PLD 2012 Judgments

P L D 2012 Federal Shariat Court 1

Before Shahzado Shaikh and Rizwan Ali Dodani, JJ

KHURRAM SHAHZAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.262/L of 2006, decided on 27th January, 2012.

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

----S. 10(3)---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Zina-bil-Jabr---Appreciation of evidence---Victim girl aged three years had pointed towards the accused present in Trial Court as the culprit and stated what he had done to her---Version of the minor victim was corroborated by medical evidence---Victim was not cross-examined and no objection was raised on any material point despite opportunity having been given to the defence, which amounted to acceptance of her statement---Sole testimony of the victim girl being natural, reliable, satisfactory and confidence inspiring, was enough for conviction---Father and mother of the victim though were not eye-witnesses of the occurrence, yet they had given details of the facts narrated to them by her---Veracity of both these witnesses was not shattered during cross-examination and their statements had not only corroborated each other, but the same were also corroborated by medical evidence and report of the Chemical Examiner, according to which the vaginal swabs were found stained with semen---Complainant had not straightaway nominated the accused in the F.I.R., rather he had done so after having come to know about him, which showed honesty of the complainant---Accused had failed to establish his false implication in the case---Accused had committed a heinous offence with a minor girl of three years in a brutal manner, which had not only pained, shocked and traumatized her, but had also left a stigma on the family and accused deserved no leniency---Conviction and sentence of accused were upheld, in circumstances.

Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Nasir Mahmood and another v. The State and another PLD 2006 Lah. 207; Khadim Hussain v. The State 2011 PCr.LJ 1443 and PLD 2005 Lah. 589 ref.

(b) Criminal trial---

----Extra-judicial confession---Value---Although extra-judicial confession is not the basic piece of evidence for conviction and sentence, yet it can be used if properly corroborated by other evidence.

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

----S. 10(3)---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Zina-bil-Jabr---Prosecution witnesses, examination of---Prosecution is not bound to produce all the prosecution witnesses mentioned in the calendar of witnesses, except those who are necessary to prove the guilt of accused.

Khadim Hussain v. The State 2011 PCr.LJ 1443 ref.

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

----S. 10(3)---Zina-bil-Jabr---Appreciation of evidence---DNA test---Evidentiary value---Utility and evidentiary value of DNA Test is acceptable, but not in a case falling under the penal provisions of zina punishable under Hudood Laws having their own standard of proof.

PLD 2005 Lah. 589 ref.

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

----S. 10(3)---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Zina-bil-Jabr---Appreciation of evidence---Testimony of victim---Principle---Sole testimony of the victim is enough for conviction, if it is truthful and inspires confidence.

PLD 2005 Lah. 589 ref.

Ch. Muhammad Arshad Ramay for Appellant.

Rana Aftab Ahmad for the Complainant.

Nisar Ahmad Virk, D.P.G. for the State.

Date of hearing: 27th January, 2012.

P L D 2012 Federal Shariat Court 13

Before Dr. Fida Muhammad Khan, J

IMDAD HUSSAIN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.1/L of 2011, decided on 3rd November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 514---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11/13/14---Constitution of Pakistan, Art.203-DD---Zina, abduction, selling and buying person for purposes of prostitution---Forfeiture of surety bond---Accused for whom petitioner stood surety having slipped away from the court during the pronouncement of judgment by the Trial Court---Accused was declared as proclaimed offender and notice was also issued to the petitioner surety and since surety was not in his house, Police forced his nephew to pay the amount of surety---Nephew of the petitioner who had no other option, except to deposit amount of surety, deposited the same---Validity---Petitioner surety had faithfully discharged his obligation by producing accused on each date of hearing---Accused slipped away from the court when the Trial Court was announcing the judgment---Surety had fulfilled his obligation---Lapse, if any, was committed by the representatives of the law enforcing agencies, who were present in the court; it was their responsibility to show vigilance and keep accused under close watch---Surety was definitely liable to produce accused, but once had produced him in the court, his obligation for that particular day was fulfilled and he was discharged of his duty---Surety having already fulfilled his obligation to produce accused on the date of hearing, forfeiture of bond submitted by him, in circumstances, would be oppressive, and unjust---Impugned order which had entailed the forfeiture of the bond and direction to the nephew of petitioner/surety instead to pay full amount of surety, could not be sustained---Impugned order was set aside and petitioner stood discharged of his bail bonds.

Shafiq Ahmed and others v. The State 1982 PCr.LJ 623; Shatab Khan and another v. The State PLD 1996 Lah. 600; Lahore Stock Exchange Ltd. v. Asmat Ullah Sheikh PLD 1996 Lah. 602; Farman Ali v. The State 1999 PCr.LJ 2102 and Ghulam Qadir Siyal v. The State 1997 PCr.LJ 554 ref.

Khurram Shahzad Malik for Petitioners.

Muhammad Akram Tahir, District Deputy Prosecutor General for the State.

Date of hearing: 7th October, 2011.

P L D 2012 High Court (AJ&K) 1

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

MUHAMMAD ASLAM and 27 others---Petitioners

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary to Azad Govt. Muzaffarabad and 9 others---Respondents

Writ Petition No.1208 of 2011, decided on 7th December, 2011.

(a) Land Acquisition Act (I of 1894)---

----Ss. 4 & 17(4)---Companies Ordinance (XLVII of 1984), Ss.30, 31, 32, 451 & 452---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Acquisition of property---Public purpose---Scope---Notification issued by Collector for acquisition of property for construction of a Power Project by company, had been challenged by the owners of the property---Petitioners (owners) had contended that said company being a non-State-Subject and not registered in Azad Jammu and Kashmir, acquisition of property for such company was neither lawful nor same was being acquired for the public purpose---Validity---Term "company" would mean a company registered under the Companies Ordinance, 1984---Certificate issued by Registrar of Joint Stock Companies, had revealed that the company had delivered the necessary documents required under Ss.30, 31, 32 & 451 of Companies Ordinance, 1984; and thereafter the proceedings of acquisition of land in the company's favour had been made---Once any company was registered after fulfilling the requirements of proceedings then it could not be said that the company was non-State Subject---Purpose for which land was being acquired for the company was of public utility---Even otherwise acquisition proceedings, though were being taken in favour of company, but ownership of said project would be given to Azad Jammu and Kashmir Government---Controversy that the company was not State Subject had, therefore, become irrelevant---Company had also stated in written statement that their status was that of contractor/lessee and; they would use the project only for 35 years, subject to payment of settled tariff to Azad Government---Contention of the petitioners that property in question had been acquired for the company, being misconceived was turned down, in circumstances.

(b) Land Acquisition Act (I of 1894)---

----Ss. 4 & 17(4)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Acquisition of land for public purpose---"Public purpose", determination of---Scope---Collector Land Acquisition had the prerogative to determine as to whether purpose of acquisition was public purpose or not---Question of public purpose, could not be determined by High Court in exercise of writ jurisdiction---Property in question having been acquired by Government for construction of project by company which would remain in the ownership of Government and after using 35 years as a contractor, the project would be handed over to the Government, land in question, therefore, was required for public purpose within the meaning of S.4 of Land Acquisition Act, 1894---Prayer of the petitioners for abrogation of notification pertaining to emergency acquisition, was also declined.

Administrator Municipal Corporation Committee Kotli and others v. Muhammad Abdullah and 3 others 2001 SCR 128 rel.

(c) Land Acquisition Act (I of 1894)---

----Ss. 4 & 15---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Acquisition of land---Determination of amount of compensation---Collector had the sole prerogative to determine the amount of compensation---Constitution of Advisory Committee for the purpose through impugned notification was contrary to basic provision of Land Acquisition Act, 1894---No provision of law existed under which said notification was promulgated---Price of the land in question was determined by Advisory Committee and not by the Collector while exercising its independent power---Impugned notification pertaining to the constitution of District Price Assessment Advisory Committee for the purpose of acquisition of land was quashed by High Court---Ancillary proceedings of the Advisory Committee regarding fixation of market value of immovable property in question, were declared without jurisdiction and set aside---Collector, was directed to assess the market value of land including other things attached to said land in accordance with the provisions of S.15 of Land Acquisition Act, 1894.

Messrs Qureshi Vegetables and Ghee Mills v. Deputy Collector Excise and Taxation Mirpur and others 1994 SCR 123; Iqbal Razzaq Butt v. Abdus Salam Butt and 6 others 1999 MLD 261; Walayat Khan and 2 others v. Muhammad Azam and 12 others PLD 1996 SC(AJ&K) 18; Messrs Haroon Brothers v. Drugs Registration Board and another 1992 CLC 1017; Attaullah Atta v. Ghulam Bashir Mughal and 5 others 1996 CLC 1551 and Federation of Pakistan through Ministry of Defence and 2 others v. Muhammad Khan and another PLD 1991 SC(AJ&K) 33 distinguished.

Abdul Rasheed Abbasi for Petitioners.

Syed Shahid Bahar for Respondents Nos. 1 to 9.

Noorullah Qureshi for Respondent No.10.

P L D 2012 High Court (AJ&K) 14

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

MUHAMMAD ASLAM---Petitioner

Versus

SHAMIM AKHTAR and 5 others---Respondents

Writ Petition No.1369 of 2010, decided on 17th February, 2012.

(a) Azad Jammu and Kashmir State Subject Act, 1980---

----S. 4(4)(5)---Azad Jammu and Kashmir State Subjects Rules, 1980, R.6---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Cancellation of State Subject Certificate--Petitioner who migrated from Indian Held Kashmir, obtained State Subject Certificate front the Office of Deputy Commissioner--Competent Authority allotted an evacuee piece of land in the name of the petitioner---Subsequently an objection raised by the respondents with regard to grant of State Subject Certificate and allotment of evacuee property to the petitioners, Azad Jammu and Kashmir Council, constituted a Committee and on recommendation of said Committee competent Authority, cancelled State Subject Certificate issued to the petitioner---Validity---Azad Jammu and Kashmir Council had ample authority to pass an order to deprive any person of a State Subject Certificate, if in its opinion the said certificate had been obtained by means of fraud, false representation or concealment of any material fact---Exercise of such authority was subject to the provisions of Azad Jammu and Kashmir State Subject Act, 1980 and Azad Jammu and Kashmir State Subject Rules, 1980---Notice had been issued under R.6 of Azad Jammu and Kashmir State Subject Rules, 1980, but the Committee as mentioned in the said notice had not been constituted strictly in accordance with said Rules, and S.4 of Azad Jammu and Kashmir State Subject Act, 1980---Committee mentioned in the notice was only a fact finding Committee which had to probe into the matter and after the inquiry, had to make its recommendation to the Authority for proceeding under S.4 of Azad Jammu and Kashmir State Subject Act, 1980---Authority after proceeding and applying its mind, was to issue show-cause notice to the petitioner for depriving him from the State Subject Certificate---Imperative requirement of Azad Jammu and Kashmir State Subject Act, 1980 could not be dispensed with and Chairman of the Committee should be a person possessing Judicial experience---Where proceedings were initiated against a person on the ground of fraud and false representation, only. a Judicial Officer or a person in possession of judicial experience, could determine accusation in a judicious manner---Law would protect dignity of every one by not allowing to plead fraud and forgery against any person in a casual manner---Rule of common sense and fair play 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--When the constituted Committee was unconstitutional, then the question of waiver, could not be pleaded---Azad Jammu and Kashmir Council, had the authority to delegate its powers to a subordinate Officer, but for the purpose of delegation of power under the Azad Jammu and Kashmir State Subject Act, 1980, a notification had to be issued under S.6 of the said Act---Constitution of Committee as well as the proceedings and impugned order passed by the Committee was ultra vires the Azad Jammu and Kashmir State Subject Act, 1980 and Rules made thereunder.

Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1986 SC(AJ&K) 109; Residents of Mirpur v. Mayor Municipal Corporation Mirpur and another 1995 SCR 332; Muhammad Sharif v. Muhammad Manzoor and others 1993 SCR 92; Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355; AbdulQadir v. Abdul Karim and 4 others

1999 PLC(C,S,) 947; Sulmeman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.) 714; Abdul Hamid v. Custodian of Evacuee Property and 29 others 2002 CLC 1186 and Engineer Muhammad Khalid v. The University of AJ&K and 8 others 2004 SCR 467 ref.

Umar Ahmad Ghumman v. Government of Pakistan and others PLD 2002 Lah. 521; Abdul Hafiz Khan's case PLD 1983 Quetta 20 and Muhammad Hussain and another v. Muhammad Shafi and others 2004 SCMR 1947 rel.

(b) Fraud---

----Where proceedings were initiated against a person oil the ground of fraud and false representation, only a Judicial Officer or a person in possession of judicial experience, could determine accusation in a judicious manner---Law would protect dignity of every one by not allowing to plead fraud and forgery against any person in a casual manner---Rule of common sense and fair play 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.

(c) Interpretation of statutes---

----Special law would prevail on the general law---Where a situation was specifically dealt with by a provision of law, then any general provision relating to the same subject would not be attracted.

PLD 1978 SC(AJ&K) 37 and 1980 CLC 789 rel.

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

----Art. 114---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Estoppel and acquiescence---Scope---Estoppel and acquiescence were recognized grounds on the basis of which a writ could be refused, but when it was proved from the record that a person had not been dealt with in accordance with law; and also was not aware of the true facts of the case, he could not be denied the right to approach the court merely on the ground of acquiescence and estoppel; or he had participated in the proceedings, without raising objection.

Munawar Hussain's case 2005 SCMR 1388 and Umar Hayat's case 1999 PLC (C.S.) 93 rel.

Syed Shahid Bashir for Petitioner.

Raja Ghazanfar Ali,. A-G. and Mir Sharafat Hussain for Respondents.

Date of hearing: 17th February, 2012.

P L D 2012 High Court (AJ&K) 28

Before Munir Ahmed Chaudhary, J

Mian MUMTAZ AKHTAR and another---Petitioners

Versus

AZAD JAMMU AND KASHMIR COUNCIL SECRETARIAT through Secretary and others---Respondents

Writ Petitions Nos. 200 of 2006 and 59 of 2007, decided on 12th March, 2012.

(a) Azad Jammu and Kashmir State Subjects Act, 1980---

----S. 4---Azad Jammu, and Kashmir State Subject Certificate (Cancellation) Act (IX of 1971), S.3---Azad Jammu and Kashmir State Subjects Rules, R.6---Azad Jammu and Kashmir Interim Constitution Act, 1974, S.44---Writ petition---State Subject Certificate---Report of Member, Board of Revenue recommending cancellation Of such certificate issued to the petitioner---Show cause notice issued to petitioner on basis of such report by Azad Jammu and Kashmir Council---Validity---Azad Jantntu and Kashmir Council had ample power to deprive any person of such Certificate alleged to have obtained same by means of fraud, false representation or concealment of any material fact and could issue such notice either on basis of report of Government or on its own motion---Only Board constituted under S.3 of Azad Jammu and Kashmir State Subject Certificate (Cancellation) Act, 1971 could probe into such, matter---Such Board had not yet been constituted, in the present case, resultantly inquiry could not yet be conducted under Azad Jammu and Kashmir State Subject Certificate (Cancellation) Act, 1971---According to Rules of Business (AJ&K) all Secretaries to Government for being part and parcel of Government, act on behalf of Government while deciding matters or performing functions in matters regarding their respective Departments---Such report/recommendation forwarded to the Azad Jammu and Kashmir Council by Board of Revenue would be considered as forwarded by Government---Such report contained facts found by concerned authority and was not an inquiry for purpose of passing a final order-Azad Jammu and Kashmir Council had yet to inquiry such matter after hearing the petitioner---Petitioner could apply for appointment of Committee for inquiry and produce evidence before the same---Azad Jammu and Kashmir Council had issued the impugned notice in accordance with law---Show cause, if processed in accordance with a lawful authority, could not he challenged in writ jurisdiction---Petitioner had an alternate remedy and opportunity to be heard before the Council, which had not yet passed final order against him---High Court dismissed writ petition for being not-competent/maintainable in circumstances.

Abdul Ghani v. Hamid Mufti and others (Case No.65 of 1994, dated 15-11-1997) and Ghulam Nabi v. Azad Jammu and Kashmir Council and others (Case No.34 of 2002 dated 18-10-2005) ref.

Shaheen Asad v. Azfar Yaseen and others 2001 PLC(C.S.) 93 rel.

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

----S. 44---Writ petition challenging vires of show cause notice---Maintainability---Such notice, if processed in accordance with a lawful authority, could not be challenged in writ jurisdiction.

Shaheen Asad v. Azfar Yaseen and others 2000 SCR 308 rel. Muhammad Riaz Tabassum for Petitioners.

Ch. Muhammad Taj and Ch. Bostan for Respondents. Date of decision: 12th March, 2012.

P L D 2012 High Court (AJ&K) 34

Before M.Tabassum Aftab Alvi, J

KHALIDA BEGUM and another---Appellants

versus

MUHAMMAD RASHID KHAN and5 others---Respondents

Civil Appeal No.97 of 2009, decided on 14th July, 2012.

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

----Ss. 372 & 373---Petition for issuance of succession certificate---Deceased having died issueless, his step brothers and sisters claimed ,that they being legal heirs of the deceased were entitled to receive. property left by the deceased; and they filed petition for issuance of succession certificate in their favour---Said petition was objected to by the widow and real sister of the deceased alleging that step brothers and sisters of the deceased being uterine, were not entitled to inheritance of the deceased; and they also filed petition for issuance of succession certificate in their favour---Trial Court consolidated both the petitions and disposed of those determining the shares of the parties according to sharia---Widow and real sister of the deceased though had conceded that they were granted their respective shares, strictly according to the Injunctions of the Holy Quran as well as Islamic law, but contended that step brothers and sisters of the deceased, who were uterine were not entitled to residuary shares which returned to real sister of the deceased---Validity---Step brothers and sisters of the deceased, were not uterine brothers and sisters, but in fact consanguine brothers of sisters---Consanguine brothers and sisters were not excluded from inheritance and they could not be deprived from inheritance under law---Impugned judgment which was passed by the Trial Court in accordance with injunctions and principles, needed no interference by the High Court.

(b) Pleadings---

----Party could not be allowed to plead its case against the pleadings.

Sardar Abdul Rashid Chughtai for Appellants. Sardar Nazar Muhammd Khan for Respondents. Date of decision: 14th July, 2012.

P L D 2012 Islamabad 1

Before Iqbal Hameed-ur-Rahman, C J

ROUSCH (PAKISTAN) POWER LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN through Chief Commissioner and 4 others---Respondents

Writ Petition No.2599 of 2011, decided on 26th September, 2011.

(a) Stamp Act (II of 1899)---

----Ss. 33 & 48---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of duties and penalties---Impounding of instruments---Scope---Security documents of the petitioner, had been impounded by Sub-Registrar, under S.33 of Stamp Act, 1899, due to alleged deficiency of amount on account of registration fee against the documents registered in the year 2008 relating to petitioner's company---Validity---Under S.33 of Stamp Act, 1899, Incharge of a Public Office, except an Officer of Police, before whom any instrument chargeable in his opinion, with duty, was produced or came in the performance of his functions, would if it appeared to him that such instrument was not duly stamped, impound the same---Section 33 did not empower Sub-Registrar to impound said documents presented by the petitioner company, on the basis of deficiency of registration fee pertaining to the year 2008---Impugned action of Sub Registrar was not in line with the Stamp Act, 1899---If any amount was recoverable from the petitioner company on the basis of deficient registration fee in respect of Security Documents of the petitioner company, that were registered in the year 2008, Sub-Registrar could proceed against the petitioner company in accordance with S.48 of Stamp Act, 1899---Section 48 of Stamp Act, 1899 had empowered the Collector to recover all duties, penalties and sums etc. by distress or by sale of movable property of the person from whom same were due---Stamp Act, 1899, had nowhere authorized the Sub-Registrar to impound such documents presented by the petitioner company for registration in the year 2010---Impugned action was not sustainable in the eye of law and was declared illegal and without any legal justification.

2000 CLC 1877; PLD 2000 Lah 433; PLD 2007 Lah 507 and PLD 2010 Lah 123ref

(b) Administration of justice---

----When a thing was to be done in a particular manner, same must be done in that way and not otherwise.

Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others 2010 SCMR 1437 rel.

Barrister Yousaf Khosa for Petitioner

Tariq Mahmood Jahangiri, Deputy Attorney-General.

Ch. Faisal Khurshid, Deputy Manager (Legal) for Respondent No.5.

Muhammad Iqbal, Naib Tehsildar, Islamabad Capital Territory, Islamabad

Amjad Hussain, Registry Clerk, Office of the Sub-Registrar (Rural), Islamabad Capital Territory, Islamabad.

P L D 2012 Islamabad 6

Before Riaz Ahmad Khan, J

ZAFAR IQBAL ABBASI---Petitioner

Versus

ZUBAIR ASLAM and 3 others---Respondents

Writ Petition No.2347 of 2008, decided on 8th July, 2011.

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

----Ss. 1(2), 2(J)(ii)(K), 7(3), 17(2)(i) & 21---Constitution of Pakistan, Art.199---Ejectment application---Default in payment of rent---Death of tenant---Impleading of legal heirs---Principles------Counsel for the tenant had contended that Islamabad Rent Restriction Ordinance, 2001 was promulgated on 23-1-2001, but as notification with regard to application of said Ordinance to urban areas of Islamabad Capital Territory was issued on 1-8-2002 and notification regarding residential and commercial buildings was issued on 24-6-2004, practically said Ordinance had become effective on 26-6-2004 and ejectment application was filed on 4-2-2003---Contention was that at the time of filing ejectment application Islamabad Rent Restriction Ordinance, 2001 was not in force, order passed by the Rent Controller and upheld by the Appellate Court was coram non judice---Validity---Under S.1(3) of Islamabad Rent Restriction Ordinance, 2001, said Ordinance which was promulgated on 23-1-2001, would come into force at once---Since ejectment application was filed in the year 2003 when Ordinance had come into force, Rent Controller had the jurisdiction to entertain ejectment application as by that time the urban area stood defined and disputed property fell in the said defined urban area of Islamabad---According to S.2(J)(ii) of Islamabad Rent Restriction Ordinance, 2001, in case of death of the tenant, members of his family who continued to be in possession or occupation of the premises in question would be considered as tenant---In the present case one of the legal heirs of deceased tenant who was in possession of the premises in question and was represented by his counsel, was to be considered as tenant and it was not necessary that all the legal heirs of the deceased tenant were to be impleaded---Tenant who was proved to be defaulter in payment of rent, was rightly ordered to be ejected both by the Rent Controller and Appellate Court below, on ground of default in payment of rent---Both courts below who had properly appreciated the facts, had rightly passed order for ejectment, which could not be interfered with---Constitutional petition was dismissed.

PLD 1974 Quetta 1, PLD 1961 Lah. 601, 2006 SCMR 1630; 1992 SCMR 1149 and 2010 SCMR 1443 ref.

Raja Shafqat Khan Abbasi for Petitioner and Sajjad Ahmed Abbasi (in person)

Barrister Jahangir Khan Jadon for Respondents.

P L D 2012 Islamabad 11

Before Riaz Ahmad Khan, J

Messrs DANCOM PAKISTAN (PVT.)LTD. through Chief Executive Officer---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Information and Technology and another---Respondents

Writ Petition No.2961 of 2010, decided on 24th June, 2011.

Access Promotion Rules, 2004---

---R. 9----Constitution of Pakistan, Art.199---Constitutional petition---Review of APCL Contribution and APC for USF Contribution---Non-revising of contribution rates towards Universal Services Fund (USF)--- Petitioner's grievance was that Telecommunication Authority (respondent) had not reviewed rates of contribution of Access Promotion Contribution (APC) and Access Promotion Contribution for fixed line Local Loop (APCL) for USF , after every six months as required under Rule 9 of Access Promotion Rules, 2004---Petitioner's contentions were that said rates were last revised in the year 2009 and as a result, the petitioner had to make the contributions on a very high rate and that although contribution rates were revised in 2011 but for the period between 2009 and 2011 they had not been revised which entitled the petitioner to be compensated for the said period---Validity--- Approved settlement rates as required under Rule 9 of Access Promotion Rules , 2004 had been revised in the year 2011 and as such grievance of petitioner had been addressed---Petitioner's second contention was raised only at the time of arguments and had not been mentioned in the constitutional petition and furthermore question of compensation related to recording of evidence and calculations of rates, which was beyond the ambit of constitutional jurisdiction---Petition was dismissed accordingly.

Mian Irfan Akram and Zahid Aman for Petitioner.

Shafi Muhammad Chandio, D.A.G. for Respondent No.1.

Raja Nosherwan Akhtar, Zulqurnain Bhatti, Dy. Director Legal and Ali Raza, Asstt. Director Legal for PTA.

Dates of hearing: 31st May, 7th, 14th, 20t5h and 24th June, 2011.

P L D 2012 Islamabad 13

Before Riaz Ahmad Khan, J

Syed SHUJAAT HUSSAIN---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORIYT through Chairman, Islamabad and another---Respondents

Writ Petition No.560 of 1999, decided on 17th June, 2011.

Establishment of the Office of Wafaqi Mothasib (Ombudsman) Order (I of 1983)---

----Art. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Wafaqi Mohtasib---Jurisdiction---Decision on rights---Plot in question was cancelled on 22-12-1981 and petitioner filed complaint/representation before Wafaqi Mohtasib (Ombudsman) on 6-4-1994---Wafaqi Mohtasib accepted application of petitioner vide order dated 25-9-1994 and appeal against that order was accepted by the President vide letter dated 22-7-1998---Petitioner instead of assailing order of the President passed in appeal, assailed letter of Capital Development Authority, wherein letter regarding order of the President was mentioned---Validity---Letter from Capital Development Authority was not the order of the President, therefore, constitutional petition was not maintainable---Issue regarding rights of the parties could not come within the ambit of "mal-administration"---Wafaqi Mohtasib had the authority to adjudicate upon the matters regarding mal-administration, therefore, order of Wafaqi Mohtasib, deciding rights of parties was without jurisdiction---No contract was executed and a clause of agreement provided that Capital Development Authority had authority to terminate the agreement, order of termination was, therefore, in accordance with terms of agreement and legal---Petitioner was returned his amount, which he had received after about thirteen years---Petitioner approached Wafaqi Mohtasib, which meant that for a long period, petitioner not only remained silent, rather accepted order regarding termination of agreement---High Court declined to grant relief to the petitioner as claimed by him---Petition was dismissed in circumstances.

Abdul Rashid Awan for Petitioner.

Muhammad Ramzan Chaudhry for Respondent/CDA.

Date of hearing: 7th June, 2011.

P L D 2012 Islamabad 17

Before Iqbal Hameed-ur-Rehman, C J

Mst. NASREEN BEGUM and another---Petitioners

versus

MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN through its Secretary and 2 others--Respondents

Writ Petition No. 3099 of 2011, heard on 21st December, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Proforma respondent against whom no relief claimed by petitioner---Effect---Petitioner could not claim relief for a third person i.e. pro forma respondent---Such respondent, if having any grievance could file separate petition---High Court declined to grant prayer sought to the extent of such respondent.

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

----Ss. 2(1) & 3---Constitution of Pakistan, Arts. 2A, 4, 9, 15, 25 & 199---Constitutional petition---Placement of petitioner's name on Exit Control List due to pendency of inquiry against him on charge of money laundering/hundi---Validity---Conclusion of inquiry against petitioner would take consideration time---Neither any criminal case had been registered against petitioner nor was any investigation in a criminal case being conducted against him---Mere pendency of inquiry would not justify denial of fundamental right of travelling abroad guaranteed to a citizen by the Constitution---Nothing was available on record to justify impugned action of Authority---Preventing petitioner from proceeding abroad in furtherance of his study would violate fundamental rights guaranteed under Arts. 2A, 4, 9, 15 & 25 of the Constitution---High Court directed the Authority to remove petitioner's name from such List.

Masood Ahmed v. Federation of Pakistan through Secretary, M/O Interior,' Islamabad and another 2010 YLR 28; Naveed Zaheer v. Federal Government of Pakistan through M/O Interior Affairs and 2 others 2008 CLC Kar. 1607 and Muhammad Younas Marwat v. Government of Pakistan through Secretary M/O/ Interior and 3 others 2010 YLR 1573 ref.

Masood Ahmed v. Federation of Pakistan through Secretary, M/O Interior, Islamabad and another 2010 YLR 28 and Mian Munawar Ahmed v. Federation of Pakistan and others 2008 YLR 1508 rel.

Raja Rizwan Abbasi for Petitioners.

Tariq Mahmood Jahangiri, Dy. Attorney-General for Respondents.

Qaiser Masud, DD/Law FIA, H.Q. Date of hearing: 21st December, 2011.

P L D 2012 Islamabad 21

Before Riaz Ahmad Khan, J

OMV MAURICE ENERGY LIMITED through General Manager---Petitioner

versus

OCEAN PAKISTAN LIMITED through Chief Executive Officer and another---Respondents

C.S. No.249 of 2011, decided on 29th November, 2011.

