.) Abdul Hameed Dogar had regretted for his actions and had also thrown himself at the mercy of the Court---Helplessness shown by person facing contempt proceedings persuaded the Court to exercise jurisdiction of contempt sparingly---Supreme Court accepted appeal and terminated the contempt proceedings against him----Supreme Court observed that no exception of whatsoever nature shall be claimed by Mr. Justice (Retd.) Abdul Hameed Dogar in respect of observations made in the Sindh High Court Bar Association's case PLD 2009 SC 879 as well as in Justice Khurshid Anwar Bhinder's case PLD 2010 SC 483.

Sindh High Court Bar Association's case PLD 2009 SC 879 and Justice Khurshid Anwar Binder's case PLD 2010 SC 483 ref.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellants (in I.C.A. No.9 of 2011).

S.M. Zafar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in I.C.A. No.10 of 2011).

Dr. A. Basit, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants (in I.C.As. Nos.3 and 4 of 2011).

Syed Raza Kazim, Senior Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for the Appellant (absent) (in I.C.A. No.6 of 2011)'.

Dr. Khalid Ranpha, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in I.C.A. No.7 of 2011).

Sh. Zamir Hussain, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellants (in I.C.A. No.8 of 2011).

Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in I.C.A. No.11 of 2011).

Maulvi Anwarul-Haq, Attorney General for Pakistan (On Court's Notice).

Nemo for Respondents.

P L D 2011 Supreme Court 323

Present: Mian Shakirullah Jan, Khilji Arif Hussain and Tariq Pervez Khan, JJ

NASEER AHMED SIDDIQUE through Legal Heirs---Petitioner

Versus

AFTAB ALAM and another---Respondents

Civil Petition No.78-K of 2010, decide don 8th February, 2011.

(On appeal from the judgment dated 19-10-2009 of the High Court of Sindh, Karachi passed in II Appeal No.41 of 2009).

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

----S. 12---Specific performance of agreement to sell---Grant of decree for specific performance is discretionary---Scope---Rise in price of Property agreed to be conveyed and-conduct of vendee---Effect---Where the vendee had not deposited balance sale consideration at least till the suit was decreed and there was nothing to show whether the said amount was deposited even thereafter or not, vendor could not be directed to return the earnest money with profit as the vendor utilized the money for his benefit and making payment of additional consideration in view of devaluation in currency and rise in price of Property-Principles.

Grant of decree for specific performance is discretionary as is also made out from the provisions contained in section 12 of the Specific Relief Act, 1877 and it is not necessary to grant a decree for specific relief if it may appear to be inequitable or may cause hardship to the other side.

Specific performance is by no means absolute right but one which rest entirely in Judicial discretion and always with reference to the facts of a particular case.

The discretionary relief cannot be denied to a litigant, who otherwise vigilant, always ready and willing to perform his part of obligation, merely because his lis has remained pending from many years in the courts for which Judicial System can be blamed. Increase of price of the property during the time when cause remained pending in courts, not ipso facto disentailed the purchaser to seek discretionary relief of specific performance.

Rise in the price of property agreed to be conveyed may be relevant factor in denying the relief of specific performance, keeping in view the conduct of the vendee, date of agreement of sale, time agreed for performance and time of filing of the suit before trial Court.

In the present case, respondent filed suit for specific performance on 29-9-1988 and deposited the balance sale consideration in terms of the order passed by the court. All the three courts below after taking into consideration evidence on record and conduct of both the parties granted relief of specific performance in favour of the respondent, which in the circumstances, appeared to be just and equitable. The respondent could not be blamed and penalized merely because time had been consumed during the trial. From the conduct of the parties, it appeared that although the respondent who was not in possession of the property in question immediately on filing of the suit deposited balance sale consideration in court which, demonstrated that he was always ready and willing to perform his part of obligations. The petitioner who was enjoying the possession of the property in question and also the rent of it, even not deposited the amount of Rs.2,00000 which he received in the year 1988, as part sale consideration in Court, and enjoyed the benefit of it.

Respondent vendee had not deposited balance sale consideration at least till the suit was decreed and there was nothing to show whether the said amount was deposited even thereafter or not. The principles laid down in the cases of Shakeel Ahmed v. Mst. Shaheen Kousar 2010 SCMR 1507 and Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952 were not attracted to the facts and circumstances of the present case.

The conduct of respondent was not inconsistent and dishonest to disentitle him to claim equitable and discretionary relief of specific performance. On the contrary the petitioner avoided to perform its part of obligations by failing to execute of sale agreement in time, by failing to attend office of Sub-Registrar for registration of Conveyance Deed on 20-9-1988 by withholding the amount of Rs.2,00,000 received by him in the year 1988 till date and enjoyed the rent and possession of the property in question for more than 22 years from the date of execution of agreement of sale.

The trial Court after taking into consideration all aspects of the matter and that pay orders of the balance amount of sale consideration got prepared before the date of performance agreed between the parties, Conveyance Deed was duly stamped and same could not be registered due to failure of the petitioner to attend the office of Sub-Registrar, exercised its discretion and granted relief of specific performance.

Concurrent findings of facts recorded by the three courts below left no room for further consideration. Petitioner had not been able to point out any infirmity factual or, legal warranting interference by Supreme Court.

Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 and Pirzada Nazir Hassan v. Major (Retd.) Ejaz Ahmad Khan 1981 SCMR 684 ref.

Shakeel Ahmed v. Mst. Shaheen Kousar 2010 SCMR 1507 and Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952 not attracted.

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

----S. 12---Civil Procedure Code (V of 1908), S.100---Suit for specific performance of agreement to sell---Second appeal before High Court---Scope---Where Trial Court had exercised its discretion in one way and that discretion had been judicially exercised on sound principles and the decree was affirmed by the appellate court, the High Court in second appeal would not interfere with that discretion, unless same was contrary to law or usage having the force of law.

Abid S. Zuberi, Advocate Supreme Court for Petitioners.

Tariq Mehmood, Senior Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 8th February, 2011.

P L D 2011 Supreme Court 331

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

Civil Appeal No.140-K of 2010

IBRAHIM TRUST, KARACHI---Appellant

Versus

SHAHEEN FREIGHT SERVICES---Respondent

(On appeal from judgment of High Court of Sindh, Karachi dated 19-2-2010 passed in C.P.No.S-374 of 2009).

Civil Appeal No.141-K of 2010

IBRAHIM TRUST, KARACHI and others---Appellants

Versus

TIPU ENTERPRISES and others---Respondents

(On appeal from judgment of High Court of Sindh, Karachi dated 19-2-2010 passed in C.P.No.S-374 of 2009).

Civil Appeals Nos.140-K and 141-K of 2010, decided on 28th February, 2011.

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

----S. 16(1)---Arrears of rent---Unless strict compliance of order of Rent Controller passed under S.16(1) of the Sindh Rented Premises Ordinance, 1979 is made by the tenant, tenant makes his defence liable to be struck off.

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

---S. 10---Payment of rent---In the absence of any date fixed between the landlord and tenant by mutual agreement, rent shall be paid not later than 10th of month next following the month for which it is due--Tenant is not expected to make any advance payment of rent to the landlord, except when mutually agreed between them under some agreement.?

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

---S. 15(2)(ii), proviso---Default in payment of rent by the tenant---Application to Rent Controller---Scope---Provision of S.15(2)(ii) of the Sindh Rented Premises Ordinance, 1979 provides two eventualities for the purpose i.e. where the time for payment of rent is fixed by mutual agreement between the tenant and landlord, the rent is payable within 15 days after the expiry of said period, otherwise within 60 days when the rent has become due for payment---Proviso to S.15 deals with a concession provided to the tenant in case the default of payment of rent committed was not exceeding a period of six months; where it was the first instance of commission of such default and this fact was admitted by the tenant on the first date of hearing, in such a situation, the Rent Controller is vested with the powers to fix the date for the purpose of such payment due, and upon compliance, reject the eviction application, if filed on the sole ground of such default in payment of rent by the tenant.?

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

----Ss. 16, 15 & 10---Default in payment of rent---Arrears of rent---Scope and application of Ss.16, 15 & 10, Sindh Rented Premises Ordinance, 1979---Rent order---Interpretation---Principles---Question of default in payment of' rent is to be gauged on the payment or otherwise of' "rent due" and not the `advance rent', which is alien to provisions of Ss.10, 15 & 16 of the Ordinance, except under a mutual agreement---When two equally logical interpretations of the rent order, entailing penal consequences were possible, then the one favourable to the subject was to be given preference i.e. no contemplation for payment of any advance rent was to be deduced from the language of such rent order to the prejudice of tenant---Deposit of pay order in the Bank on the 10th of each month, under valid challans issued by the Nazarat Office was due compliance of the rent orders by the tenants, irrespective of the fact when payment of' such pay orders was collected or realized from the concerned Bank by its encashment--principles.

Section 16, Sindh Rented Premises Ordinance, 1979 deals with the powers of the Rent Controller to pass an order, after holding summary enquiry as deemed fit by him for determining the arrears of "rent due", directing the tenant to deposit the same within such period as the Controller deems fit in this behalf. It also empowers the Rent Controller to direct the tenant to deposit future monthly rent regularly on or before the 10th of every month till final disposal of the case. Proviso to subsection (1), further empowers Rent Controller to pass an order regarding payment of arrears of rent and approximate rent to the landlord through pay order or any other mode agreed between the parties; subsection (2) to section 16 deals with the penal consequence of non-compliance of rent order passed in terms of subsection (1) passed by . Rent Controller, and empowers the Rent Controller to strike off the defence of the tenant and pass an order in favour of landlords to put him in possession of rented premises within specified period on that account. Further subsection (3) empowers the Rent Controller to deal with the disbursement of the rent deposited by the tenant in the office of the Rent Controller in the manner he deems fit in this behalf. An important feature of similarity in Ss.10, 15 and 16 of the Ordinance, is that the question of default in payment of rent is to be gauged on the payment or otherwise of "rent due" and not the advance rent, which is alien to these provisions of law, except under a mutual agreement.?

In the present case; a bare reading of the impugned order revealed that on one hand it contemplated payment of arrears of rent by way of adjustment of rent already paid by the tenants in the miscellaneous rent case, which was also withdrawn by the landlord, and on the other hand it directed the tenant for payment of future monthly rent from the month of November, 2007, on or before the 10th of each calendar month i.e. on or before the 10th of each calendar month next following, when in terms of section 10 or 15(2) of the Ordinance the rent for the previous month will become due. The provisions of section 16(1) of the Ordinance do not permit the Rent Controller to pass an order for advance payment of rent for current months. In case the Rent Controller had taken reasonable care at the time of passing the two orders under section 16(1), she could have clarified this legal position in her order regarding payment of current monthly rent, by incorporating the words "next month", "coming month", "subsequent month", or "succeeding month". Oblivious of such legal aspect, the Rent Controller and the first appellate Court, both proceeded on misinterpretation of the rent order under misconception of law, that the rent for three alleged months of default i.e. December, 2007, January, 2008 and June, 2008 was payable In advance by the 10th of each calendar month, though in accordance with law, to avoid commission of default, rent for the month of December, 2007 was payable by 10th of January, 2008, when it became due, and similarly the rent for the month of January, 2008 and June, 2008, in the succeeding months of February and July 2008 respectively. Thus from no stretch of imagination the tenants can be held defaulters in the compliance of rent order dated 25-10-2007, as alleged by the landlord.?

Although there is no ambiguity to the legal position, but even if for argument sake, Court examine the question of default qua striking off the defence of tenant on the premises as claimed by the landlord, firstly, when two equally logical interpretations of a rent order, entailing penal consequences were possible, then the one favourable to the subject was to be given preference i.e. no contemplation for payment of any advance rent was to be deduced from the language of such rent order to the prejudice of tenants, secondly deposit of pay orders in the Bank on the 10th of each month, -under valid challans issued by the Nazarat Office was due compliance of the rent orders by the tenants, irrespective of the fact when payment of such pay orders was collected or realized from the concerned Bank by its encashment.?

State Life Insurance Corporation of Pakistan v. Kotri Textiles Mills 2001 SCMR 605; Asad Brothers v. Ibadat Yar Khan 1991 SCMR 986; Noor Muhammad v. Muhammad Bhai 1984 CLC 2443; Nazir Ahmad v. Holaram 1985 CLC 41; Haydari Constn. C.Ltd. v. Bank of C. and C.I:O. Ltd. 1991 CLC 149; Erasmus Marine Company Ltd. V. Government of Pakistan 1999 CLC 2010; Hussain Ginners Ltd. v. Customs Central Excise and Sales Tax Appellate Tribunal 2007 PTD 2563 held not relevant.

Ms. Noor Zehra Karim for Appellants (in both appeals).

Khalid Javed Khan, Advocate Supreme Court and Mrs. Sheraz Iqbal, Ch., Advocate-on-Record for Respondents No.1.

Respondents No.2 and 3 (Performa Respondents).

Date of hearing: 31st January, 2011.

P L D 2011 Supreme Court 342

Present: Muhammad Sair Ali and Asif Saeed Khan Khosa, JJ

IMTIAZ AHMAD and others---Appellants

Versus

ADMINISTRATOR (RESIDUAL PROPERTIES)/ SETTLEMENT COMMISSIONER, RAWALPINDI and others---Respondents

Civil Appeal No.1265 of 2000, decided on 4th January, 2011.

(On appeal against the judgment dated 12-10-1998 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.74-R of 1981).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 15(3)---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3---Allotment of urban agricultural land in year 1963-64 by Settlement Authorities and issuance of PTO and PTD in petitioner's favour---Petitioner's application to Settlement Commissioner in year 1981 to cancel bogus allotment of same land in respondent's favour---Acceptance of such application by Settlement Commissioner while cancelling petitioner's allotment also for not being entitled to suit land for being a building site---Validity---Petitioner had obtained possession of suit land against his valid claim and had been enjoying usufruct and title over same since then---Suit land had never been available for allotment till repeal of Settlement Laws in the year 1975, and by then such matter had become final and could not be reopened---After repeal of Settlement Laws in the year 1975, Settlement Commissioner had no jurisdiction in year, 1981 to cancel petitioner's allotment particularly when neither suit land was available nor its validity was disputed or pending before him---Dispute pending before Settlement Commissioner was bogus allotment in favour of respondent, and after declaring same to be bogus, petitioner's allotment remained in tact---According to revenue record and Special Jambandi; suit land had never been a building site, rather on one Khasra number there existed a ghairmumkin khotha, while other Khasra number was ghairmuntkin chah, while remaining land was banjar gadeem---Ghairmumkin khotha normally existed over an agricultural land, while ghairnnunkin chap denoted an agricultural land and not a building site, while banjar gadeetn would refer to agricultural land not put to cultivation for some time---Parcel of suit land used for temporary stacking of logs and timber would not acquire status of a building site and loose that of an urban agricultural land---Impugned order was set aside in circumstances.

Sufi Muhammad Din v. Additional Commissioner (Revenue) 1991 SCMR 905 rel.

(b) Words and phrases---

----Banjar Qadeem"---Meaning---Banjar Qadeem always refers to agricultural land not put to cultivation for some time.

Samad Mehmood, Advocate Supreme Court for Appellants.

Hafiz M. Yousaf, Advocate Supreme Court for Respondent No.1.

Ex parte for Respondent No.2. Respondent No.3 deleted.

Date of hearing: 4th January, 2011.

P L D 2011 Supreme Court 347

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

GOVERNMENT OF SINDH through Secretary Agriculture and Livestock Department and others---Appellants

Versus

Messrs KHAN GINNERS (PRIVATE) LIMITED and 57 others---Respondents

Civil Appeals Nos. 2435 to 2492 of 2001, decided on 2nd March, 2011.

(On appeal from the judgment dated 2-11-2000 of the High Court of Sindh at Karachi passed in Constitutional Petitions Nos. D-1796, D-1797, D-1798, D-1799, D-2010, D-2011, D-2012, D-2013, D-2014, D-2015, D-2016, D-2017, D-2018, D-2019, D-2020, D-2021, D-2022, D-2023, D-2024, D-2025, D-2026, D-2027, D-2042, D-2043, D-2044, D-2045, D-2046, D-2047, D-2048, D-2054, D-2055, D-2056, D-2057, D-2058, D-2059, D-2060, D-2061, D-2062, D-2063, D-2064, D-2065, D-2067, D-2068, D-2069 of 1998, D-115, D-116, D-117, D-118, D-119, D-120, D-213, D-121, D-212 and D-304, D-919 of 1999, D-1965, D-1966 and D-2066 of 1998).

(a) West Pakistan Cotton Control Ordinance (XX of 1966)---

----Preamble---West Pakistan Cotton Control Rules, 1966---West Pakistan General Clauses Act (VI of 1956), S.2(41)---Government of Sindh Notification No. 8(202)SC(Ext)/91 published in official Gazette on 30-11-1999---Government of Sindh Notification published on 30-11-1999 manifested that cotton fee had been increased by the Government from Rs.6/- to Rs.10/- per 1000 Kgs. with effect from 17-2-1991---No demand of such increased fee had been made by the authorities from the Cotton Ginners for good seven years or so---Said notification was issued on 17-2-1991 but was published in the official Gazette for the first time on 30-11-1999---Authorities had no proof to establish that the Cotton Ginners had become aware of the increase in the cotton fee before the publication of notification in the Sindh Government Gazette---Validity---Law does not recognize any retrospective enforceability of a fiscal measure---Issuance of a notification is not of any significance in legal importance till it is published in an official Gazette---"Notification" under S.2(41) of West Pakistan General Clauses Act, 1956 means a notification published under proper authority in an official Gazette---Before its publication in the official Gazette the notification relevant to the present case could not even be lawfully termed as "notification"---Notices of demand issued against the Cotton Ginners on 2-10-1998 were without lawful authority and of no legal effect.

(b) Interpretation of statutes---

----Law does not recognize any retrospective enforceability of a fiscal measure.

(c) Notification---

----Issuance of a notification is not of any significance in legal importance till it is published in an official Gazette--- "Notification" under S.2(41) of West Pakistan General Clauses Act, 1956 means a notification published under proper authority in an official Gazette.

Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 ref.

M. Kasim Mir Jat, Advocate Supreme Court on behalf of Advocate-General, Sindh for Appellants (in all cases).

M. Munir Peracha, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 2nd March, 2011.

P L D 2011 Supreme Court 350

Present: Iftikhar Muhammad Chaudhary, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD ARSHAD and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.117 to 120 of 2008, decided on 10th February, 2011.

(Against the judgment dated 19-2-2007 passed by Lahore High Court, Lahore in Crl.As. Nos.151, 19, 148 of 2009 and 108 of 2000, Crl.R.Nos. 321 of 1999, 395 of 2005 and M.R.No.529 of 1999).

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

----Ss. 302(b) & 149---Criminal Procedure Code (V of 1898), S. 35---Qatl-e-Amd---Reappraisal of evidence---Sentence, reduction in---Quadruple murder---Aggressor party---Determination---Concurrent sentences---Accused were convicted and sentenced to death for murder of four persons on the dispute of possession of land---Validity---Halqa Patwari admitted during evidence that actual physical possession of venue of occurrence was not delivered to complainant party---Another prosecution witness also admitted that three accused were in possession of part of land in question as tenants of remaining accused even on the day of occurrence---On the day of occurrence, complainant party was not in actual possession of entire suit land, especially the part of land where occurrence had taken place---Doubt existed about complainant being in actual physical possession of place of occurrence at relevant time and about accused persons having mounted a violent and murderous assault to dispossess them of the same; as such doubt crept into the matter and had escaped notice of Trial Court and High Court, therefore, it was unsafe to order death for four accused---Supreme Court maintained conviction of accused persons under Ss.302(b) and 149 P. P. C. but altered sentence of death into imprisonment for life on four counts---Supreme Court directed that sentences of imprisonment for life to run concurrently.

(b) Criminal Procedure Code (V of 1'898)---

----Ss. 4(1)(1), 156 & 157---Investigation---Holding guilty/innocent---Powers of Investigating Officer---Scope---Job of a police officer conducting investigation is confined only to collection of evidence which evidence, when collected, has to be placed by him . before competent court---Court had the authority and obligation to form an opinion about guilt or innocence of accused person and to adjudicate accordingly---Conceding formation of such an. opinion to a police officer would be a grave illegality which could lead to grave injustice and serious resulting consequences---Allowing questions eliciting the opinion of an Investigating Officer about the guilt or innocence of an accused person which opinion he was not legally authorized or even allowed to form, was an illegality which could not be permitted---If such-like questions were allowed to be asked and their answers were permitted to become part of the legal evidence and if such pieces of evidence could then be used for acquitting an accused person then why wouldn't they be usable for convicting people; one would shudder even to imagine the disastrous results which could then follow.

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

----Arts. 18, 59, 60, 61, 62, 63, 64 & 65---Fact---Exceptions---Opinion of Investigating Officer---Scope---Evidence at trial or in other proceedings can be led only about facts---Such rule like other rules is not without exceptions and one such exception is envisaged by Arts.59 to 65 Qanun-e-Shahadat, 1984, which accepts even some opinions' as evidence---Such opinions have to be of persons who areExperts' in relevant fields and are admissible only if they pertained to foreign law or to science or art or as to identity of hand-writing or finger impressions or about existence of any general custom or right or about usages and tenets of anybody of men or family or about any religious or charitable foundation or about meanings of words or terms used in Particular districts or by particular classes of people---Investigating Officer cannot be accepted as an expert nor investigation, which is conductable even by an ordinary private person, can qualify as science or even as art---Even under the law, opinion of Investigating Officer is not admissible as evidence---Neither Criminal Procedure Code, 1898, authorizes or allow Investigating Officer to form opinions about guilt or innocence of accused person which is a purely judicial function performable only by a court of law nor Qanun-e-Shahadat, 1984, recognizes opinions of investigating officers as admissible in evidence.

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

----S. 4(1)(m)---Investigation---Statement on oath---Scope---Investigation is not a judicial proceeding and as per S.4(1)(m), Cr. P. C.; it is in judicial proceedings that evidence can be taken on oath.

(e) Criminal trial---

----Evidence, recording of---Court---Duty and functions---Court was to regulate and control proceedings in court and to check seepage of impurities into the stream of justice---Any justice stemming out of illegal evidence would be a seriously flawed justice---Supreme Court directed the courts to ensure that nothing was allowed to come on record which was not legally allowed to be read as evidence.

Hafiz Muhammad Saeed, Advocate Supreme Court for Appellants (in Crl.As. Nos.117, 118 & 120 of 2008).

A.H.Masood, Advocate-on-Record for Appellant (in Crl.A.No.119 of 2008.

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondents Nos. 1-3, 6-9 and 12.

M. Irfan Malik, Addl. P.G. for the State.

Date of hearing: 14th December, 2010.

P L D 2011 Supreme Court 365

Present; Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

SHAHID ORAKAZI and another---Petitioners

Versus

PAKISTAN through Secretary Law, Ministry of Law, Islamabad and another---Respondents

Constitutional Petitions Nos.60 and 61 of 2010, decided on 10th March, 2011.

(a) Constitution of Pakistan---

----Art. 5(2)---Article 5(2) of the Constitution has mandated an obligation that "obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and every other person for the time being within Pakistan".

(b) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution before Supreme Court---Notice of relevant developments taking place during the pendency of lis---Scope---Court seized of a matter cannot only take notice of any relevant developments taking place during the pendency of the lis but it can also mould the relief to be granted keeping in view such developments---Such developments having been brought to the notice of the court by the respondent (Federation) itself, court treated the developments as part of the pending issue and decided to determine its effect on the same without requiring the petitioners to amend their petitions in respect of such developments.

(c) National Accountability Ordinance (XVIII of 1999)---

----S. 6(b)(i)---Appointment of Chairman, National Accountability Bureau by the President---Mandatory requirement---Before appointment of the Chairman National Accountability Bureau neither the President of Pakistan nor the Prime Minister had consulted the Leader of the Opposition in the National Assembly in any manner whatsoever and, thus, a mandatory requirement in that regard had remained unfulfilled.

(d) National Accountability Ordinance (XVIII of 1999)---

----S. 6(b)(i)-Constitution of Pakistan, Art.184(3)---Appointment of Chairman of National Accountability Bureau by the President---Judicial review---Scope---Assigning the same number to two different notifications of appointment of same person as Chairman, issued on two different dates, which dates were months apart from each other, could not establish disappearance or evaporation of the Chairman's first appointment or the period spent by him in the office in that connection---Adoption of such a stratagem or methodology could neither establish continuity in the term of office of the person nor could it superimpose the second appointment of the person upon his first appointment so as to portray his second appointment as practically his first appointment or a continuation of his first appointment---Notification withdrawing/ recalling the President's order of first appointment of the person, rescinding/recalling the notification and appointing him to the same office for the second time was not even a corrigendum notification seeking to rectify any mistake committed at the time of first appointment because in that case the subsequent notification would have specified so but it certainly did not say so at all and instead the subsequent notification categorically and unambiguously recalled and cancelled the first appointment---Two appointments of the same person, for all intents and purposes as well as for all legal consequences, were two distinct and separate appointments---Appointment of such person was ultra vires the letter as well the spirit of S.6(b)(i) of the National Accountability Ordinance, 1999 and through such illegal appointment the Fundamental Rights of the people including their right to life, right to liberty, due process of law, fair trial and access to justice were adversely affected---Appointment of the said person as Chairman of the Bureau was declared as illegal and ultra vires; he shall cease to hold the office forthwith---Supreme Court observed that the matter of appointment of retired Judge of Supreme Court as Chairman, National Accountability Bureau was handled by the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan in a manner depicting shallow and perfunctory understanding of the Constitution and the relevant law and in the process the former Judge of Supreme Court had suffered for no fault of his own; because of his two appointments to that office, both botched and messed up by that Ministry's wrong legal advice to the relevant quarters, that he stood disqualified to be appointed to that office again on account of the provision regarding "non-extendable period" contained in section 6(b)(i) of the National Accountability Ordinance, 1999.

(e) National Accountability Ordinance (XVIII of 1999)---

----S. 6(b)(i)---Constitution of Pakistan, Art.184(3)---Appointment of Chairman, National Accountability Bureau by the President---Judicial review---Scope---Words "non-extendable period of four years" in S.6(b)(i) of the National Accountability Ordinance, 1979---Meaning---Words "non-extendable period" used by the relevant law with reference to appointment to an office in the National Accountability Bureau practically mean an appointment of person for one terns of office only and no fresh appointment of the same person can be made to that office whether he completes the original term of office or not---Such was so, because whether the original term of office is completed by him or not the person concerned would serve in that office for more than the fixed and "non-extendable" period if he is appointed again to that office even after one day of his original appointment---Second appointment of such person was ultra vires the letter as well the spirit of S.6(b)(i) of the National Accountability Ordinance, 1999 and through such illegal appointment the Fundamental Rights of the People including their right to life, right to liberty, due process of law, fair trial and access to justice were adversely affected---Appointment of the said person as Chairman of the Bureau; in circumstances, was declared . as illegal and ultra vires; he shall cease to hold the office forthwith---Supreme Court observed that the matter of appointment of retired Judge of Supreme Court as Chairman, National Accountability Bureau was handled by the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan in a manner depicting shallow and perfunctory understanding of the Constitution and the relevant law and in the process the former Judge of Supreme Court had suffered for no fault of his own; because of his two appointments to that office, both botched and messed up by that Ministry's wrong legal advice to the relevant quarters, that he stood disqualified to be appointed to that office again on account of the provision regarding "non-extendable period" contained in section 6(b)(i) of the National Accountability Ordinance, 1999.

The words "non-extendable period" used by the relevant law with reference to appointment to an office in the National Accountability Bureau practically mean an appointment of a person for one term of office only and no fresh appointment of the same person can be made to that office whether he completes the original term of office or not. This is so because whether the original term of office is completed by him or not the person concerned would serve in that office for more than the fixed and "non-extendable" period if he is appointed again to that office even after one day of his original appointment.

In the present case, a retired Judge of the Supreme Court had been appointed afresh before completion of his first term of office, but it would be very dangerous to hold that a fresh appointment made before completion of the term of an earlier appointment would not be hit by the negative command of the provision regarding "non-extendable period". Permitting such a fresh appointment after premature discontinuation of an earlier appointment some time before expiry of the term of the earlier appointment is capable of grave misuse and abuse and would surely have the effect of extending the period of appointment beyond the maximum and "non-extendable" period provided by the law for the office. If such fresh appointment after premature discontinuation of the earlier appointment is made permissible then before the expiry of the first term the appointment would be terminated on the basis of some cooked up pretext, ruse or subterfuge and a favourite incumbent would be appointed afresh for another term of office and that surely would destroy the very spirit and the very object of the law in declaring that an appointment can be made for a "non-extendable period". Upon his first appointment as Chairman, National Accountability Bureau the appointee had discharged his duties and had performed his functions from 8th October, 2010 to 9th February, 2011, i.e. for a period of more than four months and upon recalling/withdrawing of the order of his earlier appointment on 9th February, 2011 he was appointed again as Chairman, National Accountability Bureau "with immediate effect", i.e. with effect from 9th February, 2011 "in terms of Section 6(b)(i) of the National Accountability Ordinance, 1999" which terms meant that even his fresh appointment was for a period of four years commencing on 9th February, 2011. After revocation of his first appointment the appointee had never relinquished the charge of his office and upon his second appointment he had never assumed the charge again and he had simply continued to hold that office as if nothing had happened and no break had taken place at all. Such a device adopted in the matter had, thus, unmistakably extended the total period of his -appointment as Chairman, National Accountability Bureau beyond the maximum period of four years provided by the law and through adoption of such a manoeuvre violence, if not fraud, had been committed upon the relevant statute. Period for which a Chairman, National Accountability Bureau is to hold that office has been fixed by the law itself and no court or authority has the power or jurisdiction to curtail that period as long as he holds that office and also because such power of reduction of his fixed term of office would impinge upon and detract from independence of that high office which independence must jealously be guarded.

Appointment of Chairman, National Accountability Bureau by the' President of Pakistan on 9th February, 2011 was ultra vires the letter as well as the spirit of section 6(b)(i) of the National Accountability Ordinance, 1999 and through such illegal appointment the Fundamental Rights of the people of Pakistan including their right to life, right to liberty, due process of law, fair trial and access to justice were adversely affected. Appointment of Chairman, National Accountability Bureau was declared as illegal and ultra vires. He shall cease to hold the said office forthwith. It was directed that a fresh appointment to the vacant office of Chairman, National Accountability Bureau be made without any delay.

Supreme Court observed that the matter of appointment of retired Judge Supreme Court as Chairman, National Accountability Bureau was handled by the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan in a manner depicting shallow and perfunctory understanding of the Constitution and the relevant law and in the process the former Judge of Supreme Court had suffered for no fault of his own; it was because of his two appointments to that office, both botched and messed up by that Ministry's wrong legal advice to the relevant quarters, that he stood disqualified to be appointed to that office again on' account of the provision regarding "non-extendable period" contained in section 6(b)(i) of the National Accountability Ordinance, 1999.

(f) Constitution of Pakistan---

----Art. 184(3)---National Accountability Ordinance (XVIII of 1999), S.6(b)(i)---Constitutional petitions under Art.184(3) of the Constitution before Supreme Court asserting that in the matter of appointment of Chairman, National Accountability Bureau both the Constitution as well as the relevant law had been violated---Such petitions certainly involve a question of public importance and many fundamental rights of the people including right of life, right to liberty, due process of law, fair trial and access to justice were directly affected or influenced by a person appointed to the office of Chairman, National Accountability Bureau.

The petitions filed under Article 184(3) of the Constitution certainly involved a question of public importance. After all, a Chairman, National Accountability Bureau is to deal with hundreds of inquiries, investigations, arrests and trials and thousands of people are affected by his decisions taken in those respects and those persons may include the serving Prime Minister, Chairman of the Senate, Speaker of the National Assembly, Federal Ministers, Attorney-General, Chief Ministers, Speakers of the Provincial Assemblies, Provincial Ministers, Members of the Parliament and Members of the Provincial Assemblies and, therefore, an appointment to that office is surely a matter of public importance. Many Fundamental Rights of the people of Pakistan including right to life, right to liberty, due process of law, fair trial and access to justice are directly affected or influenced by a person's appointment to the office of Chairman, National Accountability Bureau.

(g) National Accountability Ordinance (XVIII of 1999)--

----S. 6(b)(i)---Appointment of Chairman, National Accountability Bureau by the President---Word "consultation" used in S. 6(b)(i) of National Accountability Ordinance, 1999---Scope and interpretation---Consultation with Leader of the House and Leader of the Opposition in the National Assembly in the matter of appointment of Chairman, National Accountability Bureau---Purpose and spirit---Supreme Court reiterated the importance of consulting the Chief Justice of Pakistan in the matter of appointment of Chairman, National Accountability Bureau and expected that such recommendations and suggestions shall be given effect to all future appointments to that office---Supreme Court observed that anybody interested in making an honest and good appointment to that office would not feel shy of consulting the Chief Justice of Pakistan in that connection.

Section 6(b)(i) of the National Accountability Ordinance, 1999 provides for appointment of Chairman, National Accountability Bureau "by the President in consultation with the Leader of the House and the Leader of the Opposition in the National Assembly". A consultation' has to be "effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfairplay". For a consultation to be meaningful and purposive an "attempt should be made to reach at some consensus" and that the required consultative process should be in writing. By all means the first priority has to be directed to evolving consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidate."Consultation' means "meeting of minds". The context in the case of the National Accountability Ordinance, 1999 and the National Accountability Bureau created and established thereunder is somewhat different from the above mentioned constitutional context. In the past not too distant complaints of persecution of the political opposition in the country by the government of the day through utilization of the National Accountability Bureau or its predecessor institutions had unfortunately been too many and willingness of the heads of such institutions to slavishly carry out and execute the vendetta of the government of the day against its opponents had also been shamefully rampant. It was in that background that at a time when there was no Parliament in existence Supreme Court had recommended that in the matter of appointment of Chairman, National Accountability Bureau consultation ought to be made by the President with the Chief Justice of Pakistan and that recommendation had been given effect to through the National Accountability Bureau (Amendment) Ordinance (XXXV of 2001) but subsequently through the National Accountability Bureau (Amendment) Ordinance (CXXXIII of 2002) the Chief Justice of Pakistan had been excluded from the consultees and he was substituted by the Leader of the House and the Leader of the Opposition in the National Assembly who were to be consulted by the President before making an appointment of Chairman, National Accountability Bureau. That deletion had come about because by that time the Parliament had once again come into existence and consultation with the Leader of the Opposition in the National Assembly was expected to go a long way in allaying fears and apprehensions of the political opposition regarding its possible persecution and victimization by the government of the day through the National Accountability Bureau and its Chairman. The spirit of the amended provisions, thus, was that the Leader of the Opposition in the National Assembly would be taken on board, his opinion would be given due weight and consideration and he would have an effective say in the matter of appointment of Chairman, National Accountability Bureau so that the political opposition in the country may not have an occasion to cry foul in the matter.

As time progressed another dimension stood added to the issue when, apart from apprehended persecution of the political opposition, the National Accountability Bureau, which happens to be a premier and high-profile anti-corruption institution of the country,, started being perceived as an institution which was possibly being misused for covering up corruption at high places and such cover up was perceived to be controlled and managed through appointment of its handpicked Chairman. It was in that backdrop that Supreme Court reiterated its earlier recommendation and suggestion with regard to consultation with the Chief Justice of Pakistan in the matter of appointment of Chairman, National Accountability Bureau. That recommendation and suggestion was once again repeated by Supreme Court. It must be appreciated that consultation with the Leader of the Opposition in the National Assembly and consultation with the Chief Justice of Pakistan are, in the developing scenario, essentially meant. for separate noble and laudable purposes which are both directed towards achieving the very objects for which the National Accountability Bureau was established, i.e. elimination of corruption by persons holding public offices and achievement of such objects through a process which is just, fair, impartial and evenhanded. The purpose of consulting the Leader of the Opposition in the National Assembly essentially is to pacify the apprehensions of the political opposition in the country regarding its possible victimization and persecution and that purpose cannot be served if the opinion of the Leader of the Opposition in the National Assembly in respect of a proposed appointment is brushed aside or bulldozed which would surely be incentive-incompatible. The spirit of such consultation appears to be that it should aim at developing a consensus and it should manifestly be shown that a serious, sincere and genuine effort is made towards evolving a consensus because otherwise the consultation would neither be meaningful or purposive nor consensus-oriented. Similarly, corruption being an unfortunate bane of the society in the current phase of our history and even the high public offices being not immune from serious allegations in that regard, leaving the matter of appointment of the head of the most important anti-corruption institution in the country in the hands only of those very persons who could possibly, in future or present, be a subject of inquiries, investigations or trials for corruption would, apart from giving rise to the issue of conflict of interest, defeat the very object of the relevant law and would, thus, also prejudicially, affect, directly or indirectly, the Fundamental Rights of the citizens at large. This is where the Chief Justice of Pakistan comes in as a consultee in his capacity as a guardian and defender of the constitutional and legal rights of the people at, large. The Chief Justice of Pakistan can also play a salutary role in the matter of such appointment particularly when there is a serious difference of opinion between the other consultees over a proposed appointment of Chairman, National Accountability Bureau. The role of the Chief Justice of Pakistan as a neutral arbiter in disagreements, differences or disputes over matters of national importance already stands recognized by the Constitution itself through Articles 152 and 159(4) thereof. Under Article 152 of the Constitution if there is a disagreement between the Federation and a Province over the terms of acquisition by the Federation of any land belonging to the Province then the terms of that acquisition are to be determined by an arbitrator appointed by the Chief Justice of Pakistan., Likewise, under Article 159(4) of the Constitution if any question arises whether any condition imposed by the Federal Government on any Provincial Government in respect of entrustment of functions with respect to broadcasting and telecasting is lawfully imposed or whether any refusal by the Federal Government to entrust such functions is unreasonable then that question is to be determined by an arbitrator appointed by the Chief Justice of Pakistan. Spirit of Article 213 of the Constitution can also be pressed into service in the matter of appointment of Chairman, National Accountability Bureau in case of a lack of consensus between the statutory consultees. Supreme Court reiterated the importance of consulting the Chief Justice of Pakistan in the matter of appointment of Chairman, National Accountability Bureau and expect that the recommendations and suggestions repeatedly made by Supreme 'Court in that regard through different judgments handed down by it from time to time shall be given effect to in all future appointments to that office. There is no doubt that anybody interested in making an honest and good appointment to that office would not feel shy of consulting the Chief Justice of Pakistan in that connection.

The Bank of Punjab v. Hris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109; Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Irshad Ahmad Shaikh v. The State 2000 SCMR 814; Al-Jehad Trust and others v. Federation of Pakistan and others PLD 1996 SC 324; Al-Jehad Trust and another v. Federation of Pakistan and others PLD 1997 SC 84; Sindh High Court Bar Association v. Federation of Pakistan and 4 others PLD 2009 Kar. 408; Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879; Govinddassammy v. The President of India 2001 CTC 324; Alexia Morrison v. Theodore B. Olson 487 US 654; Jamat-e-islami through Amir and others v. Federation of Pakistan and others PLD 2009 SC 549; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600; Rashid A. Akhund v. President of Pakistan, Constitution Petition No.2936 of 2010; Muhammad Siddique Mirza v. Federal Government of Pakistan, Constitution Petition No. 2931 of 2010; Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others PLD 2002 SC 853; Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmad Junejo, Acting Chief Election Commissioner and 6 others PLD 1998 Lah. 461; Islamic Republic of Paksitan v. Abdul Wali Khan M.N.A. PLD 1976 SC 57; Aftab Ahmad Khan Sherpao v. Sardar Farooq Ahmad Khan Leghari and others PLD 1997 Pesh. 93; Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others PLD 1997 Lah. 38; Black's Law Dictionary and K.P. Mohapatra v. Sri Ram Chandra Nayak and others AIR 2002 SC 3578 ref.