(a) Arbitration Act (X of 1940)---

----Ss. 20 & 4---Application for filing arbitration agreement in court and referring the matter to arbitration---Petroleum Concession Agreement and Petroleum Farm out Agreement---Petitioners, on the basis of a Petroleum Concession Agreement signed between the -Government and the respondents, had entered into a Farmout Agreement with the respondents to carry out petroleum 'exploration operations---Deed of Assignment for the exploration work was signed between the parties on the basis of said Farmout Agreement---Under said Farmout Agreement and the Deed of Assignment, the majority 75% shares of the operation were transferred to the plaintiffs while the remainder minority shares were retained by the respondents and the Government---Dispute between the parties arose relating to default in payment and non participation in work by the respondents after exploration work had started on the basis of the Farmout Agree") ent---Contention of the petitioners was that the forum for settlement of such dispute under the Farmout Agreement was arbitration, and that the respondents did not want to initiate arbitration---Contention of the respondents was that the transfer of shares of the operations to the petitioners was illegal which had been challenged in a constitutional petition, and the defendants had initiated a civil suit regarding the demand for payment, and the right of the petitioners to 'carry out exploration work and in presence of said constitutional petition and civil suit, the matter could not be referred to arbitration and that the Farmout Agreement was superseded by the Deed of Assignment---Validity---Deed of Assignment itself was issued on the basis of the Farmout Agreement, and it could not be said that the Deed of Assignment had overruled the Farmout Agreement--Respondents, on the basis of Farmout Agreement had agreed to transfer 75% of the working interest to the plaintiff, and approval for the said transfer was given by the President of Pakistan by virtue of the Deed of Assignment---Farmout Agreement as well as the Deed of Assignment determined the rights and liabilities of the parties---Contention of the respondents that under Deed of Assignment disputes could only be settled through arbitration in accordance with the Petroleum Concession Agreement and not the Farmout Agreement was misleading as the Petroleum Concession Agreement provided for settlement of disputes between the Government and the parties---In the present case, the dispute was between the parties only (petitioner and respondents), who had the working interest in the exploration and production of petroleum products---High Court accepted, the application of the petitioner for referring the matter to arbitration, with the direction to the parties to nominate the arbitrators, and in case of dispute between the parties, an Umpire would be appointed by the arbitrators, with the consent of the parties, whose decision shall be final and binding upon the parties---Basic dispute between the parties was regarding payment required to be made by the respondents however, the respondents could raise any other issue before the arbitrator.

(b) Arbitration Act (X of 1940)--

----S. 41---Civil Procedure Code (V of 1908), O.XXXIX Rr.1 & 2---Procedure and powers of court---Petroleum Concession Agreement and Petroleum Farmout Agreement---Application of petitioners/applicants for permission to carry out exploration and development 'work at the petitioners'/applicants' own risk and cost---Contention of the petitioners/applicants was that the working could not be carried out without joint decision of the parties having the working interest in the operations and the respondents' non participation in meetings was with the object to stop the petitioners/applicants from carrying out work---Petitioners/applicants further contended that the representative of the Government did not attend the meetings due to non participation of the respondents---Validity---Record showed that petitioners/applicants had got 75% working interest in the operations, whereas the respondents had got 20% of the working interest, therefore, the petitioners/ applicants had a prima facie case---Balance of convenience was also in favour of the petitioners, because if work was stopped at the site, huge loss would be caused to the petitioners as well as to the Government, and the same would result into an irreparable loss not only to the petitioners but also the public , as interest of the public was also indirectly involved in the matter---High Court directed that the petitioners would be at liberty to carry out the work even if the respondents did not participate in the meetings---Representative of the Government was directed to participate in the meetings, if he otherwise had no objection---High Court accepted 'application of petitioner, in circumstances.

Ali Raza, Sardar M. Ishaq and Sufia Khan for Petitioner.

Syed Naeem Bukhari and Syed Hasnain Kazmi for Respondents.

Date of hearing: 29th November, 2011.

P L D 2012 Islamabad 27

Before Shaukat Aziz Siddiqui, J

ABID MEHMOOD---Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another---Respondents

Writ Petition No.3131 of 2011, decided on 25th January, 2012.

Capital Development Authority Ordinance (XXIII of 1960)--

----Preamble---Constitution of Pakistan, Arts.18, 25 & 199---Constitutional petition---Award of contract-Auction for development and operation of Filling Station- =Pre-qualification---Petitioner assailed legality of "pre-qualification" notice advertised by Development Authority on the ground that applications were invited only from national and multinational oil marketing companies and unreasonable non-refundable processing fee was advertised in said notice---Validity---Very purpose of auction of any State property was to receive maximum consideration, therefore, to confine the qualification for said auction to the extent of national and multinational oil marketing companies was totally unwarranted---For petrol pump/filling station, experience of exploration was not required and there were instances where individuals had experience of up to five decades of successfully running more than one filling station---Criteria introduced by the Authority did not come within the Meaning of the phrase "intelligent differentia" and was contrary to the settled law-High Court declared restrictions imposed on "pre-qualification" on auction for development and operation of filling stations through which only national and multinational oil companies had been allowed to participate, as illegal, unjust, against settled law, an infringement of Fundamental Rights guaranteed by the Constitution, discriminatory, ineffective and a result of colourable exercise of authority---High Court set aside such restrictions and directed the Authority to advertise afresh the notice of pre-qualification by remobing the restriction of allowing only national and multinational oil companies to participate and directed the Authority to bring down the non-refundable processing fee to a reasonable level---Constitutional petition was allowed, accordingly

Arshad Mehmood's case PLD 2005 SC 193 quoted.

PLD 2010 SC 759; .Miss Shazia Batool v. Government of Balochsitan and others 2007 SCMR 410 and Thal Industries Corporation Limited v. Government of the Punjab 2007 SCMR 1620 rel.

Sher Afzal Khan for Petitioner.

Shoukat Rehman for Respondents.

Date of hearing: 23rd January, 2012.

P L D 2012 Islamabad 31

Before Shaukat Aziz Siddiqui, J

Ch. MUHAMMAD BASHARAT and 2 others---Petitioners

versus

CHIEF COMMISSIONER, ISLAMABAD and 3 others---Respondents

Writ Petition No.3489 of 2011, decided on 27th December, 2011.

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

----Ss. 43, 54, 64 & 64-A---Constitution of Pakistan, Art.199---Constitutional petition---Enquiry against allegation of embezzlement---Powers of Provincial Government and Registrar of Co-operative Societies to call proceedings of subordinate officers---Petitioners were Ex-officio bearer of Management Committee of Housing Society and held the Offices of Vice President, Secretary and Finance Secretary respectively---Enquiry was held against the petitioners on allegation of embezzlement of huge amount and Enquiry Officer submitted report to the effect that legal proceedings must be initiated against complainant for filing false complaint---Feeling aggrieved, respondent filed revision before Chief Commissioner (exercising the power of Secretary Housing Societies Islamabad), who vide impugned order remanded the case to the Registrar, Co-operative Societies for constitution of an Inquiry Committee, which would submit report within one month---Petitioners had challenged said order contending that Chief Commissioner had exercised the jurisdiction, which was not vested in him---Validity---Contention was repelled, because Chief Commissioner was vested with vast powers to look into the legality or propriety of any decision or order passed; and as to the regularity of the proceedings conducted by any subordinate officer as envisaged in S-64-A of Co-operative Societies Act, 1925---Under provisions of said S.64-A, Chief Commissioner had the authority under the law to examine the correctness and legality of the proceedings conducted by Inquiry Officer who submitted the report---Chief Commissioner, even at his own initiative, was empowered by the statute, itself to look into the matter and take remedial steps---No prejudice had been caused to the petitioners as Chief Commissioner had just given finding that "the matter being sensitive in nature, required a thorough probe "---Matter in the case was delicate and accusation was heinous 'in nature for which proper inquiry had to be conducted---Impugned order had been passed in the larger interest of the members of the society of very sensitive Institution and it could not be set aside on the hyper technical grounds---Constitutional petition was dismissed.

Mr. Zaheer-ud-Din.Usmani for the Petitioners.

P L D 2012 Islamabad 35

Before Noor-ul-Haq N. Qureshi, J

NOOR JAHAN alias AHMED---Petitioner

versus

JUDGE SPECIAL COURT-2 and 2 others---Respondents

Criminal Revision No.32 of 2011, heard on 21st December, 2011.

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

----S. 540---Penal Code (XLV of 1860), Ss. 302, 324, 427 & 109---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), S. 7---Power to summon material witness or examine persons present---Recalling of prosecution witnesses for their cross-examination---Deposition of two prosecution witnesses were recorded during trial in the absence of counsel of the petitioner---Petitioner moved an application for recalling said witnesses for the reason that their statements recorded under S.161, Cr.P.C during investigation to the extent of their improvements subsequently made in the deposition, had to be inquired into as it could affect the defence of the petitioner---Trial Court declined such application of the petitioner deeming that acceptance of the same would only delay the trial---Validity---Section 540, Cr.P.C provided procedure to summon witnesses for the purposes of cross-examining them, as right of the parties---Following principles of natural justice, accused could not be deprived of his right legitimated by procedural law, which would amount to denial of right of hearing---Improvements made by prosecution witnesses in their statements could ultimately affect the role of the accused, which could have been wrongly construed against the accused---Accused had the right to have an opportunity to cross-examine the prosecution witnesses to the extent of his defence---Revision petition was allowed and Trial Court was directed to summon the two prosecution witnesses for the purposes of cross-examination to the extent of confrontation of their statements under S.161 Cr.P.C.

Muhammad Younus v.The State 2004 PCr.LJ 699 and Zaheer Abbas v. The State 2008 YLR 1225 fol.

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

----S. 540 ---Power to summon material witness or examine persons present---Right of accused to cross-examine---Scope---Where accused could not cross-examine the witness for any reason beyond his control or any lapse was committed by the Trial Court in not allowing him to cross-examine, same had to be cured.

Zaheer Abbas v. The State 2008 YLR 1225 fol.

Basharat Ullah Khan for Petitioner.

Malik ;Ishtiaq Ahmad, Standing Counsel for Respondents.

Date of hearing: 21st December, 2011.

P L D 2012 Islamabad 38

Before Shaukat Aziz Siddiqui, J

BASHIR MASIH---Petitioner

versus

THE STATE and others---Respondents

Criminal Miscellaneous No.762-B of 2011, decided on 3rd February, 2012.

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

----S. 497---Penal Code (XLV of 1860), S. 379---Anti-Terrorism Act (XXVII of 1997), Ss. 6(2) & 7---Theft, acts of terrorism---Bail, refusal of---Theft of gas---Illegal connection with main supply pipeline---Accused had allegedly made illegal connection with the main gas pipeline and was supplying gas to households in the area in return of a fixed monthly bill---Bail application of accused had been dismissed twice by Trial Court---On application of the accused's mother, re-inquiry of the case was conducted, after which three sections of P.P.C were deleted from F.I.R. and only S.379, P.P.C remained---Accused applied for bail again, after said deletion of sections but his bail application was refused---Validity---Damaging supply line of a national resource/asset in connivance with officials of the Government department, thereby causing huge loss, was not an ordinary offence, rather it was serious in nature and grievous in consequence---Case against accused was a delicate and sensitive matter and came within the definition of a terrorist act, attracting the provisions of S.7 of Anti-Terrorism Act 1997---Bail petition of accused was dismissed.

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

----S. 379---Anti-Terrorism Act (XXVII of 1997), S. 7---Theft---Illegal connection with main supply pipeline---Terrorist activity---Scope---Damaging the supply line of a national resource/asset and thereby causing huge loss, in connivance with officials of the government department, was not an ordinary offence, rather it was serious in nature and grievous in consequence, which brought it within the definition of a terrorist act, attracting the provisions of S.7 of Anti-Terrorism Act 1997.

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

----Ss. 6(2)---Penal Code (XLV of 1860), S. 379---Theft---Illegal connection with main supply pipeline---Word "disrupt" occurring in S.6(2)(i), Anti-Terrorism Act, 1997 is synonymous to word 'disorder', 'distract', interfere with' 'upset', 'abstract', 'distort', 'damage', 'sunder' etc.

Ghulam Shabbir Mangat and Waseem Ahmed Abbasi for Petitioner.

Rehman-ud-Din Khan, Standing Counsel and Muhammad Illyas, S.P. (City) for the State.

Jamal Mehmood Butt for Respondents/Complainant.

Date of hearing: 3rd February, 2012.

P L D 2012 Islamabad 41

Before Shaukat Aziz Siddiqui, J

Sheikh ASIF IDREES---Petitioner

versus

ILLAQA MAGISTRATE and others---Respondents

Writ Petition No.1127 of 2010, decided on 23rd December, 2011.

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

----Part V [Ss.154-176]---Penal Code (XLV of 1860), Ss.452/506(i)/ 147/149---Constitution of Pakistan, Art.199---Constitutional petition---Information to police and their power to investigate---Request for withdrawal of cancellation report submitted by police---Scope and legality---Complainant (respondent) had registered an F.I.R. against accused (petitioner) and during course of investigation police found the complaint to be false---Police submitted cancellation report for the case and requested the Trial Court to keep the cancellation report pending before requesting for return of said report, which was allowed by the Trial Court---Validity---Trial Court had proceeded in the matter in a mechanical fashion and without adhering to the provisions of law---After receipt of cancellation report, it was mandatory for Trial Court to either award concurrence to the report or at otherwise---Trial Court had dealt with the matter by considering it one of civil nature instead of following procedure prescribed under Part V (sections 154 to 176), Cr.P.C. and Police Rules, 1934---Once cancellation report had been submitted by the police, it was left with no justification to keep it pending and subsequently requesting its withdrawal---By submission of cancellation report, a valuable right accrued in favour of the accused, which had been taken away without providing him an opportunity of hearing---Order of Trial Court allowing withdrawal of cancellation report, was an abuse of the process of law and was quashed in circumstances---Cancellation report was deemed to be pending before Trial Court, which was directed to either accord concurrence to it or act otherwise, after giving an opportunity of hearing to both sides---Constitutional petition was allowed.

1983 SCMR 370; PLD 1985 Crl 717(sic); NLR 1998 PCr.LJ 1187(sic); 1994 PCr.LJ 2371; 2000 PCr.LJ 520; 2005 YLR 1876; 2005 YLR 1939; PLD 1962 Lah. 405 and 2000 PCr.LJ 2016 rel.

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

--Part V [Ss.154-176---Penal Code (XLV of 1860), Ss.452/506(i)/ 147/149---Constitution of Pakistan, Art.199---Constitutional petition---Request for withdrawal of cancellation report submitted by police---Scope and legality---Complainant (respondent) had registered an F.I.R. against accused (petitioner) and during course of investigation police found the complaint to be false---Police submitted cancellation report for the case and requested the Trial Court to keep the cancellation report pending before requesting for return of said report, which was allowed by the Trial Court---High Court deprecated such practice and observed that Judicial officer (Trial Court) was duty bound to exercise his authority within the four corners of law, and not by adopting novel procedures and he was expected to check his sleeves, to find out whether authority to return the cancellation report was available to him or not---Act of returning cancellation report was not syntonic to his office, prestige and status, and he was expected to keep the proceedings transparent, instead of being an instrument of tug of war between police officials---Order of Trial Court allowing withdrawal of cancellation report, was quashed in circumstances---Cancellation report was deemed to be pending before Trial Court, which was directed to either accord concurrence to it or act otherwise, after giving an opportunity of hearing to both sides---Constitutional petition was allowed.

Malik Waheed Anjum for Petitioner.

Khawaja Javed Iqbal, Standing Counsel along with Tahir Khan Niazi, S.I. for Respondents.

P L D 2012 Islamabad 45

Before Muhammad Azim Khan Afridi, J

Hafiz MUHAMMAD ASLAM---Petitioner

versus

SECRETARY, MINISTRY OF INTERIOR and others---Respondents

Writ Petition No.20 of 2012, decided on 12th January, 2012.

(a) Foreigners Act (XXXI of 1946)---

----Ss. 3 & 14---Extradition Act (XXI of 1972), S. 7---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Scope---Deportation of foreign national---Determination of nationality---Government authorities (respondents) had passed deportation orders against the accused (petitioner)---Contention of accused that he had renounced his Norwegian nationality and assumed Pakistani nationality by express declaration duly communicated to the Norwegian Embassy; that his Computerized National Identity Card (CNIC) and certificate of domicile had been renewed, and that he had also instituted a civil suit for seeking declaration with regard to his nationality---Validity---High Court could not determine the status of nationality and could not enter into in-depth inquiry while exercising constitutional jurisdiction and civil suit in respect of determination of status of nationality of accused was also pending adjudication---Constitutional petition was dismissed accordingly.

(b) Foreigners Act (XXXI of 1946)---

----Ss. 3 & 14--- Extradition Act (XXI of 1972), S. 7--- Penal Code (XLV of 1860), Ss. 420/468/471---National Database and Registration Authority Ordinance (VIII of 2000), S.30---Constitution of Pakistan, Art.199---Constitutional petition---Deportation of foreign national during pendency of criminal cases---Determination of nationality---Government authorities (respondents) had passed deportation orders against the accused (petitioner)---Contention of accused that status of his nationality was in dispute and until determination of same, process of deportation should be postponed---Validity---Accused was a Norwegian passport holder at the time of entry into Pakistan, and for the purpose of proceedings under Foreigners Act 1946, accused was to be considered a Norwegian national---Registration of criminal cases and their pendency till final decision was liability of the accused and privilege of the State, and same could not be used as a tool or converted into a vested right debarring the State front deportation of the accused---Citizen of foreign origin could not, as of right, claim to be retained for facing criminal charges which the State intended to ignore by deporting him---Pendency of criminal cases could not be considered a privilege vested in the accused to claim detention and retention in a foreign country in which he was charged for a criminal offence---Constitutional petition was dismissed and earlier order of High Court, by which court had directed authorities not to deport the accused save in accordance with the procedure prescribed by law, was withdrawn.

2011 YLR 418 distinguished.

(c) Foreigners Act (XXXI of 1946)---

----Ss. 3 & 14--- Extradition Act (XXI of 1972), S. 7--- Penal Code (XLV of 1860), Ss. 420/468/471---National Database and Registration Authority Ordinance (VIII of 2000), S. 30---Deportation of foreign national during pendency of criminal cases---Scope---Pendency of criminal cases could not be considered a privilege vested in the accused to claim detention and retention in a foreign country in which he was charged for a criminal offence---Registration of criminal cases and their pendency till final decision was liability of the accused and privilege of the State, and same could not be used as a tool or converted into a vested right debarring the State from deportation of the accused---Citizen of foreign origin could not, as of right, claim to be retained for facing criminal charges which the State intended to ignore by deporting him.

Barrister Nasim Sabir Chaudhry for Petitioner.

Raja Inam Amin Minhas for Respondents.

Shabbir Abbasi, Standing Counsel.

Qaiser Masud, D.D./Law FIA, HQ.

P L D 2012 Islamabad 50

Before Shaukat Aziz Siddiqui, J

PAKISTAN STATE OIL COMPANY LTD.

through General Attorney---Petitioner

versus

NATIONAL HIGHWAY AUTHORITY

through Chairman and another---Respondents .

Writ Petition No.1581 of 2007, decided on 6th February, 2012.

Contract Act (IX of 1872)--

----Ss. 37, 39 & 2(h)---Constitution of Pakistan, Art.199---Constitutional petition---Contract---Refusal to perform---Petitioner company, offered to respondent its Retail Fuel Stations and respondent vide letter approved said lease---Petitioner, in response, complied with the requisite conditions laid down in the approval letter---Respondent vide impugned letter abruptly informed the petitioner that they had decided to withdraw the letter of approval---Agreement between the parties had been completed as the offer, acceptance and payment of consideration had been completed about 15 months ago---After acceptance of the consideration amount, the petitioner was fully justified to make the claim that it was a concluded agreement for all intent and purposes---Respondent was not vested with any power to withdraw from the contract on the feable and flimsy ground---After lapse of 15 months, respondent was estopped by its words and conduct to resile from the commitment reflected through acceptance letter---Binding and valid agreement was reached between the parties thereby bringing reasonable expectancy and valuable right in favour of the petitioner---Valuable right accrued in favour of the petitioner had been taken away even without providing him an opportunity of hearing which was against the principles of natural justice "audi alterm partem "---Impugned decision of the respondent for withdrawal of contract, was declared as tainted with mala fide, ulterior motives, arbitrary, sham, offending to the settled law and an infringement to valuable right accrued to the petitioner, which was not sustainable---Same was set aside and respondent was directed to complete the required formalities and allow the petitioner to complete its project and operate accordingly.

2001 CLC 104; 1988 MLD 1175; 2001 MLD 1925 and Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916 rel.

Syed Ehsan Raza for Petitioner.

Mrs. Rehana Rahi for Respondent.

Date of hearing: 6th February, 2012.

P L D 2012 Islamabad 58

Before Muhammad Azim Khan Afridi, J

KHURRAM IRSHAD KHAN---Petitioner

versus

STATION HOUSE OFFICER, KOHSAR POLICE STATION, ISLAMABAD and

another---Respondents

Criminal Miscellaneous No.211-M of 2011, decided on 3rd January, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 561-A---Penal Code (XLV of 1860), Ss. 441, 448 & 451---Criminal trespass, house-trespass, house-trespass in order to commit offence punishable with imprisonment---Applicant had impugned order of Justice of Peace, by which his application filed under S.22-A(6), Cr.P.C, for registration of case against respondent was dismissed---Validity---Report written by security guard of the premises suggested that respondent along with police official and others allegedly entered the premises, but they had offered no insult or annoyance to any person nor committed any offence---Report did not suggest that respondent intimidated' the security guard or unlawfully remained there with any such intention, rather it suggested that respondent, police official and others left the premises when so asked by the security guard, meaning thereby, that no offence of criminal trespass emanated from the written report---Facts of case did not unfold the commission of a cognizable offence and refusal of police to register a criminal case or dismissal of application under 22-A(6) Cr.P.0 by the court was in conformity with the law---Application was dismissed in circumstances.

Muhammad Bashir's case PLD 2007 SC 539 rel.

Raja M. Afsar for Petitioner.

Shabbir Abbasi, Standing Counsel along with Saif Ullah $.I.

Malik Tahir Saleem Awan for Respondent No.2 (in person).

P L D 2012 Islamabad 61

Before Riaz Ahmad Khan

and Muhammad Azim Khan Afridi, JJ

MUHAMMAD FARAZ---Appellant

versus

MEHFEEZ and 2 others---Respondents

Intra-Court Appeal No.86 of 2011, decided on 23rd January, 2012.

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

----S. 7---Criminal Procedure Code (V of 1898), S.491---Law Reforms Ordinance (XII of 1972), S. 3---Infra-court appeal---Custody of minors---Right of Hizanat---Scope---Habeas corpus petition, competency of---Habeas corpus petition filed by mother (respondent) under S.491. Cr.P.C. for the recovery of her minor children was dismissed by court below, against which she filed constitutional petition under Art.199 of the Constitution, which was accepted by the High Court and directions were issued for handing over the custody of three minors to the mother---Contention of father (appellant) was that issue of custody of minors was pending before the Guardian Court because of which High Court had no jurisdiction to entertain constitutional petition filed by the mother, and that educational career of minors would be adversely affected if their custody was handed over to the mother---Validity---Minors were vested with the privilege of Hizanat till age of puberty in the case of female and seven years in the case of male children---Father (appellant) had retained the minors contrary to the rule of Hizanat and his custody was an improper detention of minors in private custody---Habeas Corpus petition of mother under S.491, Cr.P.C. was competent and entertainable---Intra court appeal of father was dismissed in, circumstances.

(b) Islamic law---

----Custody of minor---Bight of Hizanat'---Definition and scope---Word `Hizanat' originates from Hizan, which signifies and denotes love, care and affection directly and constantly needed by a male child up to the age of seven years and a female child till she reached puberty---Care, love and affection undoubtedly play a vibrant and vital role in developing the nature and character of a person and as such Hizanat can safely be termed as a tribute and privilege of a minor assigned and vested in the mother.

Islamic law---

----Custody of minor---Right of Hizanat, termination of---Scope---Bond of Hizan can neither be disrupted nor interrupted by divorce of mother, but may face discontinuity either on remarriage of mother or minor reaching the prescribed age, i. e. seven years for male child and attainment of the age of puberty in case of female child---Right of Hizanat may also discontinue, when the welfare of the minor is at stake.

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

----S. 5 & Sched.---Guardians and Wards Act (VIII of 1890), S.7---Custody of minor---Right of Hizanat, termination of:--Welfare of minor---Scope---Fancily Court is invested with the jurisdiction to determine and decide the entitlement of parties for the custody of minor on the tenant and rule of welfare of minor and in case welfare of minor is found in the petitioner (someone other than the mother), then rule of Hizanat would lose its significance and become useless.

Sajjad Haider Malik for Appellant.

Tahir Afzal Abbasi for Respondent.

Date of hearing: 23rd January, 2012.

P L D 2012 Islamabad 65

Before Shaukat Aziz Siddiqui, J

SHOUKAT ALI QURESHI---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.94-B of 2012, decided on 16th February, 2012.

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

----S. 496 8; 498---Penal Code (XLV of 1860), Ss.353/337-H(2)/186/34---Assault or criminal force to deter public servant from discharge of his duty, hurt by rash or negligent act, obstructing public servant in discharge of public functions---Bail---Court below had declined pre-arrest bail application of accused by considering an F.I.R. which was different from the one for which accused sought bail---Judge of the court below had explained that impugned order was passed under some misconception which was a result of inadvertence---Validity---Judge of the court below had dismissed the bail application of accused by considering a different F.I.R. and not a single word/reason was discussed about the F.I.R. in which accused sought the bail---High Court found the explanation advanced by the said Judge as unsatisfactory , but still declared the impugned order , as result of some misunderstanding, amalgamation of facts of two different cases and not of any other consideration---Impugned order was set aside and pre-arrest bail application of accused was deemed to be pending before the court below, which was directed to pass the order afresh in accordance with the law.

Muhammad Ayub v. Muhammad Yaqoob and others PLD 1966 SC 1003 rel.

(b) Criminal Procedure Code (V of 1898)

----S. 496 & 498---Penal Code (XLV of 1860), Ss.353/337-H(2)/ 186/34---Assault or criminal force to deter public servant from discharge of his duty, hurt by rash or negligent act, obstructing public servant in discharge of public functions---Bail---Order of judicial officer dismissing bail application of accused by considering an F.I.R. which was different from the F.I.R. for which accused sought the bail---Such order of judicial officer was deprecated by the High Court with the observation that orders of such sort brought chagrin, despondency, disappointment, dismay and dejection to the ordinary litigants---Orders of the type impugned raised eyebrows about the institution of judiciary and brought questions marks about the integrity of a judicial officer.

(c) Administration of justice---

----Duties of judicial officers---Scope---Judicial officers are custodians of the rights of the people, rule of law and administration of justice, therefore, it is expected from them that, while discharging their sacred duty of dispensation of justice, they would adhere to the provisions of law and no consideration, relation, liking or disliking would influence or prevail upon them---Judicial officer had to exercise his judicial authority within the four corners of law and not by adopting any novel procedures.

Saeed Khurshid Ahmad for Petitioner.

Nazir Abbasi, Standing Counsel.

?Syed Wajhat Hassan, A.S.J.

P L D 2012 Islamabad 68

Before Muhammad Azim Khan Afridi, J

MUHAMMAD ILYAS and 7 others---Petitionersversus

versus

ARIF KHAN and another---Respondents

Civil Revision No.81 of 2011, decided on 1st March, 2012.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.l & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Raising of construction on a portion of joint land by defendant at his own risk and costs by alleging same to be falling to his lot as a result of private partition---Plaintiff's application under 0. XXXIX, Rr.1 & 2, C.P.C. to restrain defendant from such construction---Validity---Plaintiff had alleged his forcible dispossession from a valuable portion of joint land---Plea of private partition would yet to be proved by defendant through evidence---Raising construction over joint land without its partition and depriving other co-owner from its possession and changing its nature without his consent would certainly place him in a state of inconvenience, thus, balance of convenience would lie in favour of grant of temporary injunction---Allowing such construction in spite of allegations of dispossession of a co-owner and his deprivation from his due right in property would certainly amount to irreparable loss ---Plaintiff had a prima facie case in his favour---Application for grant of temporary injunction was accepted in circumstances.

2011 MLD 1548; 2008 CLC 1481; 2008 CLC 829; 2008 CLC 833; 2008 CLC 674; 2011 SCMR 1039; 1995 SCMR 753; 2003 CLC 1695; 2003 SCMR 999: 2004 YLR 1136 and PLD 1998 SC 1509 distinguished.

Ch. Afrasiab Khan for Petitioners.

Abdul Kamran Butt for Respondents.

Date of hearing: 1st March, 2012.

P L D 2012 Islamabad 73

Before Muhammad Azim Khan Afridi, J

ANJUM AQEEL KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.99-B of 2012, decided on 5th March, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 406/409/420/468/471/109---Prevention of Corruption Act (11 of 1947), S.5(2)-Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct --- Bail, grant of--- Bail on medical grounds--- According . to report of a foreign hospital accused was suffering from moderate/severe mitral stenosis in a pliable valve---Report from a local hospital revealed that accused was at a very high risk of thromboembolism because of suffering from mitral stenosis--- Findings of medical board constituted by the High Court revealed that accused was suffering from rheumatic heart disease and had severe mtitral valve disease and was recommended to undergo mitral valve replacement surgery in a well-equipped facility---Saul medical board had also opined that supportive facilities were not developed up to the standards at the local hospital and recommendations were made for performing the surgery abroad---Where court was satisfied of the sickness of the accused and such disease could not be properly treated in custody, then gravity of the disease would outshine the gravity of the offence---In view of the findings of the medical board and the medical history of the accused, he was a seriously sick person with a life threatening ailment, treatment of which was not possible in jail premises because of which he deserved to be released on boil under the first proviso of S.497, Cr. P.C---Bail application of accused was accepted and he was released on bail.