Petitioner (Shahid Orakzai) in person (in Const. P.No.60 of 2010).

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Barrister Natalya Kamal, Advocate and Syed Riaz Hussain, Advocate for Petitioner (in Const. P.No.61 of 2010).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Mian Gul Hassan Aurangzeb, Advocate Supreme Court assisted by Hamid Ahmad, Advocate, Ms. Saleha Hayat, Advocate and Mustafa Aftab Sherpao, Advocate for Federation of Pakistan.

Maulvi Anwarul Haq, Attorney-General for Pakistan (On Court's Notice).

Dr. Khalid Ranjha, Senior Advocate Supreme Court for Respondent No.3 (in Const. P.No.61 of 2010)

Muhammad Akbar Tarar, Acting Prosecutor-General, National Accountability Bureau, Fowzi Zafar, Additional Prosecutor-General, National Accountability Bureau and M.S. Khattak, Advocate-on-Record for National Accountability Bureau.

Dates of hearing 1st, 2nd, 8th, 28th February and 10th March, 2011.

P L D 2011 Supreme Court 407

Present: Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Khilji Arif Hussain and Tariq Parvez, JJ

MUNIR HUSSAIN BHATTI, ADVOCATE and others---Petitioners

Versus

FEDERATION OF PAKISTAN and another---Respondents

Constitutional Petitions Nos.10 and 18 of 2011, decided on 4th March, 2011.

Per Mahmood Akhtar Shahid Siddiqui, J; Jawwad S. Khawaja, Khilji Arif Hussain and Tariq Parvez, JJ, agreeing--

(a) Constitution of Pakistan---

----Arts. 175A, 4, 69 & 184(3)---Constitution of Parliamentary Committee under Art.175A of the Constitution---Nature and Scope of functions of the Committee---Judicial review---Scope---Parliamentary Committee constituted under Art.175A of the Constitution could not be considered as a part of the legislature---Said Committee was not to have any connection or even semblance of relevance to the legislature or any form of parliamentary attribute---Parliamentary Committee owed its existence to Art.175A of the Constitution and not to the provisions relating to the Legislature or the Executive in the Constitution and was an Authority constituted under Art.175A of the Constitution---Any Authority created under a constitutional provision was bound to act within its specified mandate as per Art. 4 of the Constitution and there was no immunity from Judicial scrutiny reserved for the Committee under the Constitution and Art. 69 of the Constitution had no application---Principles.

"Parliamentary Committee", constituted under Article, 175A of the Constitution cannot even remotely be considered as a part of the legislature nor for that matter, any question relating to the supremacy of Parliament is involved in this case. The Judicial Commission and the Parliamentary Committee are two limbs of one constitutional mechanism created by Article 175A. Both of them owe their existence to Article 175A and not to the provisions relating to the Legislature or the Executive in the Constitution. As such, they are entirely new authorities constituted under Article 175A of the Constitution. Any Authority created under a constitutional provision is bound to act within its' specified mandate as per Article 4 of the Constitution. There is thus no immunity from judicial scrutiny reserved for the Committee under the Constitution and Article 69 has no application in the present case.

Article 175A(16) further cements the intention that the Committee was not to have any connection or even semblance of relevance to the Legislature or any form of parliamentary attribute. It was meant simply to be a Committee working under the mandate of Article 175A, owing its existence to the said provision of the Constitution. Thus, its members, even if they are parliamentarians, are neither required nor permitted to participate in the proceedings of the Committee in their legislative capacity. Their background may have been imagined to make some fruitful contributions to the appointment process for judges, but their background was not to govern their mind while operating under the framework of Article 175A. To better understand this point, the Committee may in a sense be analogized to a special committee comprising of parliamentarians constituted, under the law, to make an inquiry or to give relief to the people. Could this special committee be said to enforce the will of the Parliament, or their electorate, over and above their duty of providing justice under the law to which they owe their existence? Some might take it so, but all norms of justice, law and fairness would say that they should act independently, fairly and in accordance with the law which has imposed a duty upon them and not with a free hand to do as they please, acting under the guise of the will of people.

The logical corollary of arguing otherwise would in fact put a very damaging and unfair disqualification clause on all parliamentarians. By an admission that parliamentarians, if tasked with a special duty, under any law, cannot shed their electoral inclinations could be a basis for their disqualification under such law.?

(b) Constitution of Pakistan---

----Arts.175A & 184(3)---Constitution of `Judicial Commission' and Parliamentary Committee' under Art.175A of the Constitution---Purpose---Scope---Refusal of Parliamentary Committee to confirm the nominations made by the Judicial Commission for the extension in the tenure of Additional Judges of the High Courts---Justiciable---Direction of Art.175A(12) of the Constitution is that the Parliamentary Committee, on receipt of a nomination from the Judicial Commission, can either confirm the nominee by a majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed, or reject the nomination on grounds falling within its domain for very strong reasons which shall be justiciable---In the present case, while coming to the conclusions, the reasoning adopted by the Committee was irrelevant, unjustified and improper under the law; therefore, it was without legal force or constitutional sanctity--- Committee had ignored its own constitutional boundaries and by doing so stepped over the rightful constitutional jurisdiction of the Commission---Supreme Court, in circumstances, issued directions to the Federation to notify the appointments on the recommendations received, in accordance with Art.175A of the Constitution, within a period of fourteen days---Principles.

In the present case while coming to the conclusions, the reasoning adopted by the Committee was irrelevant, unjustified and improper under the law; therefore, it was without legal force or constitutional sanctity. The Committee ignored its own constitutional boundaries and by doing so stepped over the rightful constitutional jurisdiction of the Commission.

The minutes of the meetings showed that the entire reasoning of the Committee was focused on no material other than that which had already been thrashed out and discussed in depth by the Judicial Commission. The Committee instead of giving its own reasons for not confirming the nominations, merely opted to usurp the territory reserved for the Commission by the Constitution; and in doing so they again passed judgment on the professional calibre, legal acumen, judicial skill and quality and the antecedents of the Judicial nominees. This exercise had already been done by the Commission. The Parliamentary Committee neither had the expertise nor the constitutional mandate to reverse the reasoning and findings of the Commission on these grounds; doing so would negate the purpose for creating a Commission as envisaged in Article 175A.?

The constitution of the Judicial Commission itself and the members comprising five sitting Judges of the Supreme Court, one former Judge of Supreme Court, the Chief Justice and the most senior Judge of the High Court, Federal Minister for Law and Attorney General of Pakistan, Law Minister of the concerned province and two senior advocates/ members of the Bar, gives a clear insight into the reasons for the creation of the Commission. It comprises of people having an immense background and stature in the field of law and the judicial system. The purpose then was that the discretion in making judicial appointments should not be the forte of one man, as in the old system, but should rather be devolved to a body comprised of people who could be trusted to make a just evaluation on the professional calibre, legal acumen, judicial skill and all other related criteria relevant for the appointment of a person as a Judge of the High Court. One was unable to see how the technical expertise, judged by a Commission comprising of people having spent decades in the legal field, could be better judged, or worse, reversed by the Parliamentary Committee. If this was intended by the legislature then there was simply no need to even constitute a Judicial Commission.?

Article 175A itself has not provided for the Chief Justice of a High Court to have any special role in the appointment process. He is just another member of the Judicial Commission and by the above said rules he has merely been provided the role to initiate the nominations. His duty is to initiate and send the nominations to the Chairman of the Judicial Commission. This act, of initiating and sending nominations, cannot be taken to be the "recommendation" itself, but is rather to be considered as an act of mere procedure. This is so because the whole object of Art.175A is to take away the powers of one person and make the process a collective effort. So, for instance, if the Rules are changed by the Commission and any other member of the Commission is given the task of setting the process of the Judicial Commission in motion, then that would not give this member a special place which is not envisaged for any other member in Article 175A. Therefore, even if a Chief Justice of the High Court is of the view that certain persons are not fit to be Judges of the High Court, it is possible that the Judicial Commission, by a majority, may come to the conclusion that they are and thus make such recommendation to the Committee. These recommendations would be valid and in accordance with the letter and spirit of Article 175A.?

The Committee could not consider that its function was to redo the entire exercise conducted by the Commission while determining the professional calibre, judicial skill, legal acumen and personal conduct, required as a Judge, of the nominees. More so, how could they arrive at a conclusion, that the entire exercise of the Commission was flawed, based on the piecemeal views of one member of the Commission? Even these views did not last the Commission passed the nominations unanimously. Such was neither the function of the Parliamentary Committee, nor its mandate under Article 175A, and would amount to an incorrect and unconstitutional decision.

The technical evaluation of a person's calibre as Judge has to be made by the Commission, and once evaluated the recommendations of the Commission are to be looked as one. The views of the individual members of the Commission thus no more exist before the Committee. What the Commission has already assessed and held cannot be overturned on the basis of a dissenting view, note or discussion of any individual member. If this was allowed, it would render the whole working of the Judicial Commission as futile and make it nugatory under the Constitution. Doing so would be akin to refusing to recognize a resolution of the Parliament, or any law passed by it, on the basis of the minority view in the House. Such reasoning will lead to a deliberate breakdown of constitutional mechanisms and procedures.

Therefore, the Parliamentary Committee, on receipt of a nomination from the Commission, can either confirm the nominee by a majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed, or reject the nomination on grounds falling within its domain for very strong reasons which shall be justiciable. This is the clear direction of clause (12) of Article 175A.?

Since in the present case, the Committee had tried to assume the jurisdiction of the Commission, there was no option but to come to the conclusion that the Committee failed to perform its functions in terms of clause (12) of Article 175A. The consequence of this failure has been prescribed by the Constitution itself. The Committee must act within a period of fourteen 'days of receiving the nominations, "failing which the nomination shall be deemed to have been confirmed". So, while in any other case of failure to exercise jurisdiction, Supreme Court might have been required to send the issue back to the authority for consideration in accordance with law, here the Constitution had left with no such option because of a deeming provision.?

The mandatory consequence of the deeming clause mentioned above is that the name of the nominee confirmed by the Committee or "deemed to have been confirmed" shall be forwarded to the .President for appointment. The effect of a deeming provision was that it requires the court to believe that something exists and has happened, though it may neither exist nor may have occurred in reality. It thus creates a legal fiction.?

Moreover the court, in such cases, is required to see for what purpose this deeming device has been used by the legislature. In the present case there can be little doubt that the purpose was the completion of this exercise as early as possible and the Constitutional time period of fourteen days sheds great light on the matter. Therefore, the failure of the Committee to perform its functions in accordance with its mandate results in the nomination "deemed to have been confirmed.

Supreme Court in circumstances, issued direction to the Federation to notify the appointments on the recommendations received, in accordance with Article 175A, within a period of fourteen days.?

The principles of law enunciated in earlier judgments such as Al-Jehad Trust's Case (PLD 1996 SC 324), Malik Asad Ali's case (PLD 19-? SC 161 and several others would continue to apply to the new mechanism with full force. In fact, these principles can be said to be applicable even more strongly after the introduction of the newly constituted bodies under Article 175A.?

The recommendations of the Judicial Commission are now on greater footing than the recommendations of the Chief Justice alone in the earlier system. These cannot be superseded for any extraneous considerations. Therefore, the Parliamentary Committee cannot simply brush aside the recommendations of the Commission without its own sound reasons. The Committee is to confine itself to the purpose for which it has been constituted, which is evidently the thrashing out of issues not related to the domain of the Commission. The Committee can, based on factual data and reasons, for instance, declare that a nominee is corrupt or is affiliated/partial making him a controversial choice, but judging the calibre of a nominee as a Judge rests with the Commission.?

The Judicial Commission had made recommendations for extension in tenure of Judges of High Courts. The Parliamentary Committee however, disagreed with the recommendations of the Judicial Commission and decided not to recommend the names of these Judges for appointment.?

Supreme Court declared that the decision of the Parliamentary Committee, whereby the names of the Judges were not confirmed for extension in their tenure, were not in accordance with the provisions of the Constitution; as a result of said' decision of the Parliamentary Committee, Supreme Court directed the Federation to implement the recommendations of the Judicial Commission in respect of said Judges of the High Courts and to issue notifications for the appointment of the said Judges in consonance with the recommendations of the Judicial Commission.?

Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 644; Malik Asad Ali's case PLD 1998 SC 33 and Al-Jehad Trust's case PLD 1996 SC 324 ref.

(c) Interpretation of Constitution---

----Deeming clause---Mandatory consequence.?

Per Jawwad S. Khawaja, J; Mahmood Akhtar Shahid Siddiqui, J., agreeing--

(d) Constitution of Pakistan---

----Arts. 184(3) & 175A---Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Maintainability---Jurisdiction of Supreme Court---Scope---Petitions calling in question refusal of Parliamentary Committee to confirm judicial appointments in High Courts made by Judicial Commission was a matter of public importance and a fit occasion for Supreme Court to interpret Art.175A of the Constitution, thereby enabling constitutional bodies such as the Judicial Commission and the Parliamentary Committee (and their respective functionaries) to perform their roles in accordance with the Constitution---Such petitions were eminently suitable for the exercise of jurisdiction under Art.184(3) of the Constitution---Principles.

In the present case, two specific decisions of the Parliamentary Committee have been assailed by the petitioners under Art.184(3) of the Constitution. These decisions relate to the refusal of the Committee to confirm the nominations made by the Commission for the renewal of tenure of Judges of High Courts.?

A preliminary objection was raised against the maintainability of these petitions, with contention that the jurisdiction of Supreme Court under the said Article 184(3) of the Constitution can only be invoked where "a question of public importance with reference to the enforcement of any of the fundamental rights" is involved and that no such question arises in these petitions; and the same are, therefore, not maintainable.?

The nominations made by the Judicial Commission and the refusal of the Parliamentary Committee to confirm the same appeared to have generated considerable public interest, providing a great deal of material for debate in the public, the media and the legal fraternity. The Bar Associations of the High Courts in the country also debated the impugned decisions of the Committee. The Sindh High Court Bar Association, which is itself a petitioner, has placed on record its resolution "condemning" the action of the Committee. The proceedings in these petitions and the short order have also made headlines in the print and the electronic media. More so, critical comments on the said order have been carried prominently in the media. Contention that no question of public importance had arisen in the matter, had no substance in circumstances.?

Article 184(3) of the Constitution empowers Supreme Court to exercise jurisdiction thereunder whenever the Court considers a matter to: (i) be of public importance and (ii) that it pertains to the enforcement of fundamental rights. The determination on both these counts is to be made by Supreme Court itself, keeping the facts of the case in mind. Only an independent Judiciary can enforce the fundamental rights enshrined in the Constitution. Without an independent mechanism for enforcing fundamental rights, the contents of Chapter 1 (Fundamental Rights) of Part-II of the Constitution would become meaningless.

?

In determining as to whether question of public importance had arisen in the matter the Court is not to be swayed by expressions of public sentiment nor is it to conduct an opinion poll to determine if the public has any interest in an issue being agitated before the Court under Article 184(3) of the Constitution. Instead, a whole range of factors need to be kept in mind, which have, over the years, been expounded in numerous precedents of Supreme Court. It is important to keep these precedents in view because, it is through the use of precedent that the contours of the law are constantly defined. The Constitution, through Article 189, recognizes the significance of judicial precedent in the acknowledged tradition of a Common Law jurisdiction. "Overt expression of public interest" or "street demonstrations and vigorous media debate" are not necessary factors for the "exercise of jurisdiction over a case under the Article.

Therefore, questions which require the interpretation of newly added provisions (Art.175A) in the Constitution relating to judicial appointments would quite clearly be matters of public importance.?

The fact that independence of the Judiciary is a matter of public importance has also been firmly established in our jurisprudence. The Judiciary was... 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.?

Matters of public importance may be deduced on a case-by-case basis. However, even on a case-by-case basis, some general principles still emerge. Matters relating to the Judiciary have regularly been held to be of public importance. An issue that could considerably damage `the very fabric of independence and separation of Judiciary' amounted to a matter of great public importance. Questions of interpretation of the Articles of Constitution relating to the Judiciary were undoubtedly, a matter of pubic importance.?

Precedents which examine and pronounce upon the scope of the Article 184(3) of the Constitution remain relevant. Therefore, in line with Article 189 of the Constitution, the principles of law enunciated by Supreme Court in respect of Article 184 (3) of the Constitution provide the surest guidance that present petitions raise issues which must be decided by Supreme Court in the exercise of its jurisdiction under the said Article. Thus, under Art 184(3) of the Constitution, not only is Supreme Court possessed with the power to adjudicate present matter, but it must, as a matter of duty, exercise jurisdiction over the case.?

Judicial appointments in the High Courts, have been so far called in question in petitions. This is, therefore, a fit occasion for Supreme Court to interpret Article 175A of the Constitution, as amended; thereby enabling constitutional bodies such as the Judicial Commission and the Parliamentary Committee (and, their respective functionaries) to perform their roles in accordance with the Constitution.?

These petitions are eminently suitable for the exercise of jurisdiction under Article 184 (3) of the Constitution.?

Suo Motu Case No.10 of 2009 (2010 SCMR 885); Al-Jehad Trust through Raseesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Chief Justice of Pakistan v. President of Pakistan, PLD 2010 SC 61; Watan Party v. Federation of Pakistan and others PLD 2006 SC 697; Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 161; Sindh High Court Bar Association and another v. Federation of Pakinian and others (PLD 2009 SC 879; 1185; Shahida Zahir Abbasi v. President of Pakistan, PLD 1996 SC 632; Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404; Public Interest Litigation in Pakistan (Alam Rafay; Ed. Minshki, Alam & ""Raza, Platinum and Pakistan Law House 2000) and Abdul Matin Khan v. N.-W.F.P., PLD 1993 SC'187 ref.

Jamat-e-Islami through Amir and others v. Federation of Pakistan and others PLD 2008 SC 30; Munir Bhatti v. Federation of Pakistan (Constitutional 'Petition No. 10. of 2011); Manzoor Elahi v. Federation of Pakistan PLD 1915 SC 66; Shahida Zaheer Abbasi v. Federation of Pakistan PLD 1996 SC 632; Syed Zulfiqar Mehdi v. PIAC (1998 SCMR 793; Watan Party v. President of Pakistan PLD 2003 SC 74; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583 and APNS v. Federation of Pakistan PLD 2004 SC 600 distinguished.

Per Mahmood Akhtar Shahid Siddiqui, J. agreeing with Jawwad S. Khawaja, J.--

"I am in full agreement with his reasoning and conclusion on the question of maintainability and the other issues raised in these petitions."?

Per Jawwad S. Khawaja J. Mahmood Akhtar Shahid Siddiqui J. agreeing.--

(e) Interpretation of Constitution---

----Constitution has to be read holistically as an organic document---Rationale---Word `organic' in context of interpretation of Constitution---Connotation.?

Masnavi Maulana Jalaluddin Rumi; Mirrors by Eduardo Galeano; Tribe, Lawerence H; Dorf, Micheal C., Chap. 1; European Civil Law Tradition by Dr. Conrad and Indian Yearbook of International Affairs, 1967, p.375 ref.

(f) Constitution of Pakistan---

----Art.175A---Interpretation of Art.175A of the Constitution---Article 175A of the Constitution has to be read as part of, the larger constitutional scheme and not as an insular "bunch of separate clauses and provisions" or as a self-contained island within the Constitution, unconnected with its other parts.?

Masnavi Maulana Jalaluddin Rumi; Mirrors by Eduardo Galeano; Tribe, Lawerence H; Dorf, Micheal C., Chap. 1; European Civil Law Tradition by Dr. Conrad and Indian Yearbook of International Affairs, 1967, p.375 ref.

(g) Constitution of Pakistan---

----Arts. 175A & 184(3)---Decisions of Parliamentary Committee constituted under Art.175A of the Constitution---Justiciability---Scope---Intention of Parliament was not to oust the jurisdiction of Supreme Court to review the decisions of the Parliamentary Committee-Principles.

The repeatedly emphasized imperative of maintaining a record both of the proceedings of the Committee and of the "reasons" behind its decisions, in Article 175A of the Constitution very strongly suggests that the Committee's decisions were intended to be subject to judicial review. Otherwise, if the Committee's decisions were meant to be non-justiciable, and beyond judicial scrutiny, the insistence on recording reasons would not make much sense. It is an established rule of interpretation that Parliament does not waste words and redundancy should not be imputed to it. This principle would apply with even greater force to the Constitution the supreme law of the land. It will be seen that even an insular reading of this Article, leaves the impression that the decisions of the Committee are subject to review.

It was argued by counsel for the Federation that Supreme Court should infer that through the 19th Constitutional Amendment, it was intended by Parliament that decisions taken by the Parliamentary Committee should not be subject to judicial review. Such inference was sought on the basis that the suggestion in the order of the larger Bench of the Supreme Court dated 21-10-2010 (Nadeem Ahmad and others v. Federation of Pakistan and others PLD 2010 SC 1165) as to justiciability was not incorporated in the amended Article. The argument of the counsel based on implication and not on the wording of Article 175A as amended, is contrary to the jurisprudence that has evolved in the jurisdiction of Supreme Court. Furthermore, the argument ignores the legal precept that the Constitution has to be construed as an organic whole.?

Court's jurisdiction may only be ousted through express words in a legal text. Ouster of jurisdiction should not be inferred. Ouster of jurisdiction is to be seen from express words which should not be implied except where absolutely necessary. Unless very explicit words are used in a legal provision to oust the jurisdiction of the Court, such an intention would not be normally imputed to the legislature. A strong leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the superior Courts. This rule is applicable with even more rigour while interpreting constitutional provisions. There is need for greater strictness in a case where the bar to the jurisdiction of the courts relates to the interpretation of the provisions of the Constitution, a Constitution which by their oaths the Judges are bound to protect and preserve.?

Constitution of Pakistan is no stranger to ouster clauses. There are provisions in the Constitution which, through express wording purport to exclude the jurisdiction of the Court in certain matters.?

Even where such express language has been used in the Constitution, there is consistent precedent to demonstrate that such provisions have not been construed as providing for an absolute ouster of the Court's jurisdiction.

Supreme Court has exercised jurisdiction (though for limited purposes) notwithstanding the language purporting to oust its jurisdiction.?

On a review of the Constitution and the ouster clauses provided for in the various Articles of the Constitution and applying the ratio of the precedents it can be concluded that the absence of similar wording in Article 175A must be construed as reinforcing the, view that Parliament did not intend to oust the jurisdiction of Supreme Court to review the decisions of the Committee.?

It would be obvious from a plain reading of Art.69 of the Constitution that the limited ouster of jurisdiction stipulated therein is in respect of, inter alia, the proceedings and conduct of business of the Parliament. The decisions of the Committee (even if comprised of persons who are honourable members of Parliament) cannot be considered immune from judicial scrutiny by virtue of Article 69. This conclusion necessarily follows from the fact that the Committee is a creation of the Constitution and not of the Parliament. Furthermore, it is independent of and separate from Parliament notwithstanding its composition. It performs an executive function relating to the Judiciary and, therefore, has been placed in the Chapter relating to the Judicature rather than in Chapter 2 [The Majlis-e-Shoora (Parliament)] dealing with Parliament.

The justiciability of the decisions of the Parliamentary Committee can also be approached from another angle, which would be manifest from a holistic examination of the Constitution. The governance of State organs in Pakistan is based on checks and balances where the powers of each organ are counter-balanced by some other organ of the State. Thus, executive action taken by the various administrative and executive functionaries of the State can be called in question, inter alia, under Articles 199 and 184(3) of the Constitution. Such executive action may additionally be subject to Parliamentary review and over-sight in the parliamentary system of governance. Legislative action can also be called in question in Court, inter alia, on the touchstone that it is violative of the Constitution. Likewise, decisions rendered by Supreme Court can be modified or reversed by legislation (in recognized circumstances) and such legislation may also be retrospective. Thus each organ of the State, be it the Judiciary, the Executive or the Legislature, operates under constitutional constraints which effectively make these organs of State limited in their actions.?

Additional Collector II, Sales Tax v. Abdullah Sugar Mills Ltd. 2003 SCMR 1026; Muhammad Ismail and others v. The State PLD 1969 SC 241; Maxwell on the Interpretation of Statutes; Fazlul Qauder Chaudhry v. Muhammad Abdul Haq PLD 1963 SC 486; Central Board of Revenue and another v. S.I.T.E. PLD 1985 SC 97; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President .of Pakistan and others PLD 2010 SC 61; Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref.

(h) Constitution of Pakistan---

----Arts. 175A & 184(3)---National Accountability Ordinance (XVIII of 1999), S.6(2)(i)---Decisions of Parliamentary Committee constituted under Art.175A of the Constitution---Justiciability---Contention of the counsel for Federation was that Supreme Court should infer that through the 19th Constitutional Amendment, it was intended by Parliament that decisions taken by the Parliamentary Committee should not be subject to judicial review; such inference was sought on the basis that the suggestion in the order of the larger Bench of the Supreme Court dated 21-10-2010 (Nadeem Ahmad and others v. Federation of Pakistan and others PLD 2010 SC 1165) as to justiciability was not incorporated in the amended Article---Held, contention of the counsel based on implication and not on the wording of Article 175A (as amended), was contrary to the jurisprudence that has evolved in the jurisdiction of Supreme Court and ignored the legal precept that the Constitution was to be construed as an organic whole.?

(i) Jurisdiction---

----Ouster of jurisdiction---Scope-Principles.

?

(j) Constitution of Pakistan---

----Arts. 175A, 69 & 184(3)---Parliamentary Committee created under Art.175A of the Constitution---Status---Refusal of Parliamentary Committee to confirm the nominations made by the Judicial Commission for the extension in the tenure of Additional Judges of the High Courts---Judicial review---Scope---Independence of Judiciary, which the Constitution assures depends directly in the appointment, removal and security of tenure of Judges---Decisions of the Committee are by their nature, executive decisions---Committee's decisions have not been put beyond the pale of judicial review---Principles.

Decisions of the Committee are, by their nature, executive decisions. The fact that these decisions have been taken by persons who also happen to be parliamentarians, does not alter the nature of the decisions. The task which the Committee is meant to undertake is part of the process of making judicial appointments. The matter of making judicial appointments is, in essence, an executive function. Therefore, the Committee, must not be seen as a `parliamentary' committee properly speaking; rather, in constitutional terms, it is a committee of parliamentarians, acting independently as a Constitutional body in an executive capacity.

Although the eight member Committee has been given the appellation of "Parliamentary Committee", it is important to bear in mind that the status of a constitutional body is not to be determined by the name given to it. This to be determined by the functions it performs and the place it occupies in the constitutional order. It is important to state with clarity the status of the Committee created under Article 175A and, in the process, to allay any misconceptions about it. For this purpose, we need to look no further than the Constitution itself.?

On the other hand, Article 175A has set up an independent constitutional body having a specific role assigned to it relating to the appointment of Judges of Supreme Court and of the High Courts. This constitutional body, has been referred to as a Parliamentary Committee but it is neither part of Parliament when acting under Article 175A nor is it elected by or answerable to Parliament. An examination of the Constitution and established Parliamentary practice will further demonstrate this distinction between the Committee set up under Article 175A and a parliamentary committee.?

The use of Committees by Parliament is an old and well established practice which was adopted during the colonial era and finally was given constitutional status under the 1973 Constitution. Legislation and parliamentary decision making are facilitated through consideration in Committee (rather than the entire House) of proposed legislation and the performance of other roles entrusted to Parliament. The role of a Parliamentary Committee is simply to examine such legislation or other proposed Parliamentary action. It is the Parliament alone which is empowered to pass legislation or exercise such functions which the Constitution entrusts to it. Thus, a Parliamentary Committee as properly understood in constitutional scheme simply facilitates Parliament in the performance of its legislative and constitutional functions acting as a mere delegate or in the case of the Finance Committee, as an advisor to the House which has elected it. Crucially though, for present discussion, a real parliamentary committee is elected by each of the Houses of Parliament and is a subordinate sub-set of the entire House, accountable to the House it belongs to.

In stark contrast, the Committee established under Article 175A(9) of the Constitution is comprised of eight Members (four front each House) who are neither elected by the Houses of Parliament nor are they in any manner answerable or accountable to either of the said Houses. It is in this sense that the larger Bench of Supreme Court vide its order dated 21-10-2010 (Nadeem Ahmad and others v. Federation of Pakistan and others PLD 2010 SC 1165) has adverted to the Committee as a "Committee of Parliamentarians" to distinguish this constitutional body from a parliamentary committee as understood and defined in the rules of procedure and conduct of business of the two Houses. This distinction is also important to note while addressing the issues raised.

Essential distinction between a parliamentary committee (elected and answerable to Parliament) and a nominated Constitutional body, not answerable to Parliament has not been kept in view in the Federation's stance. If this fundamental distinction is considered in the light of Article 69 of the Constitution, this view will be further reinforced that the Committee's decisions have not been put beyond the pale of judicial review.?

It would be obvious from a plain reading of Art. 69 of the Constitution that the limited ouster of jurisdiction stipulated therein is in respect of, inter alia, the proceedings and conduct of business of the Parliament. The decisions of the Committee (even if comprised of persons who are honourable members of Parliament) cannot be considered immune from judicial scrutiny by virtue of Article 69. This conclusion necessarily follows from the fact that the Committee is a creation of the Constitution and not of the Parliament. Furthermore, it is independent of and separate from Parliament notwithstanding its composition. It performs an executive function relating to the Judiciary and, therefore, has been placed in the Chapter relating to the Judicature rather than in Chapter 2 [The Majlis-e-Shoora (Parliament)] dealing with Parliament.

The justiciability of the decisions of the Parliamentary Committee can also be approached from another angle, which would be manifest from a holistic examination of the Constitution. The governance of State organs in Pakistan is based on checks and balances where the powers of each organ are counter-balanced by some other organ of the State. Thus, executive action taken by the various administrative and executive functionaries of the State can be called in question, inter alia, under Articles 199 and 184(3) of the Constitution. Such executive action may additionally be subject to Parliamentary review and over-sight in the parliamentary system of governance. Legislative action can also be called in question in court, inter alia, on the touchstone that it is violative of the Constitution. Likewise, decisions rendered by Supreme Court can be modified or reversed by legislation (in recognized circumstances) and such legislation may also be retrospective. Thus each organ of the State, be it the Judiciary, the Executive or the Legislature, operates under constitutional constraints which effectively make these organs of State limited in their actions.?

If it is accepted, that the decisions of the Committee are not amenable to judicial review, a truly unique status higher, than the Executive, the Judiciary and Parliament, will have to be accorded to this nominated Committee, outside the matrix of checks and balances that constrain the Parliament, the Executive and the Judiciary. This will be so because in such event, the Committee will not be subject to any check as it is already not answerable for its decisions either to Parliament or to the highest functionaries of the Executive, including the President and the Prime Minister. Such an interpretation of the Constitution, which places the decisions of the Committee beyond the pale of review by any other instrumentality or organ of the State would be contrary to the scheme of the Constitution and will, in effect, vest the Committee with untrammelled powers. Bearing in mind the assurance in Parliament that "the fundamental principles of the Constitution are not altered", it will not be possible to ascribe such powers, to the Committee, while interpreting Article 175A of the Constitution.

To appreciate the above notion with clarity, we need to understand the implications of affording unbridled powers to the Committee. Contention of the counsel of Federation was that the Committee has the power to reject any nomination of the Judicial Commission (even one unanimously passed) for "any reason under the sun", and that such a rejection must, in all cases, be deferred to by Supreme Court. The implication of this extraordinary submission would be that even where a decision of the Committee has the effect of eroding and undermining the independence of the Judiciary, Supreme Court will be helpless in checking such erosion. The Committee is not required to send its decision to the Parliament for approval, the role and discretion of the Prime Minister and the President as previously envisioned in the Constitution "has been taken away". The eight-member nominated Committee or, rather a Committee of Parliamentarians cannot claim such unchecked authority. Given this, the operation of the Committee cannot be imagined, without the check of judicial review.?

Constitution contemplated the trichotomy of power between the three organs of the State, namely, the Legislature, the Executive, and the Judiciary... it was envisaged that the Judiciary would be independent and separate from the other organs of the State... The independence of the Judiciary is a basic principle of the constitutional governance in Pakistan. The independence of the Judiciary was a basic and a salient feature of the Constitution.?

"Independence of the Judiciary" which the Constitution assures, depends directly on the process of the appointment, removal and security of tenure of Judges. The independence of Judiciary is inextricably linked and connected with the constitutional process of appointment of Judges of the superior Judiciary the terms, conditions and security of tenure of Judges is also central to the independence of the Judiciary. Security of office of Judges and of its tenure was a sine qua non for the independence of Judiciary. Indeed it is an undisputed tenet of the Constitutional scheme that in matters of appointment, security of tenure and removal of Judges the independence of the Judiciary should remain fully secured.?

The constitutional jurisprudence which relates specifically to the issue of appointment of Judges, reveals that prior to the 18th amendment, it was well settled as a principle that the executive organ of the State was obliged to give reasons for its decisions if it chose to differ with the opinion of the Chief Justice of Pakistan. It was also well settled that the reasons given by the executive organ of the State were justiciable. The touchstone and scope of justiciability and the limits of the executive authority to differ from the opinion expressed by the Chief Justice of Pakistan also came to be well defined in the context of Article 193 of the Constitution which related to the appointment of Judges of the High Courts. It is, thus, beyond doubt that the constitutional principles relating to the independence of the Judiciary were already well-settled at the time the 18th and the 19th Amendments were tabled in Parliament; these principles remain fundamentally unaltered even after the above-mentioned Amendments, notwithstanding the changes in the procedure for making judicial appointments.?

Parliamentary debates can also be resorted to (in certain situations) to ascertain the meaning of any legal text. Speech by Chairman of the Special Committee of the Parliament for constitutional Reforms, given on the floor of the National Assembly categorically clarified that it was not the intention of the 18th and 19th Amendments to alter the fundamental principles of the Constitution. He said: "... before I go into the details of this Article [175A], 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. That whatever amendments are made, are made within the ambit of fundamental principles of the Constitution. And when dealing with various institutions under the Constitution, their independence is not undermined. And that their independence as ensured in the Constitution of 1973 is reassured".

This reassurance indeed reflects the intention of Parliament and gives guidance to the Court as to the aims of Parliament in bringing about reforms in the procedure for appointment of Judges. It is precisely such reassurance which gives relevance to and enables Court to draw guidance from precedents, alluded to above, that, expound the principle of the independence of the Judiciary and its dependent relationship with the manner of judicial appointments. In other words, insofar as "the fundamental principles of the Constitution are not altered," the precedents that explain those principles are also relevant.

Once this is understood, task of interpreting the newly added provisions of the Constitution becomes relatively simple. Since the decisions of the Committee have a direct bearing on the practical manifestation of foundational constitutional principles, Court cannot possibly abdicate its jurisdiction and not examine their meaning. At the same time, however, Court remain cognizant that Parliament has, while adhering to the fundamental principles of the Constitution, made changes which should be given effect in furtherance of these principles. Looked at in this light, it is clear that the essence of the amendments is to bring about changes in the process of making judicial appointments, rather than in the structure and underlying values of the Constitution such as the independence of the Judiciary and one of its supporting pillars namely, judicial appointments.?

It is the constitutional mandate of Supreme Court to exercise judicial review over the decisions of the Committee, which, after all, are executive decisions that have great bearing on the independence of the Judiciary and the separation of powers between the different State organs.

Counsel for the Federation contended that the question of justiciability of the decisions of the Committee had yet to be decided by the seventeen-member larger Bench of the Supreme Court in the petitions filed to challenge the vires of the 18th Amendment. On this basis, he submitted that present Bench should await the decision of the larger Bench and, in the meanwhile, put the adjudication of these petitions on hold. Counsel was of the view that the present petitions were a back-door attempt to challenge the role of the Committee and to undermine such role even before the Full Court has had the opportunity of deciding the petitions challenging the 18th Amendment.

Supreme Court reiterated that the scope of 'these petitions was materially different from the scope of the petitions being heard by the larger Bench. The present petitions assume the validity of the 18th and 19th 'Amendments. The petitioners only seek judicial interpretation of these Amendments for the purpose of their challenge to the two decisions taken by the Committee. Put simply, while the present petitions seek judicial review of decisions of an executive body, purported to be taken under Article 175A of the Constitution, the petitions before the larger Bench challenge the very authority of Parliament to make the amendments challenged in such petitions. It is, therefore, evident that any adjudication in these petitions will relate only to the impugned decisions of the Committee and not to the validity of the Amendments in the Constitution.?

The Committee, though comprised of members of Parliament, is not to be equated with Parliament or, even with a parliamentary committee elected by Parliament under the Senate Rules or the Assembly Rules.?

Al-Jehad Trust through Raseesul Mujahideen Habib-ul-Wahabb?ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC324; Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879; Sharaf Faridi v. Federation of Islamic Republic (PLD 1989 Kar 404: Zafar Ali Shah's case PLD 2000 SC 869; Chief Justice of Pakistan Iftikhar M. Chaudary v. President of Pakistan through Secretary and others PLD 2010 SC 61; Mehram Ali's case PLD 1998 SC 1445; PLD 2010 SC 61; Hakim Khan and others v. Government of Pakistan and others PLD 1992 SC 595; A & B Food Industries Limited v. Commissioner of Income Tax/Sales, Karachi 1992 SCMR 663 and Messrs Gadoon Textile Mills and others v. WAPDA and others 1997 SCMR 641 ref.

(k) Constitution of Pakistan---

----Arts. 175A & 184(3)---National Accountability Ordinance (XVIII of 1999), S.6(2)(i)---Decisions of Parliamentary Committee constituted under Art.175A of the Constitution---Justiciability---Contentions of the counsel for the Federation were that the question of justiciability of the decisions of the Committee had yet to be decided by the seventeen-member larger Bench of the Supreme Court in the petitions filed to challenge the vires of the 18th Constitutional Amendment and that present Bench should await the decision of the larger Bench and, in the meanwhile, put the adjudication of present petitions on hold-,Counsel was of the view that the present petitions were a back-door attempt to challenge the role of the Committee and to undermine such role even before the Full Court has had the opportunity of deciding the petitions challenging the 18th Amendment---Validity---Supreme Court observed that the scope of present petitions was materially different from the scope of the petitions being heard by the larger Bench---Present petitions assume the validity of the 18th and 19th Amendments---Petitioners, in the present petitions, only seek judicial interpretation of these Amendments for the purpose of their challenge to the two decisions taken by the Committee and seek judicial review of decisions of an executive body, purported to be taken under Article 175A of the Constitution while the petitions before the larger Bench challenge the very authority of Parliament to make the Constitutional Amendments---Any adjudication in the present petitions therefore, will relate only to the impugned decisions of the Committee and not to the validity of the Amendments in the Constitution.?

(l) Constitution of Pakistan---

----Arts. 175A & 184(3)---Appointment of Judges of Supreme Court and High Courts---Interpretation of Art.175A of the Constitution and the principles on which said Article is based---Creation of Judicial Commission' andParliamentary Committee' under Art.175A of the Constitution---Historical circumstances and reasoning---Roles envisaged for Judicial Commission' andParliamentary Committee' in the Constitution---Scope---Parliamentary Committee though comprised of members of Parliament, is not to be equated with Parliament or, even with a Parliamentary Committee elected by Parliament under the Senate or Assembly Rules---Parliamentary Committee' cannot (without eroding judicial independence) be seen as a superior body sitting in appeal over the recommendations of the Judicial Commission with the ability to set aside or reverse the well-considered opinion of the members of the Judicial Commission-Decisions of Parliamentary Committee are executive in nature, having bearing on the independence of Judiciary and the separation of powers between the different State organs---Supreme Court under the constitutional mandate can exercise Judicial review over the decisions of the Committee--Principles.

In order to properly interpret the provisions of Article 175A and the principles upon which the Article is based, it is also necessary to have a closer look at the historical circumstances and the reasoning which informed the earlier precedents of Supreme Court. This context will help to appreciate the reasons why the two new institutions - the Commission and the Committee - were created and what roles were envisaged for these constitutional bodies in the 18th and -19th Constitutional Amendments.

Previously, there were a very small number of constitutional functionaries (judicial and executive) who, through a process which was not very open, made decisions relevant to the appointment of Judges of Supreme Court and of the High Courts. Instances in constitutional history, therefore, tended either to create a tussle between the judicial consultees and the executive functionaries of the State or, as happened in certain cases, the judicial consultees felt over-whelmed, over-awed or ignored by the executive functionaries responsible for making and notifying judicial appointments. Since this situation was not consistent with the independence of the Judiciary, the matter was agitated, among others, in the Al-Jehad case (PLD 1996 SC 324). It is through elaborate reasoning in the said case and examination of the fundamentals of constitutional scheme, that a division of functions between the judicial consultees and the executive functionaries was delineated by Supreme Court. It was held that the judicial consultees are best suited to determine the calibre, competence, legal acumen and over-all suitability of a person for appointment to a tenured judicial office under the Constitution. The executive functionaries on the other hand were considered more suitable for ascertaining the antecedents of judicial appointees. A reasonably clear demarcation between the different roles, respectively, of the judicial consultees and the executive functionaries of the State was thus drawn. And with the passage of time this demarcation was further refined. In the latest pre-amendment judicial pronouncement on the question of appointment of Judges, made in the case of Sindh High Court Bar Association and another v. Federation of Pakistan and others (PLD 2009 SC 879), for instance, it was held that the opinion of the Chief Justice of Pakistan in respect of the suitability of a person to be appointed to constitutional judicial office had primacy and that this opinion was subjective and not open to challenge through judicial review.

It is in the foregoing context that the creation of the Commission and the Committee must be understood. It is quite possible that Parliament may have concluded that the Constitution as interpreted in the foregoing precedents, had concentrated in one person viz. the Chief Justice of Pakistan, enormous discretionary powers in the matter of making judicial appointments. Such concentration, although tempered by consultation with the Chief Justice of the High Court in which a particular appointment was to be made, could have been seen by Parliament as having the potential of leading to error of judgment or, possibly, even abuse. These, or similar concerns, can be of immense interest for the chosen representatives of the people. Such concerns legitimately and eminently fall within the domain of. Parliament which may, therefore, decide to bring about a balance in the respective roles of the judicial and executive functionaries responsible for making judicial appointments, subject always to the avowed objective and the constitutional imperative of having an, independent Judiciary whose independence is to be "fully secured".

Therefore, apparently guided by this object, in the new dispensation, instead of one person, namely the Chief Justice, or at best two, namely the Chief Justice of Pakistan and the Chief Justice of the concerned High Court, taking a decision on the competence and suitability of a potential judicial appointee, the decision-making power has been diffused and spread over a collegium comprised of thirteen persons. A similar diffusion appears to have been intended for the executive role in judicial appointments by constituting the Parliamentary Committee.

In this light, if we consider further the composition of the Commission, it will lead us closer to understanding the role envisaged for it. It is clear that each member of the Commission is directly and substantially connected with the courts in one way or another. The members of the Commission thus have the occasion of assessing first hand, the legal abilities and performance of persons who potentially could be appointed as Judges. In the ex Officio appointments of the Minister of Law and Parliamentary Affairs and of the Attorney General for Pakistan, the Judicial Commission now also has the additional ability to make an assessment as to the antecedents of a nominee through access to the information and executive resources of the State which otherwise, may not be available to the other members of the Judicial Commission. What is also worth noting is that barring the one former Judge of Supreme Court and the advocates who are members of the Commission, all others are ex Officio constitutional functionaries making the Commission a continuous body with changing membership, the preponderant majority whereof, being ex Officio, is not dependent on any separate process for their own appointment.

This composition of the Commission immediately highlights two things. Firstly, that the expertise and core competence of the members of the Commission will facilitate the identification and nomination of appointees to judicial office based on calibre, competence, legal acumen, antecedents and over-all suitability -of a person for appointment as a, Judge. Secondly, the composition of the Commission will ensure diverse inputs on account of the diversity and the continuous changing nature of its membership, thus tending to make the Commission's nominations more objective and not dependent on the personal opinion of one or, at best, two individuals. It does not take a great deal of imagination or a leap of logic to conclude that the role (as defined by precedent) which was assigned previously to the judicial consultees is now to be performed by the Commission as a collegiate body.

It will be seen that in the original Articles 177 and 193, a Judge of the Supreme Court and Judges of a High Courts were to be appointed by the President after consultation with the Chief Justice of Pakistan and other consultees mentioned in Article 177 and Article 193(1) respectively. These provisions, in relevant part, have been replaced by Articles 177(1) and 193(1), as amended, which stipulate, inter alia, that Judges of the Supreme Court and the High Courts shall now be appointed by the President in accordance with Article 175A. When clause (1) of Article 175A is considered; a bare reading of the same shows that the Commission has been created for the appointment of Judges of the Constitutional Courts. Thus, while the President previously made the appointments on the advice of the Prime Minister, both have now been left with nominal ministerial roles and their powers, in the words of the Chairman of the Constitutional Body, "have been taken away". The Prime Minister is now obliged to simply forward the confirmation made or deemed to have been made by the Committee to the President and the President equally is obliged to make the appointment on the basis of such confirmation. The Prime Minister and President, under the new constitutional dispensation, thus have no power or authority to differ with the decision of the Parliamentary Committee. The role which they were performing in the previous legal setup, as examined above, is now, logically, to be performed by the Committee. It is, therefore, evident that the purpose the raison d'etre - of the Commission and the Committee is the appointment of Judges albeit in accordance with the procedure laid down in Article 175A.

Given this dispensation and the above referred historical context, the Committee cannot (without eroding judicial independence) be seen as a superior body sitting in appeal over the recommendations of the Commission with the ability to set aside or reverse the well considered opinion of the members of the Commission. The fact that Parliament was fully aware of the state of the law, as judicially interpreted, and yet did not define or demarcate the respective roles inter se of the Commission and the Committee, provides very strong manifestation of the intention of Parliament "that the fundamental principles of the Constitution are not altered". The distinction between the legal acumen and suitability of an appointee, and his antecedents is so well recognized in our constitutional jurisprudence that it is not possible to assume that it was not in the mind of Parliament when it decided to amend the Constitution. From the absence of role-definition in Article 175A, in respect of the Commission and Committee, it can safely be inferred that Parliament intended to preserve the delineation of powers in the previous dispensation, but vest the roles in more diffused bodies than was previously the case.

?

It is the constitutional mandate of Supreme Court to exercise judicial review over the decisions of the Committee, which, after all, are executive decisions that have great bearing on the independence of the judiciary and the separation of powers between the different State organs.?

The Committee, though comprised of members of Parliament, is not to be equated with Parliament or, even with a parliamentary committee elected by Parliament under the Senate Rules or the Assembly Rules.

Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879 ref.

(m) Constitution of Pakistan---

----Arts. 175A & 184(3)---Constitutional petitions before Supreme Court under Art.184(3) of the Constitution assailing the decisions of the Parliamentary Committee created under Art.175A of the Constitution---Maintainability---Exercise of power of Judicial review by Supreme Court---Rules which define the exercise of such power and source from which these rules are to be derived exhaustively explained--Constitutional petitions were maintainable under Art.184(3) of the Constitution since these petitions involved issues of public importance and were related to the enforcement of Fundamental Rights and independence of Judiciary---Decisions of Parliamentary Committee were subject to Judicial review of the Supreme Court---Said decisions of the Committee in the present case were based on an erroneous understanding of the law and the Constitution---Such decisions of the Committee were unconstitutional without lawful authority, therefore, they were of no legal effect---Principles.

Decisions of the Committee are justiciable and subject to Supreme Court's power of judicial review. The foremost source for determination of the rules which define the exercise of such powers and source from which these rules are to be derived must be the Constitution itself which has created Supreme Court as well as the two constitutional bodies viz. the Commission and the Committee. The basis of judicial review in these cases thus must be firmly anchored in the Constitution. Article 5(2) of the Constitution declares that "obedience to the Constitution and law is the inviolable obligation of every citizen ..." This means that the Committee too is obliged to ensure that its decisions are in accordance with the law and the Constitution. Whether this obligation has been duly discharged would be a matter reviewable by Supreme Court. The touchstone for such review is conformity with the Constitution and the law. This is in line with Article 184(3) read together with Article 199(l)(a)(ii), which confer upon Supreme Court the authority to make, in appropriate cases, an order declaring that "any act done ... in connection with the affairs of the Federation ... has been done without lawful authority" and is, therefore, "of no legal effect." It follows that what the Supreme Court needs to determine presently is whether the impugned decisions of the Committee conform with the requirements of the Constitution and the law, and whether such decisions have been taken while remaining within lawful authority. The grounds upon which Supreme Court can adjudge this issue flow directly from these constitutional provisions themselves; they have also been elaborated upon in a number of precedents.?

Grounds for exercise of Court's power of judicial review are illegality',irrationality' and 'procedural impropriety.' What is important for deciding the present petitions is the scope and nature of 'illegality', which, is measured on the consideration... that the decision-maker must understand correctly the 'law that regulates his decision-making power and must give effect to it. Whether he has or not is par-excellence a justiciable question to be decided, in the event of dispute, by those persons - the Judges by whom judicial power of the State is exercisable. Thus any decision based on an incorrect understanding of the law that .regulates the decision-maker's decision-making power, would be an illegal decision, and it could be corrected through judicial review. What must be emphasized here is that in disputed cases, it is for the courts to definitively interpret the law and thereafter to test the administrative decision on the touchstone of the law so interpreted.

In the present case, the Committee has taken a decision in accordance with its own understanding of Article 175A.?

The Commission performed its function s of nomination and appointment of the High Court Judges, in accordance with the provisions set out in clauses (1) to (8) of Article 175A of the Constitution.

The Committee, after receiving the nominations including the recommendations for renewal of tenure of Judges, took the decision not to confirm their nominations. It is important to note that the Committee chose to disregard the unanimous nominations made by the Judicial Commission. For this, committee appears to have relied only on the contents of brief pro formas which had been filled in by the Chief Justices of the High Courts. These pro formas appear to have been designed by the Commission for the purpose of obtaining particulars and general information about the persons being considered for appointment as Judges. The material column in the pro forma, for the purpose of the present petitions, relates to the evaluation made by the Chief Justice of the concerned High Court in respect of a potential nominee, based on criteria such as integrity, knowledge of laws, performance etc. The pro forma also contains the opinion of the Chief Justice of the concerned High Court as to whether or not a person being considered should be recommended to judicial office. In the case of the one group of Additional Judges, the recommendation made in the pro forma was that their tenure be renewed for a period of one year. However, in respect of the two Additional Judges of the High Court, the opinion stated by the Chief Justice was that their tenure should not be extended. Nevertheless; after deliberation by the Judicial Commission as a collegiate constitutional body, even the Chief Justice of the High Court agreed that the two Additional Judges of his Court should be recommended for renewal of their respective tenures for a further period of one year. The Committee chose, nonetheless, to turn these nominations down, relying solely on the earlier views expressed by the chief justices of the High Courts.

From this review of the facts, it seems clear that the Committee took Article 175A to mean that it is a constitutional body sitting in appeal over the decisions of the Commission. This, is far from being the case. Such an interpretation is borne out neither by the text of Article 175A nor by its context. Foundational principles of Constitution, are independence of the Judiciary and separation of powers, in the light of which Article 175A must be interpreted. The historical evolution of this Article and the legislative intent behind it, demonstrates that while power has been devolved from persons to collegial institutions, the essential demarcation of duties between judicial consultees and executive functionaries, chalked out by precedent, has remained largely intact. All constitutional provisions have to be interpreted accordingly. The independence of Judiciary is now not merely one of the general principles of the Constitution of Pakistan; it is part of its substantive provisions and the relevant constitutional provisions must be construed accordingly to ensure the independence of the Judiciary. The provisions of Part-VII of the Constitution must be taken as giving elect to ...that general principle. Review of these factors, which collectively provide the context in which to read Article 175A, allows to conclusively arrive at a more organic interpretation of the said Article. And, this interpretation does not support the expansive manner in which the Committee has construed its own power,-nor does it support the dismissive way in which the Judicial Commission's unanimous recommendations have been treated. The Committee's decision, based on an incorrect understanding of the constitutional provision regulating its decision-making powers, travelled much beyond its lawful authority. On this ground alone, it may be held that the decisions of the Committee impugned, were taken without lawful authority and are thus unconstitutional.?

To ensure the independence of the Judiciary, it is important that the process of making judicial appointments remains independent of the Executive and the Legislature, except for such executive inputs in decision-making which can ensure and advance the independence of the Judiciary. In the present case, the Committee has not provided any such input.?

Thirteen members of the Commission are law-knowing and law related persons who can make an objective evaluation of the suitability of a nominee for judicial office. From members of the Committee, it is not expected that they will have first hand information about a nominee or that they will have the same level of expertise as the Commission, to evaluate the suitability of a nominee for appointment to high judicial office. The Committee, however, is not a meaningless or redundant body. It has the ability to add value to the process of making judicial appointments by taking into account information which is different from and may not have been available with the Commission.?

The two bodies namely, the Commission and the Committee were coordinate bodies, neither of which was subordinate to the other. If, however, it is conceded either that the decisions of the Committee are not justiciable or that it has the power to review and reverse the findings of the Commission, an anomalous and even absurd situation can result. It would not be possible or justifiable (without adversely affecting the independence of the Judiciary) to interpret Article 175A in a manner which grants a virtual veto to the Committee enabling it to reverse the recommendations of the Commission, for considerations which have already received the attention of the Commission in its deliberations. This is so because of the composition of the two bodies. It cannot he seen as the intention of the Constitution as amended, that the thirteen members of the Commission who amongst them include the five senior-most members of the Judiciary in the country together with a former Judge of Supreme Court and the Chief Justice of the High Court concerned, should be trumped in their views about the competence and suitability of a nominee, by six members of Parliament who, are not supposed to be equipped with the core ability for evaluating, inter alia, legal acumen and competence.?

The two constitutional bodies also cannot be seen as adversaries serving antagonistic and conflicting ends. That the object of both bodies is to ensure the selection and appointment of the most suitable persons as Judges of the High Court, which, in turn, is essential to secure fully the independence of the Judiciary.?

There is another way in which the Parliamentary Committee's decision can be shown to be based on an erroneous understanding of the law and also violative of the spirit of the Constitution, as, amended. One of the fundamental aspects of the 18th and 19th Constitutional Amendments, and the changes intended to' be brought about thereby, was to do away with the subjective opinions of one or two persons. This object was to be achieved through the creation of a thirteen-member collegium which could, through consideration of varying opinions, make a collective decision by majority of its membership. In the present case, the collegium which is the Commission has, after deliberation, made nominations which arc unanimous and include also the concurrence therein of the respective Chief Justices of the High Courts.

In the foregoing circumstances, it would negate the very purpose of the 18th and 19th Amendments, if the Committee were to have the power to rely upon the opinion of just one member of the Commission, and that too, expressed prior to collective deliberations, to nullify the ultimate collective views of the Commission. The purpose of diffusing the decision-making process and spreading it over a collegium comprising of thirteen persons was to ensure that an objective and balanced opinion emerges from the deliberations of the Commission. This process was meant to ensure, to a great degree, objectivity in the nominations made after discussion and inputs from all members of the Commission.?

Counsel appearing for the Federation, wished to emphasize the fact that the Chief Justice of the High Court was most suitable and was eminently qualified to make an evaluation as to competence etc. of a nominee. He seemed to suggest that since the Parliamentary Committee had relied on the views expressed by the Chief Justices of the respective High Courts to which the concerned Judges were nominated, this lent weight to the Committee's decision. This is an argument which is flawed on three counts:

Firstly, it is relevant to note that the pro forma filled in by the Chief Justices of the two High Courts was at best a mechanism for tabling the particulars of a nominee which would enable the Commission (acting collectively) to have a meaningful and purposive discussion leading to an informed decision about recommending such nominee. It is not necessary in the facts of the present petitions to embark on a scrutiny of the evaluations of the Chief Justices, made in respect of the Judges whose nominations are in question, because after considering each nomination, the Commission (including the Chief Justices of the High Courts) has unanimously made its recommendation that their tenures be renewed. The pre-deliberation evaluations of the Chief Justices of the High Courts do not now need to be considered because, as a matter of law, such evaluations disappeared when they merged into the final recommendation of the Commission made by a majority of its members and which, in the present case, has been made unanimously.

Secondly, this argument does not take into account the express wording of Article 175A which mandates a collective decision of the Judicial Commission and leaves no room for individual opinions of any one member of the Judicial Commission. It should he clear by now that the Constitution, in its amended form, recognizes only the collective decision of the Commission. The Constitution does not accord any primacy or special weightage to the opinion of any one member of the Judicial Commission. This is particularly so when such opinion is a purely individual opinion without benefit of the views of other members of the Judicial Commission. If anything, the amendments in the Constitution appear consciously and deliberately to have eliminated reliance on the views of a single person. Weightage, if any, which may attach to the opinions of the individual members of the Judicial Commission, is a matter for consideration by the Judicial Commission alone because the Constitution as amended, does not recognize individual opinions as to the competence, antecedents or over-all suitability of a nominee.

Thirdly, the argument does not 'take into account the larger ramifications of such a ruling for the future of constitutional system. If it is held today that the Parliamentary Committee may give primacy to the opinion expressed by the High Court Chief Justice sitting in the Commission, tomorrow, there would be little justification left for objecting, if the Parliamentary Committee relied on the individual and varying opinions of any one of the thirteen members of the Judicial Commission. So, if things were left to proceed in that direction, even a 12-1 majority decision of the Judicial Commission could easily be negated by the Parliamentary Committee, relying on the one note of dissent that they find therein. This would effectively grant the Parliamentary Committee a veto in the appointment of Judges a situation contemplated neither by the Constitution nor palatable to any of the organs of the State, including the Parliament itself.?

Petitions are maintainable under Article 184(3) since they do involve issues of public importance and are related to the enforcement of fundamental rights.?

Decisions of the Parliamentary Committee are subject to judicial review in Supreme Court. ?

Impugned decisions of the Committee are based on an erroneous understanding of the law and the Constitution; since these decisions were taken without lawful authority, they are of no legal effect.?

Supreme Court observed that there is nothing unusual or exceptional about differences as to constitutional questions cropping up between constitutional bodies or State functionaries in a democratic dispensation. Such differences may arise particularly when new provisions are incorporated in the Constitution. However, as nations mature and polities evolve, their maturity is reflected in the manner in which such differences are resolved in accordance with the governing compact, which is the Constitution. The differences of opinion between the Commission and the Committee, in this context, cannot be seen as adversarial turf-wars between the two bodies, or as matters of prestige. Both bodies, have the common aim of ensuring that "... the will of the People of Pakistan to establish an order ... wherein the independence of the Judiciary is fully secured," which is an objective set out in the Constitution itself, is accepted as a command of the People and is implemented, both in letter and in spirit with due humility and sincerity.

?

Article 28 and 251 of the Constitution highlight the Constitutional imperative of promoting languages other than English. In order to fulfil this need a gist of present opinion is (without need for intermediaries) made accessible to a wider section of those who are unable to understand the language of present opinion.?

Makhdoom Ali Khan, Senior Advocate Supreme Court, Faisal Hussain Naqvi, Advocate Supreme Court, Arshad Ali Ch. Advocate-on-Record, Khurram Hashmi, Umair Malik, Ilyder Ali Khan and Saad Hashmi, Advocates for Petitioners (in Const. P. No.10 of 2011).

Anwar Mansoor Khan, Senior Advocate Supreme Court, Abid S. Zuberi, Advocate Supreme Court and Asim Mansoor Khan, Advocate for Petitioners (in Const.P.No.18 of 2011).

A K.K. Agha, Addl. A.G. for Pakistan and M.S. Khattak, Advocate-on-Record for Respondent No. 1.

Iftikharullah Babar, Acting Secretary, Senate for Respondent No.2.

Maulvi Anwar-ul-Haq, Attorney General for Pakistan (On Court's call).

Dates of hearing: 24th, 28th February, 1st, 3rd and 4th March, 2011.

P L D 2011 Supreme Court 506

Present: Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Food, Islamabad and others---Petitioners

Versus

Messrs JOINT VENTURE KOCKS K.G. /RIST---Respondents

Civil Petition No.2373-L/2005, decided on 10th March, 2011.

(Against the judgment dated 26-9-2005 passed by Lahore High Court, Lahore in F.A.O.No.30 of 2001).

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

----Ss. 30 & 33---Objections to award---Scope---Court under Ss.30 and 33 of the Arbitration Act, 1940 is not supposed to sit as a court of appeal and fish for the latent errors in the arbitration proceedings or the award---Principles.

Under sections 30 and 33 of the Arbitration Act, 1940 the court is not supposed to sit as a court of appeal and fish for the latent errors in the arbitration proceedings or the award. The arbitration is a forum of the parties' own choice and is competent to resolve the issues of law and the fact between them, which opinion/decision should not be lightly interfered by the court while deciding the objection thereto, until a clear and definite case within the purview of sections 30 and 33 is made out, inasmuch as the error of law or fact in relation to the proceedings or the award is floating on the surface, which cannot be ignored and if left outstanding shall cause grave injustice or violate any express provision of law or the law laid down by the superior courts, or that the arbitrator has misconducted thereof. Obviously if there is a blatant and grave error of fact such as misreading and non-reading or clear violation of law, the interference may be justified by the courts. But for the appraisal and appreciation of the evidence, the courts should not indulge into rowing probe to dig out an error and interfere in the award on the reasoning that a different conclusion of fact could possibly be drawn.

Premier Insurance Company and others v. Attock Textile Mills Ltd. PLD 2006 Lah. 534 ref.

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

----Ss. 30 & 33---Objections to award---Scope---Objections to the award must be clear and unambiguous, stating with precision, clarity and certainty the grounds as to why same should be interfered.

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

----Ss. 30 & 33---Objections to award---Scope---Umpire having explicitly referred to the important and material piece of evidence, whatever was relevant and had accordingly dealt with the same by giving sound and cogent reasons---No specific misreading or non-reading had been pointed out---Award, in circumstances, was not bad for any factual or legal infirmity.

Naveed Inayat Malik, D.A.G., Afzal Ahmad Qureshi, Advocate Supreme Court, A.H. Masood, Advocate-on-Record for Petitioners along with Syed Sadaqat Hussain, Section Officer, Ministry of Food and Agriculture.

Nemo for Respondents.

P L D 2011 Supreme Court 509

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

SAMEEN JAN (NAIB TEHSILDAR) and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Petition No.664 of 2010, decided on 4th March, 2011.

(On appeal from the order dated 16-11-2010 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.11986-B of 2010).

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan, Art.185(3)---Cheating and dishonestly inducing delivery of Property; forgery for purpose of cheating; using as genuine a forged document and illegal gratification---Bail, grant of---Further inquiry---Allegations levelled against the petitioners (public servants) pertained to their roles in attestation of a mutation on the basis of a Permanent Transfer Deed which was subsequently found to be a fake document; disputed mutation based upon said Permanent Transfer Deed, however, was still intact on the basis of an order passed in that regard by the High Court---Petitioners were not the beneficiaries of the alleged forgery etc. and so far no allegation had been levelled against them regarding accepting any bribe for the purpose of attestation of the relevant mutation---Both the petitioners had been admitted to pre-arrest bail by the Trial Court but subsequently their bail was cancelled by the same court without attributing any misuse or abuse of the concession of bail to them---High Court declined to interfere with the order of Trial Court---Validity---Held, Trial Court ought to have known that considerations for grant of bail and those for its cancellation were entirely different---Some of the offences allegedly committed by the petitioners were bailable and the remaining offences invoked in the F.I.R. did not attract the prohibitory clause contained in subsection (1) of S.497, Cr.P.C.---Investigation of the case had already been finalized and, thus, physical custody of the petitioners was not required at this stage for the purpose of investigation---Continued custody of the petitioners in jail in circumstances was not likely to serve any beneficial purpose at this juncture---Concession of bail ought not to be withheld by way of premature punishment---Both the petitioners were public servants and there was little likelihood of their absconding in case of admission to bail---Case against the petitioners called for further inquiry into their guilt within the purview of subsection (2) of S.497, Cr.P.C.---Petition for leave to appeal was therefore, converted into an appeal and the same was allowed and, resultantly, petitioners were admitted to bail subject to furnishing bail bonds in the sum of Rs.10,00,000 (Rupees one million only) each with two sureties each in the like amount to the satisfaction of the Trial Court.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court for Petitioners.

Ch. Zubair Ahmed, Additional Prosecutor-General, Punjab for the State.

Nemo for the Complainant.

P L D 2011 Supreme Court 512

Present: Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

KHALIL-UR-REHMAN and another---Petitioners

Versus

Dr. MANZOOR AHMED and others---Respondents

Civil Petition No. 1577-L of 2010, decide don 24th February, 2011.

(Against the order dated 30-6-2010 passed by Lahore High Court, Lahore in W. P. No.2395 of 2009).

Punjab Rented Premises Ordinance (XXI of 2007)---

----S. 22---Object, scope and nature of S. 22 of the Punjab Rented Premises Ordinance, 2007--Non filing of affidavits of witnesses along with the application for leave to defend---Effect---Held, option has been given to the tenant that for the purposes of making out a case for the leave, if he feels the necessity of the affidavits of the witnesses in support of his defence, he may file those, but a restriction has been placed that such affidavits should not be more than two---If the option however, is not exercised by the tenant there are no penal consequences provided in law that shall be precluded to examine any witness in the course of trial in order to prove his case---Provision is directory and of a benign procedural nature---Once the leave to defend has been granted to a tenant, despite the non filing of the affidavit of the witness by him, his right to prove the case through oral evidence remains unimpaired.

M. Aslam Riaz, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

P L D 2011 Supreme Court 516

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ

GHULAM SHABBIR---Petitioner

Versus

MUHAMMAD MUNIR ABBASI and others---Respondents

Civil Petition No.657-K of 2010, decided on 2nd March, 2011.

(Against judgment dated 27-10-2010 of the High Court of Sindh at Karachi, passed in Civil Petition No.D-863 of 2009).

(a) Sindh Civil Servants Act (XIV of 1973)---

----S. 9-A---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.8-B---Constitution of Pakistan, Arts.199 & 212---Out of turn promotion---Issuance of writ of quo warranto--Scope---Out of turn promotion given on the basis of performance of civil servant, which essentially pertained to fitness for promotion, was not within the exclusive domain of Service Tribunal and High Court could be approached for issuance of writ of quo warranto---Principles.

A writ of quo warranto is not issued as a matter of course. The court can and will enquire into the conduct and motive of the petitioner. However, no precise rules can be laid down for the exercise of discretion by the court in granting or refusing the same and each aspect of the case is to be considered. In such cases it is not necessary that the petitioner be an aggrieved person and further that if it is established that the petitioner has approached the court with ulterior motive, mala fide intention etc. relief can be declined. In the present case, out of turn promotion was challenged without claiming any superior right by the petitioners on the ground that such promotion was not warranted under the law. This was not to say that the terms and conditions of service of either petitioner or private respondents were in issue so as to bring the case exclusively within the domain of the Service Tribunal. Eligibility for appointment or promotion to a particular post concerned the candidate's qualification etc. and as such was exclusively within the domain of the Service Tribunal. However, out of turn promotion concerned his eligibility for the same and not his fitness. Eligibility criteria were whether the incumbent had passed the departmental examination or possessed the required seniority etc. Such was not the case in the present matter as the civil servant was given out of turn promotion on the basis of his performance which essentially pertained to fitness for promotion and hence not within the exclusive domain of the Service Tribunal. Opposing party had correctly approached the High Court in Quo Warranto.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto, issuance of---Principles.

(c) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

----R. 8-B---Out of turn promotion---Validity---Few merit certificates given by judicial and executive authorities and recommendations from the Provincial Home Minister, could not be made basis of out of turn promotion---Out of turn promotion was not only against the Constitution but even against injunctions of Islam---Reward or award should be encouraged for meritorious public service but should not be made the basis of out of turn promotion---Such a promotion should be, if at all, regulated through proper process as per Rule 8-B of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---Supreme Court observed that rules should be framed for such purpose.

Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Nadeem Akhtar PLD 1997 SC 382; Government of Punjab v. Rana Muhammad Iqbal 1993 SCMR 1814 and Farhat Abbas v. I.G. 2009 SCMR 245 ref.

M.M. Aqil Awan Senior Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Petitioner.

Masood A. Norani, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents Nos. 1-3.

Abdul Fateh Malik, A.G. Sindh for, Respondents Nos. 4-6.

Date of hearing: 2nd March, 2011.

P L D 2011 Supreme Court 520

Present: Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

Mst. NIAZ BIBI through L.Rs.---Appellants

Versus

GHULAM MUSTAFA and others---Respondents

Civil Appeal No.831 of 2006, decided on 7th March, 2011.

(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 19-7-2005, passed in R.S.A. No.625 of 1977)

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

----O. XX, R.14 & S.47---Decree in pre-emption suit---Scope and import of O.XX, R.14, C.P.C.---Two rounds of litigation---Compromise decree---Irrespective of the fact that actual physical possession was received by the pre-emptor in terms of the compromise decree or not, upon payment/deposit of pre-emption money in court in terms of the decree, pre-emptor acquired absolute title of suit land in her/his favour, therefore S.47. C.P.C. totally lost its efficacy and applicability to the extent of the suit which was based on fresh and distinct cause of action---Principles.

A plain reading of rule 14 of Order XX, C.P.C. reveals that for preparation and implementation of decree passed in a pre-emption suit, a particular procedure has been laid down, which provides that manner for payment of purchase money, in case it has not been paid in the court earlier, with delivery of possession of the property to the pre-emptor and the mode and manner through which the title of the pre-empted property shall be automatically acquired by the pre-emptor from the date of payment of pre-emption money.

The scope and import of Order XX, Rule 14, C.P.C. is that irrespective of the fact that actual physical possession was received by the pre-emptor in terms of the compromise decree or not, upon payment/deposit of pre-emption money in court in terms of the decree, pre-emptors acquired absolute title of suit-land in his/her favour.

In the present case, all the three courts below misread the case record and misdirected themselves as regards the correct factual and legal position qua execution of a decree passed in a pre-emption suit in terms of Order XX, Rule 14 and thus, formed an erroneous view in the matter by giving undue importance to the factum of dismissal of earlier execution application for non-prosecution. Supreme Court in circumstances, recorded a presumption in favour of pre-emptor that it was consequent to the delivery of actual physical possession of the suit land in terms of the report of tapadar, or in the alternate joint possession as co-owner that having already acquired title of the suit land in her favour after payment of pre-emption money to the buyers, pre-emptor did not feel necessity to further pursue the said execution proceedings.

Fresh cause of action had accrued in favour of pre-emptor for filing another suit and such proceedings had no nexus with the proceedings in the earlier suit for pre-emption; compromise in terms of decree or dismissal of earlier execution application for non-prosecution. Therefore, the provisions of section 47, C.P.C. were not attracted to operate as bar for institution of such suit. In addition to it, subsection (2) to section 47, C.P.C. also provided a safety valve in favour of the pre-emptor to meet such a situation and to save failure of pre-emptor's legitimate claim against other party on such technical ground. Moreover, clear title of suit land had devolved upon the pre-emptor on payment of pre-emption money to the vendor in terms of compromise decree in a pre-emption suit, therefore, section 47, C.P.C. totally lost its efficacy and applicability to the extent of present suit which was based on fresh and distinct cause of action. Reference to section 48, C.P.C. was also equally devoid of force, as for filing subsequent suit, pre-emptor had a fresh cause of action, therefore, it was not overshadowed in any manner by the earlier litigation between the parties in the form of first suit.

Habibullah v. Muhammad Ahmad Khan PLD 1973 Note 109; Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778; Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063; Ali Ahmad v. Muhammad Fazal PLD 1973 Lah. 207; Ali Ahmad v. Muhammad Fazal 1972 SCMR 322; Moulvi Abdul Qayyum v. Ali Asghar Shah 1992 SCMR 241; Muhammad Inayat v. Ghulam Murtaza PLD 1987 Lah. 537; Shahra v. Member, Board of Revenue 2004 SCMR 117; Mst. Hakam Bibi v. Khushi Muhammad 2007 SCMR 983; Sita Ram Pande v. Madho Pande MR 1914 Allahabad 440; Muhammad Fazal v. Member, Board of Revenue, West Pakistan, Lahore PLD 1974 Notes 56 ref.

Riaz Hussain v. Muhammad Akbar 2003 SCMR 181; Mst. Ikram Bibi v. Province of Punjab PLD 2003- Lah. 102 and Haji Abdul Wali Khan v. Muhammad Hanif 1991 SCMR 2457 distinguished.

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

----S. 47(1) & (2)---Questions to be determined by court executing the decree---Language of S.47(1) and (2), C.P.C. goes to show that all questions relating to execution, discharge or satisfaction of the decree, arising between the parties or their respective legal representatives to a suit wherein decree was passed, are to be determined by the executing Court and filing of separate suit for said purpose is barred, but subject to the eventuality that proceedings in the suit can be treated as proceedings under said section and vice versa; however, this section does not bar filing another suit regarding the same subject-matter, when based on fresh/distinct cause of action.

Gulzarin Kiyani, Senior Advocate Supreme Court for Appellants.

Respondent No. 1: Ex pane.

Syed Iftikahr Hussain Gillani, Senior Advocate Supreme Court for Respondents Nos.2-4.

Kanwar Intizar, Advocate Supreme Court for Respondents Nos.7-10.

Dates of hearing: 9th and 10th February, 2011.

P L D 2011 Supreme Court 540

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ

Hafiz Shaikh ANWAR-UL-HAQUE through L.Rs. ---Appellants

Versus

JEHAN KHAN and others---Respondents

Civil Appeal No.229-K of 2009, decided on 1st March, 2011.

(On appeal against the judgment dated 27-5-2009 passed by the High Court of Sindh, Hyderabad Circuit, in IInd Appeal No.23 of 2004).

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

----S.55---Time as essence of contract---Extension in time---Effect---If time is extended for performance of a contract pertaining to immovable property, then time can never be enforced as of the contract.

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

----S.42---Contract Act (IX of 1872), S. 55---Cancellation of plot---Limitation---Pending proceedings---Extension in building period---Condemned unheard---Plot in question was allotted to plaintiff in year, 1963 and building period was extended up to 13-11-1968, however actual construction was started in year, 1971, when allotment was cancelled---Lower Appellate Court and High Court dismissed the suit filed by plaintiff on the ground that the same was barred by limitation---Validity---Limitation would run from the date of final order but if proceedings were pending before competent forum, then plaintiff could not be non-suited on the ground of limitation---Cancellation order itself was without notice and was tainted with malice, besides discriminatory---Suit filed by plaintiff during pendency of revision before revenue authorities was justified when plaintiff realized that his revision had remained undecided for several years---Lower Appellate Court and High Court on the issue. of limitation had wrongly decided that the suit was time-barred---Since no final order was passed by revenue authorities and the matter was pending before revisional authority; therefore, suit was within time---Cancellation order was without lawful authority and did not attract bar of limitation---Even the excess. land allotted to plaintiff was not cancelled, which had been encroached upon by defendant and other neighbours---Judgments and decrees passed by Lower Appellate Court and High Court were set aside and suit was decreed with cost in favour of plaintiff---Appeal was allowed.

Collector Sahiwal v. Muhammad Akhter 1971 SCMR 681; Rehmat Bibi v. Punnu Khan 1986 SCMR 962; Muhammad Shafi v. Mushtaque Ahmed 1996 SCMR 856; Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39 and Mrs. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232 ref.

Syed Shahanshah Hussain, Advocate Supreme Court and A.Aziz Khan, Advocate-on-Record for Appellants.

M. Shafi Muhammad, Advocate Supreme Court and M.A.S.K.Ghouri, Advocate-on-Record for Respondent No.1.

M. Aqil Awan, Senior Advocate Supreme Court, Ghualm Qadir Jatoi, Advocate-on-Record and Azhar Memon, Administrator, Latifabad for Respondent No.2.

M. Sarwar Khan, Addl. A.G.Sindh (On Court Notice).

Date of hearing: 1st March, 2011.

P L D 2011 Supreme Court 550

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

PROVINCE OF PUNJAB through District Officer (Revenue), District Collector, Kasur---Appellant

Versus

BORDER AREA COMMITTEE through Chairman and others---Respondents

Civil Appeal No.319-L of 2009, decided on 17th March, 2011.

(On appeal from the judgment dated 12-4-2004 of the Lahore High Court, Lahore passed in Writ Petition No.75-R of 2002).

(a) West Pakistan Border Area Regulation, 1959---

----(M.L.R. 9), Para. 13(a)---Allotment of land had been made at a time when there was a complete prohibition against any allotment by the Border Area Committee within the Municipal Committee of the specified area---Allotment of land by the Committee during the said period was in clear violation of the prohibition and thus not only the said allotment was totally without jurisdiction but the entire superstructure built upon the same was also without any lawful foundation.

(b) Constitution of Pakistan---

----Art. 185---Appeal/petition for leave to appeal to Supreme Court---Maintainability---Contention was that where an Intra-Court appeal was competent before a High Court, there a petition or appeal could not be filed by a party to the case before Supreme Court without availing of the remedy of filing such Intra-Court appeal before the High Court---Validity---Held, a window had been kept open by Supreme Court for entertaining a petition or appeal before Supreme Court without insisting upon filing of an Intra-Court appeal before the High Court if the exceptional circumstances of a case so warranted---Issue involved in the present ,case was based upon a rule of practice regulating exercise of discretion, which did not oust or abridge the constitutional jurisdiction of Supreme Court.

Commissioner of Income Tax and others v. Messrs Media Network and others PLD 2006 SC 787 and Chaudhry Muhammad Ilyas Gujjar v. Chief Election Commission of Pakistan and others (Civil Petition No.317 of 2010) fol.

Ch. Muhammad Ashraf, Advocate Supreme Court for Appellant.

Amir Zahoor Chohan, Advocate Supreme Court for Respondent No.1.

Ms. Aaliya Neelum, Advocate Supreme Court for newly impleaded respondents through C.M.A.No.56-L/2010 and legal heirs of Respondent No.2.

Iqbal Mehmood Awan, Advocate Supreme Court and Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Respondent Nos. 3 to 5.

Ghulam Farid Sanotra, Advocate Supreme Court for Applicant.

Date of hearing: 17th March, 2011.

P L D 2011 Supreme Court 554

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Mian Saqib Nisar, JJ

THE STATE and others---Appellants

Versus

ABDUL KHALIQ and others---Respondents

Criminal Appeals Nos.163 to 171 and S.M. Case No.5 of 2005, decided on 21st April, 2011.

(On appeal from the judgment dated 3-3-2005, passed by Lahore High Court, Multan Bench in Criminal Appeal Nos.60, 61, 65, 66, 67, 60, 61, 62, 63 and 60 of 2002 respectively).