Zakhim Khan Masood's case 1998 SCMR 1065; Firdous Paul's case 2004 SCMR 15; Malik Muhammad Yousafullah Khan's case PLD 1995 SC 58; Liagat and another's case 1995 SCMR 1819; Aamir Mehmood's case 2009 PCr.LJ 1472 and Malik Muhammad Yousafullah Khan's case 1995 .PCr.LJ 502 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 406/409/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct---Bail on medical grounds---Opinion of medical board--Evidentiary value---Opinion of medical board cannot be brushed aside lightly by the court in the absence of any counter opinion or any medical literature placed before the court to contradict the opinion given by the board.

Malik Muhammad Yousafullah Khan's case PLD 1995 SC 58 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.. 406/409/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct---Bail on medical grounds---Scope---Sick or infirm person may be released on bail even where there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

Liaqat and another's case 1995 SCMR 1819 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 406/409/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct ---Bail on medical ground---Pre-requisites---Correct criteria for grant of bail to an accused in a non-bailable case on medical ground is that the sickness or ailment with which he is suffering is such that it cannot be properly treated within the jail premises and that some specialized treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life.

Aamir Mehmood's case 2009 PCr.LJ 1472 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 406/409/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct ---Bail on medical ground---Medical opinion of doctor--Evidentiary value--- Medical opinion of doctor was not so sacrosanct as to be believed in toto or to take each word of it as gospel truth, and was rather subject to the scrutiny of the court.

Malik Muhammad Yousafullah Khan's case 1995 PCr.LJ 502 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 406/409/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, criminal misconduct ---Bail on medical ground---Scope--- Where court was satisfied of the sickness of the accused and such disease could not be properly treated in custody, then gravity of the disease would outshine the gravity of the offence.

Tanveer Iqbal and Ch. Khanzada for Petitioner.

Babar Saeed Butt for the Complainant.

Shabbir Abbasi, Standing Counsel along with Zia-ul-Hassan, Inspector F.I.A.

P L D 2012 Sindh 1

Before Mushir Alam, C.J. and Aqeel Ahmad Abbasi, J

MUHAMMAD AMIN CHAPAL---Appellant

Versus

KARACHI CANTONMENT BOARD through Cantonment Executive Officer---Respondent

High Court Appeal No.165 of 2004, decided on 3rd October, 2011.

Cantonments Act (II of 1924)---

----Ss. 184 & 185---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art.25---Law Reforms Act (II of 1972), S.3---Intra court appeal---Suit for declaration---Revised building plan---Deviations, non-approval of---Equal treatment, right of---Discrimination---Grievance of plaintiff was that the authorities did not approve revised building plan submitted by him and declined to regularize illegal construction and deviations by accepting composition fee---Contention of authorities was that claim of plaintiff was rejected by making him an example, to discourage prospective buildings from violating approved building plans in future---Validity---Authorities conceded that similar deviations were regularized by Cantonment Board while exercising their discretion vested in terms of Ss.184 and 185 of Cantonments Act, 1924---High Court declined to subscribe to the contention of authorities whereby discretion vested in law was exercised in a fanciful and arbitrary manner and plaintiff was singled out without any advance intimation or policy---No law, bye-law or a policy of Cantonment Board existed which could define parameters and extent of deviations in approved plan not to be regularized in terms of Ss.184 and 185 of Cantonments Act, 1924---Cantonment Board had vast powers under Ss.I84 and 185 of Cantonments Act, 1924, to regularize any illegal construction and deviation by accepting composition fee---High Court declined to support any violation of law, rules and bye-laws, regulating construction, approval and regularization of deviation in approved building plan, however, the right of equal treatment of similarly placed buildings, as guaranteed by the Constitution could not be denied---All public functionaries, while performing their duties and exercising discretion vested in them by law, were required to perform such duties and exercise such discretion in a judicious and transparent manner---Any discretion or mala fide on the part of a public functionary rendered all orders passed and proceedings so conducted as illegal and of no legal effect---Plaintiff made out a case of discriminatory treatment given by Cantonment Board as well as Military Lands and Cantonment Karachi Region Karachi, whereby claim of plaintiff of regularization of deviations from approved plan were declined---High Court directed the authorities to reconsider the case of plaintiff for approval in accordance with law and bye-laws etc. keeping in view the treatment meted out to similar buildings after providing complete opportunity to plaintiff to present his case and after assigning cogent reasons for such decision---High Court remanded the matter to the authorities for decision afresh---Intra-court appeal was allowed in accordingly.

Abid Hassan v. P.I.A.C and others 2005 SCMR 25; State Life Insurance Corporation of Pakistan v. Director- General, Military Lands and Cantonments, Rawalpindi and 4 others 2005 SCMR 177; Amanullah Khan and others v. The Federal Government of Pakistan PLD 1990 SC 1092; Sharaf Faridi v. Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; Sibte Mujtaba Kazmi v. Cantonment Board 2008 MLD 793; Saleem Akhtar Rajput and another v. Karachi Metropolitan Corporation and 2 others 1994 CLC 211 and I.A. Sherwani and others v. Government of Pakistan and others 1991 SCMR 1041 ref.

Munir A. Malik for Appellant.

Abdur Rehman for Respondent.

Dates of hearing: 19th and 20th October, 2010.

P L D 2012 Sindh 17

Before Mushir Alam, C.J. and Imam Bux Baloch, J

HASSAN RAZA through Lawfully Constituted Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Islamabad

and 2 others---Respondents

C.P. No.D-756 of 2011, decided on 29th September, 2011.

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

----S. 2---Exit from Pakistan (Control) Rules, 2010, R.2(1) & (2)--- Constitution of Pakistan, Art. 199---Constitutional petition---Exit control list---Bank loan, recovery of---Name of petitioner had been placed on Exit Control List for recovery of bank loan when recovery suit was pending before Banking Court of competent jurisdiction---Validity---Where a person was involved in a private dispute, the provisions of Exit from Pakistan (Control) Rules, 2010, were not applicable, unless government interest was at stake or where person was involved in fraud against foreign banks and reputable companies with significant foreign investment or if it was shown that person was involved in heinous crime or in drug trafficking---Nothing was available on record that petitioner had committed any fraud with respondent banking company nor there was any such allegation against him of such nature---Suit relied upon by respondent banking company was simpliciter a case of financial liabilities which were secured against tangible security and the same had been liquidated against principal borrower and liability, if any, against petitioner was shown to be less than Rs.100 million---Unless such liability was shown against petitioner, as per Exit from Pakistan (Control) Rules, 2010, name of petitioner could not be placed on Exit Control List---High Court directed the authorities to delete the name of petitioner from Exit Control List, as there was no justification for the same---Petition was allowed in circumstances.

Hashmat Ali Chawla v. Federation of Pakistan and others PLD 2003 Kar. 705; Zia Mohyuddin v. Additional Director (Emigration) Fedral Investigation Agency Airport, Karachi and others PLD 2010 Lah. 128 and Zurash Industries (Pvt.) Ltd. v. Federation of Pakistan and 3 others 2011 CLD 511 ref.

Malik Altaf Javed and Malik Naeem for Petitioner.

Muhammad Ashraf Khan Mughal, D.A.G. for Respondent No.1.

Muhammad Aslam, Addl. Director and Mudasar Latif, Asstt. Director for Respondents Nos. 2 and 3.

Date of hearing: 29th September, 2011.

P L D 2012 Sindh 23

Before Faisal Arab, J

NAVEED MERCHANT and another---Petitioners

Versus

PAKISTAN INSTITUTE OF INTERNATIONAL AFFAIRS through Accountant and another---Respondents

Constitutional Petition No.S-974 of 2010, decided on 14th October, 2011.

(a) Societies Registration Act (XXI of 1860)---

----S. 6---Civil Procedure Code (V of 1908), O.XXIX, R.1---Suit by society---Scope---Once an entity is legally recognized then nothing can prevent it either from suing or from being sued in its own name i.e. in registered name of society---Entity being not by itself a living person though after registration it gained the status of a juristic entity, it had to be sued or be sued through any of its members who held administrative or managerial position in the society.

Muhammad Ali Sozar v. Yahya Ahmad Bawany 1995 MLD 323 and Marriage Hall Association v. The Chairman Central Board of Revenue 1998 CLC 33 dissented from.

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

----S. 15---Societies Registration Act (XXI of 1860), S.6---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Proof---Re-letting of premises---Ejectment application was filed by a society against its tenant on the plea of personal need---Rent Controller passed eviction order against tenant which was maintained by Lower Appellate Court---Validity---Landlord society was already in occupation of accommodation of its own and if it required additional space on the ground of insufficiency of space, then it had to prove through evidence that existing space was insufficient and there was genuine need for additional space---Only establishing genuine need, the same could warrant eviction of tenant---No such evidence was brought on such aspect of the matter and the society had its own office in the same building---Landlord society, not only failed to prove its case on the ground of insufficiency of space but went to the extent of admitting that tenements in the same building were rented out to new tenants during pendency of ejectment proceedings, thus demolishing the plea of personal bona fide need---High Court set aside the eviction order against tenant, passed by Rent Controller and Lower Appellate Court---Petition was dismissed in circumstances.

Muhammad Ali Sozar v. Yahya Ahmad Bawany 1995 MLD 323; Marriage Hall Association v. The Chairman Central Board of Revenue 1998 CLC 33; AIR Bom. 516 and AIR 1958 And. Pra. 773 ref.

Dara S. Shaikh for Petitioners.

Shahab Sarki for Respondent No.1.

Date of hearing: 6th October, 2011.

P L D 2012 Sindh 29

Before Munib Akhtar, J

SOCIETY APARTMENTS COMPLEX WELFARE ASSOCIATION, PECHS, KARACHI---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Housing and Works Division, Islamabad and 5 others---Defendants

Suit No.1810 of 2010, decided on 12th October, 2011.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Rejection of plaint---Recovery of damages---Welfare Association, locus standi of---Plaintiff was a welfare Association and had raised claim of damages where it was averred that it had suffered mental torture, agony and distress---Validity---Held, it was difficult to see how such claim could be made by a welfare Association, since mental torture, agony and distress were caused to individuals---Claim for damages on the basis that on the face of it, was legally unsustainable was not such as could come within the scope of the principle relied upon by plaintiff for Associations---Plaint was rejected in circumstances.

Muntizma Committee, Al-Mustafa Colony (Regd.) and others v. Director Katchi Abadis Sindh and others PLD 1992 Kar. 54; Ali Nawaz v. Azizullah PLD 2007 Karachi 347; Zaibunnisa v Muhammad Sajid and another 2007 CLC 1757; Raees Ghulam Sarwar v. Mansoor Sadiq Zaidi PLD 2008 Karachi 458 and Attaullah and others v. Sanaullah and others PLD 2009 Kar. 38 ref.

Masroor Ahmed Alvi for Plaintiff.

Saifuddin for Defendant No.3.

K.A. Wahab for Defendant No.4.

Date of hearing: 27th September, 2011.

P L D 2012 Sindh 35

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MANZOOR AHMED and another---Applicants

Versus

2ND ADDITIONAL SESSIONS JUDGE, GHOTKI and another---Respondents

Criminal Revision Application No.D-84 of 2010, decided on 21st September, 2011.

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

----S. 345(2)---Penal Code (XLV of 1860), Ss.302/147/148/149---Qatl-e­-amd---Compounding of offence---Scope---Trial Court vide impugned order had granted permission to legal heirs of the deceased to compound the offence with the accused facing the trial and refused the same regarding the four co-accused on the ground of their being absconders---Contention of prosecution was that under S.345(2), Cr.P.C. compounding of offence could take place only when prosecution of such offence was pending and since the prosecution was not pending in respect of the four absconders, no compromise with them could be made---Held, criminal proceedings stood initiated the moment cognizance was taken by the Magistrate and, the matter was sent to the court competent to try the offence---Legal heirs of the deceased, therefore, could compound the offence even against the absconders---Spirit behind S. 345(2), Cr.P.C. is that of "Affwo" and "Derguzar"---Under Islamic Law there is no provision that in a case of compoundable offence the accused can be forgiven only when he agrees to being forgiven---Plea of prosecution that unless the absconders appear before the court offence could not be compounded was not correct---Legal heirs of the deceased in their application had specifically stated that they were seeking permission for compromise with the present accused as well as the absconding accused---Trial Court, thus, could not disallow the application against the absconders---Impugned order was consequently set aside and all the accused persons were acquitted under S.345(6), Cr.P.C. in the case---Revision petition was allowed accordingly.

Muhammad Nawaz v. the State 1998 MLD 1; Muhammad Irshad alias Shada v. The State 1997 SCMR 951; Azizullah and others v. Addl. Sessions Judge, Mora Criminal Revision Application No.69 of 2010; Muhammad Arshad alias Pappu v. Addl. Sessions Judge, Lahore and 3 others PLD 2003 SC 547; Ghulam Farid alias Farida v. The State PLD 2006 SC 53; Ismail Abdul Rahman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286 and Wharton's Law Lexicon by A,.S.Oppe, 14th Edn. (1976 Reprint) p.810 ref.

Wali Muhammad and 7 others v. The State and 2 others 2008 MLD 1123 dissented from.

(b) Words and phrases---

--"Prosecution"-Connotation.

Ismail Abdul Rahman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286 ref.

(c) Constitution of Pakistan---

----Art. 13-"Prosecution"-Meaning---Word "Prosecution" as occurring in Art.13 of the Constitution would mean initiation or starting of proceedings of criminal nature before a court of law or a judicial Tribunal in accordance with the .procedure prescribed in the statute which creates offence.

Anwar Ali Lohar for Applicants.

Shyam Lal Ladhani, APG for Respondents.

Date of hearing: 21st September, 2011.

P L D 2012 Sindh 42

Before Shahid Anwar Bajwa, J

MUHAMMAD MURAD---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.575 and 630 of 2011, decided on 3rd October 2011.

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

---Ss. 497/498---Bail---Affidavits filed by witnesses in bail application---Scope and value of such affidavits---Duty of court stated.

Following are the principles on the subject:

(1) Affidavits of witnesses and the complainant subsequently - filed cannot be regarded as evidence and cannot be acted upon unless Court is satisfied that they are true and reliable.

(2) Court just cannot ignore these affidavits and it has to take them into consideration.

(3) When the affidavits deviate from earlier statements and the affidavits are on oath, the Court has to consider their effect qua further inquiry in respect of the incident.

(4) Court has to be very careful and must, in the presence of affidavits decide bail application on its own merits.

(5) Every affidavit should not be treated as be all and end all of the case of prosecution.

(6) Court has to weigh the circumstances and then come to the conclusion whether what weight, if any, is to be attached to these affidavits.

(7) Since at the bail stage, assessment is tentative, weight assigned to the affidavits will also be tentative in nature.

Mohammad Nawaz alias Najja v. The State, 1991 SCMR 111; Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCMR 137; Rahmat Ali and another v. the State 1979 SCMR 30; Mumtaz Ali v. The State 2006 YLR 3029; Mohammad Najeeb v. The State 2009 SCMR 448; Ali Gul and 3 others v. The State 1986 PCr.LJ 433; Muhammad Nawaz and others v. the State 1989 PCr.LJ 1126; Ghulam Qadir v. The State Cr. B.A No.S-121 of 2011 and Nasir Ahmad v. The State PLD 1997 SC 347 ref.

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

----Ss.497 & 498---Penal Code (XLV of 1860), Ss.310-A/311/355/350---Giving a female in marriage or otherwise in badal-i-sulh---Bail, grant of---Further inquiry---Only evidence available against the accused was the statements under S.164, Cr.P.C. of four girls---One of the girls was 4/5 years old, other 7/8 years old, another one 5/6 years old and the 'last one was 15/16 years old---None of them had witnessed the alleged Jirga being held or were present in the Jirga---Said girls even did not .state as to how they came to know about the conduct or holding of Jirga---Whole village including the clan of the Jirga holders and the clan of the complainant Would have been present there, but the statement of a single person present there had not been recorded by the Investigating Officer under S.161, Cr.P.C. though a period of five months had expired since recording of F.I.R.---Girl of 15/16 years of age had also filed her affidavit denying the voluntary nature of her previous statement and professing the innocence of accused---Case against accused, thus, fell within the scope of further inquiry---Accused were admitted to bail in circumstances.

Mohammad Nawaz alias Najja v. The State, 1991 SCMR 111; Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCMR 137; Rahmat Ali and another v. the State 1979 SCMR 30; Mumtaz Ali v. The State 2006 YLR 3029; Mohammad Najeeb v. The State 2009 SCMR 448; Ali Gul and 3 others v. The State 1986 PCr.LJ 433; Muhammad Nawaz and others v. the State 1989 PCr.LJ 1126; Ghulam Qadir v. the State Cr. B.A No.S-121 of 2011 and Nasir Ahmad v. The State PLD 1997 SC 347 ref.

Rashid Khan Durrani for Applicant.

Shyam Lal, A.P.G.

Date of hearing: 3rd October, 2011.

P L D 2012 Sindh 50

Before Mushir Alam, C.J. and Imam Bux Baloch, J

ENGRO FERTILIZERS LIMITED---Petitioner

Versus

ISLAMIC REPUBLIC OF PAKISTAN AND FEDERATION OF PAKISTAN, ISLAMABAD and others---Respondents

C.P. No.D-1282 of 2011, decided on 18th October, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Good governance--Commitments of State---Duty of courts---Scope---Petitioner established an industrial unit for production of fertilizer on the assurance and guarantee of Federal Government and natural gas transmission company that the plant would get uninterrupted and regular supply of a fixed quantity of natural gas---Grievance of petitioner company was that US$ 1.l billion were spent on establishing of the plant but authorities had failed to provide the agreed amount of natural gas regularly---Validity---If State or Government failed to live up to its commitments, assurances and guarantees, court could enforce such incentive scheme and concessions, assurances and guarantee offered and acted upon at the motion of parties complaining of breach or violation thereof---Whenever State or Government, to lure or attract investment held out, gave assurance or represented to investors to 'provide certain incentives, tax holiday, concession in customs or excise duties, advantages, concession, licences and/or benefits etc. and acting on such sovereign incentive assurances, representations and guarantees any investor had made investments in any industrial undertaking it was obligatory on part of the State or the Government to ensure that it would live up to its sovereign representations, assurances, commitments, representation and guarantees, otherwise it would cause a serious dent in credibility of any State and or Government---No State or Government could afford to breach such sovereign commitment, assurances and guarantees---If these were not fulfilled, such State and/or Government would not only lose its face and credibility internationally and locally but also confidence and trust of investors would be shattered, which would not only be devastating for future of any State and or Government but had far reaching adverse impact and consequence immeasurable in terms of money---High Court directed the authorities to supply, guaranteed quantity of natural gas to petitioner's plant strictly in accordance with contract---Petition was allowed in circumstances.

Lucky Cement Ltd. v. Federation of Pakistan PLD 2011 Pesh. 57 rel.

Bismillah Textile v. HBL 2008 CLC 504; The State v. Asif Adil 1997 SCMR 209; PLD 1982 Kar 250; Ghulam Hussain v The State PLD 1981 Kar: 711; 2010 SCMR 1972; PLD 2011 SC 235; Dewan Petroleum (Pvt.)' Limited v. Federation of Pakistan 2010 CLD 988; Azra Riffat Rana v. Federation of Pakistan, PLD 2008 SC 476; Federation of Pakistan v. Fecto Belarus Tractors Limited. PLD 2002 SC 208; Petrosin Gas Pakistan Ltd. v. PSO 2010 YLR 2643; Echo West International v. Government of Punjab 2009 CLD 937; Huffaz Seamless Pipe Industries Limited v. SNGPL 1998 CLC 1890; Hazara Improvement Trust v. Qaisara Elahi 2005 SCMR 687; Ramna Pipe v. SNGPL 2004 SCMR 1274; Airport Services Manager v. Quaid-e-Azam International Airport 1998 SCMR 2268; Ameer Khan v. Government of Punjab PLD 2010 Lah 443; Habibullah Energy Ltd. v. WAPDA;. 2008 YLR 2612; Hydri Ship Breaking Industries v. Sindh Government; 2007 MLD 770; A.R. Khan v. Federation of Pakistan 2010 CLD 1648; Lt. Gen. Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 and Al-Iblagh Limited v. The Copyright Board, Karachi 1985 SCMR 758 ref.

(b) Constitution of Pakistan---

----Arts. 158 & 172---Natural resources---Ownership---Mineral, oil and natural gas produced in any province, under the provisions of Arts.158 and 172 of the Constitution, vest in the province producing it and the Federal Government, jointly and equally.

(c) Constitution of Pakistan---

----Art. 161---Federal excise duty and royalty on natural gas---Entitlement---Net proceeds of excise duty on natural gas levied at well head and royalty collected by Federation Government is to be paid to the Province in which the well head of natural gas and oil is situated---Such amount though collected by Federal Government does not form part of Federal Consolidated Fund.

Makhdoom Ali Khan for Petitioner.

M. Ashraf Mughal, DAG alongwith Bismillah Rai, Director Ministry of Petroleum and Natural Resources for Respondents Nos. 1 and 2.

Sarwar Khan A.A.G. (on Court Notice).

Asim Iqbal for Respondent No.3.

Date of hearing: 15th September, 2011.

P L D 2012 Sindh 66

Before Syed Hasan Azhar Rizvi, J

TANVIR AHMED---Plaintiff

Versus

MALIR DEVELOPMENT AUTHORITY through Director General and 3 others---Defendants

Suit No.39 and C.M.A. No.9043 of 2005, decided on 16th November, 2011.

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

----O. XII, R. 6---Judgment on admission--- Principle--- Plaintiff upon application can move for judgment on admissions, whilst defendant can move for dismissal of the suit---Court is empowered to dispose of such part of suit with regard to which there is no dispute between the parties but it is discretionary power of the court to allow such application---Court's duty to decree the suit up to the extent of admission and proceed with regard to rest for which entire plaint or written statement must be read for purposes of finding out nature of admission and such admission can only be used for the purpose of suit in which it is made---When one of the defendants only make admission in written statement, same cannot be used against others unless such defendant appears as witness---Where some of the defendants admit claim, decree can be passed against them but where such defendants are official defendants and not contesting defendants, decree cannot be passed---Where it is not safe to pass a judgment on admission, court may require proof of the fact and refuse judgment despite admission---Admission must be clear, unambiguous, unqualified and unequivocal and it is not a conclusive proof of the matters admitted.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XII, R. 6---Suit for declaration and injunction---Judgment on admission---Plaintiff contented that both defendants filed separate written statements and one defendant admitted contents of plaint, therefore, judgment be passed on such admission by one defendant---Validity---Main dispute was between plaintiff and the defendant who did not acknowledge admission made by other defendant in written statement---Admission made by other defendant in his written statement had no bearing upon contesting defendant---Ownership of land given to plaintiff was also disputed between contesting defendant and other private parties, which could only be resolved after recording of evidence in pending litigation---High Court declined to pass judgment on such admission by one defendant---Application was dismissed in circumstances.

Dr. Muhammad Farogh Nasim for Plaintiff

Khurram Iqbal along with Muhammad Irfan, Law Officer, MDA Qazir Majid Ali, Asstt A.G. Sindh

Date of hearing: 15th August, 2011.

P L D 2012 Sindh 71

Before Faisal Arab and Aqeel Ahmed Abbasi, JJ

Messrs PAKISTAN STATE OIL COMPANY LTD.---Appellant

Versus

Dr. ABDUL RAUF and 5 others---Respondents

High Court Appeal No.136 of 2011, decided on 16th November, 2011.

(a) Fraud---

----Criminal prosecution and civil liability--- Scope--- Risk of criminal prosecution and civil liability is always there, once footprints of fraudulent transaction are traced to ones door.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Civil Procedure Code (Amendment) Ordinance (X of 1980), S.15---Law Reforms Act (XII of 1972), S.3---High Court appeal---Suit for declaration---Application for grant of interim injunction---Allegation of coercion and intimidation against defendant---Proof---Dealership contract between plaintiff and defendant---Fraud was committed with defendant company and huge quantity of petroleum products were received by plaintiff---Defendant company also got a criminal case registered in which plaintiff was arrested and as a result of compromise, plaintiff issued post dated cheques in favour of defendant company for making good the loss---After release on bail, plaintiff filed the suit and sought restraint orders against encashment of post dated cheques and termination of his dealership contract---Single Judge of High Court allowed interim injunction in favour of plaintiff---Plea raised by plaintiff was that cheques were issued due to coercion and intimidation---Validity---Factum of transfer of full price of disputed supplies could not in itself establish that plaintiff was not an active participant in fraud but his involvement in the scam could not be ruled out merely because he made full online payment---Online transfer of price of disputed supplies in the account of some other person did not mean that plaintiff was paying amount from his own financial resources---One could withdraw and redeposit the same amount again and again in order to demonstrate genuineness of a transaction---Online payment in full and that too in the account of an individual, who had no connection with the defendant company, was not sufficient to establish prima facie case in favour of plaintiff, who made online transfer in the name of an individual and not to defendant company---Courts were bound to maintain sanctity of contractual commitments---No specific instance of coercion or intimidation was attributed in the plaint to any of the functionaries of defendant company which forced plaintiff to issue post dated cheques against his wish---Division Bench of High Court declined to assume that compromise was a result of coercion and was not entered into with free consent---Circumstances, prima facie weigh more in favour of defendant's case rather than that of plaintiff---Plea of irreparable loss was always subject to making out a prima facie case in order to entitle a person to seek interim injunction in a matter---Unless it was shown that a litigant had a prima facie case, grant of injunction on the plea of irreparable loss would be of no legal significance---Plaintiff failed to make out a prima facie case in his favour, therefore, Division Bench of High Court dismissed his application for grant of interim injunction---High Court appeal was allowed in circumstances.

Yawar Farooqui and Irfan Memon for Appellant

Jhamat Jethanan for Respondent No.1

Date of hearing: 2nd November, 2011.

P L D 2012 Sindh 78

Before Munib Akhtar, J

USMAN PUNJWANI---Plaintiff

Versus

AYAZ ALI and 4 others---Defendants

Suit No.801 of 2005 and C.M.As Nos.70, 71, 148 & 149 of 2011, decided on 18th November, 2011.

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

----S. 27, O.V, R.6, O.IX, Rr. 6 & 13---Ex parte decree, setting aside of---Summons, service of---Object, scope and purpose---Purpose and objective of summons is to inform defendant of proceedings so that he can appear before court and be heard or any defence that he may wish to put up; at the same time, defendant cannot be allowed to frustrate or delay a legitimate claim by staying away from the court proceedings and it is for such reason, law permits the court to decree a suit ex parte---Once it is shown that the summons was "duly served" an ex parte decree can follow and then execution can be levied against defendant, who then becomes judgment debtor---Defendant "duly served" stays away from proceedings at his own peril but if summons have not been duly served, the ex parte decree may be set aside.

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

----O.IX, R.13(1), second proviso---Ex parte decree, setting aside of---Term "irregularity in service of summons"---Effect---By addition of second proviso to O.IX, R.13(1) C.P.C., court is required to disregard any irregularity in service of summons---Such can only be done if the case comes within carefully prescribed parameters of second proviso to O.IX, R.13 (1) C.P.C., which requires the court to be satisfied that defendant had knowledge of relevant date of hearing and such knowledge was acquired in sufficient time to enable him to appear before the court and court must record its reasons for coming to such conclusion---Provision of second proviso to O.IX, R.13(1), C.P.C. only allows the court to disregard an "irregularity" in service of summons and absence of service cannot be ignored---If summons has not been served at all, the second proviso to O.IX, R.13(1), C.P.C. cannot take effect---If summons is not issued at all, second proviso to O.IX, R.13(1), C.P.C. cannot apply, as there is then a complete absence of service and in such situation the question whether or not there was any "irregularity" in service cannot arise.

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

----O. IX, R.13(1) second proviso---Specific Relief Act (I of 1877), Ss.12, 42 & 54--- Suit for specific performance, declaration and injunction---Ex parte decree, setting aside---Summons, non-issuance of---Defendant sought setting aside of ex parte decree on the ground that summons was not duly served on him---Defendant was un-served on the summons in main suit but was served on the notice issued in respect of applications filed subsequently and an advocate filed Vakalatnama on his behalf---Validity---Provision of O.IX, R.13(1), C.P.C. was not concerned with mere knowledge of the suit but with knowledge acquired in a particular and specific manner, namely, by service of summons duly served, which necessarily meant and required that summons be issued---Provision of second proviso to O.IX, R.13 (1) C.P.C. could mitigate any irregularity in service of summons provided that the court was satisfied that defendant, in fact, had knowledge of relevant date of hearing in sufficient time but the provision could not cure non-issuance of summons---Provision of second proviso to O.IX, R.13(1), C.P.C. was not attracted to the facts and circumstances of the present case and there was no due service on either of the defendants---High Court set aside the ex parte decree and restored the suit to its previous position---High Court directed the defendants to file their written statements within four weeks---Application was allowed accordingly.

Secretary, Education Department, Government of Khyber Pakhtunkhwa and others v Asfandiar Khan 2008 SCMR 287; Durdana Akbar v Government of Sindh and another 1999 CLC 1846 and Lahore Art Press and another v National Bank of Pakistan PLD 1990 Lah. 300 distinguished.

Mirza Sarfaraz Ahmed for Plaintiff

Yousuf Moulvi for Defendant No.1

Mobeen Lakho for Defendants Nos. 4 and 5

Date of hearing: 13th October, 2011.