Per Mian Saqib Nisar J; Mian Shakirullah Jan, J., agreeing; Nasir­-ul-Mulk, J. differing--

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

----Ss. 10, 11 & 19---Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Constitution of Pakistan, Art.185(3)---Gang rape---Leave to appeal was granted by Supreme Court to consider as to whether the Anti-Terrorism Court had the jurisdiction to try the case; effect of delay in lodging the F.I.R.; whether sole testimony of the victim in rape case was sufficient for the purpose of conviction; whether the marks of injuries on the body of the victim were superfluous to secure conviction; and whether the High Court had passed the judgment on surmises and conjectures in violation of/or ignoring the mandate of law---Supreme Court also suspended the impugned judgment and non-bailable warrants of arrest were issued of all the accused who were acquitted, even those by the Trial Court.

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

---S. 417-Constitution of Pakistan, Art.185---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 11 & 19---Penal Code XLV of 1860), S.149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang rape---Appeal against acquittal---Scope of interference in appeal against acquittal is most narrow and limited---Principles and guidelines to be adhered to by the courts in appeal against acquittal stated.

The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the, findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the courts below. Supreme Court observed that it was expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.

Violating the sanctity and chastity of a woman is a sordid, despicable, squalid act, which is considered abhorrent in any civilized society; any language falls short of vocabulary to condemn such heinous act and cases of this taxonomy must be strictly construed and dealt with. However, at the same time under criminal jurisprudence for the safe administration of criminal justice, the courts are required to follow certain settled principles, such as the innocence of the accused must be presumed, till he is proved to be guilty; sifting "the grain out of the chaff"; the defence may take a number of pleas and even if all are shown to be false, yet it is the duty of the prosecution to prove its case to the hilt; "better that ten guilty persons escape than that one innocent suffer".

These are certain salutary principles of the criminal justice system which should be adhered to by the courts, in letter and spirit and there is no exemption to these rules, even in gang rape cases for otherwise, due to departure therefrom, the innocent person may suffer. However, at the same time the courts should keep in view that in such a class of cases, usually independent ocular evidence is not available, therefore due weight should be attributed to the statement of the victim buttressed by medical evidence, and strong attending circumstances, shall suffice to warrant the conviction.

Bashir Ahmad v. Fida Hussain and 3 others 2010 SCMR 495; Noor Mali Khan v. Mir Shah Jehan and another 2005 PCr.LJ 352; Imtiaz Asad v. Zain-ul-Abidin and another 2005 PCr.LJ 393; Rashid Ahmed v. Muhammad Nawaz and others 2006 SCMR 1152; Barkat Ali v. Shaukat Ali and others 2004 SCMR 249; Mulazim Hussain v. The State and another 2010 PCr.LJ 926; Muhammad Tasweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Farhat Azeem v. Asmat Ullah and 6 others 2008 SCMR 1285; Rehmat Shah and 2 others v. Amir Gul and 3 others 1995 SCMR 139; The State v. Muhammad Sharif and 3 others 1995 SCMR 635; Ayaz Ahmed and another v. Dr. Nazir Ahmed and another 2003 PCr.LJ 1935; Muhammad Aslam v. Muhammad Zafar and 2 others PLD 1992 SC 1: Allah Bakhsh and another v. Ghulam Rasool and 4 others 1999 SCMR 223; Najaf Saleem v. Lady Dr. Tasneem and others 2004 YLR 407; Agha Wazir Abbas and others v. The State and others 2005 SCMR, 1175; Mukhtar Ahmed v. The State 1994 SCMR 2311; Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Khan v. Sajjad and 2 others 2004 SCMR 215; Shafique Ahmad v. Muhammad Ramzan and another 1995 SCMR 855; The State v. Abdul Ghaffar 1996 SCMR 678; Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946; The State v. Muhammad Sharif 1995 SCMR 635; Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others 1998 SCMR 1281; William Black Stone-English Jurist and Supreme Court Greatest Hits by Michael G. Trachiman in his Book ref.

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

----Ss. 10, 11 & 19---Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Criminal Procedure Code (V of 1898), 5.417---Constitution of Pakistan, Art.185---Gang rape--Appeal against acquittal---Reappraisal of evidence---Common intention---Scope and proof ---Names of accused persons did not appear in the F.I.R., in the statements under Ss.161 & 164, Cr.P.C. of the prosecution witnesses except one and even in the statements of the prosecution witnesses in the court; no particular role had been assigned to accused persons in the commission of the alleged offence, except their presence only in the 'Akath' 'Panchayat' which had been alleged by the prosecutrix alone---Accused was the one, who got married whereafter present case was ignited; in this group of the accused; one was the real father of (bridegroom) accused other two were his real paternal uncles and the other one was his maternal uncle; order of the Trial Court showed that they were placed in column No.2 of the challan---Such facts had not been controverted by the complainant's counsel which showed that they had been implicated in the matter, because the complainant side felt annoyed and unhappy on account of the marriage, because till then there was a complete lull, but thereafter everything suddenly sparked visibly and there was an element of vengeance in their involvement, as all the close relatives of the accused were booked in the case; such was not a mere incident or an honest implication---Decision of the Trial Court had been affirmed by the appellate court, however, counsel for the complainant by resorting to the rule of 'common intention' under S.109, P.P.C. had urged that their mere presence in the 'Akhat' 'Panchayat' where the decision of 'Badla' was taken and the object was achieved, was good enough to haul them up in the case---Rule of 'common intention', in the present case, could not be stretched to an extent that any person who was present at the time of the alleged occurrence should be involved in the matter and convicted-In order to constitute and apply 'common intention' rule it was necessary to prove that the intention of each one of the accused was known to the rest of them and accordingly shared---One of the prosecution witnesses had stated that there were about 200/250 persons present at the place of occurrence all of them could not be held responsible for the alleged incident on the basis of the said rule, when no specific role had been assigned or performed by them in furtherance of any alleged common intention; they were not implicated by any prosecution witness at any stage in any manner whatsoever---No evidence was available to the effect that Mastois' 'Akhat' as a whole decided to commit the offence, in fact there were two 'Akhat' of the Baradaris at distinct places and it was not established by any prosecution witness 'that he was present in the mastoi gathering where such an alleged decision was taken and shared by all those present---Village had no electricity no prosecution witness had given the time of occurrence, but even if gathered by joining the scattered pieces of evidence, it was somewhere after midnight; prosecutrix remained outside accused's house for a short while, so she in the darkness could not identify these eight persons by name and parentage---Said accused had acquired a triple presumption of innocence, which could not be dispelled by the complainant's counsel on any score whatsoever---No case had been made out against accused for interference of their acquittal---Appeal against acquittal was dismissed.

Shaukat Ali v. The State PLD 2007 SC 93 ref.

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

----Ss. 10, 11 & 19---Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Criminal Procedure Code (V of 1898), S.417--- Constitution of Pakistan, Art.185---Appeal against acquittal---Gang rape---Common intention---Scope---Supreme Court endeavoured to ascertain veracity of prosecution case regarding the incident on the rules of common sense, ordinary prudence and logic; the choronological order of the incident which erupted from some obscure happening in a sugar field regarding which there was no direct and accurate evidence on the record---Held, that foundational facts Of the case which had a serious reflection on the version of the prosecution, which put together, made the prosecution version implausible, flimsy and uncanny as set forth, and if, on account of inter alit: the recorded facts, the High Court had drawn certain conclusion such as, that complainant side was reluctant to report the matter was influenced by one of the accused persons or that said accused was the mastermind of the entire episode, or the prosecution evidence was not confidence inspiring and the delay in lodging the F.I.R. had not been plausibly explained, such a conclusion could not be unjustified.

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

----Ss. 10, 11 & 19-Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Criminal Procedure Code (V of 1898), S.417---Constitution of Pakistan, Art.185---Appeal against acquittal---Gang rape---Victim a grown up lady, who was divorcee for the last many years---Delay in lodging of F. I. R. ---Inferences---Principles.

Contention of the complainant was that the inferences drawn against the prosecution regarding delay in lodging the F.I.R. was against the settled law, because in cases pertaining to gang rape it was understandable that the victim or her family was/were hesitant to report the matter and in certain cases delay of even up to a month had not been considered fatal to the prosecution. Held, the above was not an absolute or universal rule and the delay in each case has to be explained in a plausible manner and should be assessed by the Court on its own merits; in a case of an unmarried virgin victim of a young age, whose future may get stigmatized, if such a disclosure was made, if some time was taken by the family to ponder over the matter that situation could not be held at par with a grownup lady, who was a divorcee for the last many years; the element of delaying the matter to avoid Badnami may also be not relevant in such case because the incident according to the prosecution's own stance was known to a large number of people and there was no point in keeping it a secret from everyone. If any threats were flung to the complainant side as had been alleged seemed to be an abortive attempt to cover up the delay, otherwise there was no substantial cogent proof that after the incident, in between the 8 days anyone from the accused side threatened and/or harassed the complainant or her family; likewise the reason of fear was also self-assumed. Case seemed to be the one where, the delay was not on account of the facts mentioned by the prosecution, but for some other reasons. View of the High Court that the F.I.R. was registered after due care and deliberation and all the witnesses of the prosecution were called and then they all approached the police, therefore, the delay in the registration of the case was a factor which tilted against the prosecution and suffered from no vice and looked to be a proper perception and conclusion drawn by the Court from the record of the case.

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

----Ss. 161, 162 & 164---Qanun-e-Shahadat (10 of 1984), Arts. 140 & 153---Use of previous statement of witnesses before fact finding inquiry---Scope---Prosecution while confronting a prosecution witness under Art.140 of the Qanun-e-Shahadat, 1984 with his previous statement may use any of his previous statements not necessarily those under Ss.161 & 164, Cr.P.C. without the proof of those at that time---If the witness admits of having made such statement there is no need for the proof, but if it is denied, then though the process of confronting him and recording the inconsistency may be completed by the Court, whereas such material cannot be used against the prosecution, until and unless the confronted statement is subsequently proved by the defence, as any disputed instrument---Statement under S.161, Cr.P.C. should be strictly construed in consonance with S.162, Cr.P.C. and if those are signed by the witnesses, such is an incurable defect and an illegality which vitiates the statement and it shall not be that previous statement which is contemplated by the said provision, available for confrontation in terms of Art.140 of the Qanun-e-Shahadat Order, 1984---Article 140 of the Qanun-e-Shahadat, 1984 in a criminal matter is not totally and conclusively governed and regulated by the provisions of S.162, Cr.P.C.; it may be so, when the statement to be confronted has. been recorded under S.161, Cr.P.C. that the rider of S.162, Cr. P. C. shall apply, but Article 140 of Qanun-e-Shahadat, 1984 being a part of general law of evidence, has its own independent legal efficacy and application and any previous statement of the witness, which may have been made by him in some other judicial, quasi judicial, administrative, executive proceedings or inquiries or before such of the forums or even privately made through some instrument i.e. agreement or an affidavit, can be confronted to him, if relevant, in any criminal case, however, subject to its proof---Such statements can always be used by the defence for impeaching the credibility of a witness under Art.153(3) of the Qanun-e-Shahadat, 1984 as well.

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

----Ss. 164 & 162(2)---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Statement under S.164, Cr.P.C. of a person, who is not produced, cannot be considered as a substantive piece of evidence, but at the same time the criminal court in order to administer safe justice, in consonance and in letter and spirit of S.162(2), Cr.P.C. may use such statement not as evidence, but to aid it; the said statement thus can be looked into, for drawing the presumption under Art.129(g) of Qanun-e-Shahadat, 1984---Court, 'thus, for the purpose(s) of drawing a presumption for withholding the best evidence under the said Article could examine the statement and make up its mind in that context.

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

----Ss. 10, 11 & 19---Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang rape---Sole testimony of prosecutrix---Corroboration---Believing sole testimony of prosecutrix is not an absolute rule---Principles.

It depends upon the facts and circumstances of each case and has to be assessed by the Court on the basis of the entire evidence on the record whether the sole testimony of the victim should be believed or not, particularly in the light of her cross examination, and the other evidence produced by the prosecution; if on account of totality of facts the Court is of the view that such a statement should not be believed and for that good reasons are assigned it cannot be said that any illegality has been committed by the Court in this behalf. Thus, rule of believing, of sole testimony pressed into service shall not apply to each and every case of rape, as a matter of routine and course, because it is not the command of any law/statute, that in deviation of the general principles of jurisprudence, the accused must be put to the test of strict liability and should be asked to prove his innocence because the prosecutrix's version under all circumstances should be taken as correct; the sole testimony view, should be applied with due care and caution in the cases where there is backdrop of grudge, rift and tiff between the parties, as has emerged in the present case. The possibility in such matter cannot be ruled out that the complainant side was trapped.

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

----Ss. 10 & 11---Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Criminal Procedure Code (V of 1898), S. 417---Constitution of Pakistan, Art.185---Gang rape---Appeal against acquittal---Reappraisal of evidence---Rule of believing the sole testimony of prosecutrix---Scope---Failure to get DNA Test---Effect---Absence of injuries and marks on the body of prosecutrix should not be the only factor to disbelieve her version in an ordinary rape case, but where a woman had been forcibly raped for full' one hour, by four young individuals on the bare floor, it was not expected that she should not struggle and in the course would sustain no marks or injury---Such, of course, was not a conclusive proof or disproof of rape and unusual---Omission of DNA and group semen test, which would have been strong supporting evidence to the testimony of the victim, had not been done---Semen in the vagina were available till the date of examination and it was not clear as to what prevented the prosecution to seek the chemical examiner's opinion to confirm, whether the sexual intercourse was by one individual or more; such was especially required it gang rape cases, as it was a matter of life and death of a person and the life of an accused, who might be innocent in a such case and should not be put to danger, only because the prosecutrix had said so, and in any case he should not suffer for the omission of the prosecution---If the rule of the sole testimony of the prosecutrix as sufficient evidence, was accepted, as absolute without any exception thereto, what shall be the outcome of a case, where a lady claims being raped or gang raped, but the medical evidence negates it; it was not in every gang rape case, that the sole testimony should be accepted and relied upon, but each case should be assessed and adjudged on its own facts---DNA and/or group semen test, in the present case was of immense importance which could have scientifically determined as to whether the intercourse with the prosecutrix was committed only by one or by a group of persons---Benefit of such omission should go to the accused, rather the prosecution.

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

----Arts. 132 & 133---Suggestions in cross-examination not necessarily always the defence plea or admission; it could be so taken or assumed if through suggestion any statutory plea was taken.

Per Nasir-ul-Mulk, J (Minority view)--

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

----Ss. 10, 11 & 19---Penal Code (XLV of 1860), S. 149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang rape---Delay in lodging of F.I.R. by victim party---Effect.

Mehboob Ahmad v. The State 1999 SCMR 1102; Muhammad Umar v. The State 1999 PCr.LJ 699; Nasreen v. Fayyas Khan and another PLD 1991 SC 412 and Azhar Iqbal v. The State 1997 PCr.LJ 1500 ref.

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

----Ss. 10, 1l & 19---Penal Code (XLV of 1860), S.149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang rape---Sole testimony of prosecutrix---Corroboration---Scope.

Shehzad v. The State 2002 SCMR 1009; Muhammad Tashfeen v. The State 2006 SCMR 577; Muhammad Abbas v. The State PLD 2003 SC 863; Rana Shahbaz Ahmad v. The State 2002 SCMR 303; Mehboob Ahmad v. The State 1999 SCMR 1102; Haji Ahmad v. The State 1975 SCMR 69; Ghulam Sarwar v. The State PLD 1984 SC 218 and Bhupinder Sharma v. Himachal Pradesh AIR .2003 SC 4684 ref.

Criminal Procedure Code (V of 1898)---

----S. 417---Constitution of Pakistan, Art.185---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 11 & 19---Penal Code (XLV of 1860), 5.149 & S.354-A read with S.109---Anti-Terrorism Act (XXVII of 1997), Ss.10 & 7(c)---Gang rape---Appeal against acquittal---Interference---Scope---Errors calling for interference pointed out.

Ch. Zubair Ahmed Farooq, Addl. P.G. Pb. and Ahmed Raza Gillani, Addl. P.G. Pb. for the State (appellant) (in Cr.As. Nos.163 to 166 of 2005).

Malik Muhammad Saleem, Advocate Supreme Court and Faiz­-ur-Rehman, Advocate-on-Record for Respondents (in Cr.As. Nos. 163 to 166 of 2005).

Aitzaz Ahsan, Senior Advocate Supreme Court and Gohar Ali Khan, Advocate Supreme Court for the Complainant (appellant) (in Cr.As. Nos. 167 to 170 of 2005).

Malik Muhammad Saleem, Advocate Supreme Court and Faiz­-ur-Rehman, Advocate-on-Record for Respondents (in Cr.As. Nos. 167 to 170 of 2005).

Ch. Zubair Ahmed Farooq, Addl. P.G. Pb. and Ahmed Raza Gillani, Addl. P.G. Pb. for the State (in Cr.As. Nos,167 to 170 of 2005).

Malik Muhammad Saleem, Advocate Supreme Court and Faiz­-ur-Rehman, Advocate-on-Record for the Accused (Abdul Khaliq) (in Cr.A. No. 171 of 2005).

Ch. Zubair Ahmed Farooq, Addl. P.G. .Pb. and Ahmed Raza Gillani, Addl. P.G. Pb. for the State (respondent) (in Cr.A. 171 of 2005).

Petitioner (Mukhtar Mai) in person (in S.M. Case No.5 of 2005).

Dates of hearing: 30/11, 1/12/2/12, 7 to 9/12, 14/12 of 2010, 3 to 6/01, 10 to 12/01, 17/01 to 20/01 and.25 to 27/01 of 2011.

P L D 2011 Supreme Court 619

Present: Iftikhar Muhammad Chaudhry, C.J. and Ghulam Rabbani, J

SUO MOTU CASE NO.13 OF 2009: In the matter of

(Action on press clipping from the Daily "Patriot", Islamabad dated 4-7-2009 regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11 Islamabad).

Sup Motu Case No.13 of 2009 and C.M.As. Nos.4204 and 4686 of 2009, decided on 15th March, 2011.

(a) Words and phrases---

----Regulation---Meanings.

The word 'regulation' means a rule or order prescribed for the management of some business or for the government or a company or society. It is a rule, ordinance or law by which conduct etc., is regulated. It implies a rule for a general course of action, but does not apply to a case in which specific, instructions are to be given applicable to that case alone. The term 'regulation' means a rule or order having legal force issued by an administrative agency or a local government.

Advanced Law Lexicon and Black's Law Dictionary ref.

(b) Interpretation of statutes---

----Rules and regulations---Rule-making body cannot frame rules in conflict with, or in derogation of, the substantive provisions of the law or statute, under which the rules are framed---Rules cannot go beyond the scope of the Act---No rule can be made which is inconsistent with the parent statute, whereas, no regulation can be made inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of their inconsistency with. the parent statute or the rules shall be inoperative.

Khawaja Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Province of East Pakistan v. Nur Ahmed PLD 1964 SC 451; Mian Ziauddin v. Punjab Local Government 1985 SCMR 365; Ummatullah v. Province of Sindh PLD 2010 Kar. 236; KBCA v. Hashwani Sales and Services Ltd. PLD 1993 SC 210; Maharashtra State Board of Secondary Education and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth AIR 1984 SC 1543; Kerala Samsthana Chethu v. State of Kerala (2006) 4 SCC 327; Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group 2006 (3) SCALE 1 and Vikramaditya Pandey v. Industrial Tribnal, Lucknow (2001) 2 SCC 423 ref.

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

----S. 12---Islamabad Capital Territory (Zoning) Regulations, 1992, Regln. 4(1)A(iv)---Preparation of schemes---Capital Development Authority could not have extended the scope of section 12 by framing regulation and allowed preparation of schemes by the private organizations even with prior approval of the Federal Government---Such was something not envisaged by the Ordinance and something, not permitted by the statute and could not be allowed to be done by the subordinate legislation.

(d) Islamabad Capital Territory (Zoning) Regulations, 1992---

----Regln. 4(1)A(iv)---Capital Development Authority Ordinance (XXIII of 1960), Ss.12, 2(a)(j) & 13----Preparation of schemes---Exception to clause (iv) of Regulation 4(1)A, Islamabad Capital Territory (Zoning) Regulations, 1992 providing for development of a private scheme falling in the Zone, which was to be developed by the Capital Development Authority, either itself or through an agency of the Federal or a Provincial Government or a local body, in terms of section 12 read with section 2(a) & (j) of the Capital Development Authority Ordinance, 1960 is inconsistent with the Ordinance, and hence inoperative---Such an arrangement was against the primary aim and object of the Ordinance as reflected in its Preamble, viz., "the Capital Development Authority was established for making all arrangements for the planning and development of Islamabad within the framework of a regional development plan", which was further reinforced by section 13 of the Ordinance, which provided that the Authority may, pursuant to the master programme, itself prepare schemes relating to matters enumerated in subsection (2) of section 12 of the Ordinance---Joint Venture Agreement by Capital Development Authority with a private organization for developing scheme was not sustainable.

(e) Constitution of Pakistan---

----Art. 184(3)---Judicial review---Scope---Principles of judicial review cannot be denied in matters in which the Government bodies exercise their contractual powers---Object and test for judicial review in such matters stated.

In matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied. However, in such matters, judicial review is intended to prevent arbitrariness or favouritism and it must be exercised in larger public interest. In maters of judicial review the basic test is to see whether there is any infirmity in the decision making process. Since the power of judicial review is not an appeal from the decision, the court cannot substitute its decision for that of the decision maker. The interference with the decision making' process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides.

The Government bodies are invested with powers to dispense and regulate special services by means of leases, licences, contracts, quotas, etc., where they are expected to act fairly, justly and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner. Transparency lies at the heart of every transaction entered into by, or on behalf of, a public body. To ensure transparency and fairness in contracts, inviting of open bids is a prerequisite. The reservations or restrictions, if any, in that behalf should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which by themselves are reasonable and not discriminatory.

Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489; Tata Cellular v. Union of India (1994) 6 SCC 651 = AIR 1996 SC 11; Raunaq International Ltd. v. I.V.R. Construction Ltd. (1999) 1 SCC 492; Air India Ltd. v, Cochin International Airport Ltd. (2000) 2 SCC 617; Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd. (2007) 8 SCC 1; Air India Ltd. v. Cochin Int., Airport Ltd. AIR 2000 SC 801; Tata Cellular v. Union of India AIR 1996 SC 11=(1994) 6 SCC 651 and Sterling Computers Ltd. v. Messrs M. & N. Publications Ltd. AIR 1996 SC 51 ref.

(f) Constitution of Pakistan ---

----Art.18---Capital Development Authority Ordinance (XXIII of 1960), Ss.12, 2(a)(j) & 13---Islamabad Capital Territory (Zoning) Regulations, 1992, Regln.4(1)A(iv)---Preparation of scheme---Open bid---Three parties had come forward out of which two did not submit the required proposals along with their bids, which depicted their non-seriousness in the matter---Only one party was left in the field, practically there was no competition---Authorities, in such a situation, instead of going for further advertisement of the tender, chose to be content with the one and the only party in the field and thus deprived of the advantages of competitive bidding---Such action of the authorities contravened the provisions of Art.18 of the Constitution and caused a great detriment to the public exchequer as well.

Human Rights Cases No.4668 of 2006 and others PLD 2010 SC 759 ref.

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

----Preamble---Constitution of Pakistan, Art.9---Capital Development Authority, a statutory body, established by law, is mandated not only to make arrangements for the planning and development of the Capital City, but is authorized/compelled to perform functions of a Municipal Committee, inter alia, to promote interests of different sections of the society including taxpayers---Any transaction by the Capital Development Authority which is not transparent, and goes against the interests of the general public, constitutes violation of Article 9 of the Constitution, which guarantees right to life to all persons.

Moulvi Iqbal Haider v. Federation of Pakistan PLD 2006 SC 394 ref.

(h) Constitution of Pakistan---

----Art. 9---Right to life---Concept---Right to life includes right to livelihood, right to acquire, hold, and dispose of property, and right to acquire suitable accommodation, which could not hang on to fancies of individuals in authority, and includes all those aspects of life which go to make a man's life meaningful, complete and worth living---Right to life implies the right to food, water, decent environment, education, medical care and shelter---Fundamental right cannot be snatched away or waived off pursuant to any agreement.

Moulvi Iqbal Haider v. Federation of Pakistan PLD 2006 SC 394 ref.

(i) Islamabad Capital Territory (Zoning) Regulations, 1992---

----Regln. 4(1)A(iv)..-Capital Development Authority Ordinance (XXIII of 1960), Ss.12, 13 & 2(a)(j)---Constitution of Pakistan, Art.184(3)---Suo motu jurisdiction of Supreme Court---Preparation of schemes---Clause (iv) of Regln.4(1)A of Islamabad Capital Territory (Zoning) Regulations, 1992 was inconsistent with Ss.12 and 13 read with S.2(a) & (j) of the Capital Development Authority Ordinance, 1960 and consequently Joint Venture Agreement entered by Capital Development Authority with a private Housing Society under the said provisions was inoperative and ineffective qua the Capital Development Authority---Board of Capital Development Authority was directed by Supreme Court to take over the project in question and complete the same in accordance with the provisions of the. Ordinance; Chairman Capital Development Authority shall ensure implementation of the above direction and submit compliance report within a period of one month from the date of present judgment---Private Housing Society will, however, be at liberty to pursue the remedy for recovery of any amount spent on the project in accordance with law.

ON COURT NOTICE

Khalid Anwar, Senior Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Waqar Ali Khan, Director (Land) for C.D.A.

Zulfiqar Khalid Maluka, Advocate Supreme Court for MPCHS.

Muhammad Akram Sheikh, Senior Advocate Supreme Court: Amicus Curiae.

FOR THE APPLICANTS

M. Ikram Chaudhry, Advocate Supreme Court for Applicants (in C.M.A.No.4204 of 2009).

Dr. Aslam Khaki, Advocate Supreme Court for Applicants (in C.M.A. No.4686 of 2009).

Dates of hearing: 8th to 10th and 14th March, 2011.

P L D 2011 Supreme Court 648

Present: Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

FAQIR HUSSAIN and others---Appellants

Versus

IBRAHIM and others---Respondents

Civil Appeals Nos. 319 and 320 of 2003, decided on 4th April, 2011.

(On appeal from the judgment of the Lahore High Court, Lahore dated 13-7-1999 passed in C.Rs. Nos.118 and 119 of 1991 respectively).

(a) Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)---

---S. 3---Constitution of Pakistan, Art.185(3)---Gift of land by refugee widow who was a limited owner---Leave to appeal was granted to the petitioners (collateral of husband) to consider whether they could be non-suited on the ground of limitation when the cause of action accrued to them on the making of gift of the disputed property in the year 1969, particularly so when they were co-owners of the property after the termination of the limited estate.

(b) Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)---

----Preamble, Ss.2, 3 & 4-Interpretation of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975---Female refugee from India had limited interest in the evacuee property allotted to her in lieu of the estate of her husband in India---Act extends the period prescribed under the general law---Where the period of limitation under general law had already expired at the commencement of the Act, the aggrieved persons were granted another year to seek redressal of their grievance---Principles---Sher Muhammad v. Additional Rehabilitation Commissioner PLD 1968 Lah. 234 and Babu Ali Muhammad v. Mahmood-ul-Hassan PLD 1968 Lah. 329 overruled by Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi and others PLD 1971 SC 791.

The Preamble of 'the Act' expressly declares that it is enacted to give effect to the judgment in Muhammad Shafi's case (PLD 1971 SC 791) wherein it was held that a female refugee from India, who had limited interest in the estate of her husband, cannot become full owner of the evacuee property allotted to her in lieu thereof; that in accordance with the provisions of the Muslim Personal Law (Shairat) Application Act, V of 1962,, such property was to devolve upon the persons entitled to inherit from the last male owner on the respective dates of termination of the limited interest of the female allottee.

Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 was enacted pursuant to the judgment of Supreme Court in Muhammad Shafi's case (PLD 1971 SC 791). Supreme Court had, for the first time, declared and clarified that a female refugee from India had limited interest in the evacuee property allotted to her in lieu of the estate of her husband in India. The Act did nothing more than to give time to those who would benefit from this declaration, being legal heirs of the last male owner. The Act divided the cases into two categories.

The first mentioned in section 2 are those persons, who had through legal recourse claimed their share in the property of the last male owner but failed, perhaps, on account of the law declared by the courts prior to the judgment in Muhammad Shafi's case (PLD 1971 SC 791). Since the earlier view was reversed in Muhammad Shafi's case (PLD 1971 SC 791), further period of one year was provided to the aggrieved persons to move application to have their suits or appeals decided afresh. The second category was f those persons who were aggrieved by any alienation or order of succession made on the basis of female refugee being a full owner, but could not challenge such alienation or succession. They were also given one year to assail the same through legal process.

The express intent of the legislature was to extend the rule in Muhammad Shafi's case (PLD 1971 SC 791) to the persons who would benefit from the principle laid down in the case. This was done in two ways. Those who had questioned the full ownership of the refugee female of the allotted evacuee property and has lost the legal battle, were held entitled to move an application to the relevant court within one year to have the case decided afresh (section 2). Whereas those who had not approached the court at all, were also provided a remedy by taking a legal recourse again within one year of the commencement of the Act. For the proper interpretation of both those sections, they are to be read in the light of the Preamble and accordingly, the principle in Muhammad Shafi's case (PLD 1971 SC 791). The declared intention in the Preamble shows that it is beneficial legislation for the benefit of the aggrieved persons mentioned in the Preamble and the main body of the Act. Being beneficial in nature, the Act, it can add to, and not subtract from, the rights conferred upon the 'aggrieved persons' by the general law. To hold that the plaintiffs' suit was barred by time as it was not instituted within one year of the commencement of the Act, though within the period prescribed by the general law of limitation, would defeat the very object of the Act and violative of the principle in Muhammad Shafi's case (PLD 1971 SC 791). It is significant that whereas section 2 of the Act opens with the non obstante the same have been omitted from section 3. The intention of the legislature thus appears to be not to exclude in the later case the general law of limitation if a suit is filed within the period of limitation prescribed under the Limitation Act. Therefore, the only reasonable interpretation that can be placed upon section 3 of the Act is that it extends the period prescribed under the general law. Thus, where the period of limitation had already expired at the commencement of the Act, the aggrieved person was granted another year to seek redressal of his grievance.

In the present case, collaterals of husband of a widow (refugee from India) had in their respective suit mentioned 7th April, 1969, the date of attestation of mutation by widow in favour of her brothers, as the date on which the cause of action arose to them. Whereas, the Trial Court reckoned the said date for the purpose of running of time limitation, the High Court, in addition to the interpretation placed upon it on section 3 of the Act, held that the time started running against the collaterals on 1-1-1963 when widow's limited ownership was terminated by virtue of' the West Pakistan Muslim Personal Law (Shariat Application) Act, 1962.

In view of the observations made by Supreme Court in Hashmat Ali v. Mst. Jantan's case (1993 SCMR 950), widow held the property since 31-12-1962 as co-owner and co-sharer of the collaterals. The alienation of the property by the gift deed gave cause of action to the collaterals, they questioned the gift within 12 years. Even otherwise, section 4 of the Act does not entitle the transferee of property falling under the Act, to set up a plea of adverse possession. Supreme Court allowed, the appeals, set aside the impugned judgment and decree.

Sher Muhammad v. Additional Rehabilitation Commissioner PLD 1968 Lah. 234 and Babu Ali Muhammad v. Mahmood-ul-Hassan PLD 1968 Lah. 329 overruled by Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi and others PLD 1971 SC 791.

Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi and others PLD 1971 SC 791 fol.

Hashmat Ali v. Mst. Jantan 1993 SCMR 950 and Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellants (in both appeals).

Ch. Khurshid Ahmad, Advocate Supreme Court for Respondents (in both appeals).

Date of hearing: 7th February, 2011.

P L D 2011 Supreme Court 657

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

LAL KHAN through Legal Heirs---Appellants

Versus

MUHAMMAD YOUSAF through Legal Heirs---Respondents

Civil Appeal No.790 of 2007, decided on 29th March, 2011.

(On appeal against the judgment dated 21-5-2001 passed by Lahore High Court, Lahore in RSA No.705 of 1978).

(a) Waiver---

----Concept---Waiver by a party---Determination---Duty of court---Court has to scan the evidence; oral, documentary or circumstantial, as the case may be, to decide whether a party has waived his right by an overt or covert act.

Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim. Waiver therefore, cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.

Waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right.

Waiver, as commonly understood, is an intentional relinquishment of a known right. It may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right.

To decide whether a party had waived his right by any overt or covert act, court has to scan the evidence; oral, documentary or circumstantial, as the case may be.

Manak Lal v. Dr. Prem Chand Singhvi PLD 1957 SC (Ind.) 346; Mademsetty Satyanarayana v. G. Yellogi Rao AIR 1965 SC 1405 and Mustaqim v. Sher Bahadur PLD 1962 (WP) Pesh. 14 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 52---Entries in revenue record---Mutation of inheritance---Scope---Presumption of truth is attached to revenue record in terms of S.52, West Pakistan Land Revenue Act, 1967 which, of course, is rebuttable on a very strong evidence---Notwithstanding the mandate of S.52 of the Act, mutation of inheritance itself does not create title and the person acquiring any title pursuant thereto has to prove that the transferor, of his own volition, transferred the ownership.

Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832; Mazloom Hussain v. Abid Hussain PLD 2008 SC 571 and Nawab Khan v. Said Karim Khan 1997 SCMR 1840 ref.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 10(2) & 19-A---Special Recruitment Grant Rules, R.3, Sched. B---Rule of primogeniture---If evidence led by both the parties (sons of allottee of land) was put in juxtaposition, it lent credence to the claim of the defendant that after the death of their father by way of family settlement, the land was distributed equally between both the heirs; that it was so as per family settlement and that the parties jointly owned and possessed the suit land ever since then---Even if the plaintiff had any right under the rule of primogeniture mandated in R.3 of the Conditions of Special Recruitment Grant, the same stood surrendered by him by his own conduct and family settlement and parties being conscious of the Islamic Law of Inheritance.

Mehr Khan v. Basaee PLD 2008 SC 612 ref.

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

----S. 42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Mutation of inheritance---Limitation---Condonation of delay---Aggrieved person has to pursue his legal remedies with diligence and if a petition or a suit is filed beyond limitation, each day's delay has to be explained---Where vague explanation was given without even specifying the date of knowledge of the impugned mutation, nor any explanation tenable in law was provided to justify condonation, delay condoned was violative of law and was not sustainable.

Muhammad Raz Khan v. Government of N.-W.F.P. PLD 1997 SC 397 and Jamila Khatoon v. Aish Muhammad 2011 SCMR 222 ref.

Syed M. Kaleem Khurshid, Advocate Supreme Court for Appellants.

Ch. Mushtaq Ahmed, Senior Advocate Supreme Court and Sh. Zamir Hussain, Senior Advocate Supreme Court for Respondent No.1.

Respondents No.2: Ex parte.

Date of hearing: 29th March, 2011.

P L D 2011 Supreme Court 671

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Raja Fayyaz Ahmed, Ch. Ijaz Ahmed, Ghulam Rabbani, Sarmad Jalal Osmany, Muhammad Sair Ali, Mahmood Akhtar Shahid Siddiqui and

Jawwad S. Khawaja, JJ

SINDH HIGH COURT BAR ASSOCIATION through Secretary and another---Petitioner

Versus

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

Constitutional Petitions Nos.9 and 8 of 2009, decided on 22nd July, 2009.

(a) Constitution of Pakistan---

----Art. 184(3)---Supreme Court Rules, 1980, O.XXV, R.9---Constitutional petition under Art.184(3) of the Constitution assailing Proclamation of Emergency dated 3-11-2007 by the then President of Pakistan---Notice to person affected---Natural justice, principles of---Applicability---Scope---Where there was likelihood of any adverse decision/action against anyone (General (Rtd.) Parvez Musharraf in the present case), principles of natural justice was to be followed and person concerned was to be provided an opportunity of being heard---Courts would invariably issue notice even in cases where the concerned statute/law was silent in that regard---Where proceedings in the matter were going on for the last 2 or 3 days before the Supreme Court and were being widely publicized in the print and electronic media, anyone interested therein or concerned with the subject of proceedings had an ample notice/knowledge and was at liberty to appear before the court, for or against the subject matter of the proceedings; but on such plane, though a valid one, the requirement of the principles of maxim: audi alteram partem, would not be fulfilled---Supreme Court, therefore, directed the office to issue notice of present proceedings to General (Rtd.) Parvez Musharraf at his residential address in Islamabad, leaving to him to appear before the Supreme Court or otherwise.

Asma Jillani v. Government of the Punjab PLD 1972 SC 139; Malik Feroze Khan Noon v. State PLD 1958 SC 333; Fauji Foundation v. Shamim-ur-Rehman PLD 1983 SC 457 and Amanullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092 distinguished.

(b) Administration of justice---

----Maxim: Audi alteram partem---Applicability---Scope.

Rashid A. Rizvi, Advocate Supreme Court for Petitioner (in C.P. No.9 of 2009).

Muhammad Akram Sheikh, Advocate Supreme Court and Muhammad Ahmed Zaidi, Advocate on Record (absent) for Petitioner C.P.No.8 of 2009).

Hamid Khan, Senior Advocate Supreme Court for Appellant (in C.M.A. No.2199 of 2009).

Sardar Muhammad Latif Khan Khosa, Attorney General for Pakistan, Ch. Akhtar Ali, Advocate-on-Record and Dil Muhammad Alizi, Dy. A.-G. for Respondent No.1 (in C.P.No.9 of 2009).

Shah Khawar, Deputy Attorney General and Ch. Akhtar Ali, Advocate on Record for Respondent (in C.P. No.8 of 2009).

P L D 2011 Supreme Court 674

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, Tariq Parvez, Mian Saqib Nisar, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Amir Hani Muslim and Ghulam Rabbani, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others---Petitioners

Versus

Dr. MUBASHIR HASSAN and others---Respondents

Civil Review Petition No.129/2010 in Const.P.No.76/2007 and Civil Review Petition No.199/2010 in C.M.A.No.2922/2010 in C.R.P. No.129/2010 in Const.P.No.76/2007, decided on 11th April, 2011.

Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.6---Review petition---Substitution of counsel---Scope---Permission to substitute counsel at review stage, that too subject to law, cannot be granted except in unavoidable circumstances.

Muhammad Younas v. State PLD 2005 SC 93; Mukhtar Ahmad v. State PLD 2003 SC 126; Feroze Din v. Sardar Muhammad 2002 SCMR 1993; H. Malik Amanullah v. Khyber Khan 2008 SCMR 1723 and Civil Review Petition No. 46 of 2011 in Constitutional Petition No.10 of 2011 ref.

Kamal Azfar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner (in CRP No.129 of 2010).

Raja Abdul Ghafoor, Advocate-on-Record for Petitioner (in CRP No.199 of 2010).

Wasim Sajjad, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Applicant/Appellant (in C.M.As. Nos.100 and 101 and C.M.Appeal No.14 of 2010).

Abdul Baseer Qureshi Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (absent) for Applicant/appellant (in CMA Nos.246, 247, 248 and 249 of 2010).

Dr. Khalid Ranjha, Senior Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record (absent) for Applicant/Appellant (in C.M. Appeal No.77 of 2010).

Maulvi Anwarul Haq, Attorney General for Pakistan (on Court Notice).

Mehr Khan Malik, Advocate on Record for Respondent No.1 (in CRP No.129 of 2010).

Date of hearing: 11th April, 2010.

P L D 2011 Supreme Court 676

Present: Mian Shakirullah Jan, Mian Saqib Nisar and Amir Hani Muslim, JJ

Dr. MUHAMMAD SHAHID MIAN and another---Petitioners

Versus

FAIZ-UR-REHMAN FAIZI---Respondent

Civil Petitions Nos.1258-L and 1366-L of 2010, decided on 4th March, 2011.

(Against the order dated 18-5-2010 passed by Lahore High Court, Lahore in C.R.No.847 of 2009 and in RFA No.203 of 2004).

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

----O. IX, R.13---Limitation Act (IX of 1908), S.5---Constitution of Pakistan, Art.185(3)---Applications for setting aside of ex parte decree and condonation of delay---'Sufficient cause'---Courts on the basis of proper appraisal of evidence on the record had categorically concluded that 'sufficient cause' had not been proved/established by the petitioners both for the setting aside of the ex parte decree and for the condonation of delay---Reasons given in that behalf were cogent and supported by the record---No error of fact or law was found in the decisions arising out of the proceeding from the applications calling for interference---Petition for leave to appeal was dismissed.

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

----O. IX, R.13---Limitation Act (IX of 1908), S.5---Applications for setting aside of ex parte decree and condonation of delay---'Sufficient cause'---When two simultaneous remedies against an ex parte decree were available and open to a party, and consciously, deliberately and overtly one is availed by abandoning the other, whereafter on account of the failure to achieve the desired result in such availed remedy on the merits, the time spent in pursuing that matter cannot be considered as a 'sufficient cause' for the condonation of delay in the other remedy, such as an appeal---Time spent in the proceedings under Order IX, Rule 13, C.P.C. for the setting aside of the ex parte decree cannot be condoned under S.5 of the Limitation Act, 1908 as the same does not constitute 'sufficient cause' within the purview of the section.

Jotiba Limbaji Kanashenavar v. Ramappa Jotiba Kanashenavar AIR 1938 Bombay 459; Rajendra Nath Kanrar v. Kamal Krishna Kundu Chowdhury AIR 1932 Calcutta 558 and Kunwar Jaqdish Kumar Singh v. L. Harikishen Das (AIR (29)1942 Oudh 362 ref.

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

----O. IX, R.13 & S.96---Limitation Act (IX of 1908), Ss.5 & 14---Applications for setting aside of ex parte decree and condonation of delay---Exclusion of time---Two remedies against an ex parte decree to the aggrieved party, one under S.96 of C.P.C. and the other by application under O.IX, R.13, C.P.C. are concurrent in nature, however time spent in prosecuting the proceedings under O.IX, R.13, C.P.C. can neither be excluded by application of S.14 nor under S.5 of the Limitation Act, 1908.

Shah Muhammad v. Ghulam and another PLD 1970 SC 196 ref.

Izhar-ul-Haq, Advocate Supreme Court for Petitioners.

Ch. Bashir Ahmad, Advocate Supreme Court for Respondents.

P L D 2011 Supreme Court 680

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Mian Shakirullah Jan, Tassaduq Hussain Jillani, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

JUSTICE HASNAT AHMED KHAN and others---Appellants

Versus

FEDERATION OF PAKISTAN/STATE---Respondents

Intra Court Appeals Nos.3, 4, 6 to 8 and 11 of 2011, decided on 18th May, 2011.

(On appeal against the order dated 2-2-2011 passed by a 4 Member Bench of the Supreme Court in Criminal Original Petition No.93 etc.).

(a) Constitution of Pakistan---

----Art. 204---Contempt of court---Disobedience of restraint order passed by seven-Member Bench of Supreme Court dated 3-11-2007 by members of Superior Judiciary by taking oath under Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Judges, whether they were in Supreme Court or in the High Court, who violated the order passed by seven-Member Bench of Supreme Court dated 3-11-2007 had all rendered themselves liable for consequences under the Constitution for their disobedience of said order---Article 204 of the Constitution dealt with the cases where a person had violated an order passed by Supreme Court, therefore, notices under Art.204 of the Constitution read with relevant provisions of contempt of court laws were issued to all those Judges who were appointed between 3-11-2007 and 15-12-2007 and made oath in violation of the said Supreme Court Judgment dated 3-11-2007.

Malik Feroze Khan Noon v. The State PLD 1958 SC 333), Jamal Shah v. Election Commission PLD 1966 SC 1; State of Rajasthan v. Prakash Chand AIR 1998 SC 1344; Hayat Mahomed v. Shaikh Mannu AIR 1927 Cal. 290 and Ramadhin v. Emperor AIR 1927 Oudh 59 distinguished.

(b) Constitution of Pakistan---

----Arts. 243, 244 & 245---Armed Forces---Upholding the Constitution, as per the oath of the members of the Armed Forces, casts a duty upon them that they will not engage themselves in any political activities, whatsoever it may be---Likewise, under Article 245(1) of the Constitution, the Armed Forces of Pakistan are bound to remain under the direction of Federal Government to defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so---Non adherence to the constitutional provisions prima facie tends to establish denying the oath to uphold the Constitution---Superior Courts have no jurisdiction to legitimize unconstitutional acts, actions, omissions and commissions of any functionary who had acted contrary to the constitutional provisions.

Superior Courts had no jurisdiction to legitimize unconstitutional acts, actions, omissions and commissions of any functionary who had acted contrary to the constitutional provisions. Reason behind it has its germane in clause (1) of Article 243 of the Constitution, according to which the Federal Government shall have control and command on the Armed Forces. Clause (1A) of Article 243 provides that without to the generality of the provision of clause (1) the supreme command of the Armed Forces shall vest in the President, whereas, as per clause (3) of the said Article, the President, in consultation with the Prime Minister, enjoys authority for the appointment of (i) the Chairman of Joint Chiefs Staff Committee (ii) the Chief of Army Staff (iii) the Chief of Naval Staff and (iv) the Chief of Air Staff. Similarly, Article 244 of the Constitution speaks that every member of the Armed Forces shall make oath in the form set out in the Third Schedule under the Constitution, according to which a member of Armed Forces solemnly swears that he will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that he will not engage himself in any political activities whatsoever and that he will honestly and faithfully serve Pakistan in the Pakistan Army or Navy or Air Force, as required by and under the law. Upholding the Constitution, as per the oath of the members of the Armed Forces, casts a duty upon them that they will not engage themselves in any political activities, whatsoever it may be. Likewise, under Article 245(1) of the Constitution, the Armed Forces of Pakistan are bound to remain under the direction of Federal Government to defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so. Therefore, non adherence to the constitutional provisions prima facie tends to establish denying the oath to uphold the Constitution.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

(c) Provisional Constitution Order [1 of 2007]---

----Oath of Office (Judges) Order, 2007---Disobedience of restraint order passed by seven-Member Bench of the Supreme Court dated 3-11-2007, by member of Superior Judiciary by taking oath under Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---No legitimacy, validation or indemnity having been granted to the actions of the then Chief of Army Staff during the period from 3-11-2007 to 15-12-2007, consequently the Judges who had taken the oath under Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007 continued to cease to hold their offices---After having taken oath under the Provisional Constitution Order, 2007 which never got validation from the Parliament, they could not take advantage of omissions and commissions done by them in accordance with the principle enshrined in maxim: nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong)---From the date of passing of Eighteenth Constitutional Amendment Act (20-4-2009) said Judges were no more Judges of the High Courts under the Constitution and no immunity was available to them either.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Mian Muhammad Saeed v. The Province of West Pakistan PLD 1964 SC 572; Union of India v. Major General Madan Lal Yadav AIR 1996 SC 1340 (1996) 4 SEC 27; Eureka Firbes Limited v. Allahabad Bank decided on 3 May, 2010; Mian Allah Bakhsh v. Fazal Karim PLD 1969 Quetta 13; Khairpur Textile Mills Ltd. v. Central Board of Revenue PLD 1976 Kar. 164; Muhammad Zargham Eshaq Khan v. University of Engineering and Technology, Lahore PLD 1988 Lah. 191; Zahira Habibullah H. Sheikh v. State of Gujarat (2004) 4 SCC 158; State of Behar v. Kalyanpur Cements Ltd. (2010) 3 SCC 274; Giles v. California, 554 U.S. 353 (2008); Puttick v. Attorney-General and another Reported at: (1980) Fam. 1; Loyal Protective Ins. Co. v. Shoemaker (Oklahoma Supreme Court Decisions) 1936 Ok 491, 63 P.2d 960, 178 Okla. 612; Findon v. Parker 11 M. & W. 680; Daly v. Thompson 10 M. & W. 309 and Richard Shorten v. David Hurst Constructions (2008) NSWSC 546 ref.

(d) Provisional Constitution Order [1 of 2007)---

----Oath of Office (Judges) Order, 2007---All the Judges, who opted to make oath under the dispensation of Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007 accepted that they ceased to hold office the moment the said instruments were promulgated i.e. 3-11-2007---Appointment of said Judges under Provisional Constitution Order, 2007 was not under the Constitution; they deviated not only from their appointments, but also from their oath---Mere making of fresh oath under the Constitution on its revival would make no difference---Marked distinction existed between the oath under the Constitution, and the oath under the Provisional Constitution Order, 2007 or Oath of Office (Judges) Order, 2007, in the former case, one takes oath to perform one's functions in accordance with the provisions of the Constitution whereas in the latter, one commits oneself to abide by the provisions of Provisional Constitution Order, 2007 and the Oath of Office (Judges) Order, 2007 and the orders passed from time to time by the person issuing the said instruments---Said Judges, in presence of oath made under the Constitution accepted oath under Provisional Constitution Order, 2007 and in this way violated their oath under the Constitution in letter and spirit.

(e) Administration of justice---

----Short order by court, in absence of the detailed reasons, has to be considered as an order of the court---Such order, when speaking, i.e. when it contained specific directions, had to be acted upon without waiting for detailed reasons---Short order duly recorded, signed and pronounced in court would be fully operative.

Benazir Bhutto v. President PLD 1998 SC 388; State v. Asif Adil 1997 SCMR 209; Ghulam Hyder Lakho, High Court of Sindh Karachi v. Federation of Pakistan PLD 2000 SC 179; Dr. Agha Ijaz Ali Pathan v. State 2010 SCMR 322; Wafi Associates (Pvt.) Limited v. Farooq Hamid 2010 SCMR 1125; Wisram Das v. SGS Pakistan (Pvt.) Ltd. 2010 SCMR 1234 and Basar v. Zulfiqar Ali 2010 SCMR 1972 ref.

(f) Contempt of Court Ordinance (V of 2003)---

----Ss. 3 & 17---Contempt of court---Kinds---Formulation of a prima facie opinion by Court---Requirements.

Under the scheme of the Contempt of Court Ordinance, 2003, there are three types of contempt of court namely, Civil Contempt, Criminal Contempt and Judicial Contempt. Prima facie, to establish any kind of these contempt proceedings, factual aspect of the case have to be gone into thoroughly. The law makers wisely had not emphasized for definite conclusion on factual aspects before issuing notice of contempt in terms of section 3 of the Contempt of Court Ordinance, 2003. It is always prima facie opinion of the Court, which is to be formulated to ascertain as to whether or not the contempt has been committed. It is to be noted that to formulate a prima facie opinion, the Court is not required to consider all the facts in depth rather it has to satisfy itself whether there exists an arguable case. Reference of section 17 of the Ordinance which relates to the proceedings may not be out of context. According to its subsection (3) if after giving the alleged contemner an opportunity of preliminary hearing the Court is prima facie satisfied that the interest of justice so requires, it shall fix a date for framing of charge in open Court and proceed to decide the matter either on that date, or on a subsequent date or dates, on the basis of affidavits or after recording evidence.

(g) Contempt of Court Ordinance (V of 2003)---

----Preamble---Contempt of Court Ordinance, 2003 was accorded permanence by means of Art.270AA incorporated in the Constitution by Seventeenth Amendment and Eighteenth Amendment of the Constitution has protected the Ordinance.

Suo Motu Case No. 1 of 2007 PLD 2007 SC 688 ref.

(h) Constitution of Pakistan---

----Arts. 204 & 70---Contempt of Court Ordinance (V of 2003), S.19(iii)---Provisional Constitution Order (1 of 2007)---Oath of Office (Judges) Order, 2007---Contempt of Court---Appeal---Disobedience of restraint order passed by seven-Member Bench of the Supreme Court dated 3-11-2007 by appellants/Judges of High Courts by taking oath under Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007---Held, appellants and others constitutionally were not holders of the office as Judges of the High Courts in absence of validation, rectification and legitimization of unconstitutional acts, deeds, omissions and commissions of the then Chief of Army Staff, General Pervez Musharraf (Retd.) whereby he imposed the Martial Law in the name of Emergency on 3-11-2007, which continued up to 15-12-2007 and the appellants because of making oath under PCO, 2007 read with Oath Order, 2007 ceased to hold the offices because the PCO, 2007 and the Oath Order, 2007 had been declared unconstitutional in Sindh High Court Bar Association's case (PLD 2009 SC 679) and by legislative interference in Eighteenth and Nineteenth Constitutional Amendments no validation had been provided to such unconstitutional actions, omissions and commissions---Members of Superior Judiciary were not the ordinary persons, they were supposed to know the consequence of the same, and being responsible to administer justice while adoring the superior courts and also supposed to have all laws written on their sleeves, they could not claim that constitutional deviation by a dictator notwithstanding the judgment of the court could be rectified, legitimized except with the legislative interference by the Parliament, that too, by making amendment in the Constitution, because an ordinary legislation could not serve such purpose as it had its own limitations to promulgate laws in terms of Art.70 of the Constitution---Appellants, shall cease to hold office of the Judges of the High Court with effect from the date of passing of Eighteenth Constitutional Amendment---Secretary Law, Government of Pakistan was directed by Supreme Court to issue necessary notifications that they ceased to hold the office with effect from the said date---Appellants and others shall be entitled for the service and pensionary benefits up to 20-4-2010 when Eighteenth Constitutional Amendment was passed; however, if ultimately they were found to be guilty for the contempt of court by Supreme Court, their cases for effecting the recovery of pensionary benefits in future shall be dealt with accordingly---Appellants and others were not Judges of the High Courts, therefore, they could not claim immunity for holding their trial for contempt of court under Article 204 of the Constitution read with relevant laws.

Malik Feroze Khan Noon v. The State PLD 1958 SC 333; Jamal Shah v. Election Commission PLD 1966 SC 1; State of Rajasthan v. Prakash Chand AIR 1998 SC 1344; Hayat Mahomed v. Shaikh Mannu AIR 1927 Calcutta 290 and Ramadhin v. Emperor AIR 1927 Oudh 59, and distinguished.

Justice (Retd.) Wajihuddin Ahmad v. Chief Election Commissioner PLD 2008 SC 25; Tikka Iqbal Muhammad Khan v. Federation of Pakistan PLD 2008 SC 178; Tikka Iqbal Muhammad Khan v. Federation of Pakistan PLD 2008 SC 615; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483; Harish Chandra v. Justice S. Ali Ahmed AIR 1986 Pat. 65; K.L. Gauba v. Hon'ble the Chief Justice and Judges of the High Court of Judicature at Lahore AIR 1942 FC 1; Mujeebur Rehman Shami v. Judge of High Court PLD 1973 Lah. 778; "Military Incorporated" [p.92, para.2]; Memoirs and Reflections by Dr. Justice Nasim Hasan Shah [p.129]; A Judge Speaks out p.54 by Justice Ajmal Mian Chief Justice Cornelius' book and the Article 'Viewpoint' by Justice Dorab Patel; Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657; Syed Zafar Ali Shah v. Federation of Pakistan PLD 2000 SC 869; Asma Jilani v. Government of Punjab PLD 1972 SC 139; State v. Dosso PLD 1958 SC 533; Mian Muhammad Saeed v. the Province of West Pakistan PLD 1964 SC 572; Union of India v. Major General Madan Lal Yadav AIR 1996 SC 1340 (1996) 4 SEC 127; ; Eureka Firbes Limited v. Allahabad Bank decided on 3 May, 2010; Mian Allah Bakhsh v. Fazal Karim PLD 1969 Quetta 13; Khairpur Textile Mills Ltd. v. Central Board of Revenue PLD 1976 Kar. 164; Muhammad Zargham Eshaq Khan v. University of Engineering and Technology, Lahore PLD 1988 Lah. 191; Zahira Habibullah H. Sheikh v. State of Gujarat (2004) 4 SCC 158; State of Behar v. Kalyanpur Cements Ltd. (2010)3 SCC 274; Giles v. California, 554 U.S. 353 (2008); Puttick v. Attorney-General and another [(1980) Fam. 1], Loyal Protective Ins. Co. V. Shoemaker (Oklahoma Supreme Court Decisions) 1936 Ok 491, 63 P.2d 960, 178 Okla. 612; Findon v. Parker (11 M. & W. 680), Daly v. Thompson 10 M. & W. 309; Richard Shorten v. David Hurst Constructions (2008) NSWSC 546; Benazir Bhutto v. President PLD 1998 SC 388; State v. Asif Adil 1997 SCMR 209; Ghulam Hyder Lakho, High Court of Sindh Karachi v. Federation of Pakistan PLD 2000 SC 179; Dr. Agha Ijaz Ali Pathan v. State 2010 SCMR 322; Wafi Associates (Pvt.) Limited v. Farooq Hamid 2010 SCMR 1125; Wisram Das v. SGS Pakistan (Pvt.) Ltd. 2010 SCMR 1234; Basar v. Zulfiqar Ali 2010 SCMR 1972 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 Appellants (in ICAs Nos. 3 and 4 of 2011).

Syed Raza Kazim, Senior Advocate Supreme Court and G.N.Gohar, Advocate-on-Record (absent) for Appellants (in ICA No.6 of 2011).

Dr. Khalid Ranjha, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in ICA No.7 of 2011).

Sh. Zamir Hussain, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellants: (in ICA No.8 of 2011).

Syed Ali Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record (absent) for Appellants (in ICA No.11 of 2011).

Maulvi Anwar-ul-Haq Attorney General for Pakistan on Court's Notice.

Respondent not represented.

Dates of hearing: 18th and 21st February, 3 and 21 Mach and 4th April, 2011.

P L D 2011 Supreme Court 752

Present: Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja, Khilji Arif Hussain and Tariq Parvez, JJ

FEDERATION OF PAKISTAN through Secretary Ministry of Law---Petitioner

Versus

MUNIR HUSSAIN BHATTI and others---Respondents

Civil Review Petitions Nos. 46 and 47 of 2011 in Constitutional Petitions Nos. 10 & 18 of 2011, decided on 20h April, 2011.

(Against the judgment dated 4-3-2011 passed by this Court in Constitutional Petitions Nos. 10 & 18 of 2011).

(a) Constitution of Pakistan---

----Arts. 175A & 184(3)---Decisions of Committee created under Art.175A of the Constitution---Judicial review---Scope---Constitution of Pakistan is based on a system of checks and balances and Committee created under Art.175A of the Constitution had to have some checks on it consistent with the constitutional scheme---Judicial review of the decisions of the Committee by the court would provide such check and will create the requisite balance.

(b) Constitution of Pakistan---

----Art.175A---Committee created under Art.175A of the Constitution---Status---Committee's name is irrelevant; it is independent of Parliament and cannot be considered its part or be accorded the same status as Parliament.

(c) Constitution of Pakistan---

----Preamble---Constitution has to be read as an organic whole and its Articles and separate clauses cannot be seen in decontexualised isolation.

(d) Constitution of Pakistan---

----Arts. 175A, 184(3) & 189---Decisions of Supreme Court binding on other courts---Scope---Decisions of Committee created under Art.175A of the Constitution are subject to judicial review and that the Judicial Commission and the Committee have defined roles is law enunciated by Supreme Court in terms of Art.189 of the Constitution---Whether the Committee has performed its role or has remained within its domain while making the decisions in the circumstances of given cases is not precedent except to the extent a future case may arise which is indistinguishable on facts, from the said cases---Whatever is peculiar and specific to the facts and circumstances of the present case, by definition cannot be a principle of law enunciated by Supreme Court.

(e) Constitution of Pakistan---

----Art. 175A---Committee created under Art.175A of the Constitution---Scope of Committee's role elaborated.

The Committee has and can exercise the powers which under the earlier dispensation were exercisable by the Prime Minister. Role which the Prime Minister and President were performing in the previous legal set up ... is now logically to be performed by the Committee. Therefore, if the Prime Minister's role in the previous appointment mechanism was not considered to be meaningless the Committee, charged with performing the same role, can be considered redundant. The Committee is only an "institutionalized forum" for performing the functions which were previously the domain and province of the Prime Minister.

Though the Commission and the Committee perform essentially the same functions as the Chief Justice and the Prime Minister in the previous dispensation, it would be a mistake to imagine these constitutional bodies as simply substitutes for the Chief Justice of Pakistan and the Prime Minister respectively. The base of decision-making has been substantially broadened. Thus now the Commission, has members of the Bar and the governing Executive involved in the decision-making process along with seven members of the Judiciary who did not have a constitutional role in the previous dispensation. This provides capacity to the Commission which enables it to have information about, and consider what in the jurisprudence are referred to as 'antecedents', of a potential nominee for judicial office. This should not be taken to mean that the Committee's role in considering the antecedents of such nominee stands eliminated. The Committee may also examine the antecedents of a nominee and form an opinion as to his suitability for judicial office. Such opinion, however, must conform to standards which pass judicial scrutiny because the decisions of the Committee are subject to judicial review.

There may, therefore, be an overlap of functions of the Commission and the Committee in, for instance, assessing and evaluating the antecedents of a nominee for judicial office. But this overlap does not eliminate the role of the Committee or make it redundant. It simply requires the Committee to engage in a conscious and rigorous exercise of its own which will ensure that a person who has dubious antecedents is filtered out in the selection and appointment process. It is precisely this function which has been emphasised on behalf of the Federation in the synopsis of arguments wherein it has been said, inter alia, that the Committee may "be concerned in calling for intelligence reports which was the function of the Governor under the old system".

However, if the Committee, as in the present cases, does not engage in any exercise at all other than picking up an observation of one member of the Commission and chooses to base its decision on it without more, it will have fallen in error. The Committee has to perform its role in a meaningful way and with the application of mind which will withstand judicial scrutiny in accordance with recognized standards. The appointment of Judges is too serious a matter to be dealt with in such casual fashion. The requirement of Article 175A is that the Committee shall give "its decision with reasons" in the event it does not confirm a nomination made by the Commission.

Therefore, if in future the Committee decides to subordinate itself to the opinion of one member of the Commission, it must, under accepted norms of judicial scrutiny, give its own reasons for making this choice. Without such reasons which are capable of withstanding judicial scrutiny, the opinion of the Committee can only be termed as unreasoned and arbitrary. Jurisprudence as a rule strikes down arbitrary and unreasoned exercise of discretionary power, particularly when the law requires that reasons be given by the decision maker for such exercise of power.

The Committee does not have, untrammelled powers to choose, without sound reasons, the unconsidered views of one member of the Commission out of thirteen, while discarding the considered views of all thirteen members together or of the remaining twelve members. The decisions of the Committee must meet the usual and well recognized standards of objectivity and application of mind, amongst other standards.

Allowing the Committee to pick and choose between the views of members of the Commission would amount to unwarranted slippage into the territory, which Article 175A has endeavoured to avoid.

Giving weightage to the views of one member of the Commission, apart from being questionable on the said ground, will also have the effect of negating the principle of collegiate decision-making introduced in the Constitution by Article 175A. This would emasculate the Commission, reducing its power to selection of nominees only, but otherwise, in matters of actual appointment, it would be rendered subordinate to the Committee.

Committee only has to adhere to established standards in arriving at its decisions to ensure that such decisions withstand judicial scrutiny.

Cardozo, B.J. Adherence to Precedent (1921) New Haven: Yale University Press ref.

(f) Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Scope---New issues are not entertainable at the review stage.

(g) Constitution of Pakistan---

----Art.184(3)---Powers of Supreme Court under Art.184(3)---Scope---Art.184(3) of the Constitution has expressly empowered Supreme Court to exercise the powers vested in a High Court under Art.199, subject to the two-fold rider that the matter should be one of public importance and should relate to the enforcement of fundamental rights.

K.K. Agha, Additional Attorney General for Pakistan and M.S.Khattak, Advocate-on-Record for Petitioner.

Makhdoom Ali Khan, Senior Advocate Supreme Court, Faisal H. Naqvi, Advocate Supreme Court, Arshad Ali Ch., Advocate on Record assisted by Saad Hashmi Advocate for Respondent (in CRP No.46 of 2011).

Abid S. Zuberi, Advocate Supreme Court, Arshad Ali Ch. Advocate on Record assisted by M. Munir Khan, Advocate (in CRP No.47 of 2011).

Date of hearing: 20th April, 2011.

P L D 2011 Supreme Court 778

Present: Mian Shakirullah Jan and Mian Saqib Nisar, JJ

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Commissioner---Appellant

Versus

FIRST CAPITAL SECURITIES CORPORATION LIMITED and another---Respondents

Civil Appeal No. 946 of 2005, decided on 2nd May, 2011.

(On appeal from the judgment dated 2-6-2005 passed by Lahore High Court, Lahore in Commercial Appeal No. 12 of 2004).

Companies Ordinance (XLVII of 1984)---

----S. 224---Trading by directors, officers and principal shareholders---Interpretation, object and scope of application of S.224, Companies Ordinance, 1984---To adopt a literal interpretation of S.224 would render the section unconstitutional, and in order to protect the section and bring the same within the framework of constitutionally prescribed parameters, the interpretation of words should be determined in terms of legislative intent---Word 'vest' occurring in S.224 of the Companies Ordinance, 1984---Meaning---Word 'vest' per se does not confer an absolute title on Securities and Exchange Commission of Pakistan---Gains will remain under all circumstances the property of the company and Securities and Exchange Commission of Pakistan has no right or entitlement thereto---Principles.

Section 224, Companies Ordinance, 1984 applies to certain specified categories of persons, namely, a director, chief executive, managing agent, chief accountant, secretary or auditor of a listed company or a person who, is directly or indirectly, the beneficial owner of not less than 10% of the shares of a listed company. The section is triggered off by the sale or purchase of any shares of the company in question within a period of less than 6 months by a designated person (the "shareholder"), and, in the event of such a sale or purchase taking place, the shareholder is obligated to tender the amount of gain, if any, made by him to the company under intimation to the Registrar and the Securities and Exchange Commission of Pakistan. In the event of a failure to discharge the aforementioned legal obligation taking place, or, even if the company in question fails to recover the amount of the gain within the specified periods, the gain is to vest in the SECP and the failure to deposit such gain with it may lead to action for recovery as arrears of land revenue. The Explanation to the section extends the beneficial ownership of shares to the shareholder, or his spouse or any of his dependent lineal ascendants or descendants of any partnership firm or private company in which he has an interest. A proviso to subsection (1) excludes the application thereof only in relation to securities acquired in good faith in satisfaction of a debt previously contacted.

The contention of SECP, in the present case, was that it acquires an absolute right and title to the gain. In the facts of the case admittedly a substantial gain accrued and was initially not tendered or paid to the company prior to the cut off date. After SECP, by means of its letter accused the beneficial owner of a violation of the law the amount was belatedly deposited not with SECP, but with the company, with the total delay being of the order of 20 months. The contention of SECP was that the amount in question had accrued to it and the company was not entitled to retain the same. Prime reliance was placed on the meaning of the word "vest" which was construed by it to mean that the title in the said amount had vested absolutely in SECP.

The word' "vest" is variable in meaning and its interpretation is contextually dependent.

Held, SECP's contention that the use of the word vest per se conferred an absolute title on it is erroneous. The question will have to be answered with reference to the context in which the word is used in the section. Any word, in isolation, has a wide range of disparate meanings. It is the combination of words reflected by the syntax of a sentence that confers logical coherence and meaning to it.

The section unfortunately reflects a poor quality of legislative drafting. For example, the list of persons hit by it includes the managing agent of a company. Now the concept of a managing agent, as is well-known, was contained in the Companies Act, 1913. It was defined in section 2(9) as meaning a person, firm or company entitled to the management of the whole affairs of a company by virtue of an agreement with the company. Thereafter by means of the Companies (Managing Agency and Election of Directors) Order, 1972 (PO No.2 of 1972) the concept of managing agency was repealed. It is, therefore, somewhat surprising to note that the legislature as late as the year 1984 is proceeding on the assumption that the managing agency system still exists and hence the language of section 224.

Apart from the above error, there is a more substantial question which arises in relation to the interpretation of section 224. What was the objective underlying this section? No direct answer to this is provided by the language used in it. It merely states that in the event of a person falling within any of the categories mentioned therein making a profit in relation to a sale and purchase within a period of less than 6 months failing to tender the said profit within the prescribed time limit to the said company, or the company failing to recover it from the said person, the quantum of the gain is to vest in the SECP. But why? What is the justification for such a provision? What objective, rooted or based in public policy, is sought to be achieved thereby?

Although no direct answer is contained in this section, an answer can reasonably be inferred. It is clear that this section proceeds on the tacit assumption that the person in question was privy to inside information and, taking advantage of the same, obtained a gain to which accordingly, he was morally not entitled and thus was required it to surrender it to the company. In other words, there is a presumption, which is tacit, to the effect that the person has done something which is unjust or inequitable, or in violation of his duties and obligations to the company as a person falling within any one of the prohibited categories, and thus should be compelled to surrender his gains to the company. Obviously, it would have been better if this presumption had been made explicit and not tacit but, accepting that the presumed legislative intent was the above, court can proceed further with the analysis.

To adopt a literal interpretation of section 224 would also be liable to render it unconstitutional, and in order to protect the section and bring it within the framework of constitutionally prescribed parameters, the interpretation of the words should be determined in terms of the legislative intent.

Insofar as tie question .that there may have been collusion or fraud between the company and the shareholder who purchased or sold its shares within the prohibited timeframe is concerned, the section itself provides a mechanism' for punishing the guilty person. This is contained in subsection (4) thereof which provides that whoever has knowingly or wilfully contravened any of the provisions of the said section (or the associated sections 222 and 223) is liable to a fine which may extend to Rs.30,000 and in the case of a continuing contravention to a further fine for every day for which the contravention, non-compliance or default continues. This is more than ample in order to punish any person who may have been guilty. The gains will remain under all circumstances the property of the company and SECP has no right or entitlement thereto. This is in line with the general principle that the State can only require the property of its citizens by following a constitutionally mandated procedure. The State has no inherent power to confiscate property - if it does so it must pay compensation. It is only entitled to acquire property by way of taxation because the Constitution expressly permits this. No law can be passed authorizing the police to take over the ownership of stolen property which it has recovered merely because the owner has acted in an improper manner. The thief can be punished by the imposition of a fine or otherwise but the ownership of the stolen property will always be that of the rightful owner.

Since the penal provision is stringent in nature it should be applied in an appropriate manner. In applying such a provision SECP should always bear in mind the importance of determining not merely a technical contravention but a substantial finding of guilt in relation to the person on whom the fine or penalty is being levied. It is not sufficient either in the case of this law, or any other law, merely on the basis of a technical contravention to arbitrarily impose a fine of either the full amount or 50% or 75% or any other arbitrarily chosen figure. A condign punishment is the requirement of law and equity.

1987 SCMR 1197; New Oxford Dictionary (1998 Edition), page 2056 and KP Varghese v. Income Tax Officer (1981) 131 ITR 597 ref.

Aftab Ahmed Khan, Advocate Supreme Court for Appellant.

Imtiaz Rashid Siddiqui, Advocate Supreme Court for Respondents.

Date of hearing: 29th April, 2010.

P L D 2011 Supreme Court 796

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

FAQIR MUHAMMAD and another---Appellants

Versus

THE STATE-Respondent

Criminal Appeal No.110-L of 2010, decided on 19th May, 2011.

(On appeal from the judgment dated 23-6-2010 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.613 of 2004 and Criminal Revision No.364 of 2004).

Penal Code (XLV of 1860)---

---Ss. 324/334/337-L/(1)/337-L(2)/l48/149---Criminal Procedure Code (V of 1898), S.342---Qatl-e-amd, Itlaf-i-udw, other hurts and rioting---Reappraisal of evidence---Defence version---Accused was convicted by Trial Court and was sentenced to five years---Validity---Inculpatory part of accused person's statement could be utilized by the Court only where prosecution had succeeded in establishing its case and defence piled to establish specific plea taken by it---Entire case of prosecution was disbelieved by High Court and even statement of accused recorded under S.342, Cr.P.C. wherein he advanced the plea of grave and sudden provocation had been discarded for want of any supportive evidence---Inculpatory part of the statement of accused recorded under S.342, Cr.P.C. could not be utilized for recording or upholding convictions and sentences to accused---Supreme Court set aside the conviction and sentences awarded to accused by the Courts below and he was acquitted of the charge--Appeal was allowed.

Waqar Ahmad v. Shaukat Ali and others 2006- SCMR 1139 and Sultan Khan v. Sher Khan and others PLD 1991 SC 520 rel.

Aftab Ahmad Bajwa, Advocate Supreme Court for Appellants.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab with Muhammad Umar, a bother of the complainant for the State.

Date of hearing: 19th May, 2011.

P L D 2011 Supreme Court 799

Present: Iftikhar Muhammad Chaudhry, C. J., Javed Iqbal, Nasir-ul-Mulk, Tariq Parvez

and Arnir Hani Muslim, JJ

SUO MOTU CASE NO.10 OF 2011: In the matter of:

[Brutal Killing of a Youngman by Rangers]

(Suo Motu action regarding brutal killing of a young man by Rangers in Karachi).

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

---Ss. 7 & 5(2)(i)---Constitution of Pakistan, Arts,184(3) & 9---Suo motu notice by Supreme Court---Pursuant to incident of murder of a person at the hands of Sindh Rangers, video clips were shown by most of the prominent television channels, same had been watched in the Supreme Court, which prima facie established that about 5/6 persons in uniform initially caught hold of the person (deceased) from his hair and thereafter one of them opened fire, due to which the said person sustained injuries and fell down, crying for his life, begging them that he should be removed to the hospital---None of the Police and Rangers officials present on the spot helped the deceased (then injured) as a result whereof he succumbed to injuries in their presence---Manner, in which the death of deceased had occurred, clearly indicated barbarism because once he had been overpowered, as it was evident from the video clips, he was not to be fired upon in any case and at the best the Rangers personnel could have handed him over to the police, if there was an allegation of his being involved in the commission of sonic offence, but Rangers had no authority to open fire upon him under S.5(2)(i) of the Anti-Terrorism Act, 1997---State under the Constitution was responsible to provide protection and safety to the life of all citizens, but in the present incident facts were other way round i.e. negation of Art.9 of the Constitution---Present was a classical case of highhandedness of the law enforcing agencies---Senior functionaries of both the agencies instead of feeling sense of responsibility and showing uprightness and honesty, were concealing the facts while appearing before the court---Supreme Court in circumstances, apprehended that the investigation of the case would .not be conducted properly and impartially, in presence of said functionaries, as such through the Attorney-General for Pakistan, it was directed by the Supreme Court that said functionaries should be posted out within a period of three days and in the meantime some alternate arrangements should be made---Meanwhile Deputy Inspector-General of Police was directed to take over the charge of the investigation against all the culprits and complete the same within a period of seven days, by applying all appropriate provisions of law as the matter seemed to attract prima facie S.7 of the Anti-Terrorism Act, 1997 and send up challan before the court of competent jurisdiction and submit progress report of his investigation to the Registrar of Supreme Court for court's perusal in chambers---Court seized of the matter shall decide the case by conducting trial on day to day basis, by not taking more than 30 days, without being influenced in any manner from the present proceedings of the Supreme Court.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

Maulvi Anwar-ul-Haq, Attorney-General for Pakistan, Shafi Ahmed Memon, Additional Advocate-General Sindh, Qamar Zaman Chaudhry, Secretary Interior, Abdul Subhan Memon, Chief Secretary, Government of Sindh, Fayyaz Ahmed Leghari, Provincial Police Officer Sindh, Muhammad Ejaz Chaudhry, Director General, Pak. Rangers, Muhammad Riaz-ud-Din, Acting Home Secretary Sindh and Anwar Subhani, Acting AIG (Legal) (on Court Notice).

Date of hearing: 10th June, 2011.

P L D 2011 Supreme Court 805

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Amir Hani Muslim, JJ

INDEPENDENT MUSIC GROUP SMC (PVT.) LTD and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition No.683 of 2011, decided on 6th June, 2011.

(On appeal from the judgment/order dated 18-5-2011 passed by Sindh High Court, Karachi in CP.D-1743-of 2009).

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

----Ss. 19 & 22---Pakistan Electronic Media Regulatory Authority Rules, 2002, R.6---Constitution of Pakistan, Arts. 4 & 185(3)---Petitioners, in the present case, applied for issuance of licence to establish and operate satellite T. V. Broadcast Channel Station under R.6 of Pakistan Electronic Media Regulatory Authority Rules, 2002 for a period of 15 years i.e. period permissible to avail such licence---Said application remained pending and the Authority failed to decide the same within the period of 100 days as required under S.22 of the Ordinance and after passing of a considerable period, the Authority refused to grant licence due to "Security Clearance" not given by the Ministry of Interior---High Court under its constitutional jurisdiction, keeping in view the fact that petitioners had already suffered for a period of about four years, instead of remanding the case, might have issued a writ in the nature of mandamus---Authority was under obligation, both legally and morally, to issue licence to the petitioners because the reasons which prevailed upon the Authority for refusing to issue licence i.e. "Security Clearance" had not been accepted by the High Court in the impugned judgment---Petitioners, who on the basis of their application waited for a period more than 100 days, during which their application had not been rejected, had acquired a right that they should be dealt with in accordance with law as envisaged under Art.4 of the Constitution---Any excuse (now) made by the Authority was not acceptable for the reasons that earlier when rejection order was passed, no such demand was put forward calling upon the petitioners to fulfil the same or remove the objection, if any---Supreme Court observed that authorities who were required to discharge their functions under statutory provisions, kept the matter lingering on without any legal or constitutional justification---Supreme Court, in circumstances, converted the petition for leave to appeal into appeal and allowed the same with direction to the Authority to issue immediately licence to the petitioners, in terms of their application, which they had submitted on 2-7-2007 and submit compliance report to the Supreme Court within period of three days.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

M. Ali Raza, Advocate Supreme Court and Abdul Jabbar, Acting Chairman, PEMRA for Respondent No.2.

Nemo for Respondent No.1.

Date of hearing: 6th June, 2011.