P L D 2012 Sindh 92

Before Muhammad Ali Mazhar, J

ILYAS AHMED---Plaintiff

Versus

MUHAMMAD MUNIR and 10 others---Defendants

Suit No.628 and C.M.A. No.4502, 5702 and 5703 of 2009, decided on 17th November, 2011.

(a) Pleadings---

----Evidence beyond pleadings---Plea not raised---Effect---Parties are bound by their pleadings and plea which has not been raised, cannot be taken subsequently in arguments---Plaintiff cannot substantiate and prove a case beyond the scope of pleadings and even if any evidence is brought on record outside the purview thereof, the same can be ignored and overlooked by the court---Even if evidence is allowed to be led, no issue can be framed by court beyond the scope of pleadings of the parties.

Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460 and Zulfiqar v.Shahadat Khan PLD 2007 SC 582 rel.

(b) Islamic law---

----Pre-emption---Principles---Omission of pre-emptor to make express reference to Talb-e-Muwathibat at the time of making Talb-e-Ishhad is fatal to the claim of pre-emptor---Muwathibat or jumping demand must be as soon as pre-emptor was informed of the fact that property in which he was claiming right of pre-emption has been sold away and has been followed by Talb-e-Ishhad.

Hedaya (p.550); Principles of Mohammadan Law by D.F. Mullah revised by M. Hidayatullah, Pakistan Edn 2007, Mansoor Book House pp.372 and 373 rel

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

----S. 44---Transfer of portion of dwelling house---Principle---Transferee of a share of a dwelling house belonging to an undivided family, who is not a member of the family, is not entitled to joint possession.

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

----S. 39---Limitation Act (X of 1908), Art. 91---Cancellation of document---Limitation---Plaintiff came to know about conveyance deed, sought to be cancelled, in the month of June/July, 2005 and suit for cancellation was filed in the month of May, 2009---Validity---Suit was filed beyond the period of three years, as for the purposes of cancellation of documents three years of limitation was provided under Art. 91 of Limitation Act, 1908 and time began to run when fact entitling plaintiff to have the instrument cancelled or set aside became known to him--- Suit was time barred in circumstances.

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

----S. 42---Suit for declaration---Scope---Any person, entitled to any legal character or to any legal right to a property, under S.42 of Specific Relief Act, 1877, can institute a suit for declaratory relief in respect of his title to such legal character or right to property---Expression 'legal character' is synonymous with expression 'status'---Provisions of S.42 of Specific Relief Act, 1877, apply only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by defendants or in denying which the defendants are interested---Section 42 of Specific Relief Act, 1877, does not apply to a case where plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by defendants---Section 42 is not applicable to a case where only entitlement to legal character or property of defendant is denied by plaintiff and is attracted to a case in which plaintiff approaches the court for safeguard of his right to legal character or property but where right to his own legal character or property is not involved, such suit is not maintainable.

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

----S. 42--- Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration of title---Rejection of plaint---Plaintiff sought declaration that defendants had no right or entitlement in the suit property and he did not seek any declaration of his own right--- Validity--- Plaintiff did not approach the court for a declaration of his own right to property or his right to a legal character but had challenged the defendant's pretension to a legal character and right to property--- Provisions of S.42 of Specific Relief Act, 1877, did not permit an unrestricted right of instituting all kinds of declaratory suits at the will and pleasure of parties, right was strictly limited---Suit for mere declaration was not permissible under the law, except in the circumstances mentioned in S.42 of Specific Relief Act, 1877---Suit filed by plaintiff being barred by S.42 of Specific Relief Act, 1877, plaint was rejected in circumstances.

Abdur Rehman Mobashir v. Syed Amir Ali Shah Bukhari PLD 1978 Lah 113; Sanat Kumar Mitra v. Hem Chundrea and Dey AIR 1961 Cal. 411; Rehmatullah Khan v. Government of Pakistan 2003 SCMR 50; M.A. Naser v. Chairman Pakistan Eastern Railways PLD 1965 SC 83; Burmah Easter Limited v. Burmah Eastern Employeees Union PLD 1967 Dhaka 190 and Rasool Bux v. Muhammad Ramzan 2007 SCMR 85 distinguished

Dorab Cawasji Warden v. Coomi Sorab Wardon AIR 1990 SC 867; Paresh Nath Biswas v. Katnal Kirishna Chaudhury AIR 1958 Cal. 614; Bhim Singh v. Ratnakar AIR 1971 Orissa 198; Noor Rehman v, Muhammad Yousuf 2000 CLC 1138; Ali Gohar Khan v. Sher Ayaz 1989 SCMR 130; Sarfraz v. Muhammad Aslam 2001 SCMR 1062; Maulaedino and others v. Matloob Hussain 1989 CLC 1922; Iftikharuddin v. Jamshed K.A. Marker PLD 1995 Kar. 608); Laloo v. Ghulaman 2000 SCMR 1058; Rehman v. Yara 2004 SCMR 1502; Kaleem Haider Zaidi v. Mahmooda Begum 2006 YLR 599; Dhani Bux v. Alil Sher 2007 YLR 2134; Mst. Sara Bai v. Iqbal 2006 MLD 1429; Dr. Khusro Kamal Zia v. Dr. Zehra 2009 CLC 39 and Farooq Inayat v. Haji Abdul Sattar 2009 CLC 824 rel.

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

----O. VII, R.11---Rejection of plaint---Principles---Incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse not being permitted by law---Suit which is on the face of it incompetent not because of any formal, technical or curable defect but because of any express or implied embargo imposed upon it by or under law should not be allowed to further encumber legal proceedings---If as a result of proceedings of law, the suit is barred, it would be based under the law, although, strictly speaking, it may not be specifically barred by law in express terms---Trial Court should in such a case reject plaint under its inherent powers---While deciding an application under O.VII, R.11, C.P.C., besides, averments made in plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of plaintiff, can also be looked into for the purpose of rejection of plaint, it does not necessarily mean that other material is to be taken as conclusive proof of the facts stated therein but it actually moderates that other material on its own intrinsic value be considered along with the averments made in the plaint---Where plaintiff concealed material facts from the court in the contents of plaint, in that events material produced by way of filing written statement or along with application under O.VII, R.11, C.P.C. could also be kept in mind for rejecting the plaint--- Generally, court has to consider averments made in the plaint while rejecting such plaint, however, it can also look into the contents of written statement and other material on record or reject plaint summarily to secure ends of justice or to prevent abuse of process of court--- Apart from contents of plaint, material placed in defence can also be kept in mind for rejecting a plaint.

Burmah Eastern Limited v. Burmah Astern Employees Union PLD 1967 Dhaka 190; 2002 SCMR 338; 2000 CLC 1633; 1989 CLC 15; 1994 MLD 207; 1994 SCMR 826 and 2011 YLR 1473 rel.

Asim Iqbal for Plaintiff

Nadeem Akhtar for Defendant No.1

Naeem Iqbal for Defendants Nos.5 to 11

Dates of hearing 18th July, 3rd August and 11th November, 2011

P L D 2012 Sindh 110

Before Mushir Alam, C.J. and Ageel Ahmed Abbasi, J

PEHALWAN GOTH WELFARE COUNCIL through General Attorney---

Appellant

Versus

DISTRICT CO-ORDINATION OFFICER (DCO), KARACHI and 13 others---

Respondents

High Court Appeal No.249 of 2007, decided on 3rd October, 2011.

Civil Procedure Code (V of 1908)---

----S.151, O. IX, Rr. 8 & 9---Limitation Act (IX of 1908), Arts, 163 & 181---Civil Procedure Code (Amendment) Ordinance (X of 1980), S.15--- High Court appeal---Suit not yet fixed but application under O. IX, R.9, C.P.C. was dismissed for non-prosecution-Restoration of such suit---Limitation---Plea raised by plaintiff was that when suit was dismissed for non prosecution, it was fixed for deciding of application and not for issues, evidence or otherwise for hearing of the main case, therefore, it could not be dismissed for non-prosecution-Validity--When matter was fixed for hearing the application, the court could attend only to such application, as the suit was not fixed either for settlement of issues nor it was fixed for evidence of plaintiff and such suit could not be dismissed for non-prosecution---Limitation in such cases, where very foundation of order could not be sustained and could not be treated as an order under O. IX, R. 8, C.P.C. the restoration application would be under S.151 C.P.C. and not under O. IX, R. 9, C.P.C. and limitation was governed by residuary Art.181 of Limitation Act, 1908, and not Art. 163 of Limitation Act, 1908---High Court set aside the order of dismissal of suit for non-prosecution and restored the suit to- its original stage---High Court appeal was allowed, in circumstances.

Nazir 'Ahmad Siddiqui and others v. District Judge (West) Karachi and others 1989 MLD 1873; Faqir Alam and 10 others v. Ajab Khan and 15 others 1986 CLC 1320; Muhammad Afzal v. Small Business Finance Corporation and 4 others 1997 CLC 1080 and Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCMR 1949 rel.

Ali Shaikh Advocate for Appellant.

Manzoor Ahmed and Azra Muqeem for Respondents Nos. 1,2 and6.

Ahmed Pirzada for Respondent No.3.

Abdul Rehman Butt, Advocate for Respondent No.13. Date of hearing: 3rd October, 2011.

P L D 2012 Sindh 114

Before Syed Hasan Azhar Rizvi, J

NOBLE CHARTERING INC. through Attorney---Plaintiff

Versus

AWAN TRADING COMPANY (PVT.) LTD.---Defendant Suit No.

1434 of 2004, decided on 10th October, 2011.

Arbitration (Protocol and Convention) Act (VI of 1937)---

----Ss. 2 (1)(b), 4 (1)(2) & S---Foreign award---Making of award rule of the court---Court, duties of---Scope---Dispute between the parties was decided by arbitrators under English law and award was announced---Plaintiff sought making the award rule of the court---Validity---High Court was not an appellate forum to re-examine final award within the parameters of provisions made available under Arbitration (Protocol and Convention) Act, 1937---Interference, if any, could only be warranted if the conditions surfaced the Arbitration (Protocol and Convention) Act, 1937---Defendant should have availed remedy in appeal available to it, which it did not avail---High Court by exercising powers could pass an executing order, not travelling beyond the final award---Final award having already been filed, same was made rule of the court by High Court and suit was decreed in terms of the final award accordingly.

Alfred C. Toepfer Internatinal GMBH v. Pakistan Molasses Company '2003 CLD 1666 and Messrs Continental Grains Co. v. Messrs Naz Brothers 1982 CLC 2301 ref.

A. H. Mirza and Ghulam Murtaza for Plaintiff. .Agha Zafar for Defendant.

Date of hearing: 8th September,, 2011.

P L D 2012 Sindh 119

Before Nisar Muhammad Shaikh and Muhammad Tasnim, JJ

THE STATE---Applicant

Versus

MUHAMMAD ARIF and 3 others---Respondents

Criminal Revision Application No.D-150 of 2010, decided on 17th November, 2011.

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

----Ss. 21-M'& 28---Joint trial---Anti-Terrorism Court while trying any offence under Anti-Terrorism Act, 1997, could also try any other offence with which accused, could under the Code of Criminal Procedure, 1898, be charged, at the same trial, if the offence was connected with such other offence---If, in the course of any trial under Anti-Terrorism Act, 1997, it was found that accused had committed any other offence under the said Act, or any other law for the time being in force,. the court could convict accused for such other offence and pass any sentence authorized by Anti-Terrorism Act, 1997, or as the case could be, such other law for the punishment thereof---Provisions of S.21-M of Anti-Terrorism Act, 1997, did not give any power to Anti-Terrorism Court to withdraw any case pending within or outside its jurisdiction before a regular court functioning under administrative control of the High Court---Provisions of S.28 of Anti-Terrorism Act, 1997 had given power to the Chief Justice of High Court, if he considered it expedient so to do in the interest of justice; or where the convenience or safety of the witnesses or the safety of accused so required, transfer any case from one Anti-Terrorism Court to another Anti-Terrorism Court, within or outside the area---Anti-Terrorism Court to which a case was transferred, would proceed with the case from the stage at which it was pending immediately before such transfer and it would not be bound to cancel and hear any witness, who had given evidence and could act on the evidence already recorded: provided that nothing contained in S.28 of Anti-Terrorism Act, 1997, would affect the powers of Presiding Officer of the Special Court to call any witness as was available under the law---Anti-Terrorism Court, in circumstances, had no authority and jurisdiction under Anti-Terrorism Act, 1997 to withdraw a case pending before the court of Session---Such powers were vested in the High Court.

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

----Ss. 17 & 23---Powers of Anti-Terrorism Court with reference to other offence and power to transfer cases to regular courts---Anti-Terrorism Court was empowered under S.17 of Anti-Terrorism Act, 1997 to try any offence other than the Scheduled offence with which accused could be charged at the same trial---Provisions of S.23 of Anti-Terrorism Act, 1997, had provided that after taking cognizance of the offence, Anti-Terrorism Court, if was of the opinion that offence was not a Scheduled offence, it would notwithstanding that it had no jurisdiction to try such offence, transfer the case for trial of such offence to any court having jurisdiction under the Code of Criminal Procedure and the court to which the case was transferred, could proceed with the trial of the offence as if it had taken cognizance of the offence---Section 17 of Anti-Terrorism Act, 1997 had provided that Anti-Terrorism Court would have power to try non-Scheduled offence only when? it was trying Schedules offence---Scheduled and non- Scheduled offence could be tried together in one and the same trial--- Power to try non-Scheduled offence would not be available to the Anti-Terrorism Court under S.17 of the Anti-Terrorism Act, 1997 when it was not trying any Scheduled offence.

Syeda Zahida Rizvi v. The State 2011 YLR 1319; Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549; Bago and 2 others v. The State 1996 PCr.LJ 1818 and Mehram Ali v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

Muhammad Bilal @ Sulleman v. Federation of Pakistan through Secretary Ministry of Law Justice and Human Rights Divisions and 3 Others 2011 PCr.LJ 411 and Sardar Shah and others v. The State 2011 MLD 45 rel.

M. Iqbal Kalhoro, Addl. Prosecutor-General for the State.

Ayuatullah Khowaja for Respondents.

P L D 2012 Sindh 129

Before Mushir Alam, C.J. and Aqeel Ahmed Abbasi, J

ALL PAKISTAN NEWSPAPERS SOCIETY and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C. P. No..D-834 of 2004, decided on 31st May, 2011.

(a) Newspapers Employees (Conditions of Service) Act (LVIII of 1973)---

----Preamble---Object of Newspapers Employees (Conditions of Service) Act, 1973---Scope---Object of Newspapers Employees (Conditions of Service) Act, 1973 was to provide security of service, working hours in addition to other benefits including leave and medical coverage to all journalists and non journalists newspapers employee by constitution of Wage Board on national level---Act provided mechanism for effective implementation of Wage Board Award---Principles.

(b) Constitution of Pakistan---

----Arts. 2A, 8 & 199---Constitutional petition---Vires of a statute---Scope---Presumption of legality, validity, constitutionality and legislative competence would attach to a statute and heavy burden would lay on a person challenging its validity or vires---Any law, if inconsistent with right conferred under Chap. I of the Constitution and/or any other mandate thereof would be void to the extent of such inconsistency---Irrespective of length of a statute standing on statute book and innumerable cases decided thereunder would not make such statute immune from challenge on ground of being violative of a fundamental right or provision of the Constitution---Principles.

(c) Constitution of Pakistan---

---Art. 14---Protection provided under Art.' 14 of the Constitution would be available to a natural person, but not to a juristic person/body corporate---Principles.

(d) Constitution of Pakistan---

_Art. 18---Right guaranteed under Art. 18 of, the Constitution-

Scope---Business and/or trade must be lawful and subject to qualifications as prescribed under law.

(e) Constitution of Pakistan---

----Art. 25---Equality before law---Reasonable classification---Essential conditions stated.

Classification is recognized provided it is on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out, and secondly the differentia must for rational nexus to the object sought to be achieved by such classification.

There are general law and special law and it is always wisdom of the legislature to frame law for any specialized class of person.

One cannot say that special enactment cannot be promulgated as general law on the subject exists. Legislature is competent to promulgate special law to deal or attend particular category or specific classification of person and or group of person.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Inamur Rehman v. Federation of Pakistan 1992 SCMR . 563; State of Kerala v. Haji K. Kutty AIR 1969 SC 378; Sakai Papers (Pvt.) Ltd. v. Union of India AIR 1962 SC 305; Arshad Mehmood v. Government of Punjab PLD 2005 'SC 193; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; F.B. Ali v. State PLD 1975 SC 506; Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121; R.C. Cooper v. Union of India AIR 1979 SC 564; The P.T.I. v. Union of India AIR 1974 SC 1044; S.F.A.L. Works v. State Industrial Court, Nagpur AIR 1978 SC 1113; Express Newspapers (P) Ltd.rv. Union of India and others AIR 1958 SC 578; All Pakistan Newspaper Society v. Federation of Pakistan PLD 2004 SC 600; Pakistan Herald Publications (Pvt.) Limited and 23 others v. Federation of Pakistan and 21 others 1998 CLC 65; Independent Newspaper Corporation (Pvt.) Limited v. Chairman, 4th Wage Board Award and others 1993 PLC 673; Fouji Foundation v. Shamim ur Rehman PLD 1983 SC 457; Independent Newspaper P. Limited v. Chairman, 4th Wage Board Award 1993 SCMR 1533; Nabi Bux Khoso v. P.T.V. PLD 1982 Kar. 725; Mohammad Farooq v. Government of Sindh 1986 CLC 1508; Anwar Ali and 9 others 'v. Chief Engineer, Irrigation 1986 CLC 745; Jawed Shah v. Azad Government of State of AJK 1991 MLD 1243; Multiline Associate v. Adersher Cowasjee PLD 1995 SC 423 and Bhikusa Yamasa Kshatriya and another v. Sangamner Akola Taluka Bidi Kamgar Union AIR 1963 SC 806 ref.

(f) Newspapers Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 9---Chairman Wage Board, powers of---Scope---Chairman would make award after applying his independent mind to advices solicited from equal number of advisors belonging to newspapers establishments/ owners and newspaper employees---Powers of Chairman could not be said unbridled or arbitrary. [p. 145] H

Abdul Hafeez Pirzada, Abdul Sattar Pirzada, Rana Ikramullah, Muhammad Afazal Siddiqui for Petitioners.

Rasheed A. Razivi, Shahenshah Hussain, Akhtar Hussain, Faiz Ghangro and Mian Khan Malik, D.A.G. for Respondents.

Dates of hearings: 23rd August, 2010 and 11th April, 2011.

P L D 2012 Sindh 147

Before Muhammad Tasnim, J ZIA-UD-DIN---Applicant

Versus

THE STATE---Respondent

Bail Application No.1321 of 2011, decided on 31st December, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324/109/ 34--- Attempt to commit qatl-e-amd, abetment---Bail, grant of---Delay in conclusion of trial---Accused's previous bail application before High Court had been dismissed with direction to Trial Court to conclude the trial within forty five days but from diary sheet of Trial Court it appeared that due to delay on part of the prosecution witnesses, Trial Court could not comply with the direction of the High Court---Report of Superintendent Jail showed that applicant was not a previously convicted offender for an offence punishable with death or imprisonment for life, nor a desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment' for life---Delay in conclusion of trial was not attributable to the accused---Trial could not be said to have concluded when three prosecution witnesses were yet to be examined and in such circumstances concession of bail on grounds of statutory delay could not be denied to the accused---Accused having made out a case for grant of bail on grounds of statutory delay in conclusion of trial, he was admitted to bail.

Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358; Barkhurdar v. Liaqat Ali and others PLD 1977 SC 434; Zahid Hussain Shah v. The State PLD 1995 SC 49; Mirza Shaukat Baig and others v. Shahid Tamil and others PLD 2005 SC 530; Arbab. alias Qasim v. The State 2006 MLD 1846; Syed Faisal Hussain v. The State 2009 YLR 24; Civil Petition No.620-K of 2011, dated 11-8-2011; Syed Maqsood Ahmed v. The State and others); C.P..No.D-1854/2011 dated 20-6-2011); Syed Maqsood Ahmed v. The State and others); Cr!. Bail Application No. 382 of 2011 (Atif Aziz Polani v. The State dated 16-5-2011; Criminal Bail Application No.565 of 2011 (Syed Hasnain Raza Zaidi v. The State) dated 2-6-2011 ref.

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

----S. 497 [as amended by Code of Criminal Procedure (Amendment) Act (VII of 2011), S.3] Bail---Statutory delay in conclusion of trial--Interpretation of newly added provision of S.497, Cr.P.C.

An examination of the newly added provision in section 497 Cr.P.C., would show that where Court is of the opinion that delay in trial of the accused has not been occasioned by an act or omission of the accused or any person acting on his behalf; direct that such accused person be released on bail, who is accused of an offence punishable with death, has been detained for such offence for continuous period exceeding two years and trial has not concluded provided that the above benefit will not be available to a previously convicted offender for an offence punishable with death or imprisonment for life or to a persons who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

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

--S.497--Bail---Statutory delay in conclusion of trial---Scope and principles---Section 497 Cr.P.C., gives the accused an independent right for grant of bail on the ground of statutory delay in conclusion of trial subject to certain conditions---Right of an accused-to get bail on grounds of statutory delay under 5.497, Cr.P.C., is not left to the discretion of the court and therefore such right cannot be denied under the discretionary power of the court--- Bail on grounds of statutory delay in conclusion of trial can be refused to an accused by the court on the grounds that the delay in conclusion of trial had occasioned on" account of an actor omission on the part of the accused or any person acting on his behalf; or if accused was a previously convicted offender for an offence punishable with death or imprisonment for life or, if accused in the opinion of the court, was a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life.

Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358; Barkhurdar v. Liaqat Ali and others PLD 1977 SC 434 and Zahid Hussain Shah v. The State PLD 1995 SC 49 ref.

(d) Criminal trial---

---Conclusion of trial-- Scope---Statement of witnesses---When statement of one of the prosecution witnesses was yet to be recorded, it could not be said that the trial had been concluded---Trial would be deemed to be concluded only when the statements of all the prosecution witnesses had been recorded.

Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358 rel.

Naveed Ali for Applicant.

Muhammad Iqbal Awan, A.P.G. Nemo for the Complainant.

Date of hearing: 31st December, 2011.

P L D 2012 Sindh 158

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

Moulvi SHAHZADO DREHO---Petitioner

Versus

Syed KHURSHEED AHMED SHAH and others---Respondents

Constitutional Petition No.D-850 of 2004, decided on 21st December,. 20-11.

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

----O. XXXIII, R. 1---Forma pauperis suit---Phrase "sufficient means" as used in 0. XXXIII, R.1, C.P.C.---Connotation---Said phrase would refer to all kinds of assets, which could be realized and converted into cash for purpose of paying court fee.

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

----O. XXXIII, Rr. 1, 3 & O. VII, R.11---Constitution of Pakistan, Art199---Constitutional petition---Permission to sue as forma pauperis---Scope---Suit for damages for malicious prosecution---Rejection of plaintiff's application to sue as forma pauperis---Payment of court fee by plaintiff and admission of suit for further proceedings by court---Application by defendant under 0. VII, R. 11, C.P.C. seeking rejection of plaint on ground that rejection of plaintiff's application under O. XXXIII, R.3, C.P.C. amounted to extinguishment of cause of action on the basis of which he filed the suit---Defendant's such application was dismissed by Trial Court, but accepted by revisional court---Validity---Permission to sue' as forma pauperies would confine only to seek exemption from payment of court fee on conditions mentioned in 0. XXXIII, Rr.1 & 5, C.P.C.---Both cause of action for institution of suit and allowing or disallowing of an application under 0. XXXIII, C.P.C. had distinct features---Payment of court fee could not be linked with cause of action for both having different mandatory requirements to be fulfilled prior to admission of suit to regular file---Plaintiff after rejection of his application had sought extension from court for making up deficiency in court fee, which was accordingly allowed to him---Court-fee paid by plaintiff within extended time would have same effect and force as if such fee had been paid in first instance---Revisional court had rejected plaint on wrong notion---High Court set aside impugned order while directing Trial Court to decide the suit on merits.

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

----O. VII, Rr. 1, 11(a) & 0. XXXIII, R. 5(c)---Forma pauperis suit---Rejection of plaint---Principles---Phrase "cause of action" as used in O. VII, R. 11(a) & 0. XXXIII, R. 5(c), C.P.C.--Connotation---Such phrase would mean bundle of facts giving rise to and forming foundation of suit, if traversed, would be necessary for plaintiff to prove for obtaining judgment---Totality of such facts must co-exist, otherwise anything wanting would make suit incompetent---Cause of action neither had any relation to defence set up by defendant nor was dependant upon character of relief claimed---Party seeking relief must have cause of action both at time of infringement of his right and approaching court---Cause of action to sue and exemption from payment of court fee claimed under 0. XXXIII, C.P.C. would have no nexus with each other for both being two different/distinct mandatory requirements to be fulfilled prior to admission of suit to regular file---Principles.

The cause of action for institution of the suit and allowance or disallowance of an application under Order XXXIII, C.P.C., both have distinct features. The permission to sue as forma pauperis is only confined to seek exemption for the payment of court-fee on certain conditions which more particularly prescribed in the explanation attached to Rule 1 and the conditions mentioned in Rule 5 of Order XXXIII, C.P.C., while the expression "cause of action" refers to the facts which give occasion to and form the foundation of the suit. The `cause of action' means every fact which will be necessary for the plaintiff if traversed in order to support his right to judgment for the purposes of rejection of plaint under Order VII, Rule 11, C.P.C. Words "cause of action" would mean a bundle of facts, which if traversed, a suit for claiming relief was required to prove for obtaining judgment. Totality of the facts must co-exist and if anything was wanting, the claim would be incompetent. Ono part, could be included in the whole, but the whole could never be equal to the part. Not only should the party seeking relief have a cause of action when the transaction or the alleged act was done, but also at the time of the institution of the claim. Suitor is 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. Cause of action had no relation to the defence that could be set up nor did it depend upon the character of the relief prayed.

No doubt that accrual of cause of action and payment of court-fee are two separate rudiments required to be fulfilled while instituting plaint in the court and this position is also manifesting from Order VII, Rule 1, C.P.C., which lays down as to what particulars are to be contained in the plaint including the facts constituting the cause of action, statement of value of the subject matter of the suit for the purposes of jurisdiction and court-fee. Even.under Order VII Rule 11, C.P.C., the plaint can only be rejected when it does not disclose a cause of action and or the relief claimed is under-valued, or the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped or where the suit appears from the statement in the plaint to be barred by any law, therefore, it is undoubtedly clear that the payment of court-fee cannot be linked with cause of action but both are two different mandatory requirements which are to be fulfilled prior to admission of suit to regular file.

Badal and another v. Mansoor Ahmad Awan 2010 CLC 1968 rel.

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

----S. 149---Court-fee paid within time extended by court---Effect---Document in respect of which court fee payable upon such payment would have sane force and effect as if such fee had been paid in first instance---Principles.

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

----S. 149 & O. VII, R. 11---Deficiency in court-fee-Rejection of plaint-Scope-Court could not reject plaint without first determining amount of court: fee and affording to plaintiff at least one opportunity to make up such deficiency.

(f) Constitution of Pakistan---

----Art 199---Civil Procedure Code (V of 1908), S. 115---Constitution petition---Order passed in revision by court below---Interference with such order by High Court in exercise of constitutional jurisdiction---Scope---Object of exercise of such jurisdiction would be to curb excess of jurisdiction by courts below and keep them within their bonds, and provide expeditious and efficacious remedy to a victim of injustice by invasion of his substantial right---Principles.

Where the revisional order suffers from the legal defect, High Court is competent to set aside the same because a litigant, who is victim of injustice, cannot be left without remedy. The constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where illegality, impropriety and flagrant violation of law regarding impugned action of the authority is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. The object of the writs is to curb excess of jurisdiction, to keep inferior courts and tribunals within their bonds, the writ jurisdiction is appropriate only in such case where "substantial right" of a person has been so far invaded as to prejudicially affect him if the proceeding or judgment remains un-revised.

2001 SCMR 1493 ref.

Petitioner in person.

Nemo for Respondent No. l.

Imtiaz Ali Soomro, Asstt. A.-G. for Respondents Nos. 2 to 9.

Date of hearing: 11th October, 2011.

P L D 2012 Sindh 166

Before Shahid Anwar Bajwa, J

Dr. AISHA YOUSUF---Petitioner

versus

KHALID MUNEER and 2 others---Respondents

Constitution Petition No.S-927 of 2010, decided on 14th December, 2011.

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

----Ss. 12 & 25---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor daughter---Contest between father having second wife and real/divorced mother of minor---Order of Family Court leaving custody of minor with mother, but prohibiting removal of minor from jurisdiction of court without its permission while allowing father to have custody of minor on alternate Saturday in evening till next day evening, on second day of Eid during day time, in summer vacation for one month, in winter vacation for seven days and on birthday from 6-00 p.m. to 8-00 p.m.-Appellate Court upheld such order of Family.Court with modification allowing custody of minor to father for a fortnight during summer vacation instead of one month---Mother's plea was that she being a Doctor by profession had got a job in Dubai and would like to take minor with her; that she would come back to Pakistan with minor every month and give full opportunity to father to meet minor; and that she was ready to give reasonable guarantee for such purpose---Validity---Father had not challenged concurrent findings of it courts below allowing mother to have custody of minor---Female had absolute right to roam in search of career and livelihood wherever she found same more apt and could not be deprived of custody of children if she wanted to serve abroad---Just as a father could not be asked to abandon his career if he wanted custody of minor, a mother could not be asked to forsake her career, if she wanted custody of minor---Mother in view of her career requirements had wanted permission and not a simple permission to go abroad---Purpose of a guarantee would be to act as deterrent---High Court allowed mother to take minor with her abroad subject to furnishing P.R. Bond for Rs.1 million with one surety in like amount to the satisfaction of Nazir of the Court.