P L D 2011 Supreme Court 811

Present: Javed Iqbal, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

AL-JEHAD TRUST and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.29 of 2011, decided on 21st June, 2011.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 7 & 34---Constitution of Pakistan, Art.184(3)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution calling in question the present state of affairs of the National Accountability Bureau with reference to exercise of some powers and performance of some functions of the Chairman, National Accountability Bureau by the Deputy Chairman, National Accountability Bureau at a time when there was no Chairman holding his office---Petitioner had assailed the legality or otherwise of the order passed by the then Chairman, National Accountability Bureau in respect of delegation of some of the powers of the Chairman to Deputy Chairman and continued exercise of such delegated powers by said Deputy Chairman despite a vacancy in the office of the Chairman---Question for consideration was whether Deputy Chairman of the National Accountability Bureau could continue to exercise the delegated powers of the Chairman, National Accountability Bureau when the delegator himself was not on the scene any more---Held, under the law of contract a delegation came to an end when the delegator vanished from the scene and an agent lost his authority to act on behalf of his principal when such principal was removed from the picture---Applicability of principles relevant to a contractual delegation was inapt in the present case because delegation of powers involved was a statutory delegation which, in an appropriate case, could survive a vacancy in the office of the delegator---If such a statutory delegation during a vacancy in the office of the delegator could be stretched to a period which was unduly protracted and indefinite and which created an irresistible impression that those responsible for filling the vacancy in the office of the delegator were not interested in filling that vacancy and were contented with running the affairs of the concerned institution or department through the delegate himself, then such an exercise may amount to committing a fraud with or upon the relevant statute---If in the garb of a statutory delegation of some of his powers by a Chairman, National Accountability Bureau in favour of a Deputy Chairman of the Bureau, the Deputy Chairman was permitted to keep on exercising the powers of the Chairman for a protracted and indefinite period of time while the office of the Chairman remained, or was deliberately kept, vacant for months, such clothing of the Deputy Chairman, who was otherwise not qualified to be appointed as Chairman, with a valid authority of Chairman would, virtually and practically, amount to permitting him to act as the Chairman during such period---When office of the Chairman, National Accountability Bureau was vacant, there could not be an Acting Chairman as what could not be achieved directly under the law could not be permitted or allowed to be achieved indirectly---Supreme Court in circumstances, directed the Federal Government to fill the vacant offices of the Chairman, National Accountability Bureau and the Prosecutor-General Accountability within one month of announcement of present judgment positively, failing which present Deputy Chairman shall ipso facto and without further ado stand denuded of his authority to continue exercising the delegated powers of the Chairman, National Accountability Bureau and performing any other function not conferred upon him by the National Accountability Ordinance, 1999---If in such an eventuality the National Accountability Bureau practically ceases to exist or function under the National Accountability Ordinance, 1999 then the blame for the same shall rest squarely upon the shoulders of the Federal Government.

Malik Asad Ali v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs, Government of Pakistan Islamabad and 2 others 1998 SCMR 122 and Zulfiqar Ali Bhutto v. The State PLD 1978 SC 40 distinguished.

The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd and others PLD 2010 SC 1109, Syed Ihsanullah Waqas v. The Federation of Pakistan and others C.M.A. No.11 of 2005 in C.P. No.Nil of 2005 and C.M.A. No.2227 of 2005 in C.M.A. No.11 of 2005; Public Interest Litigation authored by Dr. B.L. Wadehra (2nd Edn. Published by Universal Law Publishing Co. Pvt. Ltd., India) and Shahid Orakzai and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and another PLD 2011 SC 365 ref.

(b) Constitution of Pakistan---

----Arts. 184(3) & 5(2)---Constitutional petition before Supreme Court under Art.184(3) of the Constitution---Obedience to Constitution and law---Under Art.5(2) of the Constitution obedience to the Constitution and law is "inviolable obligation" and, thus, the authority of the Supreme Court to direct taking of proper administrative and legislative steps needed under the Constitution would necessarily include the authority to direct taking of such steps where needed under the law.

Al-Jehad Trust and others v. Federation of Pakistan and others 1999 SCMR 1379 ref.

(c) Contract---

----Contractual delegation---Applicability---Scope---Delegation cones to an end when the delegator vanishes from the scene and an agent looses his authority to act on behalf of his principal when such principal is removed from the picture.

Habibul Wahab Alkhairi, Advocate Supreme Court for Petitioners.

Maulvi Anwarul Haq, Attorney-General for Pakistan for Federation of Pakistan.

Wasim Sajjad, Senior Advocate Supreme Court with Fawzi Zafar, Additional Prosecutor-General, National Accountability Bureau with Syed Safdar Hussain, Advocate-on-Record for Respondents No. 3 and 5.

Nemo for Respondents Nos. 2, 4 and 6 to 8.

Date of hearing: 1st June, 2011.

P L D 2011 Supreme Court 821

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Amir Hani Muslim. JJ

SUO MOTU CASE NO. 18 OF 2010: In the matter of

Violation of Public Procurement Rules, 2004

(Suo Motu Action regarding violation of Public Procurement Rules, 2004 in procurement loss of billions of rupees to exchequer caused by National Insurance Company Ltd.)

Contempt of Court Ordinance (V of 2003)---

----S. 17(1)---Commencement of contempt proceedings---Investigation of a financial scam had been started and an official of FIA was supervising the investigation successfully when he was abruptly transferred and posted elsewhere---Supreme Court ordered to the Secretary Interior, Government of Pakistani to look into the matter as the investigation of Me case which the said official was supervising pertained to plundering of huge public money---As a corollary of order of the Supreme Court, a notification dated 24-1-2011 was issued by the Government of Pakistan notifying the said official to supervise the investigation of the scant until further orders---Another notification dated 18-4-2011, withdrawing the earlier notification dated 24-1-2011, was issued, prima facie, on the basis of the letter of Director-General FIA, in order to create a ground for disassociating the said official from supervision of investigation---Director General FIA, Secretary. Interior, Secretary Establishment and Principal Secretary to the Prime Minister, prima facie, had joined hands together to create obstacle in smooth and honest investigation in the case in defiance of orders of the Supreme Court---Notification dated 18-4-2011 had been issued in violation of the provisions of Rules of Business; (1973) read with Secretariat Instructions, and the Letters and actions of Director General, FIA, Secretary, Ministry of Interior, Secretary Establishment Division and Principal Secretary to the Prime Minister, were instrumental in wilful defiance of orders of Supreme Court, and all of them, ex facie, were responsible in interfering and obstructing the investigation process in tine said terms---Supreme Court observed that in order to meet the ends of justice, it was necessary to issue notices under S.17(1) of . the Contempt of Court Ordinance, 2003 to the Secretary, Ministry of Interior, Secretary, Establishment Division and Principal Secretary to the Prime Minister, for wilful defiance of the orders of the Supreme Court, by withdrawing the notification dated 24-1-2011 by notification dated 18-4-2011 and had hampered the smooth investigation in the case involving huge amount of public money---Matter was ordered to be fixed in court on the next date---Judgment reserved th the case of Director General, FIA would be announced after hearing the other three officials---Order accordingly.

Maulvi Anwar-ul-Haq, A.G.P. (On Court notice).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Mian Gul Hassan Aurangzeb, Advocate Supreme Court, Mehr Khan Malik; Advocate-on-Record with Malik Muhammad Iqbal F.I.A. for alleged Contemnor.

Qamar Zaman Ch. Secretary for Ministry of Interior.

Abdul Rauf Ch. Secretary for Establishment Division.

Date of hearing: 8th June, 2011.

P L D 2011 Supreme Court 829

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

Mst. ASIA BIBI---Appellant

Versus

Dr. ASIF ALI KHAN and others---Respondents

Civil Appeal No.952 of 2010, decided on 21st April, 2011.

(On appeal from the judgment dated 25-8-2010 of the Peshawar High Court, Abbottabad Bench passed in Regular First Appeal No.85 of 2010).

Benami transaction---

----Relevant factors for determination of benami transaction are source of consideration; who exercised custody over the original title deed and other relevant documents at the time they were introduced as evidence in court; who undertook the consideration of the property in question who was in point of fact enjoying qua possession over the suit property and motive for benami transaction.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

Abdul Latif Khan, Advocate Supreme Court for Respondent No.1.

Respondent No.2 (in person).

M. Munir Paracha, Advocate Supreme Court for Respondents Nos. 3 to 6.

Date of hearing: 21st April, 2011.

P L D 2011 Supreme Court 835

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Ghulam Rabbani, JJ

Civil Petition for Leave to Appeal No.796 of 2007 & C.M.As. Nos.4560 & 4561/2009 & C.M.A. 116 of 2011

Maulana ABDUL HAQ BALOCH and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Industries and Mineral Development and others---Respondents

(On appeal against the judgment dated 26-6-2007 passed by the High Court of Balochistan in Writ Petition No.892 of 2006)

Crl. Misc. Application No.8 of 2011 in C.P.L.A. 796/2007

EHSANULLAH WAQAS MPA PUNJAB---Applicant

Versus

TETHYAN COPPER CO. and others---Respondents Constitution Petition No.68 of 2010

MUHAMMAD TARIQ ASAD, ADVOCATE SUPREME COURT---Petitioner

Versus

FEDERAL GOVERNMENT though Federal Secretary, M/O Petroleum and Natural Resources, Islamabad and others---Respondents

Constitution Petition No.69 of 2010 & Criminal

Original Petition No.1 of 2011

WATAN PARTY and another---Petitioners

Versus

FEDERATION OF PAKISTAN---Respondents

Constitution Petition No.1 of 2011

Qazi SIRAJUDDIN SANJRANI and another---Petitioners

Versus

FEDERAL GOVERNMENT though Secretary Cabinet Division, Islamabad and others---Respondents

Constitution Petition No.4 of 2011

Senator MUHAMMAD AZAM KHAN SWATI and others---Petitioners

Versus

FEDERAL GOVERNMENT through Secretary M/o Petroleum and Natural Resources, Islamabad and others-Respondents

Human Rights Case No.53771-P of 2010

[Application by Kh. Ahmed Tariq Rahim, ASC]

Civil Petition for Leave to Appeal No.796 of 2007 & C.M.A. No.4560 & 4561 of 2009 & C.M.A. 116 of 2011; Cr.Misc. Application No.8 of 2011 in C.P.L.A. 796. of 2007; C.Ps. Nos. 68, 69 of 2010 and Criminal Original Petition No.1 and C.Ps. No. 1, 4 of 2011, Human Rights Case No.53771-P of 2010 and C.M.As.3680, 3687 of 2010, 151, 215, 324 and 414 of 2011, decided on 25th May, 2011.

Balochistan Mineral Rules, 2002---

----Right to exploration and lease of the copper/gold mines etc. in the Province of Balochistan---Joint venture agreement for exploration between Balochistan Development Authority (on the approval of the Government of Balochistan) and the company---Feasibility study Report and entitlement of the company to the mining lease---Supreme Court observed that it will not be proper for the Court to inquire into the said Report or to rule upon the entitlement of the company to mining lease because under the governing law and Balochistan Mineral Rules, 2002 matter in question fell exclusively within the domain of the Government of Balochistan and the Government was also seized of the Feasibility Report as well as the application of the company---Government of Balochistan being the competent authority in the matter, should in due discharge of its obligation, make a decision on the application of the company impartially, objectively and in accordance with law and thus accept its legal responsibility thereof---Supreme Court, in circumstances, declined to preempt the decision of the Government of Balochistan by entering into the merits of the case, at present stage, and restraining order dated 3-2-2011 by the Supreme Court was recalled with directions that competent authority in the Government of Balochistan shall proceed to expeditiously decide the application of the company for grant of mining lease transparently and fairly in accordance with the law and the Rules---Government of Balochistan, in so doing, shall not be influenced in any manner whatsoever by the pendency of present proceedings or by the orders thereon passed by the Supreme Court---Advocate-General of Balochistan shall inform the Registrar of Supreme Court upon decision of the matter by the Government of Balochistan forthwith.

Raza Kazim, Senior Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Petitioners (in C.P. No.796 of 2007).

Tariq Asad, Advocate' Supreme Court in person (in Const.P. No.68 of 2010).

Barrister Zafarullah Khan, Advocate Supreme Court in person (in Const. P.69 of 2010).

Nemo for Petitioners (in Const. P.1 of 2011).

Tariq Asad, Advocate Supreme Court, Qari Abdul Rashid Advocate Supreme Court and Syed Zafar Abbas Naqvi, Advocate-on-Record for Petitioners (in Const.P.4 of 2011).

Azhar Khan, Abdul Qadir and M. Iqbal, Directors for M/o Petroleum.

Amanullah Kanrani, A.G. (Blo), Ahmer Bilal Soofi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Government of Balochistan.

Hadi Shakeel Ahmed, Advocate Supreme Court for Balochistan Development Authority.

Nerno for Respondent No.6 (in Const.P.68 of 2010).

Raja Muqsit Nawaz Khan, Advocate Supreme Court for Respondent No.7 (in Const.P.1 of 2011).

Khalid Anwar, Senior Advocate Supreme Court for Respondent No.4: (TCC) (in Const.P.1 of 2011).

C.P. No.796 of 2007

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Respondent No.4.

Barrister Sajid Zahid, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents Nos, 5 & 7.

Khalid Anwar, Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Respondent No.6.

Sikander Bashir Mohmand, Advocate Supreme Court for Respondent No.8.

Arshad Ali Chaudhry, AOR for BHP Min. Expl. Islamamad.

Nemo for State Bank of Pakistan.

Malik Shakeelur Rehman, Advocate Supreme Court and Syed Zafar Abbas Naqvi, Advocate-on-Record for Applicant (in C.M.As. Nos. 3680 & 3687 of 2010 and 151 of 2011).

M. Ikram Chaudhry, Advocate Supreme Court for Applicant (in C.M.A. 215 of 2011).

Nemo for Applicant (in C.M.A. 324 of 2011).

Saleem Khan, Advocate Supreme Court for Applicant (in C.M.A. 414 of 2011).

Date of hearing: 25th May, 2011.

P L D 2011 Supreme Court 842

Present: Mahmood Akhtar Shahid Siddiqui, Tariq Parvez and Mian Saqib Nisar, JJ

FEDERAL LAND COMMISSION through Chairman---Appellant

Versus

Rais HABIB AHMED and others---Respondents

Civil Appeals Nos.770 to 772 of 2004, decided on 3rd June, 2011.

(On appeal from the judgment dated 30-1-2002 of the Lahore High Court, Lahore passed in Writ Petitions Nos.11884, 11885 and 11886 of 1995 respectively).

(a) Land Reforms Act (II of 1977)---

----S. 25---Notification No.2(112)92-G-II, dated 8-3-1995---Constitution of Pakistan, Art 185(3)---Abatement of pending proceedings---Power of Federal Government under S.25, Land Reforms Act, 1977 to issue notification---Scope---Leave to appeal was granted by Supreme Court to consider, the pleas, primarily, whether the Federal Government was vested with the power under S.25 of the Act to issue Notification No.2(112)92-G-II, dated 8-3-1995 which was illegally set aside by the High Court; the application of two judgments of Supreme Court in Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 and Chief Land Commissioner, Punjab and others v. Chief Administrator of Auqaf, Punjab and others PLD 1998 SC 132 to the present case, upon which reliance was placed by the High Court in passing the impugned judgment and also to consider the contentions raised by the respondents' Counsel inter alia, the scope of S.25 of the Act and whether it could be resorted to after 18 years

Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 and Chief Land Commissioner, Punjab and others v. Chief Administrator of Auqaf, Punjab and others PLD 1998 SC 132 ref.

(b) Abatement---

----Connotation---Creation of vested right in favour of the party, who would benefit due to the abatement---Where the legislature in its wisdom had made the course of abatement conditional, or subject to any limitations or where it was provided to save, resurrect or exclude any category of proceedings from the realm thereof, the abatement shall not take effect otherwise than, as strictly prescribed by the law.

The expression 'Abatement' has variable meanings however in relation to the legal proceedings, certainly it connotes to put an end to, to do away with, to nullify, to make void; conveying a complete and absolute termination of the proceedings, thus if the provisions of law relating to abatement are unambiguous, unqualified, definite and unrestricted, in that, where directly or indirectly no exception thereto is caused or attached, the abatement shall be ipso jure. i.e. by the law itself; by the operation of law itself, and shall be fully accomplished without further recourse to any action or the step being taken and the proceedings shall be done away with automatically. A statutory right, obviously 'vested' in nature, is created in favour of the party, who would benefit due to the abatement. But where the legislature in its wisdom has made the course of abatement conditional, or subject to any limitations or where it is provided to save, resurrect or exclude any category of proceedings from the realm thereof, the abatement shall not take effect otherwise than, as strictly prescribed by the law.

(c) Land Reforms Act (II of 1977)---

----S. 25---Interpretation of S.25, Land Reforms Act, 1977---Abatement of pending proceedings---Scope---Section 25, in its first part was ordained and structured on the principle of ipso jure, thus all the pending proceedings on the enforcement of Land Reforms Act, 1977 shall as per force thereof extinguished, however the second part syntactic with word "unless" contained an inbuilt exception to the above rule, inasmuch as, it empowered the Federal Government to keep alive and/or resurrect or save a case(s) from the fetters of abatement---Word "unless" appearing in S.25---Connotation---For all intents and purposes the said expression should be construed as an exception in the nature of a 'proviso' to the first part, otherwise the second part of the section shall be rendered nugatory and redundant, which vice could not be imputed while interpreting the Act of the Parliament.

Provision of section 25 of the Land Reforms Act, 1977 can be divided into two parts, the first is ordained and structured on the principle of ipso jure, thus all the pending proceedings on the enforcement of the Act shall as per force thereof extinguish, however, the second part syntactic with the word. "unless" contains an inbuilt exception to the above rule, inasmuch as, it empowers the Federal Government to keep alive and/or resurrect or save a case(s) from the fetters of abatement. The word "unless" appearing in the section, thus is of quite importance and has to be given a purposive meaning, which has been defined in the Black's Law Dictionary to connote "if it be not that, if it be not the case that; if not; supposing not; if it be not; except. A reservation or option to change one's mind provided a certain event happens, a conditional promise" . In Stroud Judicial Dictionary, it is defined as " 'except' and probably of the like value as 'except'. Therefore, for all intents and purposes the said expression should be construed as an exception in the nature of a 'proviso' to the first part, otherwise the second part of the section shall be rendered nugatory and redundant, which vice cannot be imputed while interpreting the Act of the Parliament.

Black's Law Dictionary and Stroud Judicial Dictionary ref.

(d) Land Reforms Act (II of 1977)---

----S. 25---Abatement of pending proceedings---Power enabling the Federal Government to issue notification was neither prior to the Act nor simultaneous therefor, because the syntax of expression "directs otherwise" appearing in S.25 was not in relation to the past or present, but after the law had taken effect---Principles.

(e) Land Reforms Act (II of 1977)---

----S. 25---Abatement of pending proceedings---No specific time constraint was set out in S.25 in which the power to issues notification by the Federal Government was to be exercised---Equitable principle of "reasonable time "---Applicability---Scope---If the object of law envisaged that the act/function could be performed at any point of time, the rule should not be resorted to, but if it was otherwise, the principle of "reasonable time" should be applied to meet the ends of justice---Principles.

(f) Land Reforms Act (II of 1977)---

----Preamble---Object of Land Reforms Act, 1977 elucidated.

(g) Land Reforms Act (II of 1977)---

----S. 25---Abatement of pending proceedings---Power of Federal Government---Scope---Legislature intended to abate all the pending cases with an immediate effect, but created a narrow exception enabling the federal government to save, resurrect etc. certain case(s) from the abatement by strictly and squarely following the object for which the abatement was enforced and not otherwise---While doing so the government could not be overwhelmed by its caprice, whim and subjective selection, having choice of inexhaustible and endless time; rather could only exercise the power within a reasonable time, as where no time limitation is provided by any statute for certain action which has the effect of impairing and pulverizing the vested right of a person, the court was empowered to invoke and impose the above rule for the carrying out such an action---Government was not invested with unbridled and absolute power to pick and choose any case at any point of time, without assigning any reason, or for invalid reasons, whereas such power was encompassed by and subject to the principles of, 'past and closed transaction', how, when and to what an extent a 'vested right' could be effected or obliterated; and of course the rule 'reasonable time'.

(h) Land Reforms Act (II of 1977)---

----S. 25---Notification No.2(112)92-G-II, dated 8-3-1995---Abatement of pending proceedings---Exercise of power conferred upon the Federal Government under S.25, Land Reforms Act, 1977 for issuing notification for saving the cases from the abatement---Reasonable time---Principles.

(i) Land Reforms Act (II of 1977)--

----S. 25---Notification No.2(112)92-G-II, dated 8-3-1995---Abatement of pending proceedings---Issuance of notification by Federal Government under S.25, Land Reforms' Act, 1977---Assigning reasons for exercise of such power---Necessity---Federal Government could not ' act arbitrarily, capriciously and in a mechanical manner, rather was required under the law to assign justiciable reasons, amenable to the power of judicial review of the superior courts---Non-giving the reasons would render the notification untenable in the eyes of law.

(j) Land Reforms Act (II of 1977)---

----S. 25---Notification No.2(112)92-G-II, dated 8-3-1995---Abatement of pending proceedings---Where the provisions of S.25, Land Reforms Act, 1977, were not validly invoked by the Federal Government while issuing the notification, said notification and also the notice were rightly set aside by High Court.

Hafiz S.A. Rehman, 'Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in all appeals).

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondent No.1 (in C.A.770 of 2004); for Respondents Nos. 1-3 (in C.A.771 of 2004) and for Respondents Nos. 1 and 2 (in C.A.No.772 of 2004).

Nemo for Respondent No.2 (in C.A. 770 of 2004), For Respondent No.4 (in C.A. 771 of 2004) and For Respondent No.3 (in C.A. No.772 of 2004).

Date of hearing: 24th March, 2011.

P L D 2011 Supreme Court 854

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Amir Hani Muslim, JJ

Constitution of Petition No.62 of 2010

MARVI MEMON---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

AND

Suo MOTU CASE NO.17 OF 2010

(Action taken on letter sent by Mr. Fakhruddin G. Ebrahim and Jan Muhammad Khan Jamali regarding Unauthorised Diversion of Flood Water)

AND

HUMAN RIGHTS CASE NO.52220-P OF 2010

(Application by Ghazanfar Ali Khan)

AND

HUMAN RIGHTS CASE NO.57247-A OF 2010

(Application by Malik Kausar Abbas, Advocate)

AND

HUMAN RIGHTS CASE NO.69622-S OF 2010

(Application by Dr. Abdul Ghaffar Rind)

Constitution Petition No.62 of 2010, Suo Motu Case No.17 of 2010, Human Rights Cases Nos.52220-P, 57247-A and 69622-S of 2010, decided on 7th June, 2011.

(a) Constitution of Pakistan---

----Arts. 9, 14 & 184(3)---Public interest litigation---Security of person---Inviolability of dignity of man etc.---Due to flood devastation in the country, the rights of the affectees/victims guaranteed by Art.14 of the Constitution had been violated and their dignity was compromised---Government was to protect their lives and properties and also decrease their miseries, which they had suffered during the flood---Though on account of the natural disaster the citizens in all the four Provinces suffered dreadfully due to which neither their lives nor the property were safe but at the same time the Executives could not be excluded from their liabilities to extend the fundamental rights of life and liberty to them, for the reasons mentioned in the findings as well as recommendations of the Commission constituted by Supreme Court---Government was directed to ensure payment of balance of remaining amount, which was approximately Rs.80,000 per family for rebuilding and repair of their houses, as early as possible.

Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

(b) Constitution of Pakistan---

----Art. 5---Obedience to the Constitution and law is inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan---Denial of fundamental rights to downtrodden class having become common phenomenon, therefore, the officers representing the respective governments were bound to fulfil their commitments under the Constitution by protecting the fundamental rights of such like persons.

Shehla Zia v. WAPDA PLD 1994 SC 693; Syed Masroor Ahsan v. Ardeshir Cowasjee PLD 1988 SC 823, Sardar Farooq Ahmed Leghari v. Federation of Pakistan PLD 1999 SC 57; Behar Legal Support Society v. Chief Justice of India AIR 1986 SC 38 = [(1986) 4 SCC 767] and State of Himachal Pradesh v. Student's Parent Medical College Simla AIR 1985 SC 910 ref.

(c) Constitution of Pakistan---

----Art. 184(3)---Public interest litigation---Unprecedented flood devastation in the country---Supreme Court to ensure enforcement of the fundamental rights of victims and providing relief to those who suffered the calamity.

(d) Constitution of Pakistan---

----Art. 184(3)---Constitutional petitions before Supreme Court under Art.184(3) of the Constitution---Public interest litigation---Unprecedented flood devastation when citizens of the country suffered huge losses against their lives and properties---Supreme Court constituted a Commission and the Commission,. after hearing all the parties and on the basis of oral and documentary evidence, related information in public domain and its interaction with the affectees, submitted report (findings, concluding remarks and recommendations)---Supreme Court endorsed, accepted said findings, concluding remarks and recommendations and made the same part of the present judgment with declaration that same will have binding effect on all concerned and sundry and directed Federal and Provincial Governments through Secretary Cabinet and Secretary Interior Division as well as Chief Secretaries of all the Provinces to implement the findings and recommendations of the report of the Commission in letter and spirit; that the report so prepared by the Commission shall be supplied, both soft and hard copies, to all concerned immediately; that the Secretary Information of Federal and Provincial Governments were to ensure publication of the findings and recommendations of the Commission and the present order widely in print media as well as in electronic media in all the Provinces and Islamabad Capital territory in national and local languages and that compliance report for perusal of the court in Chambers shall be sent fortnightly by the Chief Secretaries.

Ms. Marvi Memon (In person). On Court Notice:

Dil Muhammad Alizai, D.A.-G., Khalid Ismail Abbasi, D.A.-G., M.S. Khattak, Advocate-on-Record for Federation.

Tahir Aqbal, Addl.. P.G. for Government of Balochistan.

Syed Arshad Hussain Shah, Addl. A.G. for Government of KPK.

Ch. Kadim Hussain Qasier, Addl. A.G. for Government of Punjab.

Raja Abdul Ghafoor, Advocate-on-Record on behalf of A.G. Sindh for Government of Sindh.

Date of hearing: 7th June, 2011.

P L D 2011 Supreme Court 905

Present: Tariq Parvez, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

MUHAMMAD ASHRAF BUTT and others---Appellants

Versus

MUHAMMAD ASIF BHATTI and others---Respondents

Civil Appeal No.1180 of 2007, decided on 13th July, 2011.

(On appeal from the judgment dated 26-3-2007 passed by Lahore High Court, Lahore in W.P.No.17614 of 2005).

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

----S. 52---Rule of lis pendens---Virtual and true object---Transferee of the suit property, even the purchaser for value, without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchaser, in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound---Transferee, therefore, does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest---Rule of lis pendens shall also be duly attracted and applicable during the period of limitation provided for an appeal or revision etc. to challenge a decree/order-If therefore an alienation of a suit property has been made by a party to the lis, who succeeds at one stage (such as trial), but the transfer is during the period of limitation available to the other (unsuccessful) party, to challenge that decision and ultimately the decree/order is over turned in its further challenge, such alienation made shall also be hit and shall be subject to the rule of lis pendens---Principles.

In the present case, from the contents of the pleading of the case, the plaint and the written statement it emanates that the dispute in effect is between two private parties, relating to the title of a property, which at the time of institution of the suit was a private property in nature, notwithstanding the fact that at an earlier point of time it was treated as an evacuee property and was accordingly transferred by way of auction. Therefore, in the context' of auction purchasers locus standi to file an application under section 12(2), C.P.C. the proposition, in the case is germane to the scope and application of section 52 of the Transfer of Property Act, 1882.

Section 52, Transfer of Property Act, 1882 manifestly embodies the rule of lis pendens, which is available both in equity and at the common law. The rule and the section is founded upon the maxim "pendente lite nihil innovetur", which means that pending litigation, nothing should be changed or introduced. The virtual and true object of lis pendens is to protect and safeguard the parties to the suit and their rights and interest in the immovable suit proper against any alienation made by either of the parties, of that property, during the pendency of the suit in favour of a third person. The rule unambiguously prescribes that the rights of the party to the suit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value, without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchaser, in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest. The rule of lis pendens is founded upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienations pendente lite are permitted to prevail and the subsequent transferee is allowed to set out his own independent case, even of being the bona fide transferee against the succeeding party of the matter and ask for the commencement of de nova proceedings so as to defeat the claim which has been settled by a final judicial verdict. The foundation of the doctrine is not rested upon notice, actual or constructive, it only rests on necessity and expediency, that is, the necessity of final adjudication that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated.

The doctrine of "lis pendens" is that one who purchases from party pending suit a part or the whole of the subject-flatter involved in the litigation takes it subject to the final disposition of the cause and is bound by the decision that may be entered against the party from whom he derived title.

The doctrine of lis pendens is that real property, when it has been put in litigation by a suit in equity, in which it is specifically described, will, if the suit is prosecuted with vigilance, be bound by the final decree, notwithstanding, any intermediate alienation; and one who intermediates with property in litigation does so at his peril, and is as conclusively bound by the results of the litigation, whatever they may be, as if he had been a party from the outset.

The rule of lis pendens lays down that whoever purchases a property during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derived his title (to the immovable property, the right to which is directly and specifically in question in the suit or proceeding) even though such a purchaser was not a party to the action or had no notice of the pending litigation.

The intention of the doctrine is to invest the Court with complete control over alienations in the res which is pendente lite and thus to render its judgment binding upon the alienees, as if they were parties, notwithstanding the hardship in individual cases.

Ordinarily, it is true, that the decree of a court binds only the parties and their prives in representation of estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title where there is a real and fair purchase, without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise alienations made during a suit might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim, pendents lite, nihil innovetur; the effect of which is not to annul the 'conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as it never had any existence; and it does not vary them.

However, the application of section 52, Transfer of Property Act, 1882 and the doctrine is circumscribed by certain conditions; (1) the suit must be relating to a specific immovable property in which any rights of the parties are directly and specifically in question (2) the suit should be pending at the time when the alienation in favour of the third person has been made (3) neither the suit itself nor the outcome thereof must be collusive, fraudulent and/or is meant to entrap, deceive, and defraud an innocent transferee specially a bona fide purchaser.

As per the clear wording of the Explanation to the section 52, Transfer of Property Act, 1882 when read as a whole, and especially by construing the expression "the suit or proceeding has been disposed of by a final decree or order" it undoubtedly means, that final verdict, which is given in an appeal or revision at the final level of the judicial hierarchy, which verdict has attained conclusiveness. Therefore, the rule of lis pendens shall also be duly attracted and applicable during the period of limitation provided for an appeal or revision etc. to challenge a decree/order.

If therefore an alienation of a suit property has been made by a party to the lis, who succeeds at one stage (such as trial), but the transfer is during the period of limitation available to the other (unsuccessful) party, to challenge that decision and ultimately the decree/order is over turned in its further challenge, such alienation made shall also be hit and shall be subject to the rule of lis pendens.

K, in the present case had sold the property to Y prior to the institution of the suit, therefore; if the latter was not impleaded as a party, and had made any transfer even during the pedency of the suit, such alienation would not have attracted lis pendens as being not a party thereto, but when the afore-named was arrayed as a defendant, from that point of time he shall for the purposes of section 52 be the party to the suit, and thus for all considerations thereof was the predecessor in interest of the appellants, notwithstanding the fact that Y who himself had purchased the property from him during the pendency of the suit was made a party to the suit or not. It is in this scenario that lis pendens shall be duly attracted and the bona fide purchasers shall have no locus standi to tile application under section 12(2), C.P.C. challenging the decree on account of any lapse in the impleadment of the defendants, and thus there was no question for the recording of the evidence on this issue. In any case, the bona fide purchasers would not acquire any independent right to challenge the said decree even on the score of being the bona tide purchaser, because the provisions of section 52 are not subservient to section 41 of the Transfer of Property Act, 1882 or section 27(b) of the Specific Relief Act, 1877 or the general - equitable concept of bona fide purchaser, rather section 52, Transfer of Property Act, 1882 and the rule of lis pendens is an exception to the above provisions/concept. And the bona tide purchasers could only sustain in their claim to challenge the decree on the basis of the three conditions of section 52 mentioned above.

Messrs Aman Enterprises v. Messrs Rahim Industries Ltd. and another PLD 1993 SC 292; Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003 and West Virginia Pulp and Paper Co. v. Cooper, 106 S.E.55, 60, 87 W.Va.781 rel.

Tilton v. Cofield, 93 U.S. 168, 23 L.Ed.858; Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal AIR 1959 Punj 490 and Story's Enquity Jurisprudence Vol. I, S.406 quoted.

(b) Constitution of Pakistan---

----Arts. 199 & 4---Constitutional jurisdiction of High Court---Scope---Equal protection of law---If a revisional Court has passed an order which does not qualify the test of Article 4 of the Constitution and suffer from a patent error, of fact, such as non-' reading/misreading of the facts on the record or has committed a grave illegality in applying the correct law, such as the error of misapplication and non-application of correct law, thus being an illegality of sheer nature can always be rectified by the High Court while exercising its constitutional jurisdiction under Art.199, as no bar/limitation in this behalf on the exercise of constitutional jurisdiction of the High Court either emanates from the plain reading of Article 199 or can be read into it.

Abdul Karim Kundi, Advocate Supreme Court for Appellants No.1 and 2.

Tariq Mehmood, Senior Advocate Supreme Court for Appellant No.3.

Gul Zarin Kiyani, Senior Advocate Supreme Court along with Respondent No.1 in person for Respondents Nos.1 to 4.

Date of hearing: 12th May, 2011.

P L D 2011 Supreme Court 916

Present: Iftikhar Muhammad Chaudhry, C. J., Tariq Parvez and Amir Hani Muslim, JJ

Syed HASSAN MEHDI and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Review Petition No.62-L of 2007 and C.M. Appeal No.116 of 2007 in C.M.A. Nil of 2007 in C.P. No.1468-L of 2007 and C.M. Application No.3178 of 2008, decided on 14th July, 2011.

(a) Constitution of Pakistan---

----Arts. 185 & 199---Principle of finality attaching to the decisions of the High Court and the Supreme Court-Scope-Where the matter is decided by High Court or the apex Court, the same cannot be brought before the civil court for re-opening---When main controversy was competently brought before the High Court in its Constitutional Jurisdiction, after its decision thereon, it was open to the parties to challenge the same in accordance with law governing the question of finality of the High Court decision, namely through review or appeal---Filing of suit, instead, was an attempt to bypass the normal legal course by resort to a remedy which was not available under any law or principle.

Abdul Majid v. Abdul Ghafoor Khan PLD 1982 SC 146 and Asif Jan Siddiqi v. Government of Sindh PLD 1983 SC 46 fol.

Muhammad Sharif v Inayat Ullah 1996 SCMR 145; P.I.D.C. v. Pakistan PLD 1984 Kar. 1; Habibullah. Khan v. Muhammad Ishaq PLD 1966 SC 505 and Barkat Ali v. M.S. Zaman PLD 1968 Lah. 770 distinguished.

C.I.T. v. Wheed-uz-Zaman PLD 1965 SC 171 and Dirvas v. State of UP (AIR 1961 SC 1457 ref.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)--

----S. 25---Jurisdiction of civil court was barred under S.25, Displaced Persons (Compensation and Rehabilitation) Act, 1958---Ouster of jurisdiction however, was not absolute and a civil suit may, in certain circumstances, be filed, but the same would depend upon the facts and circumstances of each case.

(c) Constitution of Pakistan---

----Arts. 204, 188 & 185(3)---Contempt of Court Ordinance (V of 2003), Ss.3 & 4---Review of Supreme Court judgment---Contempt of Court---Once the order was finally accepted and conceded to, it was very difficult to re-agitate the same matter ordinarily before any forum in respect of the cause of action which was the subject-matter initially before the Revenue Authorities and finally before the Supreme Court---Supreme Court, while dismissing the civil petition for leave to appeal, had rightly directed to initiate action of contempt of court against all concerned responsible for making an attempt to sit in appeal over the judgment passed by the High Court--Petition for review of Supreme Court judgment was dismissed.

Mahmoob Azhar Sheikh, Advocate Supreme, Court for Petitioners.

A.K. Dogar, Senior Advocate Supreme Court for alleged Contemners in (C.M.A.2652 of 2008).

Saeed-u-Rehman Farrukh, Senior Advocate Supreme Court for Applicants in (CMA 2472/L of 2007).

Raja Abdul Ghafoor, Advocate-on-Record (absent) for Appellant in (CM Appeal 116 of 2007).

Syed Zafar Abbas Naqvi, Advocate-on-Record (absent) for Appellants in (CM Appeal No.3178 of 2008).

Ch. Khadim Hussain Qasider, Addl. A.G. for the Government of Punjab.

Dates of hearing: 21st and 22nd June, 2011.

P L D 2011 Supreme Court 927

Present: Iftikhar Muhammad Chaudhry, C J., Tariq Parvez and Amir Hani Muslim, JJ

SUO MOTU CASE NO. 18 OF 2010: In the matter of

(Violation of Public Procurement Rules, 2004)

(Suo Motu Action regarding violation of Public Procurement Rules, 2004 in procurement loss of billions of rupees of exchequer caused by National Insurance Company Ltd.).

(a) Constitution of Pakistan---

----Art. 184(3)---Judicial review of administrative action---Scope---Civil service---Investigation of a financial scam by civil servant, who had obeyed the Supreme Court, order and stood for the role of law despite threats etc., advanced to hive by the political figures and had shown his commitment to discharge his duties strictly in accordance with law had been suspended for no other reasons except to make the order of Supreme Court ineffective whereby the Investigation Agency was directed to cooperate with investigation team headed by the said civil servant but' instead the team members were transferred---Competent authority has been vested with the discretion to pass administrative order but such discretion has to be exercised in accordance with law---In the present case, there were certain allegations against the civil servant (who was heading the /investigation team) and a show-cause notice was issued which was replied by him, on the basis of material, without considering the reply filed by civil servant, the person who called for his explanation was not empowered for the same under Government Servants (Efficiency and Discipline) Rules, 1973 being in grade 21--Admittedly such notice for explanation of the civil servant was not issued under R.6, Government Servants (Efficiency and Discipline) Rules, 1973 for misconduct rather the same was issued to get his response about the allegations---Record showed that the order of suspension of said civil servant was issued by the person who was not competent as the verbal orders were obtained from the competent authority, later on, confirmed by the Principal Secretary to the Prime Minister (competent authority)---No incriminating material, admittedly was produced except a letter and even without considering the fact that whether reply was given or not---Held, Supreme Court, ordinarily does not intervene in the functioning of the Executive, but the court has been empowered, while exercising the powers of judicial/review, to examine the administrative orders as well---Principles.

(b) Constitution of Pakistan---

---Art. 184 & 199---Judicial review of discretion and exercise of administrative or executive powers---Scope and principles.

Where a procedure has been provided for doing a thing in a particular manner that thing should be done in that manner and in no other way or it should not be done at all; indeed it impliedly prohibits doing of thing in any other manlier; the compliance for such thing in no way could be either ignored or dispensed with.

In absence of any material available on record the competent authority has exercised the discretion. There are certain norms for exercise of discretion. The discretionary powers of the executive have to be exercised judicially and in reasonable manner. The authorities cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly.

When it is said that something is to be done within the discretion of the authorities, it means that something is to be done according to the rules of reasons and justice, not according to private opinion, according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to discharge of his office ought to confine himself.

If the act complained of is without jurisdiction or is in excess of authority conferred by statute or there is abuse or misuse of power, a court can interfere. In such an eventuality, mere fact that there is denial of allegation of mala fide or oblique motive or of its having taken into consideration improper or irrelevant matter does not preclude the court from enquiring into the truth of allegations levelled against the authority and granting appropriate relief to the aggrieved party.

The decision is unlawful if it is one to which no reasonable authority could have come.

The discretion enjoyed by the persons holding high offices should not be left to the good sense of individuals and presumption that person holding high office does not commit wrong is liable to be repelled.

Every arbitrary action, whether in the nature of legislative or administrative or quasi judicial exercise of power, is liable to attract the prohibition under the Constitution.

Court may look into the material on record, uphold the right of judicial review, on the basis of illegality in decision making process coupled with irrationality and perversity. If the administrative or judicial power has been exercised on non-consideration or non-application of mind to relevant factors, such exercise shall stand vitiated.

It is an unwritten rule of the law that whenever a decision-making function is entrusted to the subjective satisfaction of statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.

The parameters of the court's power of judicial review of administrative or executive action or decision and the grounds on which the court can interfere with the same are well-settled Indisputably, if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matter the court would be justified in interfering with the same.

The exercise of constitutional powers by the High Court and the Supreme Court, under the relevant Articles, have been categorized as power of "judicial review". Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Articles of the Constitution dealing with Fundamental Rights, every executive action of the Government or other public bodies, including Instrumentalities of the Government, or those which can be legally treated as "Authority", if arbitrary, unreasonable or contrary to law, is amenable to the writ jurisdiction of the Supreme Court or the High Courts and can be validly scrutinized on the touchstone of the constitutional mandates.

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Atta Muhammad Qureshi v. The Settlement Commissioner PLD 1971 SC 61; Muhammad Yousaf Khan v. Muhammad Ayub PLD 1972 Pesh. 151; Dost Muhammad v. Government of Balochistan PLD 1980 Quetta 1; Tariq Aziz-ud-Din: in re 2010 SCMR 1301; Abid Hussain v. PIAC 2005 PLC (CS) 1117; Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705; Walayat Ali v. PIAC 1995 SCMR 650; Sharp v. Wakefield 1891 AC 173; Union of India v. Kuldeep Singh 2004 (2) SCC 590; State of U,P. v. Mohammad Nooh's case AIR 1958 SC 86; Pratap Singh v. State of Punjab AIR 1964 SC 72; Fashih Chaudharyr v. D.G. Doordarshan (1989) 1 SCC 189; M.I. Builders Pvt. Ltd/ v. Radhey Shyam (1999) 6 SCC 464; Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101; E.P.Royappa v. State of Tamil Nadu AIR 1974 SC 555; R.D. Shetty v. International Airport Authority (1979) 3 SCC 489; Maneka Gandhi v. Union of India ;1978) 1 SCC 248; Ajay Hasia v. Khalid Mujib 1981(1) SCC 722; Shri Sitaram Sugar Co. Ltd. v. Union of India 1990 (3) SCC 223; State of NCT of Delhi and another v. Sanjeev alias Bittoo (2005) 5 SCC 181; Smt. Shalini Soni v. Union of India (1980) 4 SCC 544; Commissioner of Income Tax v. Mahindra AIR 1984 SC 1182 and Common Cause, A Regd. Society v. Union of India AIR 1999 SC 2979 ref.

(c) Constitution of Pakistan---

----Arts. 184 & 199---Civil service---Suspension of an officer pending enquiry---Object---Judicial review---Scope.

The object of suspending an officer from duty during the pendency of an inquiry is that he should not be allowed to tamper with documentary and oral evidence likely to be produced in his case. This object, can be achieved in a very short time and if the case is likely to take more time then the easiest way to avoid it is to transfer him to some other department, so that he may not be able to tamper with the evidence that may be produced against him. Undoubtedly under, the Service Rules there is ample power with the Government to suspend a government servant both as a measure of penalty and during the pendency of the departmental enquiry. But all actions taken under these rules must be based on the principles of natural justice, otherwise there was no need to frame them. The power of suspension, therefore, must be exercised in a reasonable and fair manner. The moment the effect of the exercise of such power is found to be unfair and unjust, the government servant, will be entitled to challenge it, and courts of law if satisfied that such orders are based on arbitrary exercise of power will not hesitate to set them aside as they will be in clear violation and breach of statutory rules.

Allauddin v. Chief Commission PLD 1959 Kar. 282 ref.

(d) Constitution of Pakistan---

----Arts. 184(3) & 187---Civil service---Suspension of a civil servant, investigating a case of corruption of huge amount belonging to people of Pakistan, during the pendency of the matter before Supreme Court---Said suspension was not legal and regular and was arbitrary vague and fanciful---When Supreme Court was already seized with the matter regarding the enforcement of fundamental rights in respect of corruption of amount belonging to the nation, court was obliged to exercise its jurisdiction under Art.184(3) read with Art.187 of the Constitution to examine the vires of the order of suspension and in given circumstances examination of the same in exercise of powers of judicial review was permissible---Supreme Court was not debarred to exercise jurisdiction for ensuring fair investigation of the cases with no other intention except to bring the accused to book who were involved in the cases of corruption which is menace against nation/society and during the course of commission of offence if prima facie they had looted the money and had also succeeded in taking same outside the country---Suspension of the officer, in circumstances, was coram non judice, not, sustainable in eye of law and the discretion by the competent authority had been exercised contrary to the settled principles of relevant law---Supreme Court, in view of circumstances, issued directions with regard to reinstatement of the official and ordered that he shall be deemed to have been on duty and carry out investigation of the cases and complete investigation of the cases expeditiously and ensure that public money sent abroad shall be brought back---No functionary of the government shall create hindrance in the investigation being conducted by the said officer; no action shall be taken against the said officer without prior approval of the Supreme Court; Investigation team, which had already been assisting the officer, would join hint as Leant mates, unless he wants otherwise; and said officer shall be submitting forthrightly report about the progress of the investigation 'duly countersigned by the Director General of the Investigation Agency to the nominated Judge of the Supreme Court for perusal in chambers-Prima facie, interference had been made in the judicial functioning of Supreme Court as a result whereof not only the authority of Supreme Court had been eroded but at the same time the investigation of the case had come to stand still, no progress had been made and looted money, which had been taken outside the country was not likely to come back unless the investigation of the case was conducted seriously and government provided support to the prosecution instead of withdrawing its support---Suspension order of the officer was the result of political intervention in the affairs of Supreme Court and it required to be determined accordingly in view of facts and circumstances which also included pressurizing the said officer by the high-ups to dissociate him front the proceedings of the cases, as a follow up political expediency, which had been widely reported by the print media, coupled with propaganda on electronic media against judiciary by issuing advertisement---Private T.V. Channels might have declined to indulge in such campaign but the T.V. channels being operated commercially, prima facie, could not be blamed, however, the persons or a specific group who had provided finances for this purpose were required to be dealt wit in accordance with law, therefore, to ascertain these ancillary questions Mr. Justice Ghulam Rabbani, Judge of Supreme Court was appointed to conduct enquiry and submit report on the basis of evidence, which he will be empowered to collect to determine: (i) whether before suspending the officer pressure was exerted upon hint b the Interior Minister etc. as it has been reported in the newspapers due to political expediency if so, to what consequences (ii) 'responsibility shall be fixed individually or collectively against the persons responsible for making investment to run the campaign against the judiciary on the electronic media; on having determined the particulars of the persons responsible for launching the propaganda campaign against the judiciary what action against him and or them is called for, to maintain the dignity and honour of the Courts---Supreme Court observed that it was expected from Mr. Justice Ghulam Rabbani to complete the inquiry expeditiously in the interest of justice---Additional Registrar of Supreme Court was deputed to facilitate Mr. Justice Ghulam Rabbani during enquiry, similarly the Federal Secretaries including Secretary Interior, Secretary Establishment, and Secretary Information shall provide assistance, whatsoever was required by him to complete the report.

Vineet Narain v. Union of India AIR 1998 SC 889 and Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109 ref.

(e) Constitution of Pakistan---

----Art. 184(3) & 199---Matter related to investigation of a corruption case of huge amount of money of people of Pakistan---Judicial review---Scope---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---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 prevailing in the country; 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 who had done nothing at all in the matter for almost two years and who had remained only silent spectators of entire drama and had only witnessed the escape of the accused 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 Article 184(3) of the Constitution to intervene in the matter exercising their power to review the administrative and executive actions.

Maulvi Anwar-ul-Haq, Attorney General for Pakistan On Court Notice.

Sohail Ahmed, Secretary for Establishment Division.

Taimoor Azmat Osman, Acting Secretary for M/o Information.

Nemo for M/o Interior.

Nemo for the FIA.

Date of hearing 25th July, 2011.

P L D 2011 Supreme Court 961

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

Ch. MUHAMMAD ILYAS GUJJAR---Petitioner

Versus

CHIEF ELECTION COMMISSIONER OF PAKISTAN and others---Respondents

Civil Petition No.317 of 2010, decided on 31st March, 2010.

(On appeal from the judgment/order dated 3-3-2010 passed by Lahore High Court Lahore in W.P.No.18588 of 2009).

Law Reforms Ordinance. (XII of 1972)---

----S. 3---Constitution of Pakistan, Arts.185(3) & 199---Petition for leave to appeal---Maintainability---Constitutional petition having been decided by a Single Bench of the High Court, intra court appeal under S.3, Law Reforms Ordinance, 1972 was competent before the High Court---Counsel for the petitioner, in circumstances, contended that question of limitation would be a hurdle in his way to approach the High Court---Supreme Court observed that question of limitation shall be considered if the application for condonation of delay was filed, since the petitioner had been pursuing his remedy, as was evident from the facts and circumstances, therefore, "subject to all just exceptions" intra court appeal Bench, seized with the matter, may examine the question of limitation, in filing intra court appeal by the petitioner, favourably---Counsel appearing for the caveat had raised objection upon making of such observation by the Supreme Court---Validity---Held, petitioner had been pursuing his remedy before Supreme Court as well as before the High Court, therefore, by using the words "subject to all just exceptions" Supreme Court allowed the respondent to raise question qua the limitation, but the court would consider it, keeping in view the facts and circumstances of the case, favourably.

Accountant General for Pakistan v. Zia Mohy-ud-Din PLD 2008 SC 164 ref.

Sahibzada A. Raza Qasuri, Senior Advocate Supreme Court for Petitioner.

Anwar Kamal, Advocate Supreme Court for Respondent No.56.

Nemo for Respondents (Nos.1-55 & 57-59).

Date of hearing: 31st March, 2010.

P L D 2011 Supreme Court 963

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui, Khilji Arif Hussain, Tariq Parvez and Amir Hani Muslim, JJ

CORRUPTION IN HAJJ ARRANGEMENTS IN 2010: In the matter of

Suo Motu Case No.24 of 2010 and Human Rights Cases Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P, 58118-K of 2010, 1291-K and 1292-K of 2011, decided on 29th July, 2011.

(a) Civil Service---

----Placing an officer as "Officer on Special Duty" (OSD) is tantamount to penalizing him because the expression "OSD" is not known to either the Civil Servants Act, 1973 or the Civil Servants Appointment, Promotion and Transfer Rules, 1973---No officer can be posted as OSD.

Estacode at Serial No.23 ref.

(b) Constitution of Pakistan---

----Arts. 5 & 190---Once a judicial order is passed, it has binding effect on the executive as well as judicial functionaries in terms of Arts. 5 and 190 of the Constitution.

(c) Civil Service---

----Civil servant issued notification in terms of order of the Supreme Court which act on his part was in discharge of his Constitutional commitment as required under Art.190 of the Constitution---Such officer could not be penalized on the ground that he issued the notification in violation of Rules---If said Officer was made OSD, that will not send a good message to the country.

(d) Constitution of Pakistan---

----Arts. 190, 189 & 184(3)---Civil service---Posting and transfer---Judicial review---Scope---Transfer and posting was the domain of the Executive Authority, however, in the present case, keeping in view the peculiar facts and circumstances, instead of passing orders by the Supreme Court itself, Supreme Court had sent the issue of transfer/reposting of a civil servant through Attorney General for Pakistan to the competent authority, but it did not work---Supreme Court, in circumstances, examined the administrative order in exercise of judicial review and passed orders of transfer/reposting and on compliance of said orders issued by the Supreme Court, competent civil servant issued the notification of transfer/reposting which had resulted in making the said civil servant (who issued the notification) as OSD, who had suffered for obeying the lawful order of the Supreme Court---Supreme Court observed that if such acts were allowed to continue, that will have serious impacts on the officials/authorities and will send message to them that if they comply with orders of Supreme Court, without seeking prior approval of the competent Authority, they will be posted out or they shall be proceeded against departmentally---Such situation will discourage upright, honest and committed officers as well, therefore, under such circumstances, Supreme Court could not leave such officers at the mercy of the Executive to deal with them in a manner they like---Executive had to exercise powers under the Rules but such discretion had to be exercised judiciously---Manner in which the civil, servant who issued the notification in compliance to the Supreme Court order had been penalized there were strong reasons to believe that it was an act designed to frustrate the orders of the Supreme Court---Immediate reaction (making the said officer OSD) shown by the competent Authority was not called for, because the civil servant had obeyed the judicial order, which he was bound under the Constitution, and every authority in the country was bound to follow it---If any authority made a departure from any of the provisions of the Constitution, it was likely to lead to chaos in the country which may lead to serious consequences---Such an eventuality ought to be avoided by all persons in authority---Under the Constitution, if the Supreme Court passed orders, it should be complied with and no approval of any authority in executive was required for its implementation---Rules or even statutes, which were subordinate to the Constitution could not place bar on the authority of Supreme Court to seek the enforcement of its orders---Notification placing the said officer as OSD was not sustainable in law, however, it was the prerogative of the competent authority to post him at his previous post or give him any other assignment commensurate with his status, but not later than a period of seven days from the date of receipt of present order of the Supreme Court---If no order of his posting and transfer was passed on or before the stipulated period, the notification placing him as OSD shall cease to have effect and he shall be deemed to be at the post from where he was made as OSD until otherwise transferred and posted elsewhere by the competent authority.

Tariq Aziz-ud-Din's case 2010 SCMR 1301 ref.

(e) Constitution of Pakistan---

----Arts. 184(3) & 199---Judiciary, including the High Courts and the Supreme Court, is bound to preserve the Constitution, as well as to' enforce fundamental rights conferred by the Constitution either individually or collectively, in exercise of the jurisdiction conferred upon it under Arts.199 or 184(3) of the Constitution---Judicial restraint---Scope---One of the functions of the judicial functionaries is to decide the matters strictly in accordance with the Constitution and law---Courts are conscious of their jurisdiction and exercise the same with Judicial restraint, but such restraint cannot be exercised at the cost of rights of the citizens to deny justice to them---Scheme of the Constitution makes it obligatory on the part of superior courts to interpret Constitution, law and enforce fundamental rights---Ultimate' arbiter is the Court which is the custodian of the Constitution--Supreme Court, in the present case, initiated proceedings to ensure that corruption and corrupt practices by which Hujjaj were looted and robbed had brought bad name to the country and on account of intervention of the Supreme Court some relief had been granted to the Hujjaj as the Government on directions of Supreme Court had paid SR 700 to each Haji---Supreme Court was initially not approached by the Hujjaj but the Parliamentarians themselves had approached the court and court through the Attorney-General for Pakistan had asked the Prime Minister to look into the matter which was of highly sensitive nature which indicated that instead of passing appropriate orders against anyone, Supreme Court, exercised restraint.

(f) Democratic system---

----Supreme Court observed that court is of the considered view that democratic system must prevail in the country and there shall be no extra-constitutional dispensation and the Judges of the superior courts were bound down not to take oath under any other dispensation.

Sindh High Court Bar Association's case PLD 2009 SC 879 ref.

(g) Constitution of Pakistan---

----Art. 184 & Preamble---Judicial review by Supreme Court---Scope---Independence of judiciary---Scope---Supreme Court enjoys the jurisdiction of judicial review against administrative actions of the executive---Supreme Court is the final arbiter of disputes in order to maintain check and balance and for these reasons, the independence of judiciary has been guaranteed and the very Preamble of the Constitution provides that the "People of Pakistan and the independence of judiciary shall be fully secured"-Judiciary cannot compromise at any cost its independence, as guaranteed under the Constitution, as such compromises would lead the Nation to the situation of the last so many years.

Dr. Mubashir Hasan v. Federation of Pakistan PLD 2010 SC 265 ref.

(h) Constitution of Pakistan---

----Arts. 184, 4, 9, 14 & 25---Jurisdiction of Supreme Court under Art.184 of the Constitution---Scope---Judicial restraint---Cases of massive corruption---Enforcement of fundamental. rights of citizens under Arts. 4, 9, 14 and 25 of the Constitution---Whenever Supreme Court will notice that there is corruption or corrupt practices, it would be very difficult to compromise or digest same because the public money of the country cannot be allowed to be looted by -anyone whatsoever status he may have---Supreme Court always exercises such jurisdiction judiciously and with judicial restraint and by now parameters of the court's power of judicial review of administrative or executive action or decision and the grounds on which the court can interfere with the same is well settled.

(i) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---If the administrative or executive action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the court would be justified in interfering with the same.

Commissioner of Income Tax v. Mahindra AIR 1984 SC 1182 ref.

(j) Constitution of Pakistan---

----Art. 199 & 184(3)---Powers of High Court and Supreme Court under Arts.199 & 184(3) of the Constitution is categorized as 'power of judicial review'---Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law. or is violative of Fundamental Rights guaranteed by the Constitution---With the expanding horizon of Articles of the Constitution dealing with Fundamental Rights, every executive action of the Government or other public bodies, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the superior courts and can be validly scrutinized on the touchstone of the Constitutional mandate.

Common Cause, A Regd. Society v. Union of India AIR 1999 SC 2979; Union Carbide Corporation v. Union of India AIR 1992 SC 248 = 1991 SCR (1) Supl. 251; Vishaka v. State of Rajasthan AIR 1997 SC 3011 = (1997) 6 SCC 241; Vineet Narain v. Union of India AIR 1998 SC 889; Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374; Rubabbuddin Sheikh v. State of Gujarat (2010) 2. SCC 200; Center for Pil v. Union of India Appeal arising out of SLP (C) No.24873 of 2010; Center for Pil v. Union of India Writ Petition (C) No.348 of 2010; Radhy Shyam v. State of UP (Civil Appeal No. 3261 of 201; Nandini Sundar v. State of Chattisgarh Writ Petition (Civil) No.250 of 2007 and Bank of Punjab v. Haris Steel PLD 2010 SC 1109 ref.

(k) Constitution of Pakistan---

----Part III & Part VII---Parliament has to legislate the law and Constitution to confer jurisdiction upon the Supreme Court to interpret the same.

(l) Constitution of Pakistan---

----Arts. 184(3), 3 & 5---Jurisdiction of Supreme Court under Art.184(3)' of the Constitution---Scope---Massive corruption in the Ha arrangements for Hajj, 2010---Civil service---Transfer and posting is not within the domain of Supreme Court, but under exceptional circumstances and in exercise of the powers conferred on the Supreme Court by the Constitution to ensure that the money looted from Hujjaj is recovered and the persons/officials responsible for bringing bad name to the country were brought to book so that it may serve deterrent orders of the nature are passed---In the present case, an officer was performing functions of investigation of the case independently, whereas the investigation of the case was conducted by him under the supervision of the Supreme Court and he was transferred to some other position, in such circumstances, his re posting on the same assignment would in no way create problem---If such a straightforward and upright senior officer is penalized then it would amount to discouraging such officers, who would be obeying the orders of the Supreme Court---Such an act on the part of competent authority would be violative of Arts. 3 & 5(2) of the Constitution---Supreme Court directed that order passed by the court for reposting of the said officer shall be implemented in letter and spirit by the Government by adopting all appropriate measures to ensure that no sooner the said officer reports for duty, the investigation team working earlier with him will be provided to hint and shall be extended all the facilities so that he could complete investigation of mega corruption in Hajj arrangements.

(m) Constitution of Pakistan---

----Arts. 3 & 184(3)---Civil service---Elimination of exploitation---State shall ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability to his work---Civil servant cannot be made OSD if the competent authority is not satisfied with his performance, though the authority has the power to order his transfer but he cannot be penalized.

Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533; Sajjad Ahmad Javed Bhatti v. Federation of Pakistan 2009 SCMR 1448; Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab 2006 SCMR 1360; Saleemullah Khan v. Federation of Pakistan 2004 SCMR 690; Syed Ajmal Hussain Bokhari v. Commissioner 1997 PLC (C.S.) 754; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Abid Hussain v. Ajaib Ali Shah Naqvi 2004 PLC (C.S.) 1036 and Gobardhan Lal v. State of UP 2000 (2) AWC 1515 = 2000 (87) FLR 658 ref.

(n) Discretion---

----Scope---Discretionary powers vesting in an authority are to be exercised judiciously and in reasonable manner---Authorities cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner, rather they are bound to act fairly, evenly and justly.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Abid Hussain v. PIAC 2005 PLC (C.S.) 1117; Abu Bakar Siddique.. v. Collector of Customs 2006 SCMR 705 and Walayat Ali v. PIAC 1995 SCMR 650 ref.

(o) Statutory functionary---

----Decision making by such functionary---Scope---Held, it was an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function was entrusted to the subjective satisfaction of a statutory functionary, there was an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.

Smt. Shalini Soni v. Union of India (1980) 4 SCC 544 ref.

(p) Constitution of Pakistan---

----Arts. 184(3) & 5(2)---Judicial review---Scope---Civil service---Transfers and postings---When a transfer is made contrary to the relevant rules and against the public interest and without allowing the officer to complete his tenure, the court is empowered to examine such administrative action by applying the principle of judicial review---Civil servant who followed the dictates of Art.5(2) read with Art.190 of the Constitution by obeying order of the Supreme Court cannot be penalized by placing hint as OSD on the ground that he violated Rules---However, placing his services against the same post where he has been made OSD or posting against any other position commensurate with his status is within the domain of the competent authority---Principles.

Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab 2006 SCMR 1360 ref.

Moulvi Anwar-ul-Haq, Attorney-General for Pakistan; Amanullah Kanrani, Advocate-General; Balochistan, M. Azam Khattak, Additional Advocate-General, Balochistan, Syed Arshad Hussain Shah, Additional Advocate-General KPK and Ch. Khadim Hussain Qaiser, Additional Advocate-General Punjab on Court notice.

Hafiz Sher Ali, JS, Hajj for M/o Religious Affairs.

Syed Tehseen Anwar Ali Shah, DG and Muhammad Azam, Director Law for FIA.

Date of hearing: 29th July, 2011.

P L D 2011 Supreme Court 997

Present: Iftikhar Muhammad Chaudhry, C. J., Anwar Zaheer Jamali, Sarmad Jalal Osmany, Amir Hani Muslim and Ghulam Rabbani, JJ

WATAN PARTY and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Suo Motu Case No.16 of 2011 and Constitution Petition No.61 of 2011. [Suo Motu Action regarding law and order situation in Karachi]

(a) Islam---

----Teachings---Islam is a religion of peace and tolerance and stands for safety, security and sanctity of human life---Islam abhors unlawful killing of innocent people and strictly prohibits it.

Surah-Ai-Maidah Verse 32; Surah Al-Baqarah Verse 84; Surah An-Nisa Verse 93; The Farewell Sermon (Khutbatul-Wada); Sahih Bokhari, Vol VIII, p.434, Number 667 and Sahih Bukhari, Vol IX, P.2, Numbr 3 ref.

(b) Constitution of Pakistan---

----Preamble, Arts. 2-A & 9---Universal Declaration of Human Rights, Arts. 3 & 17---Constitution of Pakistan, in its very Preamble, postulates that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and the fundamental rights, including equality of status, of opportunity and before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; shall be fully guaranteed---Such principles have been made a substantive part of the Constitution under Article 2-A---State was duly bound to protect and. safeguard all these Fundamental Rights including the right to life and liberty; as envisaged by Article 9 of the Constitution---- "Right to life and liberty "---Interpretation---State is duty bound to protect the life and property of its citizens in accordance with law against all the atrocities, target killings, homicide etc.---Primary tasks of any legal government are defined as the provision of security, welfare and growth and constitutional order---Clear cut interconnection exists between law and order and economic development---Principles.

Constitution of Pakistan, in its very Preamble, postulates that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and the fundamental rights, including equality of status, of opportunity and before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; shall be fully guaranteed. Such principles have been made a substantive part of the Constitution under Article 2-A. State was duty bound to protect and safeguard all these Fundamental Rights including the right to life and liberty as envisaged by Article 9 of the Constitution.'

Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. Word "life" is very significant as it covers all facts of human existence. Word "life" has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. "Life" includes all such amenities and facilities which a person born in a free country, is entitled to enjoy with dignity, legally and constitutionally.

Article 9 of the Constitution includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. The word life' in the Constitution has not been used in a limited manner; a wide meaning should be given to enable a man not only to sustain life but-to enjoy it. The State is duty bound to protect the life and property of its citizens in accordance with law against all the atrocities, target killings, homicide, etc. The basic human rights of life, liberty and enjoyment of one's property have been recognized nationally as well as internationally. Article 3 of the Universal Declaration of Human Rights provides thateveryone has the right to life, liberty and security of person', no one shall be subjected to torture or to cruel., inhuman or degrading treatment or punishment; everyone has the right to recognition everywhere as a person before the law; and all are equal -before the law and are entitled without any discrimination to equal protection of the law. Article 17 lays down that every one has the right to own property alone as well as in association with others'. No society can make any progress in a state of chaos and disorder. It is manifest to hypothesize that the law and order condition prevailing in a country has a direct and significant bearing on the pace and pattern of economic development of that country. The existence of basic socio-economic framework of the country and the continuation of economic growth without any hindrance or interruption depends upon subsistence of better law and order situation. In case of break-down of peace on account of any factors negative effect is exerted on the economic growth. Better law and order as a determinant of economic development was spelled out in explicit terms in the theories of growth advanced by economists who have mentioned that the structure of the prevalent value system of a community can reasonably be considered as an important condition of law and order, because the value system defines the basic norms and ethos of human conduct. For example, if the value system of a society is predominated by sectarian or ethnic dispensations, then such a society would be continuously ridden by law and order problems, thus putting frequent twists and turns to the process of economic growth. Theme of stage,propensities' and their linkages' have been extended to the role of political factors, institutions and the law and order framework in determining the pattern of economic growth. The primary tasks of any legal government are defined as the provision of security, welfare and growth, and constitutional order. Thus there is a clear cut interconnection between law and order and economic development.

Shehla Zia's case PLD 1994 SC 693; Arshad Mehmood v. Government of Punjab PLD 2005 SC 193; Theories of Socio-economic Growth, Problems in the Study of Economic Growth, 1949, JJ. Spangler and W.W. Rostow in Politics and the Stages of Growth, 1971 ref.

(c) Constitution of Pakistan---

----Arts. 9, 14 & 25---Every citizen must be treated equally, dignity of human life should be maintained and liberty of life and honour must be guaranteed as envisaged in the Arts. 9, 14 and 25 of the Constitution.

Commissioner of Income Tax v. Eli Lilly Pakistan 2009 SCMR 1279 ref.

(d) Constitution of Pakistan---

----Art. 18--Freedom of trade, business or profession---Article 18 of the Constitution assures the citizens the right to enter upon any "lawful profession or occupation" and "to conduct any lawful trade or business"-"Lawful"- qualifies the right of the citizen in the relevant field, which clearly envisages that State can by law ban a profession, occupation, trade or business by declaring the same to be unlawful which in common parlance means anything forbidden by law--Government has the authority to regulate a lawful business or trade--Reasonable restriction, however, does not mean prohibition or prevention completely---Principles.

Government of Pakistan v. Zamir Ahmad PLD 1975 SC 667 and Arshad Mehmood v. Government of Punjab PLD 2005 SC 193 ref.

(e) Constitution of Pakistan---

----Art. 24(1)---Protection of property rights---No person shall be deprived of his property save in accordance with law.

Arshad Mehmood v. Government of Punjab PLD 2005 SC 193 ref.

(f) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution and law---Any democratic set up consisting of citizens and functionaries in the country under the Constitution is bound to show its loyalty to the State, for to be loyal and faithful to the State is the basic duty of every citizen under Article 5 of the Constitution---Article 5(2) of the Constitution has mandated that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and for every other person for the time being within Pakistan---Chosen representatives, who have acquired authority on behalf of their electors as members of the National Assembly, Senate or Provincial Assemblies as per mandate of their oath, which they take before entering upon office, are bound to bear true faith and allegiance to Pakistan---Oath of the office of members of the National Assembly and Senate as set out in the Third Schedule of the Constitution provides that. the members will perform their functions honestly, to the best of their ability, faithfully and in accordance with the Constitution and law; that they' will act in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan and they will preserve, protect and defend the Constitution---While holding a constitutional office, the chosen representatives of the people have to remain true to their oath and to observe constitutional limits in all circumstances.

Shahid Orakzai v. Pakistan through Secretary Law PLD 2011 SC 365 ref.

(g) Constitution of Pakistan---

----Arts. 101 & 105-Governor to act on advice---Governor of a Province is to be appointed as per Article 101 by the President on the advice of the -Prime Minister---Governor who is holder of a constitutional post and acts as the agent of the President, has to keep the Federation informed of the affairs of the Province, although as per Article 105, the Governor shall act on the advice of the Cabinet or the Chief Minister.

(h) Constitution of Pakistan---

----Arts. 107 & 112---Dissolution of Provincial Assembly---Scope---provincial Assembly cannot be dissolved by the Governor except under circumstances warranting such dissolution as per Art.112 of the Constitution---Principles.

Muhammad Anwar Durrani v. Province of Balochistan PLD 1989 Quetta 25 ref.

(i) Constitution of Pakistan---

----Art. 232---Proclamation of Emergency by the President on account of war, internal disturbance, etc.---Scope.

(j) Constitution of Pakistan---

----Art. 17---Political party cannot be formed or operate in a manner prejudicial to the sovereignty or integrity of Pakistan.

(k) Administration of justice---

----Courts can only act upon evidence and material presented before them, which is to be collected by the executive---Courts cannot be blamed if the executive/police fail in their duty---Evidence collected by executive/police must be evaluated according to the laws and rules prescribed by the legislature---Government has to ensure that cogent evidence to support prosecution is collected and presented in the court---Legislature is to provide processes for the protection of witnesses, Policemen and Judges and it is for the executive/government to fully implement such reforms---Intelligence sharing and action on intelligence that is uncorrupted by political or extraneous influence must also be ensured by the executive---Supreme Court observed that it was expected that a new culture of independent, depoliticized, and non-partisan prosecution comprising efficient, capable prosecutors will be established by the Government to aid and assist the courts--Government must also depoliticize the administration/prosecution which will be for its own good and for that of the nation---Courts will keep a watchful eye and strike down all illegal pressures and orders that are brought to their notice.

(l) Adversarial proceedings---

----Definition and concept---"Adversarial proceedings" are defined as proceedings relating to, or characteristic of an adversary or adversary procedures.

Concise Oxford English Dictionary, 11th Edn.; Muhammad Manawar v. Deputy Settlement Commissioner 2001 YLR 2350; Peoples' Union for Democratic Rights v, Union of India [AIR 1982 SC 1473] = [(1982)3 SCC 235], Bandhua Mukti Morcha v. Union of India [AIR 1984 SC 802], Peoples' Union for Liberties v. Union of India [AIR 1996 Cal 89] and State of Uttaranchal v. Balwant Singh Chaufal [(2010) 3 SCC 402. ref.

(m) Adversarial process---

----Definition---"Adversarial process" is defined as a process in which each party to dispute puts forward its case to the other and before a neutral Judge, soliciting to prove the fairness of their cases.

Advanced Law Lexicon; American Heritage Dictionary of the English Language, 4th Edn. and Collins English Dictionary-Complee and Unabridged ref.

(n) Adversarial system---

----Definition and Scope.

The adversarial system (or adversary system) is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case, whereas, the inquisitoriar system has a judge (or a group of judges who work together) whose task is to investigate the case.

The adversarial system is a two-sided structure under which criminal trial courts operate that pits the prosecution against the defence. Justice is done when the most effective and rightful adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.

(o) Words and phrases----

----"Inquisitorial"-Definition "---Definition and scope.

Concise Oxford English Dictionary, 11th Edn.; Advanced Law Lxicon 3rd Edn. 2005; Webster's New World College Dictionary Copyright 2010 by Wiley Publishing, Inc., Cleveland, Ohio and Collins World English Dictionary ref.

(p) Inquisitorial system---

----Scope and application---Distinction between Inquisitorial and Adversarial systems.

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defence. Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems. Also countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider the term "inquisitorial" misleading, and prefer the word "non-adversarial".

The inquisitorial system applies to questions of criminal procedure as opposed to questions of substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in some civil legal systems. However, some jurists do not recognize this dichotomy and. see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures.

In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow the judge to act more like an inquisitor than an arbiter of justice.

The proceedings, which are initiated as public interest litigation in civil or criminal matters cannot be treated as adversarial because of the definition of nature of the proceedings where without contest between the parties a final finding has to be recorded.

(q) Constitution of Pakistan---

---Arts. 184(3) & 199---Public interest litigation---Proceedings---Nature---Proceedings under public interest litigation is inquisitorial in nature where the court may even delve into fact finding so as to promote public interest-Proceedings which are initiated as public interest litigation in civil or criminal matters cannot be treated as "adversial" because of the definition of nature of the proceedings where without contest between the parties a final finding has to be recorded.

Tabacco Board v. Tahir Raza 2007 SCMR 97; Ch. Muneer Ahmad v. Malik Nawab Sher PLD 2010 Lah. 625 and Philips Electrical Industries of Pakistan Ltd. v. Pakistan 2000 YLR 2724 ref.

(r) Constitution of Pakistan---

----Art. 148---Law and order situation and enforcement of fundamental rights of citizens---Held, under the Constitution, it is the obligation of the Federation to protect every Province against internal disturbances as well as external aggression and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution.

(s) Constitution of Pakistan---

----Arts. 184(3) & 199---Enforcement of fundamental rights---Supreme Court, in exercise of its jurisdiction under Art.184(3) of the Constitution, which is in the nature of "inquisitorial proceedings", has the same powers as are available to the High Court under Art.199 of the Constitution.

Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Syed Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; Bank of Punjab v. Haris' Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109 and Federation of Pakistan v. Munir Hussain Bhatti PLD 2011 SC 752 ref.

(t) Constitution of Pakistan---

----Part II, Chap.1 [Arts. 9 to 28]---Ensuring good governance, maintaining law and order situation and providing security to the persons is a primary duty of the Government.

Mohtsham, Saeed M., Vision and Visionary Leadership-An Islamic Perspective; Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166; Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646 and Benazir Bhutto v. Federation of Pakistan PLD 1968 SC 416 ref.

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

----Ss. 386, 387 & 388---Anti-Terrorism Act (XXVII of 1997), S.6(1)(k)---Offences of extortion of money, which can also be considered as bhatta, is covered by Ss.386, 387 & 388 of P.P.C. and falls within definition of "terrorism" given in S.6(1)(k), Anti-Terrorism Act, 1997---Such crime can be controlled by applying said laws strictly.

Bracy v. Gramley, Warden [502 US 899 (1997)] ref.

(v) Constitution of Pakistan---

----Preamble---Different institutions, as per scheme of the Constitution are required to fulfil their commitment because Constitution is based on the principle of trichotomy of powers i.e. Legislature, which is responsible to legislate the laws, Executive/Government headed by the Prime Minister in the Federation and the Chief Ministers in the Provinces to fulfil their duties, and the Judiciary, which has to interpret the Constitution and the law---Violation of constitutional provisions by any of the organs/functionaries of the State is not permitted by law.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 876 ref.

(w) Constitution of Pakistan---

----Part II, Chap. 1 [Arts.9 to 28]---Enforcement of fundamental rights/civil rights---Duty of executive---If the executive fails to do so, they have to face consequences envisaged by the Constitution---Executive functionaries who have also taken oath in the Province and Federation to protect and preserve the Constitution cannot be allowed to defeat any provision of the Constitution, whatever the circumstances may be.

(x) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution and law- Article 5 of the Constitution commands that loyalty to State is the basic duty of every citizen and obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be, and of every other person for the time being within Pakistan---Executive/public functionaries are bound to enforce the Constitution while protecting the Fundamental Rights of the citizens without, any fear or favour or compromise .for subjective purpose---Executive Authorities cannot be allowed to be negligent to an extent where ultimately the sovereignty and integrity of the country is jeopardized.

Abdul Majeed Zafar v. Governor of Punjab 2007 SCMR 330 and Ch. Zahur Ilahi v. Zulfiqar Ali Bhutto PLD 1975 SC 383 ref.

(y) Constitution of Pakistan---

----Arts. 5(2) & 184(3)---Public interest matter---Incidents of violence, commission of crimes, bloodshed and looting occurring in the society---Without claiming any immunity, in the public interest proceedings, the Prime Minister as well as the Chief Minister (of the Province), both are bound to follow the Constitution under Art.5(2) of the Constitution by ensuring security and safety of persons and property of the citizens---Principles.

(z) Constitution of Pakistan---

----Art. 5(2)---Loyalty to State and obedience to Constitution and law---Whosoever is ruling the country under the Constitution, he being the Leader of the House, is bound to know the constitutional commitments and provisions of law because of the fact that he or they have taken oath(s) to preserve, protect and defend the Constitution, including Fundamental Rights as well as to show obedience to the Constitution and law under Article 5(2) notwithstanding their holding of any high office.

Ch. Zahoor Ilahi v. Zufiqar Ali Bhutto PLD 1975 SC 383 ref.

(aa) Constitution of Pakistan---

----Preamble, Part II, Chap.] [Arts.9 to 28]---Under the Constitution, it is not possible now for the Armed Forces to dismiss the Government by adopting extra-constitutional measures, but at the same time the chosen representatives also owe a duty to the Constitution and if they feel that on account of any political expediency they can allow the continuance of the position of law and order in the Province, it will be at their own risk and cost, otherwise under the Constitution they are bound to secure lives and properties, ensuring the proprietary rights, freedom of movement, etc., and failing which constitutionally such government is likely to lose their right of ruling.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 876 ref.

(bb) Constitution of Pakistan---

----Art. 148(3)---Obligation of Provinces and Federation---Federal Government, under Art.148(3) of the Constitution is bound to assist the Provincial Government during period of disturbances.

(cc) Press statement---

----Such statement having not been controverted by anyone, will be presumed to have been accepted.

Mubashir Hussain v. Federation of Pakistan PLD 2010 SC 265 ref.

(dd) Adversarial proceedings---

----Criminal case in an adversarial proceeding is likely to be decided on merits after recording of evidence.

Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633 ref.

(ee) Constitution of Pakistan---

----Art. 4---Right of individuals to be dealt with in accordance with law---To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan and in particular no action detrimental to the life, liberty, body, reputation or property of any person would be taken except in accordance with law---Fundamental Rights of the citizens have to be enforced by the court in the discharge of judicial functions.

Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 and Syed Jalal Mehmood Shah v. Federation of Pakistan PLD 1999 SC 395 ref.

(ff) Constitution of Pakistan---

----Art. 17(2)---Freedom of association--Held, under Art.17(2) of the Constitution it is the duty of the Federal Government to declare that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan and within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

(gg) Constitution of Pakistan---

----Art. 148(3)---Obligation of Provinces and Federation---Federal Government is duty bound under Article 148(3) of the Constitution to protect every Province against internal disturbances and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution.

(hh) Constitution of Pakistan---

----Art. 148(3)---Obligation of Provinces and Federation---Bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc., were being committed within the knowledge of the State through Provincial Government/Executive but it remained a silent spectator and prima-facie failed to take appropriate action, may be for some political reasons---Constitution does not allow the Executive to compromise its position at the cost of innocent citizens who lost their lives, property, liberty and dignity because of the expediency of the Provincial or Federal Government.

(ii) Constitution of Pakistan---

---Art. 148(3)---Obligation of Provinces and Federation---Pakistan having written Constitution, which is implemented through the Federation and the Provincial Governments by strictly adhering to its provisions without any political considerations, the situation of law and order can be managed.

(jj) Constitution of Pakistan---

----Art. 17---Political Parties Order [18 of 2002], Art.15---Political parties---If the Government succeeds in establishing that any political party is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, provisions of Art. 17 of the Constitution read with S.15, Political Parties Order, 2002 can be invoked.