Mst.. Nasima v. Hanif and 2 others PLD 2009 Kar. 50; Syed Tahseen Razi v. Dr. Farhana Shaheen and another 2003 YLR 1067; Khalid Mahmood v. Tahira Yasmin and 2 others 2007 MLD 1692; Saad Amanullah Khan v. IVth Senior Civil Judge, (South) Karachi and 3 others, PLD 2008 Kar. 499. Muhammad Latif v. Additional District Judge, Shorkot, District Jhang and another, 2003 CLC 1265; Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357 and Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 ref.

Zia Ahmed Awan for Petitioner.

Muhammad Khalid for Respondent No. 1.

Date of hearing: 10th November, 2011.

P L D 2012 Sindh 174

Before Shahid Anwar Bajwa, J

SHOUKAT alias SHAFQATULLAH---Applicant

versus .

THE STATE---Respondent

Pre-Arrest Bail Application No.S-23 and M.As. Nos.169 & 170 of

2012, decided on 16th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 375/376/449/148/149---Rape, house-trespass in order to commit offence punishable with death, rioting armed with deadly weapons---Pre-arrest bail, refusal of---Vicarious liability for rape---Scope---Accused and co-accused armed with weapons, allegedly entered the house of the complainant and accused stood guard while two of the co-accused recorded victim's movie and committed zina with her---Court below dismissed accused's pre-arrest bail on the grounds that specific role had been assigned to the accused; that accused on the strength of weapons facilitated the co-accused to commit the alleged act which was a crime against the society and that medical report supported complainant's assertions and offences for which accused was charged fell within the ambit of prohibitory clause of S.497, Cr. P. C---Accused had contended that there was no allegation of zina against him, therefore, he was entitled to bail---Validity---F.I.R. stated that accused stood guard, while two co-accused stripped the victim naked, made a movie and thereafter committed rape' with her one after the other---Accused's case being that of vicarious liability, his pre-arrest bail application, was refused.

Hussain Bux v. State 2004 PCr.LJ 1397 distinguished.

Sadaruddin Buriro along with Applicant.

PLD2012Sindh 177

Before Shahid Anwar Bajwa, J

Messrs WESTERN SHOES COMPANY through Partners and 2 others---Applicants

versus

Messrs SEVEN STAR GOODS TRANSPORT COMPANY through Proprietor---Respondent

Civil Revision Application No.13 of 2008, decided on 2nd January, 2012.

Civil Procedure Code (V of 1908)--

----O. VII, R.2 & S. 34---Suit for recovery of money with interest @ 15% from filing of suit and cost---Passing of decree as prayed for in suit except cost---Application by decree holder during execution proceedings for addition of further interest in decretal amount---Validity---Court under S.34(1), C. P. C. could grant interest either firstly from date of-suit to date of decree or secondly from period prior to suit or thirdly from period after date of decree---Provision of S. 34(2), C.P.C. could not be made applicable to such first two situations i.e. interest from date of suit to date of decree or interest for any period prior to suit, rather same would apply to such third situation if decree was silent about interest, then same would be deemed to have been refused by court---Decree holder had prayed for interest @ 15% from date of filing of suit, which had been decreed as prayed for---Silence in last part of decree would not attract provision of S. 34(2), C.P.C. in respect of period from date of suit to date of decree---Decree holder had not been ordered further interest for any period after date of decree, thus, he was entitled to simple interest @ 15% from date of suit to date of decree---Such application was dismissed in circumstance.

province of Punjab through Secretary Industries, Government of Punjab, Civil Secretariat, Lahore v. Burewala Textile Mills Limited 2001 SCMR 396 and Syed Ghulam Abbas and others v. Mst. Khurshid Begum 1980 CLC 1636 ref.

Muhammad Sadiq for Applicants.

Amir Malik for Respondent.

Date of hearing: 14th November, 2011.

P L D 2012 Sindh 182

Before Munib Akhtar, J

M.S. PORT SERVICES (PVT.) LTD.---Plaintiff

versus

PORT QASIM AUTHORITY---Defendant

Suit No.535 and C.M.A.No.4243 of 2008, decided on 10th January, 2012.

Limitation Act (IX of 1908)---

----S.19---Acknowledgment of liability in writing made after expiry of period of limitation---Validity---Such acknowledgment would be irrelevant and would not come within ambit of S.19 of Limitation Act, 1908 and could. not give fresh start to period of limitation and save matter from being time barred---Illustration.

Gadigeppa Bhimappa Meti V. Balagowda Bhimangowda AIR 1931 Born. 561; Asiatic Shipping Co. (Pvt.) Ltd. v. P.N.Djakarta Lloyd and another AIR 1969 Cal. 374 and F. Golsmith (Sicklemere) Ltd. V. Baxter 1970 Ch.85 ref.

Khalid Mehmood Siddiqui for Plaintiff.

M.A. Essani for Defendant/Port Qasim Authority.

Dates of hearing: 6th,'20th September and 4th, 20th October, 2011.

P L D 2012 Sindh 195

Before Mushir Alam, C.J. and Salman Hamid, J

RAJA QURESHI---Petitioner

versus

CHAIRMAN, ARBITRATION COUNCIL, CANTONMENT BOARD, KARACHI and 2 others---Respondents

Constitutional Petition No.D-1222 of 2011, decided on 25th November, 2011.

(a) Muslim Family Laws Ordinance (VII of 1961)--

----S. 7(3)---Talaq---Revocation---Pre-conditions---Talaq can be revoked which can either be express or otherwise---Other condition which is required to be made is that such express or otherwise revocation of Talaq be within a period of 90 days to be reckoned from the date of receipt of notice of Talaq by the Chairman Arbitration Council.

(b) Muslim Family Laws Ordinance (VII of 1961)---

----S.7(3)---Constitution of Pakistan, Art.199---Constitutional petition-Talaq---Revocation---Petitioner divorced his wife on 28-12-2010 and Arbitration Council issued notice under S.7 of Muslim Family Laws Ordinance, 1961, for reconciliation/confirmation of divorce---Plea raised by petitioner was that by means of letter dated 24-3-2011, he had revoked divorce, therefore, Arbitration Council could not proceed in the matter---Validity---After letter dated 24-3-2011, was sent by petitioner, Arbitration Council had no jurisdiction or authority to proceed further into the matter either in confirming divorce dated 28-12-2010, or embark upon in reconciliation of marriage contracted between the parties---High Court restricted Arbitration Council to act further in the matter after letter dated 24-3-2011 was sent by petitioner---Petition was allowed accordingly.

Batool Tahir v Province of Sindh PLD 2005 Kar. 358; Alia Parveen v. Executive District Officer (Revenue) Sheikhupura and 3 others 2004 CLC 652; Rana Zulfiqar v. Mariam Rafiq 2007 CLC 1047; Mst. Sadia Khan v. Muhammad Asim Khan and another 2001 CLC 330; Ayaz Aslam v. Chairman Arbitration Council and others 1990 ALD 702; Mst. Kaneez Fatima v. Wali Muhammad and others PLD 1989 Lah. 490; PLD 1993 SC 901; Allah Dad v. Mukhtar and another 1992 SCMR 1273 and Muhammad Siddique and another v. The State 1997 PCr.LJ 1655 ref.

Agha Zafar for Petitioner.

Rehmatunnisa for Respondent No.1.

Nemo for Respondent No.2.

Kh. Shamsul Islam and Zohaib Sarki for Respondent No.3.

Abdul. Fateh Malik, Advocate-General, Sindh on court notice.

Dates of hearing: 17th, 19th May and 21st November, 2011.

P L D 2012 Sindh 203

Before Salmon Hamid, J

REHAN AHMED---Petitioner

versus

Mrs. NADRA ISRAR and 2 others---Respondents

Constitutional Petition No. S-963 of 2010, decided on 22nd November, 2011.

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

----S. 15(2)(vii)---Constitution of Pakistan, Art.199---Constitutional Petition-Ejectment of tenant---Bona fide personal need---Change in circumstances---Death of landlord---Effect---Tenant assailed eviction order on' the ground that after death of landlord, plea of bona fide need had extinguished---Validity---Ejectment application was filed only on the ground that shop in question was required for the use of landlord---Record showed through evidence that need of the shop was not that of two sons of landlord, who were earning their livelihood in Dubai and Karachi respectively---Personal bona fide need of shop that was existing remained as such till the death of landlord---Need of the shop had extinguished because of demise of landlord as the circumstances had changed altogether---Under the altered and changed circumstances, the decisions handed down by Rent Controller and Lower Appellate Court were set aside and ejectment application filed by landlord was dismissed---Petition was allowed in circumstances.

Muhammad Adnan for Petitioner.

Manzoor Ahmed for Respondent No. 1.

Date of hearing: 16th November, 2011.

P L D 2012 Sindh 208

Before Salman Hamid, J

Mrs. INGRID PEREIRA and another---Petitioners

versus

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

Constitutional Petition No.S-762 of 2011, decided on 16th November, 2011.

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

----Ss. 7, 10 & 26---Constitution of Pakistan, Art. 199---Constitutional petition---Guardian, appointment of---Petitioners (Christians) were close relatives of father of minor children and were settled abroad---Petitioners had adopted the minors with the consent of their father and sought guardianship certificate for taking the minors abroad---Family Court and Lower Appellate Court declined to issue guardianship certificate in favour of petitioners---Validity---Interest and welfare of two minors had been properly safeguarded and father of minors fortified the fact of adoption by giving his no objection affidavit to such an extent---Held, in all cases of minors, be it the custody or adoption or guardianship, the predominant factor was their welfare---Record showed that well being of two minors, who were Roman Catholic Christian, was with petitioners who were living in better financial and social conditions in United States of America--- Both the minors were Roman Catholic, so were the petitioners who wanted to adopt then and therefore, they were not governed by Muslim Personal Law--- High Court keeping in view the welfare of the minors and fact that orders of two courts below were based on 'conjectures and surmises and without appreciation of legal position, allowed the petitioners to take two minors outside the jurisdiction of competent authority for the purposes of adoption in the United State of America and orders passed by two courts below were set aside--- Petition was allowed in circumstances.

(b) Adoption---

--Connotation---Adoption is defined as a judicial or administrative act which establishes a permanent legal parent and 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 adoptive child and any former parent.

Muhammad Umer Lakhani for Petitioners.

?Respondent No.3 in person.

Haleema Khan, A.A.G. (On court notice).

Date of hearing: 16th November, 2011.

P L D 2012 Sindh 212

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

IMAM BUX alias AMOO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.D-180 of 2011, decided on 1st February, 2011.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.302/324/353/399/ 402/440---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-e-amd, attempt to commit qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation to commit dacoity, assembling for purpose of committing dacoity, acts of terrorism---Ad interim pre-arrest bail, confirmation of---Further inquiry---Police encounter---Delay of seventeen hours between the occurrence and lodging of F.I.R.---Names of accused were not mentioned in the F.I.R.---Complainant (police official) had mentioned in the F.I.R. that he and his police staff had seen the unknown accused in the light of their vehicle and could recognize same on seeing them . again, but names of accused had been implicated in the crime on the basis of statements of prosecution witnesses (police officials) recorded under S.161, Cr. P. C, which were recorded after two days of lodging the F.I.R. ---F.I.R. did not state any features or descriptions of the unknown persons who had committed the crime---Accused had been implicated without conducting any identification parade---, Footprints of three persons were shown in the memo of wardat, but according to the F.I.R., six persons were standing at the place of occurrence---During the occurrence police officials allegedly fired 140 rounds but no accused person was injured---Sufficient grounds existed to warrant further inquiry into the guilt of the accused---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 302/324/353/399/ 402/440---Anti-Terrorism Act (XXVII of 1997), S.7---Ad interim pre-arrest bail, confirmation of---Police encounter---Contention of prosecution was that accused had failed to apply for bail in the Trial Court before invoking jurisdiction of High Court for bail---Validity---In absence of reasonable and justifiable cause a person desiring his admission to bail before arrest, must in the first instance, approach the court of first instance i.e. the Court of Session, before petitioning the High Court for the same purpose, but it is not an absolute rule as, depending upon the compelling circumstances of each case, a person can directly approach the High Court by invoking its concurrent jurisdiction---If, however, such an application has been moved' before the High Court and it has entertained the same and granted ad interim bail to the applicant, then instead of dismissing same on technical grounds it should dispose it of on merits---Accused in bail application before High Court had clearly mentioned that their names were not mentioned in the F.I.R.; that they had been implicated subsequently and apprehended their arrest; that in order to avoid undue harassment and humiliation at the hands of the police, they had approached the High Court directly, and that their non-bailable warrants. had been issued by the Trial Court---Accused, in circumstances, had directly approached the High Court with reasonable and justifiable cause and their previous bail application had been entertained by the High Court, granting them ad interim bail---Accused had rightly invoked the concurrent jurisdiction of the High Court.

Rana Muhammad Arshad v. Muhammad Rafique and others PLD 2009 SC 427 and Rais Wazir Ahmad v. The State 2004 SCMR 1167 ref.

(c) Criminal Procedure Code (V of 1898)

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.302/324/353/399/ 402/440---Anti-Terrorism Act (XXVII of 1997), S.7---Ad interim pre-arrest bail, confirmation of---Bail application filed directly before High Court without first applying to court of first instance---Scope---In the absence of a reasonable and justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance, approach the court of first instance i.e. the Court of Session, before petitioning the High Court for the purpose, but it is not an absolute rule as, depending upon the compelling circumstances of each case, a person can directly approach the High Court by invoking its concurrent jurisdiction---If, 'however, such an application has been moved before the High Court and it has entertained the same and granted ad interim bail to the applicant, then instead of dismissing same on technical grounds it should dispose it of on merits.

Rana Muhammad Arshad v. Muhammad Rafique and others PLD 2009 SC 427 and Rais Wazir Ahmad v. The State 2004 SCMR 1167 quoted.

Muhammad Iqbal Mahar for Applicants.

Zulfiqar Ali Jatoi, Deputy Prosecutor General for the State.

Date of? hearing: 1st February, 2012.

P L D 2012 Sindh 218

Before Muhammad Ali Mazhar, J

ABDUL RAZAK'ZANGEJO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-799 of 2011, decided on 2nd February, 2012.

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

----S. 497---Penal Code (XLV of 1860), S.302-Qatl-a-amd---Bail, grant of---Delay in conclusion of trial---Examination of case diaries clearly revealed that accused alone could not be held responsible for the delay in conclusion of his trial, because case had also been adjourned due to non production of accused by jail authorities, or because Trial Court was lying vacant and on other occasions due to issuing of processes to prosecution witnesses or because complainant was directed to bring all the witnesses in court---Where jail authorities failed to produce the accused in court for prompt trial or where the prosecution witnesses were not produced by the prosecution, the accused could not be held responsible to ensure his attendance in court or calling the prosecution witnesses which was beyond his control, but it was the responsibility of the Trial Court to enforce the production of the accused as well as prosecution witnesses in court---If any lapse was found on part of jail authorities or the prosecution , the court was not helpless but it could take all appropriate measures provided under the Criminal Procedure Code,1898 as well as the guidelines provided under the National Judicial Policy, 2009---During the entire period of trial to date, only the complainant and one prosecution witness had been examined and accused was in jail for more than three years---Prosecution had not stated that accused was a previous convict for an offence punishable with death or life imprisonment---Period of detention of accused, excluding adjournments sought by him, was more than two years---High Court granted bail to accused with a direction to the Trial Court to conclude the trial within four months.

1985 SCMR 1509 rel.

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

----5.497---Penal Code (XLV of 1860), 5.302---Qatl-a-amd---Bail, gram of---Delay in conclusion of trial---Calculation of period of delay-- Scope---For purposes of ascertaining the delay in conclusion of trial, mechanical calculation of the dates was not required but the main reason for the delay and the conduct of the prosecution was to be evaluated and examined in order to arrive at proper conclusion whether the accused was instrumental to the delay or the prosecution.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Delay in conclusion of trial---Duties of jail authorities and prosecution with respect to the accused---Scope---Was the responsibility of jail authorities to produce under trial prisoners in the court without any failure on their part, and similarly it was the responsibility of the prosecution to ensure the presence of prosecution witnesses so that trial could be concluded as soon as possible---If prosecution and jail authorities failed to perform their lawful duties in accordance with the law, the court could not sit idle and it was court's responsibility to ensure that prosecution and jail authorities were performing their duties properly which was necessary not only for dispensation of justice but also required for expeditious criminal administration of justice.

Zamir v. State Cr.B.A.No.675 of 2011 ref.

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

----S. 497---Penal Code (XLV of 1860), 5.302---Qatl-a-Amd---Bail, grant of---Delay in conclusion of trial---Scope and effect---Intention of law was that a criminal case must be disposed of without unnecessary delay---Inordinate delay in imparting justice was likely to cause erosion of public confidence in the judicial system on one hand, and on the other, it was bound to create a sense of helplessness, despair and feelings of frustration apart from adding to the woes of the public.

Zamir v. State Cr.B.A.No.675 of 2011 ref.

A.R. Faruq Pirzada for Applicant.

Syed Sardar Ali Shah Rizvi, Asstt. Prosecutor General for the State.

Date of hearing: 16th January, 2012.

P L D 2012 Sindh 225

Before Faisal Arab and Muhammad Tasnim, JJ

MUHAMMAD MURAD ALI USMANI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.1171 of 2011, decided on 13th January, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.409/419/420/468/471/ 109/34---Criminal breach of trust by banker, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment--Bail---Subsequent bail application filed before same court---Maintainability and scope---Auto loans allegedly sanctioned on bogus documents---Auction of repossessed vehicles at minimal prices---Federal Investigation Agency had filed an interim challan and two supplementary challans in the Trial Court---High Court had dismissed bail application of accused which was filed before submission of second supplementary challan---Second supplementary challan brought new facts to light and accordingly accused applied for bail before Trial Court, which was also dismissed---Validity---Second or subsequent bail application to the same court lay only on a fresh ground which did not exist at the time when the first application was made---Second supplementary challan, which brought new facts to the light, was not filed by the Investigation Agency before the trial Court when earlier bail application of accused was dismissed by High Court-New facts gave the accused fresh grounds to seek bail and for this reasons present bail application filed by accused was maintainable.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.409/419/420/468/471/ 109/34---Criminal breach of trust by banker, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment--Bail, grant of---Further inquiry---Auto loans allegedly sanctioned on bogus documents---Auction of repossessed vehicles at minmal price--Inquiry conducted after lodging of F.I.R. revealed hundreds of cases of alleged offences committed in the main branch of the Bank and that of the accused, but second supplementary challan submitted by Federal Investigation Agency showed that only six auto loan defaults were related to the branch of the accused bank officer---Perusal of second supplementary challan showed that a maximum of two auto loans were processed and signed by the accused along with his co-accused in his branch, and with regard to one of these loans, Bank had already acquired a decree in its favour for the recovery suit that it filed against the borrower/defaulter---With respect to the second auto loan, accused had jointly signed it with the other co-accused who either had been let off or had not been sent for trial or had absconded---Case of accused required further probe into the matter entitling him to grant of Accused was allowed bail accordingly.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.409/419/420/468/471/ 109/34---Criminal breach of trust by banker, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment---Bail---Subsequent/second bail application filed before same court---Fresh ground---Scope---Second or subsequent bail application to the same court shall lie only on a fresh ground which did not exist at the time when the first application was made---If a ground was available to the accused at the time when the first bail application was filed and was not taken or pressed, it cannot be considered as a fresh ground and made the basis of any subsequent bail application.

The State v. Zubair and others PLD 1986 SC 173 quoted.

Muhammad Ashraf Kazi for Applicant.

Irshad Ali Kehar, D.A.G. for the State.

Z.U. Mujahid for the Complainant.

Date of hearing: 3rd January, 2012.

P L D 2012 Sindh 232

Before Shahid Anwar Bajwa and

Muhammad Ali Mazhar, JJ

SAJID HUSSAIN---Petitioner

versus

SHAH ABDUL LATIF UNIVERSITY, KHAIRPUR

through Registrar and 4 others---Respondents

Constitutional Petition No.D-12 of 2012, decided on 17th January, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition seeking, writs in the nature of ceriorari, mandamus or prohibition by a person not claiming any relief for him or not being an aggrieved person---Maintainability---Such petition would not be maintainable as relief of the kind stipulated in Art.199(1)(a)(i) & (2) of the Gonstitution could not be granted to such person.

(b) Constitution of Pakistan--

----Art.199(1)(b)(ii)---Writ of quo warranto, issuance of---Scope---Essential conditions stated.

Writ of quo warranto can only be issued in respect of a public office. Public office means an office which involves delegation of some of the sovereign functions of the Government either executive, legislative or judicial to be exercised by the holder for the public benefit. Unless he has powers of this nature he is not a public officer'. Both at the time of institution of the writ petition and on the date of decision it must be shown that the holder suffered from any disqualification to hold the public office. The court may test bona fides of the relator to see if he has come with clean hands. A writ of quo warranto is not to be issued as a matter of course on sheer technicalities on a doctrinaire approach. Even civil servant or every person in the service of Pakistan does not necessarily hold a public office. If the office is of a very petty nature the court may refuse to grant the writ. In order to maintain a writ of quo warranto the petitioner need not to be an aggrieved person.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Allah Ditta v. Muhammad Munir and others PLD 1966 (W.P.) Lah. 770; Masudul Hassan v. Khadim Hussain PLD 1963 SC 203; Sardar Asseff Ahmed Ali v. Muhammad Khan Junejo and others PLD 1986 Lah. 310; AIR 1952 Nag. 330 and Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299 rel.

(c) Constitution of Pakistan---

Art.199(1)(b)(ii)---Writ of quo warranto---Scope---Introduction of scholarship scheme in University ,to strengthen its infrastructure---Selection- of respondent-lecturer for awarding him scholarship for undertaking studies leading to acquisition of degree of Ph.D.---Petitioner-lecturer claiming to be better qualified for having better academic record challenged award of such scholarship to respondent-?lecturer---Validity---Writ of quo warranto would not be a remedy for a person to air his private grievance---Such writ could be issued in respect of a public office---Award of scholarship for studies was not a public office as no exercise of sovereign powers would involve by incumbent while he would undertake such studies---Wrong denial of admission to a student in a college could not be subject of such writ as one just studying would not be exercising any part of sovereign power---Petitioner was availing scholarship but had not disclosed such fact, thus he had not come to court with clean hands---High Court declined to issue the writ in circumstances.

Malik Shahid Mehmood v. Malik Afzal Mehmood and others 2011 SCMR 551; Mukhtar Hussain and others v. Sohbat Ali and another 2011 SCMR 1926 and PLD 2010 SC 759 ref.

Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299 rel.

Mukesh Kumar Karara for Petitioner.

Abdul Qayyoom Shaikh for Respondents Nos. 1 and 2. Ghulam Shabir Shar for

Respondent No.5.

Safdar Ali Bhutto, D.A.G. for Official Respondent.

Date of hearing: 17th January, 2012.

P L D 2012 Sindh 241

Before Munib Akhtar and Syed Hasan Azhar Rizvi, JJ

Mst. FARZANA and another---Petitioners

versus

Mst. SEHTI and 3 others--Respondents

Constitutional Petition No.1820 of 2011, decided on 3rd February, 2012.

West Pakistan Land Revenue Act (XVII of 1967)---

----Ss. 139, 140, 141 & 142---Partition proceedings---Powers of Revenue Officer to award any amount by way of compensation---Scope---Revenue Officer could decide himself only question of title in property to be partitioned while acting as a civil court of competent jurisdiction, but could not decide all other questions falling within jurisdiction of civil court---Revenue Officer while deciding questions as to property to be partitioned or mode of its partition would act only as Revenue Officer, but not as a revenue court or civil court---Revenue Officer while acting as such could not award to party/parties any amount by way of compensation, which being in the nature of a civil dispute would require adjudication by civil court of competent jurisdiction---Principles.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Order made without jurisdiction---Challengeable by means of proceedings under Art.199 of the Constitution.

Amjad Ali Sahito for Petitioners.

Ejaz Ali Hakro for Respondents Nos.1 and 2.

Allah Bachayo Soomro, Addl. A.G. along with Naeem Akhtar Vistro, Muktiarkar Dadu.

Date of hearing: 17th January, 2012.

P L D 2012 Sindh 250

Before Shahid Anwar Bajwa and

Muhammad Ali Mazhar, JJ

SAJADULLAH QURESHI---Petitioner

versus

TALUKA MUNICIPAL OFFICER, SUKKUR and 3 others---Respondents

Constitutional Petition No.D-754 of 2008, decided on 22nd February, 2012.

Public Street---

----Purpose---Allotment of Public Street---Not authorized---Powers of Municipal Administration---Scope---Municipality could neither allot any portion of Public Street to a private person nor allow construction to be raised thereon to cause inconvenience to public---Principles.

Municipality cannot allot any portion of street to any private person nor can any construction be allowed to be raised on street to cause inconvenience to the public. Public streets are meant to provide comforts and convenience to the public and no private person can be allowed to utilize the public amenity by raising un-authorized construction on it to the disadvantage of the public at large.

Town Municipal Administration and Union Council in their respective domain are not only required to remove encroachment, but also to improve and maintain public open spaces.

Public streets are meant to provide comfort and convenience to the public and no public functionary in law has any authority to allot and/or lease out any portion of it in any manner as these are -public amenities. No private person can be allowed to utilize public amenities by raising unauthorized construction on it to the disadvantage of the public at large.

2006 YLR 1471 and Madina /Electric Market v. City District Government, Karachi PLD 2009 Kar. 309 fol.

Manoj Kumar for Petitioner.

Khuda Bux Chohan for Respondent No.1. Shaikh Amanullah for Respondent No.4.

Imtiaz Ali Soomro, A.A.G.

Date of hearing: 22nd November, 2011.

P L D 2012 Sindh 258

Before Salman Hamid, J

Mst. AMINA BAI---Plaintiff

versus

Mrs. NAFISA ZAKARIA and 2 others---Defendants

Civil Suit No.726 of 2008 and C.M.A. No.4938 of 2010, decided on. 12th August, 2011.

Oath Act (X of 1872)---

----Ss. 8 & 9---Qanun-e-Shahadat (10 of 1984), Art.163---Disposal of case on special oath proposed by court prior to framing of consent issues and reference of case to local commission with parties' consent for recording evidence---Validity---Plaintiff after filing affidavit-in­evidence before commission had been partly cross-examined by defendant---Such offer having been made by court and not by any party to lis came to an end and was frustrated when consent issues were framed and case was referred to Commissioner---High Court dismissed defendant's application seeking disposal of case on special oath.

Atiqullah v. Kifayatullah 1981 SCMR 162 and Nazir Ahmed v. Muhammad Ahmed and others 1984 CLC 2658 ref.

Masood Khan Ghory for Plaintiff.

M. Farooque Hashim for Defendant No.l.

Hassan Shah for Defendant No.2.

Date of hearing: 12th August, 2011.

P L D 2012 Sindh 261

Before Aqeel Ahmed Abbasi, J

MUEEN AFTAB SHAIKH---Applicant

versus

THE STATE through FIA KARACHI---Respondent

Criminal Bail Application No.740 of 2011, decided on 27th February, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 406/409/420/109/34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, abetment, common intention, criminal misconduct---Bail, grant of---Delay in conclusion of trial---Allegation against accused (Chairman, Pakistan Steel Mills) of causing wrongful gains to companies and loss to government exchequer with fraudulent, dishonest and ulterior motives---Case record and diary sheet of Trial Court revealed that delay in trial could not be attributed to the accused, as on various dates of hearing, either the Trial Court was vacant or prosecution witnesses were not in attendance---Accused was behind bars for more than one and a half years and even the charge had not been framed against him----Accused was neither a previously convicted offender nor required in any crime punishable with death or life imprisonment--- Accused was admitted to bail, in circumstances.

Constitutional Petition No.620-K of 2011; Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72 and Zahid Hussain Shah v. The State PLD 2005 SC 530 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 406/409/420/109/34---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal breach of trust, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, abetment, common intention, criminal misconduct---Bail application, maintainability of---Delay in conclusion of trial---Bail application filed before High Court without approaching Trial Court first---Contention of prosecution that since statutory ground was not raised before the Trial Court, which had declined bail to the accused on merits , hence same could not be raised directly before the High Court---Validity---Accused had contended that ground of statutory delay was not available to him at the time of dismissal of his bail application before the Trial Court, but at time of filing present bail application, both merit and grounds of statutory delay were available to him---Trial Court had already dismissed bail application of accused filed for other connected F.I.Rs., wherein accused had raised ground of statutory delay, with the reasoning that accused was involved in causing huge losses to the government exchequer due to the misuse of his powers---High Court could consider the ground of statutory delay without requiring the accused to again approach the Trial Court, which had already expressed its mind by declining bail to the accused on the ground of statutory delay in the connecting F.I.Rs. involving similar crime---Possibility of conclusion of trial in the near future did not exist in spite of a lapse of one and a half years, and even charge had not been framed against the accused---Prosecution was responsible for the delay in the conclusion of the trial---Bail application of accused was maintainable, in circumstances.

Faisal Siddiqui for Applicant.

Sadaqat Khan Standing Counsel along with I.O. Gulsher Mugheri for the State.

Date of hearing: 18th February, 2012.

P L D 2012 Sindh 272

Before Muhammad Ali Mazhar, J

MUHAMMAD ALI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-58 of 2012, decided on 24th February, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 365-B/452/34---Kidnapping, abducting or inducing woman to compel for marriage etc., house-trespass after preparation for hurt, assault or wrongful restraint, common intention---Bail, refusal of---Contents of F.I.R. revealed that accused had been assigned a specific role and was also present at the place of incident and pointed his weapon at the complainant and other person present in the house---Accused facilitated his co-accused persons in forcibly taking away the alleged abductee (complainant's wife) from the house of the complainant, which showed that all accused persons with common intention trespassed into the house of the complainant with the sole intention to kidnap the alleged abductee---Complainant in his further statement narrated the same facts of the incident and named the accused---Complainant had stated in the FIR that he was kept on false hopes by the accused and co-accused persons that they would release the abductee, and it was only after they refused that he lodged the F.I.R.---Such contention of complainant satisfactorily explained the delay in lodging of F.I.R.---Challan against accused and co-accused persons had already been submitted and one of the co-accused had been shown as an absconder---Version of complainant was fully supported by two witnesses in their statements recorded under S.161, Cr.P.C---Alleged abductee had not been recovered---Accused was involved in a heinous crime and no reasonable grounds existed to believe that the accused was not involved in the crime---Bail application of accused was dismissed, accordingly.

Mst. Bakhtawar v. State 2003 YLR 2549 and Wazir Ali v. State 2008 PCr.LJ 1082 distinguished.

Shoukat Ali v. State PLD 2007 SC 93 and Ali Imam v. State PLD 2007 SC 83 rel.

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

----S. 34---Common intention---Object and scope---Section 34, P.P.C. embodied common sense principle that if two or more persons intentionally did a thing jointly, it was just the same as if each of them had done it individually---Common intention implied acting in concert in pursuance of pre-arranged plan which was to be proved either from conduct or from circumstances or from incriminating facts---Common intention was an intention to commit crime actually committed and each accused person could be convicted of that crime, only if he had participated in that common intention.

Shoukat Ali v. State PLD 2007 SC 93 rel.

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

----S. 34---Common intention, proof of---Scope---Common intention to commit crime can be gathered from the circumstances which may prevail at the spur of the moment in reaction to happening of some incident---Common intention can be proved through direct or circumstantial evidence or may also depend upon the nature of an act done or motive possessed and a joint action of more than one person itself, is an evidence of common intention.

Ali Imam v. State PLD 2007 SC 83 rel.

Faiz Muhammad Larik for Applicant.

P L D 2012 Sindh 277

Before Muhammad Ali Mazhar, J

GHULAM QADIR---Applicant

versus

THE STATE---Respondent

Criminal Revision No.S-02 of 2012, decided on 6th February, 2012.

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

----Ss. 345(2), 345(5) & 345(7)---Penal Code (XLV of 1860), S.338-E---Waiver or compounding of offences---Jurisdiction of Trial Court to entertain compromise application---Scope---Compromise between parties---Accused was convicted for life imprisonment by the Trial Court and his jail appeal filed before the High Court was also dismissed and his conviction was maintained---Subsequently the parties compromised and compromise application moved by the parties under S.345, Cr.P.C before Trial Court was returned for presentation before the competent court having jurisdiction, with the reasoning that no matter was pending in the Trial Court's file in view of the bar contained under Ss.345(2) and 345(7), Cr.P.C.---Validity---Section 345(2), Cr.P.C. provided that offences may be compounded with the permission of the court before which any prosecution for such offence was pending, which obviously meant the Trial Court---Section 338-E, P.P.C. made it clear that all questions relating to waiver or compounding of offences whether before or after passing of any sentence should be determined by the Trial Court, therefore, for all practical purposes and under the mandate of law, it was only a Trial Court which should determine all questions relating to waiver or compounding of offences---No compounding of the offences could be allowed in cases of pendency of an appeal, without leave of the court before which appeal was to be heard---Jail appeal of accused had been dismissed and his conviction was maintained, therefore, after dismissal of appeal only the Trial Court had jurisdiction to determine and allow the compromise application between the parties----Concept of waiving right of Qisas or compounding offences was not restricted only to a case pending before a court but such provisions could be invoked at any time before execution of sentence and court was always competent to entertain and give effect to compromise between the parties even after decision of a case, which would not become functus officio in the matter of compromise---Revision application of accused was allowed , impugned order of Trial Court was set aside with the finding that parties could file their compromise application before the Trial Court, and if such application was filed, Trial Court had to entertain and decide the same in accordance with the law.

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

----Ss. 309, 310 & 338-E---Waiver or compounding of offences---Guidelines for subordinate courts and citizens provided.

Following are the guidelines for the guidance of the subordinate courts and the citizens:--

(i) In case of Qatl-e-Amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties i.e. accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before the trial court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.

(ii) In case of Qatl-e-Amd, if the right of Qisas is waived without any compensation or the legal heirs of the deceased compound their right of Qisas within the meanings of sections 309 and 310, P.P.C., during the pendency of appeal, applications for permission to compound the offence shall be made before the Appellate Court, who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.

(iii) Under section 338-E(l), P.P.C., subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C. relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C. shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV, P.P.C. affecting the human body is waived or compounded after the decision by the trial court or the decision of appeal, if any, an application for permission to waive, or compound the offence shall lie before the trial court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, P.P.C., and if the Trial Court is convinced that the waiver of right of Qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused.

(iv) If a question arises as to whether any person is or is not the legal heir of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties.

(v) For the purpose of determination of questions relating to the wavier of compounding of an offence, the accused and the legal heirs of the deceased shall be treated as parties, to the proceedings under section 338-E(l), P.P.C.

Nazak Hussain v. State PLD 1996 SC 178 quoted.

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

----Ss. 345 & 338-E---Compromise between parties, authenticity of---Scope---Held, it was a matter of contrivance through which a party had to be subjected to a compromise and it would be no compromise at all, if the court had any doubt that the compromise was tainted with pressure, coercion, undue influence, blackmail, extortion or similar other infirmities.

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

----S. 345(5)---Compounding of offence during pendency of appeal---Expression 'leave of the court'---Object and scope---Object requiring leave from the court as per clear intention of legislature is neither meaningless nor purposeless and it cannot be construed that while considering a compromise plea, even where it is lawfully entered into by free consent of legal heirs, the court should act in mechanical manner and allow the same as a matter of course or routine or should sit as a silent spectator or conduct the same as a post office simpliciter and affix a judicial stamp upon it; rather it is the duty and prerogative of the court to determine fitness of case for endorsement and sanction of compromise---In appropriate cases, where compromiser and offender is directly or indirectly beneficiary of crime; the offence is committed or is caused thereof, for an obvious object of grabbing the property of deceased by compromiser, through his offspring who may ultimately benefit himself (the offender) as well, the court may refuse to give an effect to such a deal, specially coupled with scenario when the offence is gruesome, brutal, cruel, appalling, odious, gross and repulsive which causes terror and sensation in the society.

Naseem Akhtar v. State PLD 2010 SC 938 quoted.

Farman Ali Kanasiro for Applicants.

Syed Sardar Ali Shah Rizvi, Asstt. Prosecutor General for the State.

P L D 2012 Sindh 284

Before Muhammad Ali Mazhar, J

ZIAUDDIN---Petitioner

(Petition for Succession Certificate)

S.M.A. No.76 of 2011, decided on 16th February, 2012.

Succession Act (XXXIX of 1925)---

----S.372---Succession certificate, issuance of---Necessary documents---Heirship certificate and From B issued by NADRA was demanded from applicant---Validity---Held, there was no statutory requirement to insist legal heirs to submit Form B or heirship certificate along with petition either for succession certificate or letter of administration---Before grant of certificate, court for its own satisfaction could call affidavits of no objection of all legal heirs, affidavits of two witnesses who also appeared in court with legal heirs and confirmed veracity of petition including list of surviving heirs---If a person before his death failed to intimate NADRA or failed to fill Form B, it did not mean that after his death, no succession certificate could be issued to legal heirs due to non-completion or fulfilment of such requirement and right of inheritance would be neither suspended nor snatched away only for such reasons alone---Court was to decide and in case of any reasonable doubt, dispute or contention, it could make necessary inquiry so that rights of deserving person might not be affected---In the present case, all necessary requirements were fulfilled, nobody came forward to oppose the petition nor filed any objection in spite of issuing notices and publication in newspaper---All legal heirs also filed their affidavits of "no objection" and there was no impediment or legal disability to grant of Succession Certificate---Petition was allowed in circumstances.

Nooruddin Abdullah for Petitioner.

Riaz s/o Barket Ali, Attorney of the Petitioner and other legal heirs Aashiq Ali Bhayani, Tajuddin Bhayani, Barkat Bhayani, Sherali Jumma, Karim Sherali and 2 witness Noor Ali Jivani and Feroze Meghani are also present.

P L D 2012 Sindh 288

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

LAL BUX---Applicant

versus

STATION HOUSE OFFICER, POLICE STATION "A" SECTION, SUKKUR and 4 others---Respondents

Criminal Miscellaneous Application No.D-605 of 2011, decided on 24th January, 2012.

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

----S. 491---Direction in the nature of habeas corpus---Scope---Section 491, Cr.P.C., was unambiguously couched with the provision that High Court could exercise powers to issue directions in the nature of habeas corpus and whenever it would think fit, it could direct that a person within the limits of its appellate criminal jurisdiction be brought up before the court to be dealt with according to law---Many powers had been conferred upon High Court under S.491, Cr.P.C. including to set at liberty a person illegally; or improperly detained in public or private custody, within its limits.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.491---Writ of habeas corpus---Reconciliation of S.491, Cr.P.,C. and Art.199 of the Constitution---High Court under sub-Article (1) of Art.199 of the Constitution, if was satisfied that no other adequate remedy was provided by law, could pass order on the application of any person under clause (b) of sub-Art.(1) of Art.199, directing that a person in custody within the territorial jurisdiction of the court be brought before it so that the court could satisfy itself that he was not being held in custody without lawful authority or in an unlawful manner---Said clause (b) had clearly provided that the power conferred upon High Court for writ of habeas corpus could only be exercised within the territorial jurisdiction of High Court and not otherwise---After reconciling S.491, Cr.P.C. and Art.199 of the Constitution, it was quite apparent that for exercising jurisdiction under S.491, Cr.P.C. the powers were limited; and confined to the appellate criminal jurisdiction of High Court, while under Art.199 of the Constitution, the prerequisite of exercising jurisdiction in the matter of habeas corpus was that the corpus must be within the territorial jurisdiction of High Court.

Sardara v. Khushi Muhammad 1973 SCMR 189 rel.

Ch. Manoor Ellahi v. Federation of Pakistan PLD 1975 SC 66 distinguished.

Sohail Ahmed Khoso for Applicant.

Zulfiqar Ali Jatoi, Deputy Prosecutor General for the State.

P L D 2012 Sindh 293

Before Muhammad Ali Mazhar, J

Mrs. SHERBANO---Appellant

versus

KAMIL MUHAMMAD KHAN---Respondent

IInd Appeal No.19 of 2011, decided on 9th March, 2012.

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

----Art. 113----Specific Relief Act (I of 1877) S.12---Suit for specific performance of contract---Limitation---Period of three years was provided for filing a suit for specific performance of a contract; and time began to run from the date fixed for performance of such a contract; or if no date was fixed; it would start from when the plaintiff noticed that the performance was refused.

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

----O. VII, R. 11---Limitation Act (IX of 1908), S.3---Rejection of plaint----Principles---For rejection of plaint under O.VII, R.11, C.P.C. the contents of the plaint were to be looked into and if from the statement of the plaintiff; the suit appeared to be barred by limitation; such plaint shall have to be rejected.

(c) Administration of justice---

----Limitation---Whenever a question of limitation appeared to be a mix question of law and facts; then to advance the cause of justice, it was considered more apt to decide the cause on merits rather than non-suiting a person on a technical knockout---Proper place of procedure in any system of administration of justice was to help and not to thwart the grant of rights to the people---All technicalities had to be avoided unless it was essential to comply with them on grounds of public policy---Any system which by giving effect to the form and not the substance; and defeated substantive rights was defective to that extent---Ideal system was one which gave every person what was his.

PLD 1963 SC 382 ref.

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

----S. 53-A---Where all the conditions laid down in section 53-A of the Transfer of Property Act, 1882 were satisfied, even if the contract was not registered; the transferor or any person claiming under him could not enforce any right in respect of the property which the transferee had taken possession of, except such right which a transferor was entitled to enforce by virtue of the contract---Factors to be kept in view for the application of S.53-A, Transfer of Property Act, 1882, detailed.

Applicability of Section 53-A of the Transfer of Property Act, 1882, depends upon the following factors:

(i) There is a contract in writing signed by the transferor in respect of an immovable property;

(ii) From the writing, transfer can be ascertained with reasonable certainty;

(iii) In part performance of the contract, the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract; and

(iv) The transferee has performed or is willing to perform his part of the contract.

If all these conditions are satisfied, then even if the contract is not registered, the transferor or any person claiming under him cannot enforce any right in respect of the property of which the transferee has taken possession except such right, which a transferor is entitled to enforce by virtue of the contract.

Naib Subedar Taj Muhammad v. Yar Muhammad Khan and 6 others 1992 SCMR 1265 rel.

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

----S. 103---Object and Scope---Object of S.103, C.P.C. was to avoid the necessity of remanding a case where an issue of fact necessary for the disposal of the case had not been determined or where such an issue had been wrongly determined---Where evidence or the material available on record was sufficient for final decision on the issues of law and fact, the High Court under section 103, C.P.C. was empowered to determine such issues and was competent to interfere.

Mustafa Lakhani for Appellant.

Nemo for Respondent.

P L D 2012 Sindh 301

Before Munib Akhtar, J

Messrs LILLEY INTERNATIONAL (PVT) LTD.---Plaintiff

Versus

Messrs NATIONAL HIGHWAY AUTHORITY---Defendant

Suit No.1074 and C.M.A. No.9418 of 2010, decided on 9th December, 2011.

Arbitration Act (X of 1940)---

----Ss. 2(c) & 14---Civil Procedure Code (V of 1908), O.VII, R.10---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Filing of arbitration award in the court---Territorial jurisdiction of the court---Application for return of award---Contract was entered into between the plaintiff company and defendant Authority at place 'I', where the Head Office of the defendant Authority was located---Said contract contained an arbitration clause---Dispute having arisen between the parties with regard to scope of work and the work actually was done by the plaintiff---Arbitrator who was residing at place 'K' was appointed; who found it more convenient to conduct the arbitration proceedings at place 'K' with the consent of the parties---Arbitrator made award and on the request of the plaintiff, arbitrator filed the award along with record pursuant to S.14 of Arbitration Act, 1940 in the court at place 'K'---Defendant Authority filed application under O.VII, R.10, C.P.C. for return of award on the ground that the court at place 'K' lacked jurisdiction to hear and entertain the matter---Defendant sought direction that award be returned and remitted to the court of competent jurisdiction, which was at place 'I'---Counsel for defendant/applicant had contended that in fact the arbitration ought to have proceeded at place 'I', but on the request of the Arbitrator and for his convenience alone, the proceedings were held at place 'K' which was without prejudice to the provisions of the arbitration claim---Court under S.2(c) of Arbitration Act, 1940, had been defined not in relation to the arbitration proceedings, but in relation to the court that would have jurisdiction over the subject matter of the arbitral reference---Question as to where the Arbitrator resided or worked for gain, or where the arbitration proceedings were held; or where the award was made was not relevant---Jurisdiction would lie with that court where the defendant ordinarily resided or worked for gain---Suit would lie before the Court at place 'I', because the contract was entered into there and the defendant Authority had its head office there---Court at place 'K' did not have any jurisdiction and award was to be returned for filing before the court of competent jurisdiction---Since proceedings had already been launched at place 'I', that was the only place where award could be filed---Application filed under O.VII, R.10, C.P.C. was allowed, in circumstances.

Ravi Glass Mills Limited v. ICI Pakistan Power Gin Limited 2004 YLR 2503 distinguished.

Muhammad Naveed Aslam and others v. Aisha Siddiqui and others 2011 CLC 1176 rel.

Badar Alam for Plaintiff.

Syed Nasir Ahmed Shah for Defendant.

Dates of hearing: 6th October and 29th November, 2011.

P L D 2012 Sindh 307

Before Muhammad Ali Mazhar, J

DILSHER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.327 of 2011, decided on 20th April, 2012.

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

----Ss. 221, 367, 537---Charge against accused---Contents of judgment---Scope---Appellant (police official) had registered an F.I.R. against the accused persons---Trial Court acquitted the accused persons but simultaneously convicted the appellant on the ground that he misused his official powers and lodged a false complaint/F.I.R.--- Contentions of the appellant were that he was not allowed any opportunity of defence--- Validity--- No charge was framed against the appellant for lodging a false complaint and he was convicted without providing him any chance of defence--- Section 367, Cr.P.C provided that a judgment should contain the point or points for determination, the decision thereon and the reasons for the decision---Section 367(2), Cr.P.C, provided that the judgment should specify the offence and the section of the Penal Code or other law under which the accused was convicted and the punishment to which he was sentenced-In the present case, impugned judgment neither mentioned the section of law under which the appellant was convicted nor any charge was framed against him---No statement of appellant was recorded under S.342, Cr.P.C---Impugned judgment was passed in a perfunctory and slipshod manner which was not only perverse but also perpetuated the failure of justice---Appeal was allowed, impugned judgment to the extent of the conviction of the appellant was set aside and he was acquitted.

1996 SCMR 3 and PLD 2006 Kar. 198 ref.

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

----S. 221---Charge against accused---Purpose and scope---Charge against the accused was the gist of the whole case against him---Purpose of the charge was to tell the accused precisely and concisely the nature of the offence for which he was charged---Rational for laying down the detailed procedure for framing the charge was that the accused should know the nature of the accusation so that he might give a proper reply and was not misled by the vagueness in the said accusation---Spectrum of charge should be such that all eventualities and exigencies till the conclusion of the trial could be made with the caution that no prejudice was caused to the accused.

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

----S. 367---Contents of judgment---Scope---While writing the judgment it was incumbent upon the court to ponder over all possible situations and probabilities for reaching a just and proper conclusion and it could not act like resolving a mathematical proposition---Judgment should contain points for determination and should specify the offence and the section of law under which the accused was convicted and the punishment to which he was sentenced.

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

----S. 367---Language and contents of judgment---Scope---General principles relating to a judicial order elucidated---Every order passed under the provisions of any statute in judicial or quasi-judicial capacity must contain reasons, it should be objective and not merely subjective in nature---Subjective order cannot be termed as an order supported by reasons---Expression "reason" has not been defined in any law, but in common parlance it denotes an action taken or order passed by the person, officer or Authority which is reasonable and conforming to the requirement of reasonability---Reasonability can be gauged by examining the findings in the order and if there is no discussion or any finding and the order has been passed by mere reproduction of the words used in the statute, it would not be a proper order supported by reasons---Such an order would be a non-judicial, non-speaking and an un-reasoned order---In order to be reasonable there should be a finding demonstrating links between the material on which certain conclusions are based and the actual conclusions---In every case in which an appeal or revision lies, the Authority passing the order is required to record findings and discuss the material available on record, so that the appellate court may examine whether the order passed is in accordance with the material available on record or there is any misreading or non-reading of evidence, or any material fact available on record has been ignored causing miscarriage of justice.

1996 SCMR 3 and PLD 2006 Kar. 198 ref.

Ghulam Rasool Mangi for Appellant.

Ms. Seema Zaidi and Abrar Ali Khichi, A.P.G. for the State.

Date of hearing: 20th April, 2012.

P L D 2012 Sindh 313

Before Muhammad Ali Mazhar, J

AKHTAR PERVAIZ QURESHI---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-69 of 2011, decided on 14th April, 2012.

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

----Ss. 168 & 172---Reliance of court on police diary inadvertently submitted before the court---Scope---Police diaries could not be treated as evidence in the case and the court should not take the statement contained in the diaries as the material which would help it to come to the decision of the case---When the court perused the diary it was impossible to avoid the conclusion that it had allowed its mind to be influenced by what was and what was not in the diary---Investigating officer in the present case, had recommended the disposal of the case in 'A' class, which was seconded by a senior investigation officer---Police diary did not show that police officer had recommended the disposal of the case in 'A' class but he had simply reiterated the opinion of the investigation officer and forwarded the same for legal opinion---Accused in the case had neither applied for bail on the basis of police diary nor the court below was misguided by the diary---Bail application was disposed of on merits and the accused was granted bail after considering pros and cons of the case---Challan had been submitted much before the date of the bail granting order---Police officer had submitted that there was a clerical mistake in the police diary and 'A' class was mentioned due to a bona fide mistake which was a typographical error, and had not prejudiced the interest of any party---Police officer had also tendered an apology and undertook to be careful in the future---At the time of deciding of bail application neither any inquiry nor any trial was pending before the court below and charge sheet had been submitted before the bail granting order, which showed that police diary was submitted either inadvertently or due to some bona fide mistake which had not prejudiced the trial nor it misguided the court, as bail was not granted on the basis of the police diary---Police officer had tendered an unconditional apology and showed his remorse---High Court observed that as matter of grace, any further action against the police officer could have been dropped on admonition and warning to remain careful and vigilant instead of proposing or recommending various drastic and severe penal actions for an act which was apparently committed inadvertently or due to some bona fide mistake---Revision application was allowed by the High Court and impugned order was set aside with a warning to the police officer to remain cautious and vigilant and in case of any negligence or recklessness on his part in the future, the competent authorities were to take stern action against him in accordance with the law---Order accordingly.

Habeed Muhammad v. State AIR 1954 SC 51; Allah Yar v. The State 1984 PCr.LJ 2934; Subhanuddin v. State 1976 SCMR 506; 1994 MLD 1659; 1997 SCMR 299; Syed Saeed Muhammad v. State 1993 SCMR 550; Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736 and Police Laws of Pakistan by Shaikh Abdul Haleem (1979 Edn.) ref.

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

----S.172---Reliance of court on police diary inadvertently submitted before the Court---Effect---Proper use of police diary---Scope---Object of S.172(2), Cr.P.C., was to enable the court to direct the police officer, who was giving his evidence, to refresh his memory from the notes made by him in the course of his investigation of the case or to question him as to contradiction which may appear between the statements so recorded and the evidence he is giving in the court---Court may also use the diaries in course of the trial for the purpose of clearing up obscurities in the evidence or bringing out relevant facts which the court thought were material in the interest of fair trial, but police diaries could not be treated as evidence in the case and the court should not take the statement contained in the diaries as the material which would help the court to come to the decision of the case---Where a court perused the diary it was impossible to avoid the conclusion that it had allowed its mind to be influenced by what was and what was not in the diary---Court was in error if he made use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries---Proper use of a police diary, which the court can make is the one allowed by S.172, Cr.P.C.

Habeed Muhammad v. State AIR 1954 SC 51 ref.

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

----S. 172---Reliance of court on police diary---Scope---Police diary cannot be used either as substantive or corroborative evidence nor can a court look into it and take the facts and statements written therein as material which would help it to come to a finding on the evidence in the case---Police diaries being evidentially inadmissible in evidence are merely perused by the courts for their moral satisfaction.

Allah Yar v. The State 1984 PCr.LJ 2934 and Subhanuddin v. State 1976 SCMR 506 ref.

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

----Ss. 173 & 190---Recommendation/opinion of police regarding disposal of F.I.R.---Scope---Cognizance of offence by Magistrate---Scope---Recommendation of investigation officer disposing of F.I.R. in A, B or C class was not binding upon the court and the court could take cognizance under S.190, Cr.P.C, if it deemed fit and proper on the basis of incriminating material available on record, however, it was incumbent upon the court to advert to the report and examine it and to take cognizance in the matter, as envisaged under S.190, Cr.P.C--- Court may or may not agree with the police report and notwithstanding the recommendations of the investigation officer regarding cancellation of the case could decline to cancel the case and proceed to take cognizance as provided under S.190, Cr.P.C and summon the accused to face trial---Magistrate after seeing the final report, should act fairly, justly and honestly by applying his mind to the material placed before him and he should pass a speaking and well-reasoned order after duly considering pros and cons of the matter---Magistrate was not expected to put his signatures on dotted line, or blindly ditto the report of the police which could signify lack of application of his mind or give impression of being led by the police.

1994 MLD 1659 and 1997 SCMR 299 ref.

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

----S. 172---Reliance of court on police diary---Scope---Acquittal or conviction cannot be based on police diary but it depends upon the outcome of the trial on merits.

Nadeem Pirzada for Applicant.

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

Date of hearing: 17th February, 2012.

P L D 2012 Sindh 324

Before Munib Akhtar, J

PAKISTAN INDUSTRIAL CREDIT AND INVESTMENT CORPORATION LTD.---Plaintiff

Versus

Messrs KHAIRPUR SUGAR MILLS LIMITED and another---Defendants

Suit No.B-213 of 2000 and C.M.A. Nos. 8049, 8050 of 2009 decided on 14th March, 2012.

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

----Ss. 18 & 19---Civil Procedure Code (V of 1908), Ss.2(2), 12(2) & O.XXIII, R.3---Compromise decree and agreement---Distinguished---Setting aside of compromise decree and agreement---Principles---Compromise agreement is made by parties and compromise decree by Court---If agreement is successfully impugned then decree almost always fails, but it may be possible to attack the decree without impugning the agreement---Challenge to one is, therefore, not necessarily a challenge to the other---Grounds on which the agreement on one hand and the decree on the other can be attacked may overlap but are nonetheless distinct, it may be that as a matter of form, the challenge is directed towards the decree---Substance of challenge has to be carefully ascertained and distinction between decree and agreement must be kept in mind---If a compromised matter is challenged on the ground of misrepresentation, it is important to be clear, whether attack is directed against agreement or decree---Compromise agreement is simply a contract and can be impugned on the ground of misrepresentation, if matter comes within the ambit of Ss.18 and 19 of Contract Act, 1872, and compromise decree, on the other hand, can be set aside under S.12(2), C.P.C.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance (XXV of 1997)---

----S. 9---Contract Act (IX of 1872), Ss. 18, 19 & 21---Civil Procedure Code (V of 1908), S.152 & O.XXIII, R.3---Recovery of bank loan---Compromise decree, modification of---Illegality and misrepresentation--Voidable agreement---Determination---Defendant's challenge was directed towards compromise agreement on the ground that it was tainted by illegalities amounting to misrepresentations and hence liable to be modified---Validity---Remedy sought, i.e. relief under S.152, C.P.C., was only available against decree---Compromise decree and agreement were not the same thing---Relief under S.152, C.P.C. was available in respect of a compromise decree without compromise agreement being impugned at all---Correction of compromise decree was not the same thing as modification of compromise agreement---Power to "correct" decree did not confer any power to modify agreement, as the two matters were separate and distinct and must be so dealt with---None of the provisions of Ss.18 and 19 of Contract Act, 1872, invoked by defendant were applicable---High Court declined to modify decree passed earlier on the basis of compromise arrived at between the parties---Application was dismissed in circumstances.

Jamnabhai v. Fazalbhoy Heptoola and others AIR 1923 PC 184; Allah Wasaya and others v. Irshad Ahmad and others 1992 SCMR 2184; Dadabhoy Cement Industries Ltd v. National Development Finance Corporation PLD 2002 SC 500; 2002 CLC 166; Mobile Eye Service of Pakistan v. Director Social Welfare and another PLD 1992 Kar. 183; Zafar Ahmad and others v. Government of Pakistan and others 1994 MLD 1612; Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. Awami Cotton Ginners and others PLD 1995 Kar. 282; Manzoor Hussain and others v. Malik Karam Khan and others 1991 SCMR 2451; Sher Muhammad and others v. Khuda Bur and another PLD 1961 Lah. 579; Civil Aviation Authority v. Aer Rainta International (Pvt) Ltd. 2003 YLR 1523; Wafaq-e-Pakistan v. Awamunnas 1988 SCMR 2041; World Automobiles and others v. Muslim Comme4rcial Bank Ltd. And others 2009 CLD 1276; Koka Adinarayana Rao Naidu v. Koka Kothandaramayya Naidu and others AIR 1940 Mad. 538; Bankers' Equity Ltd. And others v. Khairpur Sugar Mills Ltd. And others 2001 CLC 737; Bank Alfala Ltd. v. Bilal Spinning Mills Ltd. And another 2005 CLC 206 and Zarai Taraqaiati Bank Ltd. v. Hassan Aftab Fatiana 2009 CLD 36; Kleinwort Benson Ltd. v. Lincoln City Council [1998] 4 All ER 513; Pankhania v. Hackney LBC [2002] EWHC 2441 (Ch.); Alec Lobb Ltd. v. Total Oil (Great Britain) Ltd. [1983] 1 All ER 944 and Boustany v. Pigott (1995) 69 P.& C.R.298, 203 ref.

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

----Ss. 39 & 40---Contract Act (IX of 1872), S.10---Voidable agreement---Effect---Courts, duty of---Such agreement be avoided in its entirely or not at all, the same either stands or fail as a whole---Court cannot make agreements for the parties, as that is the matter of parties and for them to decide---Paramount duty of court is to ascertain (on an objective basis) the intent of parties and real terms of agreement actually arrived at---Courts have developed fairly elaborate principle of interpretation of contracts in order to do so; it is the different matter from first finding the agreement voidable and then modify it in order to bring or keep it within the law---Some agreements contain what are known as severability clauses, which provide that if any one or more clauses of agreement is found to be void or illegal, the same does not affect the other clauses---To apply such provision is not to modify the contract, it is simply to give effect to what the parties themselves intended.