(kk) Islamic jurisprudence---

----Crimes---If anyone killed a person not in retaliation of murder, or to spread mischief in the land, it would be as if he killed all mankind, and if anyone saved a life, it would be as if he saved all mankind, which is to be accepted by all the Muslims---Life of a human being is very precious, therefore, Allah has condemned the killing of even a single human being and has equated it with the killing of the whole humanity, and vice versa, if a man is saved, the whole humanity will be deemed to have been saved.

Sura Almaida Verses 22 and 23 ref.

(ii) Words and phrases---

----"Executive"-Definition.

American Heritage Dictionary of the English Language, 4th Edn.; Collins English Dictionary; Cultural Dictionary and Oxford Guide to the US Government ref.

(mm) Words and phrases---

----"State"-Definition.

Advance Law Lexicon; Corpus Juris Secondum and Collins English Dictionary ref.

(nn) State---

----Concept.

(oo) Government---

----Concept.

As against the term "State", a government is an institution whose existence precedes that of the State. A government is a person or group of persons who rule or administer (or govern) a political community or a State. For government to come into being there must be an existence of public on the territory of a State. Ruling within a household is not government. Government exists when people accept (willingly or not) the authority of some person or persons to address matters of public concern; the administration of justice, and defence against external enemies being typical examples of such matters.

(pp) Constitution of Pakistan---

----Arts. 90, 129 & 7---Executive authority of the Federation and Provinces and institution of State---Scope---Institution of State is distinguished from executive authorities as defined in Art.7 of the Constitution.

Article 90 of the Constitution defines "executive authority" as "subject to the Constitution the executive authority of the Federation shall be exercised in the name of the President by the Federal Government which consists of Prime Minister and Federal Ministers, who shall act through the Prime Minister who shall be the chief executive of the Federation." Whereas in relation to the Provincial Government, Article 129 with the substitution of Governor with the President defines the Executive Authority of the Province consisting of the Chief Minister and Provincial Ministers, who shall act through the Chief Minister. Both these executive authorities represent the Federal and Provincial Governments whereas the institution of State is distinguished from executive authorities as defined in Article 7 of the Constitution.

(qq) Constitution of Pakistan---

----Art. 184(3) & Part II, Chap.] [Arts.9 to 28]---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Under Article 184(3), Supreme Court exercises same powers, which are available to a High Court under Article 199(1)(c) of the Constitution---Supreme Court can make an order giving such direction to any person or authority including any government exercising power or performing any function find, in relation to, any territory within its jurisdiction as may be appropriate for the enforcement of Fundamental Rights conferred by Chap. 1 of Part II of the Constitution.

Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Syed Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109; Federation of Pakistan v. Munir Hussain Bhatti PLD 2011 SC 752; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; Benazir Bhutto's case PLD 1988 SC 416; Asma Jilani v. Government of the Punjab PLD 1972 SC 139 Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 and Jibendra Kishore v. Province of East Pakistan PLD 1957 SC 9 ref.

(rr) Constitution of Pakistan---

----Art. 184(3)---Suo motu action regarding law and order situation in Karachi and petitions under Art.184(3) of the Constitution---Nature of proceedings---Such proceedings are not against the State but to consider whether the Provincial Government of Sindh had failed to enforce the Fundamental Rights of the citizens.

(ss) State---

----Successful State---Scope---Successful State maintains a monopoly on the legitimate use of physical force within its borders.

Max Weber ref.

(tt) Constitution of Pakistan---

----Arts. 184(3) & 199---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Court is empowered under Article 184(3) to consider any question of public importance with reference to enforcement of any of Fundamental Rights, conferred by Chapter 1, Part II and can make an order of the nature mentioned in Article. 199---Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversarial proceedings and while dealing with a case under Article 184(3) of the Constitution, court is neither bound by the procedural trappings of Article 199 nor by the limitations mentioned in the said Article for exercise of power by the High Court in any case---Court is empowered to examine as to whether Province has failed to enforce Fundamental Rights.

Pakistan Muslim League (Nawaz) v. Federation of Pakistan PLD 2007 SC 642 ref.

(uu) Constitution of Pakistan---

----Art. 245---Armed Forces also fall within the definition of the executive.

Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504 ref.

(vv) Pakistan Armed Forces (Acting in Aid of Civil Powers) Ordinance (XIII of 1998)---

----S. 6 & Sched.---Constitution of Pakistan Art.184(3)--- Pakistan Armed Forces (Acting in Aid of Civil Powers) Ordinance, 1998 as in so far as it allowed the establishment of the Military Courts for control of the civilians, charged with the offences mentioned in section 6 and the Schedule to the said Ordinance is unconstitutional, without lawful authority and of no legal effect---Supreme Court has jurisdiction to examine an instrument on the basis of which power to try the accused is conferred upon the executive or the Armed Forces.

(ww) Constitution of Pakistan---

----Art. 148(3)---Obligation of Provinces and Federation---Federal Government has to protect the Provinces against internal disturbances--Such protection, if required by a Province in terms of Article 148(3) of the Constitution in view of the given facts and circumstances and the scenario presupposes prompt protection and failure to do so makes the Federal Government responsible.

Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646 and Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(xx) Administration of justice---

----All criminals, howsoever influential, have to be dealt with across the board without any discrimination or compromising the position of the law on the subject.

(yy) Constitution of Pakistan---

----Art. 148(3)---Obligation of Province and Federation---Provincial Government as well as the Federal Government are duty bound to protect and preserve the Constitution, which confers such rights upon individuals---When violation of the Fundamental Rights is admitted, ultimately blame lies with the executive authorities, both Provincial and the Federal, for non-implementation of their rights.

(zz) Constitution of Pakistan---

----Art. 232---Proclamation of Emergency on account of war, internal disturbances---Held, except adherence to the constitutional provisions in any situation prevailing in the country, no extra-constitutional steps have to be followed.

Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 ref.

(aaa) Constitution of Pakistan---

----Art. 184(3)---Suo motu action regarding law and order situation in Karachi and petitions under Art.184(3) of the Constitution---Supreme Court, from the material produced before the court and the information conveyed during hearing of the case by Inter-Services Intelligence of Pakistan followed by intensified arguments advanced by the counsel appearing for the Provincial and Federal Governments, Attorney General, Advocate General, counsel for the Province of Sindh and counsel for the interveners, the Inspector General of Police, the DG Rangers, the Presidents of the Sindh High Court Bar Association and the Karachi Bar Association as well as all others observed and gave directions in that regard.

Supreme Court observed and directed:

that violence in Karachi during the (current) year and in the past is not ethnic alone but it is also a turf war between different groups having economic, socio-politico interest to strengthen their position/aggrandizement, based on the phenomenon of tit for tat with political, moral and financial support or endorsement of the political parties, who are claiming their representation on behalf of public of Karachi including components and non-components of Provincial Government/ Executive;

that recent violence in Karachi represents unimaginable brutalities, bloodshed, kidnapping and throwing away dead bodies and torsos in bags; as illustration, indicating toll of 306 lives in one month; detection of torture cells video of which has been produced; receiving bhatta to strengthen the ranks of one group against the other; grabbing land; drug mafia etc., destroying moveable and immovable properties of the citizens, establishes that the Fundamental Rights of the citizens enshrined in Articles 9, 14, 15, 18 and 24 of the Constitution have not been protected/enforced by the Provincial Government/Executive authority and this failure has made the lives and properties of the citizens insecure, inasmuch as Federal Government/ Executive has also not protected Province of Sindh against internal disturbance, thus the government of Province of Sindh, on this account, too, failed to carry out functions in accordance with the provisions of the Constitution [Article 148(3)];

that both the Provincial and Federal Governments/Executives have to find out solutions of the present scenario as per provisions of the Constitution;

that to come out of instant grave situation of law and order in Karachi, police force being principal law enforcing agency has to be de-politicized and strengthened so that they could, with full commitment, dedication, zeal and zest, perform its bounden duty, and unless there is a de-politicized police, the situation of law and order is likely to become more aggravated, no sooner the assistance of Rangers is withdrawn;

that any further failure to protect the lives and property of the citizens is likely to cause unprecedented disaster, therefore, all efforts should be made to avoid the same in the interest of the nation and country, which is supreme as per the mandate of the Constitution and the law;

that in respect of banning any political party including MQM, against whom all the interveners mostly had voiced complaints is not within domain of the Supreme Court at this stage as in terms of Article 17(2) of the Constitution every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and it is the responsibility of the Federal Government to act under Article 17 for action against any party violating this Article. The Supreme Court will only review such issue at any other appropriate stage or proceeding if then necessary to determine whether the actions of any party are directly or indirectly prejudicial to the sovereignty or integrity of Pakistan within the meaning of the Article. The Supreme Court will remain, in appropriate proceedings, the ultimate arbiter of this question but will not allow any government to avoid its duty under the law and the Constitution;

that as per material brought before the court, there are criminals who have succeeded in making their ways in political parties notwithstanding whether they are components or non-components of government, and are getting political and financial support allegedly from such parties, therefore, the political parties should denounce their affiliation with them in the interest of the country and democratic set up and they should not allow them to use their names as militant outfits of the political parties. Failure to do so may entail consequences of a penal nature against the party or person responsible, whether in office or not;

that to avoid political polarization and to break the cycle of ethnic strife and turf war, boundaries of administrative units like police stations, revenue estates, etc., ought to be altered so that the members of different communities may live together in peace and harmony, instead of allowing various groups to claim that particular areas belong to them and declaring certain areas as no go areas under their fearful influence. Subsequent thereto, on similar considerations, in view of relevant laws, delimitation of different constituencies has also to be undertaken with the same object and purpose, particularly to make Karachi, which is the hub of economic and commercial activities and also the face of Pakistan, a peaceful city in the near future. The Election Commission of Pakistan may also initiate the process on its own in this behalf;

that equal chances should be provided to different communities of Karachi to participate in economic and commercial activities instead of confining the same to different political groups on the basis of parochial, racial, tribal, sectarian, partisan and provincial prejudices;

that Karachi is full of arms and ammunition of prohibited and non-prohibited bores including licensed and illicit, therefore, Karachi has to be cleansed from all kinds of weapons by adhering to the laws available on the subject, and if need be, by promulgating new legislation. All licensed arms genuinely required for security concerns and personal safety may be retained but these must also be registered with NADRA. All other licenses, where such need cannot be shown, or where multiple licences have been issued to the same individual (as distinct from security firms) if not justified, or which are used for unnecessary display at ceremonies or elsewhere for aerial firing should be cancelled after summary and expeditious proceedings in accordance with law;

that there is a need for a fresh comprehensive law to eliminate and punish land grabbers and encroachers. This is one of Karachi's greatest problems. The court has already dealt with some cases suo motu and otherwise, and will continue to do so whenever necessary or appropriate. Sometimes Supreme Court is the last hope of the citizens or a community which turns to it for redress when all other avenues are denied to them. But overall it is the duty of both Governments to formulate such law and initiate it in the appropriate Assembly; and thereafter to implement it fully without showing any favour or immunity to any person whether a political favourite, ally or for any other personal or party consideration;

that monitoring of the criminal cases should take place in view of the observations made in the case of Sheikh Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504). Besides, the appointments of the Presiding Officers of the Anti-Terrorism Courts should also not be delayed for any reason, as it was experienced during the hearing of the case that those appointments were delayed for a period of nearly two years. However, under the direction issued by the court, the Presiding Officers were appointed and it is expected that such delays shall not be allowed to occur in future;

that since innocent citizens have lost their lives, number of .which comes to 1310 during the current year. Similarly, a good number of citizens have been injured and/or lost their valuable property, both movable and immovable, therefore, Provincial Government/Executive shall constitute a Commission to assess their losses and on its recommendation, compensation must be paid to the sufferers without partisan consideration, as early as possible;

Supreme Court directed that there must be no `no go areas' at all in Karachi. If any is found or credibly reported to the court the Police and, if required by the Provincial Government, the Rangers shall take strong and decisive action to eliminate it. Moreover, if such an area is proved to exist to the satisfaction of the court, Supreme Court may require the Inspector General Police himself, and if necessary the DG Rangers also, to personally lead the operation into such areas. The Police and Rangers are therefore, expected to conduct the on-going operation across the board without showing any favour to any one and without being influenced from any quarter, be it political or otherwise. In case they are asked to obey any illegal orders, or to show leniency to any criminal, it will be their duty to bring it to the notice of the court and appropriate orders will be passed accordingly;

that an independent and a depoliticized investigation agency be deputed to conduct investigation of cases fairly, honestly and without being influenced in any manner. Similarly, the prosecution agency comprising competent prosecutors and the Provincial Government/Executive must provide protection to the witnesses so that they may depose against the perpetrators of crimes without any fear, enabling the courts to decide cases against them in accordance with law. The prosecutors, particularly for the Anti-Terrorism Courts should be appointed in a highly transparent manner according to the Constitution and the law. Appointments of prosecutors are required to be undertaken without any political whims and considerations;

that DG NADRA and the Inspector General Police will set up a special joint cell with specialized officials and experts along with sufficient manpower to establish several teams to visit on the spot and identify illegal foreigners so that they may be dealt with strictly in accordance with law after a proper hearing and opportunity to present proof of their citizenship. They should attempt to conclude this exercise preferably in one year;

that the Inspector General Police shall collect the record and facts about the disappearance or elimination of all police and other officials who took part in the Karachi operations of 1992 and 1996 or were witnesses in ethnic or related crimes and present a report to the court within the next one month also showing whether their families were compensated or not;

that the Provincial Government shall place on record of the court copies of all judicial inquiries instituted in the matter of law and order in Karachi since 1985. These shall be retained for perusal and for any necessary action or appraisal of the situation at any time in the future;

that the Provincial Government/Executive shall ensure smooth running of economic and commercial activities and shall take necessary steps that provide protection to businessmen against uncalled for and illegal shutter down and strikes. During arguments, it was also brought to the Court's notice that due to illegal strikes and shutter down calls, the normal life of citizens of Karachi is paralyzed, and allegedly it causes loss of billions of rupees in a day, therefore, it is observed that the Government and the political parties shall evolve a respectable way out to avoid such a situation in future; and

that a Committee be constituted by the Provincial Government/Executive, headed by the Chief Justice of Sindh High Court, who shall be assisted by the Chief Secretary, the heads of the security agencies i.e. para-military organizations and Inspector General Police, to supervise and ensure that law enforcement agencies take action indiscriminately, across the board against the perpetrators involved, in causing disturbances in Karachi. The Chief Justice shall convene the meeting at least once a month to review the implementation of present judgment and copy of the proceedings shall be transmitted to the Registrar of Supreme Court for perusal of Judges and passing appropriate orders at a later stage, if need be.

Barrister Zafarullah Khan, Advocate Supreme Court for Petitioners (in Constitution Petition No.61 of 2011).

Maulvi Anwar-ul-Haq, Attorney General for Pakistan, Syed Ashiq Raza, D.A.-G., M. Shoaib Shaheen D.A.G., Raja Aleem Abbasi, D.A.-G., Ms. Asma Jehangir, Advocate Supreme Court/President SCBA and Anwar Mansoor Khan, Senior Advocate Supreme Court/President, SHCBA, Abdul Fattah Malik A.G. Si,ndh, Shahadat Awan, P.G. Sindh, Wajid Ali Durrani, I.G.P., Sindh, Saud Ahmed Mirza, Addl. I. G. Sindh and Anwar Subhani, Legal Consultant (On Court Notice).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court [assisted by Abdul Sattar Pirzada, Advocate] for Province of Sindh.

Dr. Babar Awan, Senior Advocate Supreme Court and A.S.K, Ghouri, Advocate-on-Record for the Federation.

Arif Chaudhry, Advocate Supreme Court and A.S.K. Ghouri; Advocate-on-Record for M/o Interior.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Applicant (in C.M.A. No.4108 of 2011).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Applicant (in C.M.A. No.531-K of 2011).

Muhammad Aqil, Advocate, President KBA, Syed Haider Imam Rizvi, Advocate, Gen. Secy. and Iftikhar Javed Qazi, Advocate Supreme Court, Vice Chairman Sindh Bar Council for Applicants (in C.M.A. No.532-K of 2011).

Ghulam Qadir Jatoi, Advocate Supreme Court/Advocate-in-Record for Applicant (in C.M.A. No.533-K of 2011).

Khawaja Naveed Ahmad, Advocate Supreme Court and Mazhar

Ali B. Chohan, Advocate-on-Record for Applicant (C.M.A. No.535-K of 2011).

Irfanullah Marwat, Applicant in person (in C.M.A. No.541-K of 2011).

Syed Iqbal Haider, Senior Advocate Supreme Court and K.A.Wahab, Advocate-on-Record for Applicant (in C.M.A. No.544-K of 2011).

Faisal Kamal Aalam, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Applicant (in C.M.A. No.546-K of 2011).

Rasool Bux Palijo, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Applicant (in C.M.A. No.552-K of 2011).

Jamil Ahmad Virk, Advocate Supreme Court and Mazhar Ali B.

Chohan, Advocate-on-Record for Applicant (in C.M.A. No.555-K of 2011).

Javed Ahmad Chhattari, Advocate (Applicant) (in person) (in C.M.A. No.558-K of 2011).

Ashraf Samoo, Advocate/President Malir Bar Association for Applicant (in C.M.A. No.560-K of 2011).

Mst. Surriya (Applicant) in person (in C.M.A. No.561-K of 2011).

Dr. Farogh Naseem, Advocate Supreme Court Dr. Kazi Khalid Ali, Advocate Supreme Court and Izhar Alam Farooqi, Advocate-on-Record for Applicant (in C.M.A. No.565-K of 2011).

Afaq Ahmed (through Jail) for applicant (in C.M.A. No.569-K of 2011).

Dates of hearing: 26th & 29-30 August, 5-9 & 13 September, 2011.

P L D 2011 Supreme Court 1135

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

JUNAID REHMAN and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.372 to 379 of 2008, decided on 28th September, 2011.

(On appeal from the judgment dated 27-1-2007 of the High Court of Sindh, Karachi passed in Special Anti-Terrorism Appeals Nos.9, 10, 12, 13 and 37 of 2005 and Confirmation Case No.3 of 2005).

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.2(n)---Kidnapping for extortion and kidnapping for ransom---Scope---In order to constitute an offence of abduction for ransom actual payment of ransom and proof thereof are sine qua non and the offence stands constituted if there is an abduction and purpose of abduction is extortion of ransom or ransom is demanded for release of abductee.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 2(n) & 7(e)---Kidnapping for extortion or ransom---Reappraisal of evidence---Ransom---Proof---Conviction and sentence of death awarded to accused persons by Trial Court for kidnapping for ransom was altered by High Court into imprisonment for life---Validity---Some telephonic calls had actually been made and received regarding demand of ransom for release of abductee---Bank Manager had proved that at the relevant time a cheque issued by abductee's father for withdrawal of money equal to ransom had been encashed from the relevant bank and such fact had further established prosecution's case regarding demand of ransom by accused for release of abductee---Overwhelming evidence produced by prosecution convinced the courts below and the same had also left no doubt that the abduction was done for the purpose of extorting ransom and that ransom was demanded for his release----Not only the charge of abduction was established against accused persons but it had also been conclusively proved that such abduction was carried out for ransom---No background was available of any enmity or ill-will between accused and abductee and they were not even known to each other previously---Only plausible reason for abduction was to demand ransom for release of abductee---Abductee and his father were the most relevant persons to provide evidence in respect of abduction and demand of ransom and both of them made consistent statements in that respect before Trial Court---Abductee and his father had no reason to falsely implicate accused persons in a case of such nature---Prosecution had successfully proved its case against accused beyond reasonable doubt---Supreme Court declined to interfere in conviction and sentence awarded to accused persons by High Court---Appeal was dismissed.

Maqbool Elahi Malik, Senior Advocate Supreme Court along with Iftikhar Ahmad Mian, Advocate Supreme Court for Appellants (in Cr.A.No.372/2008 and for the respondent in Cr.A. No.373 of 2008).

Saleem Akhtar, Additional Prosecutor-General, Sindh for Appellants (in Cr.As.No.373 to 377 of 2008 and for the Respondents in Cr.As. Nos. 372, 378 and 379 of 2008).

Arshad Ali Chaudhry, Advocate Supreme Court (nominated by Court) for Appellants (in Cr.A.No.378/2008 and for the Respondent in Cr.As No.375 and 376 of 2008).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Appellant No.1 (in Cr.A.No.379/2008 and for Respondent No.1 in Cr. A. No.373/2008).

Khadim Nadeem Malik, Advocate Supreme Court and Nazir Ahmad Bhutta, Advocate Supreme Court for Appellant No.2 (in Cr.A.No.379/2008 and for Respondent No.2 in Cr.A.No.373 of 2008).

Asif Ali Abdur Razzaq Soomro, Advocate Supreme Court for Respondent (in Cr.A.No.377 of 2008).

Date of hearing: 28th September, 2011.

PLD 2011 Supreme Court 1144

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

GHANI-UR-REHMAN---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Criminal Appeal No.170 of 2003, decided on 20th September, 2011.

(On appeal from the judgment dated 26-6-2002 of the Peshawar High Court, Peshawar passed in Ehtesab Criminal Appeal No.4 of 2001).

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(da), 9(a)(v) & 14(c)---Assets beyond known sources of income---Benami owners---Proof---Pre-requisites---Principle of shifting of onus---Applicability---In order to prove commission of offence under S.9(a)(v) of National Accountability Ordinance, 1999, it has to be proved by prosecution as to what were the known sources of income of accused person at. the relevant time and that the resources or property of accused person were disproportionate to his known sources of income; it is after such proof has been led and necessary details have been provided by prosecution that onus shifts to accused person to account for such resources or property---Mere possession of any pecuniary resource or property is by itself not an offence but it is the failure to satisfactorily, account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes relevant offence.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(da) & 9(a)(v)---Assets beyond known sources of income---Benami owners---Reappraisal of evidence---Benamidars not summoned during trial---Legal heirs of accused, impleading of---Accused was convicted and sentenced by Trial Court for holding assets beyond known sources of income in the name of his wife and sons as his Benamidars and all assets in the name of his Benamidars were ordered to be forfeited---Conviction and sentence awarded by Trial Court was maintained by High Court---During pendency of appeal, the accused died and his legal heirs were impleaded in appeal---Validity---Sources of income of accused were never brought on record by prosecution and had never been quantified by it at any stage of trial---Trial Court could not conclude or hold that accused or his dependents or so-called Benamidars owned or possessed assets or pecuniary resources disproportionate to the income of accused---Wife of accused and his sons were set up as Benamidars and they were not summoned by Trial Court for providing them an opportunity to produce evidence in support of their claims regarding ownership of relevant assets in their own right or to substantiate that they had sufficient sources of their own to acquire relevant properties---Prosecution did not produce any evidence worth its name before Trial Court to establish any misuse of authority by accused as Chairman District Council or Provincial Minister so as to develop and establish any nexus between misuse of his authority and amassing of wealth or accumulation of assets by him---In complete absence of any evidence on record by prosecution it could not been held by courts below that the charge, as framed against accused stood established by prosecution---Supreme Court set aside the conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed.

Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 1; Khalid Aziz v. The Stae (Criminal Appeal No.361 of 2001) and Hakim Ali Zardari v. State 2007 MLD 910 ref.

Muhammad Hashim Babar v. The State and another 2010 SCMR 1697; Farrukh Javed Ghumman v. The State PLD 2004 Lah. 155 and Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 rel.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record. for Appellant.

Dr. Asghar Rana, Additional Prosecutor-General for NAB.

Dil Muhammad Alizai, Deputy Attorney-General for Pakistan on Court's call.

Date of hearing: 20th September, 2011.

P L D 2011 Supreme Court (AJ&K) 1

Before Khawaja Shahad Ahmad, C.J., Ch. Muhammad Ibrahim Zai, and Kh. Attaullah Chak, JJ

Criminal Appeal No.32 of 2001

(filed on 1-10-2001)

MUHAMMAD MALIK---Appellant

Versus

KARAM ELLAHI and another---Respondents

Criminal Appeal No.34 of 2001

(filed on 13-10-2001)

KARAM ELLAHI---Appellant

Versus

MUHAMMAD MALIK and others---Respondents

(On appeal from the judgment of the Shariat Court dated 13-8-2001 in Criminal Appeals Nos.11 and 25 of 1997).

Criminal Appeal No.17 of 2003

(filed on 9-4-2003)

MUHAMMAD SIDDIQUE---Appellant

Versus

MUHAMMAD MANSHA and another---Respondents

(On appeal from the judgment of the Shariat Court dated 10-3-2003 in Criminal-Appeal No.8 of 2001).

Criminal Appeal No.37 of 2003

(filed on 19-6-2003)

MUMTAZ HUSSAIN---Appellant

Versus

THE STATE and another---Respondents

(On appeal from the judgment of the Shariat Court dated 16-6-2003 in Criminal Appeal No.9 of 1996).

Criminal Appeal No.43 of 2003

(filed on 7-6-2003)

MUHAMMAD YOUNIS---Appellant

Versus

MUHAMMAD DAOOD and another---Respondents

(On appeal from the judgment of the Shariat Court dated 7-5-2003 in Criminal Appeal No.85 of 2002).

Criminal Appeal No.45 of 2003

(filed on 11-7-2003)

MUHAMMAD SABIR---Appellant

Versus

MUMTAZ HUSSAIN and another---Respondents

(On appeal from the judgment of the Shariat Court dated 16-6-2003 in Criminal Appeals Nos. 9 and 17 of 1996).

Criminal Appeal No.60 of 2003

(filed on 11-11-2003)

MUHAMMAD BOOTA---Appellant

Versus

MUHAMMAD ISHAQUE and others---Respondents

(On appeal from the judgment of the Shariat Court dated 15-9-2003 in Criminal Appeal No.2 of 2000).

Criminal Appeal No.10 of 2005

(filed on 9-2-2005)

ZAFAR IQBAL---Appellant

Versus

THE STATE and another---Respondents

(On Appeal from the judgment of the Shariat Court dated 20-12-2004 in Criminal Appeal No.I6 of 2003).

Criminal Appeals Nos. 32, 34 of 2001, 17, 37, 43, 45, 60 of 2003 and 10 of 2005, decided on 9th February, 2011.

(a) Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (XI of 1974)---

----S. 25---Criminal Procedure Code (V of 1898), Ss.345(1) & 417(2)---Penal Code (XLV of 1860), Ss.299, 305, 309, 310, 313, 337-O 338-E---Qatl-e-amd and attempt to commit qatl-e-amd---Person competent to file appeal---Scope---Question of law involved, in the present case, was that after coming into force of the Criminal Procedure Code (Amendment) Act, 1995, whether father of injured person could validly file appeal against judgment of the District Court or Shariat Court; and that as to who could file appeal in murder case against an order of acquittal or for enhancement of sentence---Held, in case of murder, the heirs of victim, according to his personal law, would be "Wall", if there was no "Wali" then Government was termed as legal heir of the deceased who would be his "Wali" and was competent to file appeal---In case of 'Qisas' a legal heir/'Wali' apart from the State, was competent to file appeal from the acquittal or for enhancement of sentence---In case of hurt, the victim was 'Wali' and if the victim was minor and insane, the right of 'Qisas' vest in the father or paternal grandfather; and if victim would die before execution of 'Qisas' his legal heirs could claim 'Qisas'; and if there was no legal heir, then the Government in absence of victim or heirs of the victim, was "Wali"-Contention that public at large or the complainant who was not legal heir of a deceased or himself was not victim, could also file an appeal was repelled---"Person aggrieved" only could file an appeal from acquittal or for enhancement of sentence passed by the Tehsil Criminal Court in the District Court, Shariat Court and Supreme Court---No general definition could be laid down for "person aggrieved" broadly for the purpose of filing acquittal appeal or appeal for enhancement of punishment---Person whose legal right was injured, could be treated as "aggrieved", but for the purpose of 'Qisas' and 'Hadood' and in case of "qatl-e-amd; Wali/legal heir of deceased the Government/State could be termed as 'aggrieved person' and in case of 'hurt'; victim himself and, if he was minor, his "Wali" or upon death of the victim, his legal heirs; the Government/State could be termed as 'aggrieved person'---Principles.

Abdul Khaliq Khan v. Muhammad Afsar Khan and 4 others 1995 PCr.LJ 391; Abdul Karim v. Tahir ur Rehman 1990 PSC 735; Muhammad Farooq v. Muhammad Afzal and another 2000 PCr.LJ 1680; Mir Gul v. Abdul Karim and 5 others 1999 PCr.LJ 1507; Abdul Qayyum v. Aziz-ur-Rehman Shah and another 2004 PCr.LJ 422; Muhammad Shafi v. Muhammad Asghar and others PLD 2004 SC 875; Haji Muhammad Sharif Khan and another v. Zahir Hussain Shah 1999 PCr.LJ 903; Talib Hussain and 5 others v. Daweed and 5 others 2003 YLR 2891; Habib-ur-Rehman and 9 others v. Muhammad Aziz and 2 others 1997 SCR 253; Abrar Hussain Shah and another v. The State and another PLD 1987 SC (AJ&K) 65; Muhammad Farooq v. Muhammad Afzal and another 2000 PCr.LJ 1680; Abdul Jalil v. Zulfiqar Ali and another 1998 PCr.LJ 697; Sardar Muhammad Khan v. Muhammad Afsar Khan 1991 PCr.LJ 508; Ms. Rachel Joseph v. Aftabuddin Qureshi and 2 others 2000 PCr.LJ 1715; Moulvi Muhammad Mushtaq v. The State 1998 PCr,LJ 679; Muhammad Tufail v. Faqir Muhammad and 3 others 2009 PCr.LJ 127; Sardar Muhammad Khan v. Muhammad Afsar Khan 1991 PCr.1.J 805; Muhammad Kabir Khan v. Muhammad Shahalam and 2 others PLJ 1999 Sh.C.(AJ&K) 141; Talib Hussain and 5 others v. Daweed and 5 others 2003 YLR 2891; Khalid Hussain v. Naveed alias Qalb Ali and 2 others PLD 2007 Kar. 442 and Muhammad Tufail v. Faqir Muhammad and 3 others 2009 PCr.LJ 127 ref.

(b) Words and phrases---

----"Aggrieved person ", defined and explained.

Thiruvengadam v. Muthu Chettiar AIR 1970 Mad. 34; (1969) 1 Mad. IJ 143; A.G. of Gambia v. N.Fie, '(1961) 2 All ER 504; S.N. Prasad v. Chancellor, Allahabad University 1971 AU 274; S.M. Transport (Pvt.) Ltd., (1961) 2 MLJ 127; AIR 1961 Mad. 180; ILR 1961 Mad. 110; Rex v. Richmand Confirming Authority, Ex-parte Howitt, (1921) 1 K.B. 248; Rex v. Groom, Ex parte Cobbold (1901) 2 K.B. 157; AIR 1970 Mad. 34 at p.37 and (1969) 1 MU 143 ref.

Ch. Muhammad Riaz Alam for Appellant (in Cr.A. No.32) and for Respondents (in Cr.A. 34 of 2001).

Ch. Jahandad Khan for Appellant (in Cr.A. No.34) and for Respondents (in Cr.A.No.32 of 2001).

Ch. Abdul Aziz for Appellant (in Cr.A. No.17 of 2003).

Ch. Muhammad Sharif Tariq for Respondents (in Cr.A. No.17 of 2003).

Ch. Muhammad Taj for Appellant (in Cr.A. No.37 of 2003).

Ch. Jahandad Khan for Appellant No.2 (in Cr.A. No.37 of 2003).

Ch. Muhammad Riaz Alam for Appellant (in Cr.A. No.43 of 2003).

Nemo for Respondents (in Cr.-A. No.43 of 2003).

Ch. Jahandad Khan for Appellant (in Cr.A. No.45 of 2003). Ch. Muhammad Taj for Respondents (in Cr.A. No.45 of 2003).

Muhammad Siddique Chaudhry for Appellant (in Cr.A. No.60 of 2003).

Sardar Muhammad Azam Khan for Respondents (in Cr.A. No.60 of 2003).

Ch. Muhammad Anwar for Appellant (in Cr.A. No.10 of 2005).

Raja Fazal Hussain Rabbani, A.-G. for the State (in Cr.A. No.10 of 2005).

Khalid Yousaf for Respondent No.2 (in Cr.A. No. 10 of 2005).

Date of hearing: 8th July, 2010.

P L D 2011 Supreme Court (AJ&K) 25

Before Khawaja Shahad Ahmed, C.J. and Muhammad Ibrahim Zia, J

WAZIR HUSSAIN SHAH and 7 others---Appellants

Versus

ALI SHAH and 3 others---Respondents

Civil Appeal No.62 of 2008, decided on 7th December, 2010.

(On appeal from the judgment of the High Court, dated 28-3-2008 in Civil Appeal No.20 of 2003).

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

----S. 96(3)---Qanun-e-Shahadat (10 of 1984), Art.114---Appeal against consent decree---Competence---Principle of estoppel---Applicability---Party inviting the court to. adopt a procedure not contemplated by the Civil Procedure Code in deciding suits, could not subsequently blame the court for following such procedure---Where both the parties agreed for adjudication of a case by adopting a particular procedure, the decree passed, was consent decree and it was not open to either party to appeal from it- Reasons for insertion of S.96(3), C.P.C. were that a party after having consented to an agreed decision could not appeal against the same---Apart from technical bar in respect of appeal, against the decision based on consent, the party challenging such a decision could not be allowed to argue that the court passing the order did not follow correct procedure in deciding the matter---Principle of estoppel by conduct would apply with full force to such a situation---Where a party by its conduct would oblige the court to adopt a course which was contrary to its practice or laid down procedure, that party would be debarred front raising objection contrary to its agreement before the court---Party which would lead the court to deviate from normal procedure was normally estopped from challenging the order passed by the court with the consent of such a party.

1998 PLC (C.S) 431; PLD 1969 Lah. 365; 1989 SCMR 1826; PLD 1983 SC (AJ&K) 56 and AIR 1936 Mad. 856 ref.

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

----S. 75, O.XXVI, Rr.1 & 9---Issuance of Local Commission---Value of the report and investigation by Commission---Scope---Civil court under provisions of S.75 and Rules 1 & 9 of O. XXVI, C.P.C. could appoint Commission or ask for a report after spot inspection and base its findings according to the report to take into consideration report of Commission along with other evidence brought on .record---Where parties agreed for appointment of Commission to determine any fact or disputed controversies, the court would remain under its jurisdiction to issue a Commission for local investigation/inspection to direct the same, if it deemed it proper---Such power even was exercised for elucidating any matter in dispute---As far value of the report and investigation by a Commission was concerned, the basic requirement of law was that it could not be relied for recording a judgment by the civil court---Evidence of the parties had to be considered to determine the comparative merit---Report of the Commission could be disputed, but on limited grounds---Once the parties agreed to report through spot inspection by the Commission, the parties so agreed could not deviate from their agreed stance and ask the court that the report of the Commission was not accepted---Unless flagrant disregard of any provisions had been made out, report of the Commission, that also by the consent of the parties and consequent decree, could not be disputed to linger on the litigation for another considerable period of time.

PLD 1983 SC(AJ&K) 56 distinguished.

AIR 1940 PC 3; 1988 SCMR 730 and 1995 SCMR 1069 ref.

(c) Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.)---

----Ss. 14 & 16(c)---Suit for pre-emption---Exercise of the right of prior purchase where several persons were equally entitled to that---Report of Local Commission had revealed that each of the pre-emptors owned land adjacent to the suit land and that each of the pre-emptors had the right of prior purchase as pleaded by them in their respective pre-emption suits---In such circumstances the courts below should have adverted to the postulated provisions of Ss.14 & 16(c) of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993(B.K.)---Each of the rival pre-emptors, were Shall Jar as they owned immovable property adjacent to the immovable property sold---Term "owner of Mahal" . under S.16 category 'c' referred to a person termed 'Shafi Jar' as he held the property adjacent to the property sold---Judgments recorded by all the courts below, were set aside and case was remanded to the Trial Court to pass a decree keeping in view provisions of S.16 of Azad Jammu and Kashmir Right of Prior Purchase Act, 1993(B.K.)---Trial Court for that purpose would determine the proportion among rival pre-emptors to the shares which they already owned adjacent to the properly sold.

Sardar Shamshad Hussain Khan for Appellants.

Khalid Rasheed Chaudhry for Respondents.

Date of hearing: 18th October, 2010.

P L D 2011 Supreme Court (AJ&K) 36

Before Khawaja Shahad Ahmed, C.J. and Khawaja Attaullah Chak, J

MUMTAZ RASOOL MIR---Appellant

Versus

TARIQ MIR and 6 others---Respondents

Civil Appeal No.65 of 2009, decided on 28th February, 2011.

(On appeal from the judgment of the High Court dated 11-2-2009 in Writ Petition No.156 of 2006).

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

---Ss. 39 & 35---Rescission of contract---Scope---Agreement was executed between appellant and Medical Superintendent of Government Hospital, whereby permission was granted to appellant for construction of a medical store in the premises of the Hospital---After the agreement, building of medical store was constructed and appellant had been utilizing said premises for medical store---Respondent who was also eligible and intended to obtain the said contract (Medical Store), could not get the same as it was given to the appellant without inviting tenders and calling applications from the aspirants---Respondent filed writ petition in the High Court alleging that action of Medical Superintendent of the Hospital was illegal and violative of fundamental rights guaranteed by the Constitution---Writ petition was accepted by the High Court and agreement arrived at between the appellant and Medical Superintendent, was cancelled---Validity---Contract signed between the appellant and Medical Superintendent, was executed by the parties without bidding in that regard---Property belonging to the Government, could not be handed over to any private person, without obtaining approval of the Government, through a Government notification---In the present case, no such approval of the Government had been obtained by the Medical Superintendent before entering into contract with the appellant---Medical Superintendent had entered into said agreement with appellant on the basis of his personal liking and disliking---No law existed which empowered any departmental Authority to award or enter into contract with private parties on the basis of negotiation---Counsel for appellant had contended that respondent (writ petitioner before High Court) had an alternate remedy under Ss.35 & 39 of Specific Relief Act, 1877, regarding rescission of contract---Validity---Under provisions of S.35(a)(b)(c) of Specific Relief Act, 1877, if a default was made by a party then person so affected could avail remedy under said section---Section 35(a)(b)(c) in circumstances, was not attracted in the present case---Person, who was not party to agreement, could not claim relief under S.39 of Specific Relief Act, 1877---Respondent being not party to the instrument (agreement), could not claim remedy under S.39 of Specific Relief Act, 1877---Appeal was dismissed and judgment of High Court was upheld, in circumstances.

2000 YLR 1046; PLD 2004 SC (AJ&K) 30; 1996 SCR 321 and 1999 MLD 33 ref.

Khushi Muhammad v. Noor Bibi 2005 YLR 2645 fol.

Azad Government and others v. Sahibzada Muhammad Dawood and 3 others 2000 YLR 1046; Javed Hussain Jaafri v. Azad Government and 4 others 1998 SCR 70; AJK Board of Intermediate and Secondary Education Mirpur and 3 others v. Engineer Muhammad Khalid 2004 SCR 136 and Zafar Umar Khan and others v. Agricultural Development Bank and others 1996 SCR 321 distinguished.

(b) Azad Jammu and Kashmir Law Department Manual, 1984---

----Ss. 34 & 36--- Person holding public office, had engaged a private counsel to defend him before the Supreme Court---Such was a clear violation of Rules and Regulations provided under Azad Jammu and Kashmir Law Department Manual, 1984.

Raiz Naveed Butt and Khalid Rashid Chaudhry for Appellant.

M. Ayyub Sabir for Respondent No.1.

Muzaffar Ali Zaffar for Respondents Nos.2 to 6.

Sardar M. Azam Khan for Respondent No.7.

Date of hearing: 3rd February, 2011.