(d) Fraud---

----Full particulars of alleged fraud or misrepresentation must be stated and particularized.

Taj Muhammad Khan v. Munawar Jan 2009 SCMR 598 and Ghulam Shabbir v. Nur Begum and others PLD 1977 SC 75 rel.

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

----S.19---Voidability of agreement---Plea of fraud and misrepresen-tation--- Aggrieved party is enabled under S.19 of Contract Act, 1872, to insist that contract be performed and that he be put in the position he would have been in, if the representation had been true---Aggrieved party would be interested in invoking S.19 of Contract Act, 1872, if he stands to gain by it.

Ijaz Ahmed and Aijaz Shirazi for Plaintiff.

Mushtaq A. Memon for Defendant No.1.

Dates of hearing: 24th March, 13th, 26th April, 6th, 18th, 30th May, 5th, 13th July and 16th December, 2011.

P L D 2012 Sindh 349

Before Munib Akhtar, J

KARACHI WATER AND SEWERAGE BOARD through Authorised Representative---Plaintiff

Versus

Messrs KARACHI ELECTRIC SUPPLY CORPORATION and 3 others---Defendants

Suit No.1263 of 2011 and C.M. As. Nos.10555, 10556 of 2011, 2737 of 2012 decided on 25th April, 2012.

(a) Administration of justice--

----Procedural objection ought not to stand in way of a determination on merits.

(b) Contract---

----Right of a third party to sue under a contract---Scope---Generally, a contract could not confer right or impose obligations arising there under on another person except party thereto---Third party would be entitled to sue under a contract having created a trust or quasi-trust in his favour or involved a family arrangement.

Mastersons v. Ebrahim Enterprises and another 1988 CLC 1381 ref.

(c) Contract---

----Privity of contract, doctrine of---Modification of such doctrine in relation to third party benefits---Scope---No profit rule, applicability of---Exception stated.

In Pakistan, the no-benefit rule should be applied only in a modified form, subject to a general exception or qualification to the rule that will apply if the following test, comprising of four elements, is fulfilled:

(a) Did the parties to the contract intend to confer or extend the benefit in question on or to the third party seeking to rely on the contractual provision?, and

(b) Were the actions of any of the contracting parties in relation to or affecting the third party seeking to rely on the contractual provision, or of the third party itself (as the case may be), the very actions contemplated as coming within the scope of the contract in general, or the provision in particular, again as determined reference to the intentions of the parties if so, then

(c) The contract, insofar as it confers or extends the benefit, may be enforced directly by the third party, but

(d) Subject to any defences that would have been valid between the contracting parties.

The word "actions" above has been used in a broad and general sense and as including, e.g., omissions. The no-benefit rule should be regarded as having been modified in the foregoing manner and to that extent.

In Pakistan, where the legislature has intervened hardly, if at all, in matters relating to the law of contract, it may well be that the courts will have to continue playing the leading role in the proper development and evolution of the law. It may be that eventually the courts themselves will totally abrogate a rule that is, after all, a judicial creation in the first place. However only the future can tell whether, when and/or how this will happen. The test stated hereinabove should therefore be regarded only as a beginning and certainly not the end. But for the time being the "no-benefit rule" is to be regarded only as having been modified in the manner and extent as stated above, and is to be applied accordingly.

Leigh and Sullivan v. Aliakmon Shipping Col. Ltd. (The Aliakmon) [1986] 2 All ER 145; [1985] UKHL 10 and Chitty on Contracts 30th (2008) ed., para.18-001 ref.

Tweddle v. Atkinson (1861) 1 B&S 393; 121 ER 762; Dunlop Pneumatic Tyre Company Ltd. v. Selfridge and Company Ltd. [1915] AC 847 [1915] UKHL 1; Drive Yourself Hire Co. (London) Ltd. v. Strutt [1953] 2 All ER 1475; Midland Silicones Ltd. v. Scruttons Ltd. [1962] 1 All ER 1; [1961 UKHL 4 Beswick v. Beswick [1967] 2 All ER 1197; [1967] UKHL 2; Darlington Borough Council v. Wiltshier Northern Ltd. [1995] 3 All ER 895; [1994] EWCA Civ 6; Lawrence v. Fox (1859) 20 NY 268; Trident General Insurance Co. Ltd. v. McNiece Bros Pty Ltd. (1988) 165 CLR 107; [1988] HCA 44; London Drugs Ltd. v. Kuehne and Nagel International Ltd. [1992] 3 SCR 299; Fraser River Pile and Dredge Ltd. v. Can-Dive Services Ltd. [1999] 3 SCR 108; Khwaja Muhammad Khan v. Husaini Begum (1909-10)37 IA 152; [1910] UKPC 25; Jamna Das v. Pandit Ram Autar Pande and others (1911-12) 39 IA 7: [1911] UKPC 69; Debnarayan Dutt v. Chunilal Ghose (1914) 41 Cal. 137; Iswaram Pillai v. Tharagan and others AIR 1914 Madras 701; Krishna Lal Sadhu and another v. Mt. Promila Bala Dasi AIR 1928 Cal. 518; Thirumulu Subbu Chetti v. Arunachalam Chettiar AIR 1930 Mad. 382; Khirod Behari Dutt v. Man Gobina and others AIR 1934 Cal. 682; Bhujendra Nath Biswas and others v. Sushamoyee Basu and another AIR 1936 Cal. 67; National Petroleum Co. Ltd. v. Popatlal Mulji AIR 1936 Bom. 344; Babu Ram Budhu Mal and others v. Dhan Singh Bishan Singh and others AIR 1957 Punjab 169; M.C. Chacko v. State Bank of Travancore AIR 1970 SC 504; Klaus Mittlelbachert v. East India Hotels Ltd. AIR 1997 Delhi 102(SB); E.I. Ltd. and another v. Klaus Mittelbachert AIR 2002 Delhi 124; Peruri Somanna v. Grandhi Manikam (1911) 14 Ind. Cases 517 (Madras); Tulsidas and others v. Gangaram Ghanshamdas AIR 1925 Sindh 272; Torabaz Khan and another v. Nanah Chand and another AIR 1932 Lahore 566; Ram Dhan and another v. L. Chauthmal and others AIR 1935 Oudh 496; Pandurang Ganpatrao v. Vishwanath Pandurang AIR 1939 Nagpur 20; Kepong Prospecting Ltd. v. A.E. Schmidt [1968] AC 810; [1967] UKPC 22; Allah Wasaya v. Sardar Shah PLD 1984 Lah. 59; Jnan Chandar Mukherjee v. Manoranjan Mitra and others AIR 1942 Cal. 251; Irrawady Flottila Company v. Bugwandas (1891) 18 Cal. 620; [1891] UKPC 23; Jwaladutt R. Pillani v. Bansilal Motilal AIR 1929 PC 132 and Swain v. Law Society [1982] 2 All ER 827 rel.

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

----S. 39---Repudiatory breach of a contract---Remedy of innocent party---Scope---Innocent party would have a choice i.e. to make in election either to regard contract as continuing and thereby affirming same or accept repudiation and consider contract as having come to an end---Where innocent party elected to continue with contract and affirm same, then such affirmation would be irrevocable and contract would continue as a whole i.e. he could not regard provision of contract breached as terminated while continuing with rest of contract.

A.C. yusuf and Col. V.K.B.M. Habibullah and Co. PLD 1965 Kar. 374(SB), 382-5 ref.

Muhammad Farogh Naseem for Plaintiff.

Abid Shahid Zuberi for Defendant No.1.

Qazi Majid Ali, A.A.G. for Defendant No.3.

Dates of hearing: 10th, 12th and 18th April, 2012.

P L D 2012 Sindh 381

Before Munib Akhtar, J

ALI AHMED---Plaintiff

Versus

AISHA WARSI and another---Defendants

Suit No.1468 of 2008 and C.M.As. Nos.10121 of 2008, 287 and 10600 of 2009, decided on 10th May, 2012.

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

----S. 58---Subsequent mortgage---Principle---Equity of redemption is itself immovable property and can be transferred or assigned and if second or subsequent mortgage is created, it is created with reference to such right---Mortgagor cannot be prevented from assigning/ transferring his rights in equity of redemption and if such provision is in mortgage deed that may amount to a clog on equity of redemption and would therefore, be invalid.

Kanti Ram and others v. Kutubuddin Muhmoed and others (1894) 22 Cal. 33 and Shyampeary Dasya and another v. The Eastern Mortgage and Agency Co. Ltd. (1917) 22 CWN 226 rel.

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

----S. 58---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), S.12---Specific performance of agreement to sell---Interim injunction, grant of---Mortgage property, sale of---Suit property was mortgaged with bank and plaintiff entered into agreement to sell regarding the same---Mortgagor after receipt of earnest money, handed over the possession of suit property to plaintiff, who stepped into the shoes of mortgagee---Initially bank accepted instalments being deposited by plaintiff but subsequently stopped accepting the same---Plaintiff sought restraining order against bank from disposing of suit property to some third person---Validity---Plaintiff had informed bank right from inception and had thereafter made payments of instalments that were accepted by the later---Prima facie bank had accepted that plaintiff had stepped into the place of mortgagor and bank was estopped from questioning and challenging position of plaintiff---After initially accepting instalments from the latter, bank could not thereafter turnabout and refuse to accept any further payments---Equity was in favour of plaintiff as interest of bank in suit property was only to the extent and for the purposes of repayment of finance provided by it, which plaintiff was at all times ready and willing to do so---Plaintiff had done nothing that would jeopardize position of bank, whose position as mortgagee of suit property was also secure---Balance of convenience was in favour of plaintiff and against bank and he would suffer irreparable loss and injury if he would be dispossessed from suit property---High Court restrained bank from interfering in possession of plaintiff over suit property---Application was allowed in circumstances.

Industrial Development Bank of Pakistan v. Saadi Asmatullah and others 1999 SCMR 2874; Muhammad Hussain Khan v. NIB Bank Ltd. and another 2009 CLD 42; Muslim Commercial Bank Ltd. v. Ataullah Shah and others 2003 CLD 888 and Muhammad Tariq v. Citibank Housing Finance Co. Ltd. 2002 CLD 1090 distinguished.

Naeem Iqbal for Plaintiff.

Khalid Mehmood Siddiqui for Defendants No.2.

Dates of hearing: 21st October, 13th, 19th, 22nd December of 2011 and 4th January, 15th and 23rd February, 2012.

P L D 2012 Sindh 388

Before Munib Akhtar, J

ASIF S. SAJAN and another-Plaintiffs

Versus

REHAN ASSOCIATES through Partner and 4 others---Defendants

Suit No.970 of 2006, decided on 30th April, 2012. .

(a) Alternative Dispute Resolution--

----Mediation---Scope and object stated.

The scope and object of a mediation exercise is substantively different from dispute resolution either by a court of law or before an arbitrator. The purpose of alterative dispute resolution by way of mediation was to bring the parties together at a neutral' forum to which they have agreed, and to make an attempt to resolve the pending issues or disputes between them as a.-result of a mediation exercise to be carried out under the guidance and With the assistance of a neutral mediator: It is entirely incorrect to suggest or to believe that a mediation exercise is limited by any formal requirement. Such fetters, if imposed on a mediation exercise would in fact be against the spirit of such an exercise and may well reduce it to futility by making it subject to those very formalities, the avoidance of which is one of the primary purposes and goals of alternate dispute resolution by way of mediation.

(b) Alternative Dispute Resolution--

----Mediation---Confidentiality of mediation proceedings---Scope---Record of mediation exercise was strictly confidential, and was not to even be produced before the court---In rare and exceptional circumstances, record of mediation may be produced before the court, but only for the perusal of the court itself and not by any other party.

Khawaja Shamsul Islam for Plaintiffs.

Amel Khan Kasi for Defendants.

Noor Khan for KCDR.

P L D 2012 Sindh 390

Before Muhammad All Mazhar, J

GULZAR ALI and another---Applicants

Versus

STATION HOUSE OFFICER, P.S. KANDIARO and others---Respondents

Criminal Miscellaneous Applications Nos.S-4 and S-114 of 2012, decided on 18th May, 2012.

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

----S. 5---Criminal Procedure Code (V of 1898),---S.200---Complaint---Taking of cognizance---Statement of complainant, recording of Principles---Proper mechanism has been provided in Illegal Dispossession Act, 2005, which is a special law---Not mandatory for the court that before taking cognizance statement under 5.200, Cr.P.C. should be recorded.

Mst. Inayatan Khatoon v. Muhammad Ramzan 2012 SCMR 229 rel.

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

----S. 7---Title of property, determination of---Scope---Not the function or domain of court to decide or adjudicate upon title of property in question under Illegal Dispossession Act, 2005.

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

---S. 7---Eviction and recovery of possession---Interim relief---Object and scope---Provisions of S.7 of Illegal Dispossession Act, 2005, have been enacted only to hand over possession to owner or occupier---Such powers can only be exercised during trial when court is satisfied that accused person prima facie found to be under unlawful possession of property in question.

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

----S. 7---Recovery of possession---Receiver/custodian, appointment of---Scope---Such appointment against property in question is not tenable or sustainable under law.

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

----Ss. 5 & 7---Criminal Procedure Code (V of ,1898), Ss. 249-A & 265-K---Illegal dispossession from property---Acquittal from charge---Scope---During pendency of complaint, accused sought their acquittal from the charge but application under 5.249-A read with S.265-K, Cr.P.C. was dismissed---Validity---While dismissing the application, Trial Court failed to consider whether charge was groundless or whether there was no probability of accused being convicted of any offence---Trial Court also failed to appreciate material available on record and decided application in a manner which was contrary to the spirit and scope of 5.249-A, Cr.P.C. and or 5.265-K, Cr. P. C. ---High Court set aside the order passed by Trial Court and remanded the matter for decision of application afresh---Application was allowed in circumstances.

Criminal Miscellaneous Application No. D-629 of 2011. rel.

Abdul Qadir Shaikh and Miran Baksh Shar for Applicants (in both Cr.Misc. Applications).

Sardar Ali Shah Jillani for Respondent No.3 (in Cr.Misc. Application No.S-4 of 2012).

Ghulam Shabir Dayo for Respondent No.3 (in Cr.Misc. Application No.S-114 of 2012).

Syed Sardar Ali Shah, Asstt. Prosecutor-General for the State.

Date of hearing: 16th April, 2012.

P L D 2012 Sindh 399

Before Muhammad Ali Mazhar, J

JAM SUHNAL and another---Applicants

Versus

MUHAMMAD AQIL and another---Respondents

Criminal Miscellaneous Application No.S-436 of 2011, decided on 18th May, 2012.

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

----Ss. 3, 5 & 7---Prevention of illegal possession of property---Concurrent criminal and civil proceedings---Application for stay of criminal proceedings till decision of civil proceedings---Scope---Complainant filed a criminal complaint against the accused persons (applicants) with the allegation that they illegally trespassed and dispossessed the complainant from his land without any lawful authority, right and or title---Accused persons filed present application for staying the criminal proceedings with the contentions that they purchased the land in question by virtue of an agreement and thereafter the complainant refused to mutate the property in favour of the accused persons, as a result of which a civil suit was filed which was still pending, and that there was no lawful justification to proceed with the criminal complaint simultaneously---Validity---Civil suit filed by the accessed persons was based on only one Iqrarnama---Civil suit was filed by the accused persons almost twenty one (21) days after the criminal complaint---Land in question was mortgaged with a Bank and it could not be sold out without first paying the liability of the Financial Institution---Bank had not been made a party in the civil suit and no separate handing over or possession letter or acknowledgment of possession was available on record---Civil suit had been filed subsequent to the criminal complaint on basis of an allegedly executed agreement/Iqrarnama, which in circumstances could not be treated as a convincing or justifiable reason for staying the criminal proceedings under the Illegal Dispossession Act, 2005---In the present case, it was not foreseeable that criminal liability was dependent upon the outcome of the civil litigation, therefore it was not a fit. case. for exercising discretion of staying criminal proceedings under the Illegal Dispossession Act, 2005, till decision of the civil suit---high Court dismissed application for stay of criminal proceedings with the observations that if criminal proceedings under the Illegal Dispossession Act, 2005, were stayed as a matter of routine on the plea and assumption that a civil suit was pending, then the entire Act would become redundant and unworkable and it would become a trend and modals operandi to first dispossesses a person from his lawful property and occupation and then file a civil suit to defend and protect an act of illegal dispossession.

Mumtaz Hussain v. Dr. Nisar Hussain and others 2010 SCMR 1254; Muhammad Usman Farooqui v. State 2010 YLR 2864; Riaz-ul-Haq v. Muhammad Ashiq Jorah, Judicial Magistrate, Pindi Dadan Khan and 2 others 2000 SCMR 991; Abdul Bari v. State and others PLD 2008 Kar. 400; Habibullah Khan v. State 2000 PCr.LJ 1898 and Shahabuddin v. State 2010 PCr.LJ 42 ref.

Haji Muhammad Usman v. Abdul Sattar and'others PLD 2011 Kar. 405; Mumtaz Hussain's case 2010 SCMR 1254; Rahim Tahir's case PLD 2007 SC 423; 2010 SCMR 1835 and Ali Raza v. Haji Muhammad and others SBLR 2010 Sindh 904 rel.

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

---Preamble & S. 3---Prevention of illegal possession of property---Object of Illegal Dispossession Act, 2005---Concurrent criminal and civil proceedings---Stay of criminal proceedings---Scope---Mere filing of civil suit subsequent to the filing of criminal complaint was of no consequence or significance to protect an unauthorized possession Purpose of Illegal Dispossession Act, 2005, was to protect the right of possession of lawful owner or occupier and not to perpetuate thepossession of illegal occupants---No invariable rule existed to the effect that till the decision of a civil suit, criminal proceedings must be stayed us it was a matter of pure discretion, however, while exercising such discretion it should be seen whether the accused would be prejudiced if the criminal proceedings were not stayed but where it was clear that the criminal liability was dependent upon the outcome of civil litigation then criminal proceedings must be ...stayed, particularly, when the dispute was with regard to title of property.

Haji Muhammad Usman v. Abdul Sattar and others PLD 2011 Kar. 405; Mumtaz Hussain's case 2010 SCMR 1254; Rahim Tahir's case PLD 2007 SC 423 and 2010 SCMR1835 rel.

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

----Preamble & S. 3---Prevention of illegal possession of property---Scope of Illegal Dispossession Act; 2005---Under S.3 of the Illegal Dispossession Act, 2005, words, "dispossess ", "grab", "control" or "occupy" had been mentioned, showing that the Act had not been promulgated only against the dispossession by the land grabbers or Qabza groups, but it dealt with all types of dispossessions which were covered by the mentioned words.

Qurban Ali Malano for Applicants.

Abdus Salam Arain for Respondent No.1.

Syed Sardar Ali Shah, Asstt. Prosecutor General for the State.

Date of hearing: 12th April, 2012.

P L D 2012 Sindh 406

Before Muhammad Ali Mazhar, J

ZAFRULLAH and another---Applicants

Versus

THE STATE and another---Respondents

Criminal Miscellaneous. Application No.S-461 of 2011, decided on 18th May, 2012.

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

----Ss. 173 & 561-A---Penal Code (XLV of 1860), Ss.452/506-B/201/ 148/149---House trespass after preparation for hurt, criminal intimidation, rioting armed with deadly weapons, unlawful assembly ---Quashing of order---Police report---Recommendation/opinion for disposing of F.I.R. in class C'---Scope---Magistrate declining to cancel the case on the basis of the police report---Nature and scope of such order---Complainant (respondent) had lodged an F.I.R. against the accused persons (applicants) with the allegation that they entered his house and threatened to murder him and kidnap his daughter because of a dispute over a share in the property---Report submitted by the investigation officer recommended cancellation of said F.LR. under classC'---Magistrate disagreeing with such report of the investigation officer gave directions to submit charge sheet against the accused persons--- Contentions of the accused persons were that the Magistrate gave no reasons as to why the report submitted by the police was not confidence inspiring; that the accused persons were present its different cities at the time of the alleged incident; that the Magistrate failed to mention names of witnesses or any other incriminating Material on basis of which he disagreed with the police report, and that the contents of the F.I.R. revealed that no offence had been committed by the accused persons---Validity---Magistrate while passing an order on basis of the final report submitted by the police under 5.173, Cr. P. C, acts in an administrative capacity, but he has no power to act arbitrarily---Such an order might not be a judicial order but it must be a judicious order and not an arbitrary order without reasons and justifications---Magistrate was required to consider the report under 5.173, Cr. P. C, in light of the material collected during the investigation and then pass the order=--Magistrate was not expected to blindly ditto the report of the police, which could signify his lack of application of mind or give the impression of being led by the police---Magistrate on seeing the final report of the police should act fairly, justly and honestly by applying his mind to the material placed, before him, and he should pass a speaking and well-reasoned order after duly considering the pros and cons of the matter---Nothing was available on record to show that the Magistrate while passing the impugned order, had applied his independent mind and considered the material available on record for reaching an unequivocal conclusion, as to why the report of the investigation officer was not inspiring confidence; and said impugned order did not show what material was collected or available on the record to connect the accused persons with the case---Magistrate had observed that there was sufficient material available in the police file but no discussion about such material was made in the impugned order---If sufficient material was available on the police file, question then was why the police recommended cancellation of F.I.R. in "C" class---Complainant and accused persons were related inter se and there was a property dispute between them---Accused persons had pointed out affidavits submitted by the complainant's mother and sister, wherein, it had been stated that the complainant was trying to usurp the properties of his deceased father and when the accused persons requested him to give them their shares in the said properties, the complainant threatened to falsely implicate them in criminal cases---Impugned order of Magistrate was quashed and he was directed to pass a speaking order on the report submitted by the investigation officer after considering the entire material collected during the investigation.

Sarfraz Hussain v. State 2009 YLR 1614 and Muhammad Hassan. v. State 2009 YLR 1479 distinguished.

Muhammad Arshad Afridi v. State 2010 YLR 1357 ref.

Criminal Revision Application No. S-69 of 2011; 1994 MLD 1659; 1997 SCMR299 and Syed Paryal Shah v. Behram Ali and others 2012 PCr.LJ 189 rel.

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

----Ss. 173 & 190---Police report---Recommendation/opinion for disposing of F.I.R. in class A',B' or C'---Scope---Cognizance of offence by the Magistrate notwithstanding. such recommendation/ opinion---Scope---Even in case the investigation officer recommended disposing of the F.I.R. in classA', B' orC', such recommendation/ opinion was not binding upon the court and it may take cognizance if it deemed fit and proper on the basis of incriminating material available on record, however, it was incumbent upon the court to advert to it, examine it and to take cognizance on the matter, as envisaged under S. I90, Cr. P. C---Under 5.173, Cr. P. C, court may agree or disagree with the police report and notwithstanding the recommendations of the investigation officer regarding cancellation of the case, could decline to cancel the case and proceed to take cognizance as provided under S.190, Cr. P. C.

Criminal Revision Application No.S-69 of 2011 ref.

A.R. Faruq Pirzada and Muhammad Imran Shamsi for Applicants.

Ghulam Murtaza Korai and Shabir Ali Bozdar for Respondent No.2.

Syed Sardar Ali Shah, Asstt. Prosecutor General for the State.

Date of hearing: 9th April, 2012.

P L D 2012 Sindh 412

Before Muhammad Athar Saeed and Munib Akhtar, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED---Petitioner

Versus

DEPARTMENT OF EXCISE AND TAXATION---Respondent

Constitutional Petition No.604 of 2009, decided on 13th June, 2011.

(a) Discretion---

----Unfettered discretion---Scope---In law, there is no such thing known as unfettered discretion---Even if statutory powers are conferred in ostensibly unconstrained terms, exercise of such powers must be in structured and regulated manner.

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

----Ss. 5 & 5-A---Constitution of Pakistan, Art.199---Constitutional petition---Annual value, ascertainment of---Valuation table---Industrial establishment---Determination---Petitioner was a telecommunication service provider company and dispute was with regard to charging of property tax against its properties located in Karachi city---Petitioner company claimed that property tax was chargeable at industrial rates, whereas authorities intended to charge against commercial rates---Validity---Some additional elements must be present for technical support to amount to industrial activity---Those additional elements must be activity or action, directly in relation to petitioner's telephone exchanges (or the other devices used, by it to provide telecommunications services) and must be substantially more than a mere servicing or care thereof---Petitioner did not carry out industrial activities on its properties, in which case the annual value of properties would not have to be determined on the basis that those were industrial properties---Properties of petitioner company must be brought to tax on the basis that those were commercial properties and there was nothing on record in relation to such additional activities or actions, if any--High Court directed that in respect of each property, where petitioner claimed to carry out industrial activities, would make application to authorities, ,giving full details of its activities---Petition was disposed of accordingly--Pakistan Telecommunication Company Ltd. v. Government of Punjab and others 2009 PTD 1602 dissented from.

Tures Hotel, Islamabad and others v. Capital Development Authority and others 2006 SCMR 1738; Arabian Sea Enterprises Ltd. v. Government of Sindh and others 2007 CLC 1215; Karachi Properties Investment Co. (Pvt.) Ltd. v. Government of Sindh and others 2006 CLC 1372; Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29 and Beach Luxury Hotel (Pvt.) Ltd. v. Province of Sindh and others C.P. 393-K/2007, dated 21-6-2007 ref.

Pakistan Telecommunication Company Ltd. v. Government of Punjab and others 2009 PTD 1602 dissented from.

Khurram Rasheed for Petitioner.

Saifullah, Assistant Advocate-Generl.

P L D 2012 Sindh 425

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MEHAR ALI MEMON---Petitioner

Versus

FEDERATION OF PAKISTAN through Chairman, Pakistan Railways and 13 others---Respondents

Constitutional Petition No.1110 of 2009, decided on 30th May, 2012.

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

----Ss. 54 & 70---Civil Procedure Code (V of 1908), S.9---Jurisdiction of Registrar and civil court---Scope---Dispute touching business of a society arisen between member or past member or persons claiming through any such member would be referred to the Registrar---Complicated question of law involved in such dispute could be resolved through a regular suit filed by one of the parties or a Society---Civil suit could be instituted against society in respect of any act touching its business after two months of giving notice to Registrar---Principles.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Disputed/contested and complicated questions of fact---Jurisdiction of High Court---Scope---High Court had no jurisdiction to determine such questions, rather resolution thereof would be left to proper forum---Principles.

The constitutional petition was full of disputed and complicated questions of fact, which could not be resolved under the constitutional jurisdiction. There were serious controversial facts between the parties for which High Court could not enter into a factual realm. Under the constitutional jurisdiction, High Court had no jurisdiction to embark upon an exercise to determine intricate, contested and complicated question of facts. Resolution of such-like controverted issues was ordinarily left to proper forum, indulgence in such exercise would have effect of pre-empting and encroaching upon jurisdiction vested in competent court, such controversy could not be decided in writ jurisdiction where equally efficacious, adequate and alternate remedies are straight forwardly accessible to the petitioner.

Constitutional jurisdiction of High Court could not be converted into that of an Appellate Court. Disputed questions of fact could not be entertained or allowed to be re-agitated in writ jurisdiction, when the relevant law provided other forums for the purpose. In constitutional jurisdiction, High Court would not go into a question involving minute details nor could it decide facts of which no foundation was laid, unless it was shown that such controversy was devoid of supporting record or perverse. This extraordinary jurisdiction was intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority could be established without any elaborate enquiry into complicated or disputed facts.

Mumtaz Ali Jehangir v. Province of Sindh 2012 YLR 453; State Life Insurance Corporation v. Pakistan Tobacco Company PLD 1983 SCMR 280; Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 and Anjuman Fruit Arhtian v. Deputy Commissioner Faisalabad 2011 SCMR 279 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Aggrieved person---Scope---Aggrieved person must have either a statutory right or a right recognized by law and its denial must be by a person having legal duty to perform thereto---Principles.

The right which is the foundation of an application under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justifiable right in existence to give jurisdiction to the High Court in the matter. Unless whatever right personal or otherwise, on which application is based is established, no order can be issued under Article 199. It is incumbent upon party seeking constitutional remedy to show that such party had a clear legal right and hat such is so clear as not to admit of a reasonable doubt or controversy.

(d) Constitution of Pakistan--

----Art. 199---Constitutional petition---Alternate adequate remedy, availability of---Scope---Such remedy must be efficacious, convenient, beneficial, inexpensive, effective and speedy---Alternate remedy barring constitutional jurisdiction of High Court must accomplish same purpose, which was sought to be achieved through constitutional petition---Principles.

The word "adequate remedy" connotes an efficacious, convenient, beneficial, effective and speedy remedy. It should be equally inexpensive and expeditious. To effective bar the jurisdiction of the High Court under Article 199 of the Constitution, the remedy available under the law must be able to accomplish the same purpose, which is sought to be achieved through a petition under Article 199. The other remedy in order to be adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under Article, 199.

2011 SCMR 848 and 2011 SCMR 1813 rel.

M.A. Hakeem for Petitioner.

A.M. Mubeen Khan for Respondent No.11.

Qurban Ali Malano for Respondent No.13.

Respondent No.14 (Bahadur Ali Khoso in person).

Safdar Ali Bhutto, D.A.G.

Imtiaz Ali Soomro A.A.G.

Date of hearing: 8th May, 2012.

P L D 2012 Sindh 434

Before Sajjad Ali Shah, J

Messrs SHAHEEN CONSTRUCTION COMPANY through Mrs.Zeeshan Fatima---Plaintiff

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Administrator---Defendant

Civil Suit No.1294 of 2011 and C.Ms. Nos.11671, 10783, 11687 and 11689 of 2011, decided on 30th January, 2012.

(a) Public Procurement Rules, 2004---

----Rr. 15, 18, 19 & 36---Procurement through open competitive bidding---Scope---Mere prequalification of a prospective bidder would not create vested right in him to be directly selected for any prospective bid---Prospective bidder once having meted out prequalification criteria laid down for execution of a particular work could not be ousted from participating in financial bid by knocking him down while changing prequalifying criteria and that too without any lawful justification---Prequalified contractor would have vested right unless disqualified or blacklisted in terms of Rr.18 & 19 of Public Procurement Rules, 2000 to directly compete in financial bidding---Principles.

(b) Public Procurement Regulations, 2008---

----Regln. 3---Procurement through open competitive bidding---Prequalification criteria change in---Scope---When prequalification was job specific, then any such change would not only be discriminatory but would be voilative of Regln.3 of Public Procurement Regulations, 2008---Process for asking prequalified contractors to go through prequalification process afresh and that too without any plausible or lawful justification would be without authority---Illustration.

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

----S. 151, O.XXXIX, Rr.1 & 2---Interim relief/injunction or maintaining status-quo, grant of---Scope---Ultimate/final relief claimed in a suit would normally be not granted as an interim measure, if same would create a new situation---Mere directing parties in a suit for injunction to maintain status quo would neither amount to granting main relief nor creating a new situation.

Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508 rel.

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

----O. XXXIX, Rr.1 & 2---Interim injunction against public functionaries, grant of---Scope---Where decisions of public functionaries were either mala fide or against law and/or rules, then same would be liable to be struck down, thus, balance of inconvenience in such case would be hardly matter---Court could not ignore such violation while weighing balance of convenience---Principles.

In cases where the allegations are against public functionaries for violating the rules which they are bound to follow while discharging their functions, then balance of inconvenience hardly matters as it is the bounden duty of the court to ensure that the public functionaries while discharging their functions should act strictly in accordance with the rules and therefore, cannot ignore such violation while weighing the balance of convenience. Powers vested in government functionaries is a sacred trust and they are bound to exercise such powers and perform their duties as trustees in a most transparent manner and in cases where the decisions of the State functionaries are either mala fide or contrary to law, the same are liable to be struck down.

Ovais Co. v. Federation of Pakistan PLD 1999 Kar. 472; Muhammad Abid and 2 others v. Nisar Ahmed 2000 SCMR 780; Petrosin Corporation (Pvt.) Ltd. and others v. MOL Pakisatan Oil and Gas Co. and others PLD 1008 C 472; Shah Jehan Khan v. Fazal-ur-Rehman Khan and another 2001 CLC 1695; Abdul Ghaffar v. Waqas Hafeez and others 2010 CLC 285; City Schools (Pvt.) Ltd., Lahore Cantt. v. Privatization Commission, Government of Pakistan and others 2002 SCMR 1150 and BBJ Pipe Industries (Pvt.) Ltd. v. Sui Northern Gas Pipelines Ltd. 2003 YLR 1442 ref.

Shahenshah Hussain for Plaintiff.

M. Ilyas Khan and Omer Siyal for Defendant.

Muhammad Saleem Mangrio for Messrs MJB Corporation Company.

Naveed Ahmed Khan for Messrs Indusmens Corporation.

Dates of hearing: 14th, 16th, 20th and 21st December, 2011.

P L D 2012 Sindh 449

Before Muhammad Shafi Siddiqui, J

MOBIN RAFIQUE and another---Plaintiffs

Versus

RASHID AHMED and 2 others---Defendants

Suit No.1512 of 2009, C.M.As. Nos.5523 of 2011; 5181 and 5182 of 2012, decided 26th June, 2012.

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

----S. 11---Res judicata, principle of---Dismissal of matter for non-prosecution---Effect---Dismissal of application or suit or any other litigation or proceedings for default or for non-prosecution cannot operate as res judicata and it is for such reason that fresh suit/application has been held to be competent in case where earlier matter was dismissed for non-prosecution or default and not disposed of on merits---Principle and question of res judicata applies only if previous lis/application or proceedings were disposed of or decided on merits and which had directly or substantially decided controversy between the parties.

PLD 1978 Kar. 210 and PLD 1981 SC 513 distinguished.

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

----Art. 127---Exclusion from joint family property---Limitation---Provisions of Art.127 of Limitation Act, 1908, do not apply to suit filed by members of Muslim family for recovery of shares in immovable property of deceased Muslim in possession of some other person.

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

----O. I, R.10---Mis-joinder and non-joinder of parties---Effect---Such error or defect is curable as necessary and proper parties can be added at any stage of proceedings---Suit cannot be shut off on account of assertion that necessary and proper parties have not been arrayed.

1981 CLC 409 rel.

(d) Partition Act (IV of 1893)---

----S. 4---Civil Procedure Code (V of 1908), O.XX, R.13---Administration suit---Joint property, partition of---Immovable property in question was owned by deceased mother of parties, who expired in year, 1992---Plea raised by defendants was that plaintiffs did not efforts to seek possession of house in question, for the past 12 years---Validity---Plaintiffs though were not residing in the house in question but it was deemed to be devolved amongst all legal heirs of deceased mother---Possession of one defendant was deemed to be the possession of all legal heirs---No categorical denial existed to the effect that property was owned by deceased mother---High Court declared that property was liable to be devolved amongst all legal heirs of deceased mother being inherited by them and preliminary decree was passed under O.XX, Rule 13, C.P.C. in respect of house in question---Suit was decreed accordingly.

PLD 2005 Kar. 1; 2007 MLD 54; 1981 CLC 503; 1992 CLC 2504; PLD 1983 Kar. 387, 1977 SCMR 220, PLD 1989 Kar. 350, PLD 1990 Kar. 375; 1988 CLC 1567; 2007 SCMR 376 and AIR 1963 Patna 108 ref.

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

----O. XL, R.1---Receiver, appointment of---Scope---Partition of business---Suit for partition of business owned by deceased father of parties was filed by plaintiffs alleging that defendants were in possession of the same---Plaintiffs sought appointment of receiver of business---Validity---Plaintiffs' right and interest as far as their share in business was concerned though was being denied but that alone was not sufficient to invoke powers under O.XL, R. 1, C.P.C. as the same was very harsh remedy which was to be used sparingly---Plaintiffs alleged only exclusion and not waste or malversation, even apprehension of mismanagement or misappropriation alone was not sufficient to call for appointment of receiver---High Court declined to appoint receiver in circumstances.

Raja Qasit Nawaz for Plaintiffs.

Saadat Yar Khan for Defendants.

Date of hearing: 19th June, 2012.

P L D 2012 Sindh 461

Before Syed Muhammad Farooq Shah, J

Inspector MUHAMMAD BASIR KHAN---Applicant

versus

MANAGER, ALLIED BANK, KARACHI and 2 others---Respondents

Criminal Miscellaneous Application No.117 of 2012, decided on 30th July, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 94, 102 & 561-A---Investigation of case---Permission sought for opening bank lockers of accused---Case property lying in bank locker belonging to accused---Scope---Accused was alleged to have committed robbery and allegedly deposited the robbed items and cash in different bank accounts and lockers---Investigation Officer through present application requested opening of said lockers, so that investigation could be completed---Contentions of accused were that question of opening of bank lockers and details of the accounts might be ascertained during trial and that permission for opening of lockers would prejudice his defence---Validity---Necessity to open the locker and to ascertain the complete statement of accused would have to be seen with reference to the investigation---Police had the power to seize any property which might be found under circumstance, creating reasons of commission of an offence---Property lying in a locker or in bank account of accused was case property within the meaning of S.102, Cr.P.C, and nothing would prevent the police from seizing or recovering case property in the course of investigation, particularly assets which had direct link with the commission of the offence---Application was allowed and permission for opening of lockers was granted.

AIR 1965 SC 1251 ref.

Saleem Akhtar, Assistant Prosecutor General, Sindh.

Muharram G. Balouch, for Accused.

Shoukat H. Zubaidi for the Complainant.

P L D 2012 Sindh 464

Before Syed Zakir Hussain, J

Malik SAFDAR ALI---Appellant

Versus

Syed KHALID ALI and 2 others---Respondents

Criminal Acquittal Appeal No.269 of 2010, decided on 5th August, 2010.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Appreciation of evidence---Failure to prove business transaction which necessitated issuance of cheques---Allegation against the accused (dealer of complainant-company), was that he purchased several items from the company against which he issued two cheques, which were dishonoured due to closure of bank account---Trial Court acquitted the accused from the charge---Validity---No evidence was led by the complainant to show the business transaction which created lien of the amounts mentioned in the cheques to justify issuance of the cheques, and in absence of proof of such transaction or justification, the accused could hardly be held liable to pay such dues, and since the element of the business transaction was the root-cause of issuance of cheques, the same was a pre-requisite condition for holding the issuer (of the dishonored cheques) as guilty---Both sides were admittedly on business terms prior to the date of issuance of the cheques in question, therefore, the company could have come forward with record of such business transactions justifying the existence of the claim, which had allegedly been met with the issuance of the cheque(s)---No such material had been produced by the prosecution---Trial Court had rightly found the accused 'not guilty' beyond shadow of any reasonable doubt, and consequently, acquitted him from the charge for want of incriminating evidence---Appeal against acquittal was dismissed, in circumstances.

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

----S. 489-F---Dishonestly issuing a cheque---Actus reus and mens rea---Scope---"Dishonestly"---Scope---Word 'dishonestly' used in S.489-F P.P.C., required existence of mens rea to commit fraud by issuing a cheque---Mere issuance of cheque and its becoming dishonoured later, being actus reus, would not be able to attract the provisions of S.489-F P.P.C, simply for want of presence of element of dishonesty' in the matter---In absence of 'dishonesty', in issuance of such cheque, the prime ingredient of the offence would not stand satisfied and there would be no offence.

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

----S. 489-F---Dishonestly issuing a cheque---Proof---Business transaction or dealing---Scope---Dishonest intention---Proof---Cheque being mode of payment must appear to have been issued against consideration of business transaction or instant dealing of the date and time thereof, showing that the issuer was liable to pay the amount for which, he had issued such cheque, which when turned dishonoured, would make him 'guilty'---For deciding whether or not, there appeared a dishonest intention in issuance of cheque(s), the court should take notice of the facts culminating in issuance of such cheque(s).

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

----S. 489-F---Dishonestly issuing a cheque---Criminal liability---Scope---Dishonest intention---Proof---Cases where S.489-F, P.P.C, would not be attracted expounded---For deciding whether or not, there appeared a dishonest intention in issuance of cheque(s), the court should take notice of the facts culminating in issuance of cheque(s)---Where issuance of cheque was backed with no meaningful transaction creating an instant liability of payment of the amount thereof, against certain consideration involved therein, no criminal accountability would prima facie accrue in case of any cheque so issued and dishonoured---Apart from any civil right or liability legally permissible thereagainst, post-dated cheques were of no value in point of criminal accountability since they were normally issued either without having funds in their respective account(s) or the parties had no paying liability of instant nature at the time of issuing---Cheques, which were issued as security so as to develop trust between the parties as a matter of normal business dealings, and were not out-come of any transaction of consideration of the time thereof, would not be a subject of criminal accountability of S.489-F, P.P.C. for want of element of relevant mens rea---Where the parties had settled their accounts or the outstanding dues became payable as instant liability and a cheque was instantly issued against such dues, which subsequently got dishonored, element of mens rea covered by the words "dishonestly issued" as used in the S.489-F, P.P.C, would be present---Where, however, a cheque had been issued towards security and understanding, with prior notice served upon the issuer to arrange payment for encashment in the bank concerned, but same cheque got dishonoured on presentation, it would carry the punitive effect of S.489-F, P.P.C.

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

----S. 489-F---Dishonestly issuing a cheque---Provision of S.489-F, P.P.C---Object and purpose---Scheme behind the provisions of S.489-F, P.P.C. seemed to be nothing but to protect the people from fraud in monetary terms i.e. loss of money against dishonestly issued cheques received as mode of payment against certain substance of consideration and or outstanding dues towards a direct legitimate business deal or transaction between the parties, who thereby respectively suffered loss and earned wrongful gain at one and the same time, out of one and the same business deal or transaction in any positive form.

Tahir Nisar Rajput for Appellant.

P L D 2012 Sindh 469

Before Shahid Anwar Bajwa and Nisar Muhammd Shaikh, JJ

HAZOOR BUX and another---Applicants

versus

THE STATE and another---Respondents

Criminal Revision Application No.D-76 of 2011, decided on 17th May, 2012.

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

----Ss. 6 & 23---Transfer of case sought from Anti-Terrorism court to ordinary court---Accused and co-accused (applicants) were alleged to have trespassed into the complainant's house in order to steal and on facing resistance they killed the complainant's father and injured his brother---Application under S.23 of Anti-Terrorism Act, 1997 for transfer of case from Anti-Terrorism Court to ordinary court was dismissed by the Trial Court with the observation that accused persons committed brutal murder which created panic and insecurity in the minds of the people of the vicinity---Validity---Allegation in the F.I.R. was that three persons trespassed into the house of the complainant party in the middle of the night and their ostensible intention was to steal---Accused and co-accused faced resistance which led to firing---No allegation of firing in the air or at the villagers, so as to terrorize them or the community, was put forward---No previous acquaintance existed between the accused persons and the complainant---Present case was simple case of intended theft where one thing led to another and two persons got murdered---No evidence was brought forward to satisfy the requirements of S.6(b) of Anti-Terrorism Act, 1997---Section 6(c) of the Act was not attracted in the present case---Revision application was allowed, impugned order of Trial Court was set-aside and application under S.23 of Anti-Terrorism Act, 1997 was allowed with directions to the Trial court to transfer the case to the Court of Sessions Judge, who might either himself proceed with the case or might transfer it to any Additional Session Judge competent to try the offence.

Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 ref.

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

----S. 23---Transfer of case from Anti-Terrorism Court to ordinary court---Antecedents of accused---Relevance---"Action" and not the antecedents of the accused was relevant for the purpose of deciding application under S.23 of Anti-Terrorism Act, 1997.

Habibullah G. Ghouri for Applicant.

Nizamuddin Blouch for the Complainant.

Naimtullah Bhurgari, State Counsel.

P L D 2012 Sindh 473

Before Faisal Arab and Irfan Saadat Khan, JJ

KHALID MAJEED---Petitioner

versus

SEA BREEZE LIMITED and 3 others---Respondents

Constitutional Petition No.D-456 of 2009, decided on 28th July, 2012.

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

----S. 115---Revision---Scope---Order passed by revisional court in revision filed against order of Civil Judge---Effect---Order of Civil Judge would merge in order of revisional court---Party aggrieved by order of revisional court could challenged same before High Court.

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

----S. 12(2)---West Pakistan Civil Courts Ordinance (II of 1962), S.18 [as amended by S.5 of Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)]---Constitution of Pakistan, Art.199---Constitutional petition---Consent decree passed in suit by High Court on original civil side---Application under S.12(2), C.P.C. for setting aside such decree pending before High Court transferred to District Court along with suit file on account of enhancement of its pecuniary jurisdiction through Sindh Civil Courts (Amendment) Ordinance, 2002---Order of civil court setting aside such decree upheld by revisional court---Petitioner's plea was that such decree passed by High Court could not be set aside by civil court, thus, such application ought not to have been transferred to civil court, rather same ought to have been decided by High Court on original civil side---Validity---Pecuniary jurisdiction of District Courts of Karachi with regard to civil suits was enhanced by S.5 of Sindh Civil Courts Ordinance, 2002 from Rs.5,00,000 to Rs.30,00,000, resultantly all suits, appeals and proceedings including applications under S.12(2) of value not exceeding original/appellate pecuniary jurisdiction of District Judge pending in High Court before coming into force of such Ordinance stood transferred to concerned District Judge for disposal---High Court while deciding suits on original civil side in reality would exercise jurisdiction of District Court on account of provisions of West Pakistan Civil Courts Ordinance, 1962---When proceedings in suit on account of enhancement of pecuniary value of District Courts of Karachi were transferred to District Court, then transferee court would be the forum having jurisdiction to dispose of same including application under S.12(2), C.P.C.---High Court had rightly transferred such suit to District Court wherein such application was pending---Civil Court did not lack jurisdiction to decide such application and set aside such decree---High Court dismissed constitutional petition, in circumstances.

Ikram Ahmed Ansari for Petitioner.

Sher Muhammad Shaikh, Addl. A.G.

Date of hearing: 8th September, 2011.

P L D 2012 Sindh 478

Before Syed Muhammad Farooq Shah, J

Syed MUHAMMAD IBRAHIM---Petitioner

versus

Mst. ANAM AHMED and 2 others-Respondents

Constitutional Petition No. S-523 of 2012, decided on 10th July, 2012.

(a) West Pakistan Family Courts Act (XXXV of 1964)-, --Preamble-Statute by its language does not intend to subvert principles of Shariah.

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

---S. 10(4), proviso--Constitution of Pakistan, Art 199---Constitutional petition---Dissolution of marriage-Non-framing of issues---Plea raised by husband was that Family Court could not dissolve marriage during pre-trial reconciliation proceedings, without framing of issues and dissolution of marriage did not include Khula'---Validity---Family Court was empowered under proviso to S.10(4) of West Pakistan Family Courts Act, 1964, to dissolve marriage, when during pre-trial, reached at conclusion, after initiating efforts of reconciliation, that matrimonial conjugal relations were strained between spouses to such an extent that they could not live together---Khula' itself was a kind of dissolution according to the law and was to be granted even if husband disputed receipt of dower---When wife sought relief by way of Khula', Family Court in the circumstances was required to allow dissolution of marriage on the basis of Khula' pending decision, regarding controversies of the amount of Haq-e-Mehar (dower) to be adjudicated upon at later stage---High Court; in exercise of constitutional jurisdiction, declined to interfere in the judgment passed by Family Court---Petition was allowed in circumstances.

Mst. Rubina Shamshad v. Muhammad Hafeez 2010 . CLC 386 ref.

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

----S. 10(4), proviso---Word, "shall"-Effect---Word "shall" used in proviso to S.10(4) of the Act is directory in nature and not mandatory---Family Court is bound to pass a decree in suit for dissolution of marriage, in case of failure, of reconciliation between spouses.

Ghulam Rasool for Petitioner.

P L D 2012 Sindh 481

Before Farooq Ali Channa, J

INTERNATIONAL COMPUTERS LIMITED (ICL) through Business Development Manager, Karachi---Petitioner

versus

STANDARD CHARTERED BANK LIMITED through General Manager and 2 others---Respondents

Constitutional Petition No.S-6 of 2012, decided on 19th July, 2012.

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

----S. 15---Sindh Cultural Heritage (Preservation) Act (Xli of 1994), S.12---Constitution of Pakistan, Art.199---Constitutional petition--Ejectment of tenant---Landlord and tenant, relationship of---Culutral heritage---Ejectment petition filed by landlord was concurrently accepted by Rent Controller and Lower Appellate Court---Plea raised by tenant was that premises in question was declared as cultural heritage by Provincial Government, and relationship of landlord and tenant ceased to exist---Validity---Relationship of landlord and tenant was not disturbed and it remained intact unless rented premises was acquired by Provincial Government in terms of S.12 of Sindh Cultural Heritage (Preservation) Act, 1994---Tenant had been paying rent regularly to landlord and such act of payment of rent confirmed existence rather admission of relationship as landlord and tenant between parties, therefore, provisions of Sindh Rented Premises Ordinance, 1979, were applicable---Findings of both the courts below did not suffer from any illegality which could attract interference of High Court---Petition was dismissed in circumstances.

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

---S. 15---Ejectment of tenant---Personal need of landlord---Choice of premises---Non-disclosure of other premises---Effect---Landlord has the exclusive prerogative to choose any building amongst others, suitable for expanding or establishing business---Nobody including tenant of premises can insist/suggest any other premises to landlord for his business---Disclosing or not, other buildings belonging to landlord in ejectment proceedings is immaterial.

Allies Book Corporation v. Sultan Ahmad and others 2006 SCMR 152; Muhammad Ashraf Javaid v. Allah Rakha 2010 SCMR 478 and Captain P.Q. Chemical Industries (Pvt.) Ltd. v. Mrs. Romana Amjad and another 2010 SCMR 837 ref.

Gohar Iqbal for Petitioner.

Nafees A. Siddiqi and Haroon Shah for Respondent No.1.

Date of hearing: 19th July, 2012.

P L D 2012 Sindh 486

Before Munib Akhtar, J

OWAIS IQBAL BALOUCH---Plaintiff

versus

RAHEEL RINCH and 3 others---Defendants

Suit No.213 of 2009 and C.M.As.1509 of 2009 and 2904 of 2011, decided on 26th July, 2012.

(a) Karachi Building and Town Planning Regulations, 1979---

----Regln. 16(2)(c)---Karachi Building and Town Planning Regulations, 2002, Regln.3-2.20.2(c)---Words "compounding of offence" and "regularization of violations "---Distinction---Words appearing in both the statutes carry same meaning---Provision of Regln.16(2)(c) of Karachi Building and Town Planning Regel:ctions, 1979, has scope broader than that of Reg/n.3-2.20.2 (e) of Karachi Building and Town Planning Regulation, 2002---Previous regulation allowed any offence to be compounded subject to payment of requisite fee, whereas the subsequent regulation only allows for a limited category of violations to be regularized against payment of fee prescribed for each.

(b) Karachi Building and Town Planning Regulations, 2002---

----Regln. 3-2.20---Regularization of violations---Discretionary power of Authority---Scope-=-Such power of Authority under Regln.3-2.20 of Karachi Building and Town Planning Regulations, 2002, is limited in two ways: Firstly, there is statutory bar, if a particular case comes within the scope of any of the nine clauses of proviso to Regln.3-2.20.2(c) of Karachi Building and Town Planning Regulations, 2002, the Authority has no power to regularize; secondly, if breach is of such nature that it changes character or complexion of what was originally intended to be erected or of the plot, then also the Authority has no power to regularize--- Any purported regularization that is inconsistent with either of such limitation is beyond jurisdiction of the Authority and in excess of statutory powers conferred upon it.

(c) Karachi Building and Town Planning Regulations, 2002---

----Regln. 3-2.20---Words "separate" and "independent"---Connotation---Separateness and independence are not sane things in the context of building regulations.

(d) Karachi Building and Town Planning Regulations,2002---

----Regln. 3-2.20.2(c)---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2---Suit for .declaration and injunction---Interim relief, grant of---Violation of building regulations---Grievance of plaintiff was that defendant had started constructing six town houses instead of three, which were in violation of budding regulations---Validity---Defendant had been deviating from approved plan from very beginning and for repeatedly violation of terms, his construction was twice demolished-Prima facie there was deliberate and wilful attempt to bypass the law and it might well have been part of the scheme to construct six town houses and then get those regularized---Doubling the number of town houses could not be regarded as simply a "violation. in existing structure ", which was all that could be regularized, therefore, increasing town houses from three to six was note something that came within the scope of Regln.3-2.20.2(c) of Karachi Building and Town Planning Regulations, 2002, and hence could not be regularized in terms thereof---Plaintiff had made out a case for interim relief as there was a prima facie substantial violation of law---Construction as approved and regularized by the Authority would materially alter the usage of plot and place a burden thereon far in excess of what was permissible, and the same would materially and adversely affect the plaintiff---Conduct of defendant and attempts made repeatedly, knowingly and deliberately violating even "approved" plait, leading twice to demolition exercises by the Authority, was also something that could not be ignored--Strange and unexplained reversals and shifts by the Authority also raise serious questions and doubts and case of interim relief had been made out .by plaintiff---Application was allowed in circumstances.

Ardeshir Cowasjee and others v. Karachi Building Control Authority and others 1999 SCMR 2883, Citizen Welfare Society and another v. KBCA and another 2009 YLR 215; Abdul Razzak v. Karachi Building Control Authority and others PLD 1994 SC 512; Multiline Associates v. Ardeshir Cowasjee and others PLD 1995 SC 423; 1995 SCMR, 362; Concise Oxford Dictionary 8th Ed. 1990 and Muhammad Usman v. KBCA 2000 CLC 925 ref.

Umatullah v. Province of Sindh and others PLD 2010 Kar. 236 and Printek (Pvt.) Ltd. and others v. Shahid Nabi Malik and others 2011 YLR 2941 distinguished.

Haider Waheed for Plaintiff.

M. Abdur Rahman for Defendant No.1.

Ms. Nasreen Sehto for KBCA (now SBCA).

P L D 2012 Sindh 505

Before Faisal Arab and Nadeem Akhtar, JJ

MUHAMMAD AYUB through Lawful Attorney and 37 others---Petitioners

versus

FEDERATION OF PAKISTAN and another---Respondents

Constitutional Petition No.D-3319 of 2011, decided on 25th July, 2012.

West Pakistan Arms Ordinance (XX of 1965)---

----Ss. 3(1)(d), 9 & 11---Arms Rules, 1924, Rr.33, 41-A, 42(3)(6), Forms XVI and XVI-A---Constitution of Pakistan, Art.199---Constitutional petition-Arms licences---Words "in the manner" in S.9, West Pakistan Arms Ordinance, 1965---Implication---Issuance and cancellation---National Database and Registration Authority (NADRA), authority of---Grievance of petitioners was that Federal Government could not cancel arms licences already issued to them under West Pakistan Arms Ordinance, 1965, and NADRA had no authority to issue computerized licences---Validity---Arms licences, under Rule 42(3)(b) of Arms Rules, 1924, including licences issued under Forms XVI and XVI-A were renewed at Post Offices, where those had been registered under Rule 41-A of Arms Rules, 1924, and both the Rules were still in force and had not been amended---Computerized card licence did not have any such provision for registration with and/or renewal by Post Office, therefore, such aspect was contrary to Arms Rules, 1924 and Forms prescribed by the Rules made under West Pakistan Arms Ordinance, 1965, which was still in force---Without amending Rule 41-A of Arms Rules, 1924, arms licence could not be registered and or renewed by any other authority or agency except by Post Office where the licence was registered---Words "in the manner" mentioned in S.9 of West Pakistan Arms Ordinance, 1965, implied that licences for having possession or control of any arms or any ammunition or military stores must be in the Forms prescribed by the Rules because, except for Forms prescribed by the Rules, there was no other "manner" given or prescribed under the Rules, the same was contrary to the "manner" prescribed by the Rules and was violative of S.9 of West Pakistan Arms Ordinance, 1965---Federal Government or any Provincial Government as defined in S.3(1)(d) of West Pakistan Arms Ordinance, 1965, could not issue arms licences in violation of any of the provisions contained in West Pakistan Arms Ordinance, 1965, or in Arms Rules, 1924---Scheme of Federal Government and actions of issuance of computerized card licence was contrary to Rules and S.9 of West Pakistan Arms Ordinance, 1965---High Court declared the scheme of Federal Government as without lawful authority, jurisdiction and of no legal effect---Petition was allowed in circumstances.

Syed M. Yahya for Petitioners.

Ashfaque Ahmed Tagar, D.A.G. and Zulfiqar Solangi, Law Officer, NADRA for Respondents.

Date of hearing: 27th April, 2012.

P L D 2012 Sindh 522

Before Nadeem Akhtar, J

NAVAID AHMED SIDDIQUI and 2 others---Petitioners

versus

OFFICIAL ASSIGNEE---Respondent

Three Insolvency Petitions Nos.Nil of 2012, decided on 3rd August, 2012.

(a) Insolvency (Karachi Division) Act (III of 1909)---

----Ss. 9 & 15(3)---Sindh High Court Rules (Original Side) Rr.586(2) & 586(1)---Insolvency petitions---Petitioners claimed to be agents working at a car showroom and having taken huge investments from different persons---Contention of the petitioners was that having incurred huge losses and after selling all their movable and immovable properties they were unable to settle their liabilities to the investors and accordingly they should be adjudged as insolvent and discharge certificate be issued in respect of their liabilities---Validity---Petitioners admitted before the court that there was no record of import of vehicles, manner of sales proceeds appropriation and claimed that they did not maintain any bank account or books of accounts and did not produce bank statements or income tax assessments---Petitioners had therefore, not complied with the provisions of the Insolvency (Karachi Division) Act, 1909---Specific grounds must have been stated in an application for declaring insolvency and under S.15(3) of the Insolvency (Karachi Division) Act, 1909; when a debtor's application was admitted, he shall unless the court otherwise directed, produce all his books of accounts---Petitioners had admittedly not given any specific grounds/details and had admittedly not complied with mandatory requirements of S.15(3) of the Act---Petitioners could not be adjudged as insolvent unless they obtained a certificate from the Official Assignee under Rule 586(2) of the Sindh High Court Rules (Original Side) which could not be granted under the said Rule 586(2), unless mandatory requirements of Rule 586(1) were fulfilled by the petitioners---Statements of the petitioners before the Official Assignee as well as the reports submitted by the Official Assignee established that the mandatory requirements of Rule 586(1) of the Sindh High Court Rules (Original Side) had not been complied with by the petitioners---Reports of the Official Assignee or contents thereof had not been denied by the petitioners and it appeared that they had not come to the court with clean hands as genuine debtors---Petitioners had filed the petitions in a mala fide manner to save themselves from legal actions which their creditors may initiate against them---Petitioners had, therefore, failed to justify their inability to pay their debts, their insolvency petitions were dismissed in circumstances.

(b) Insolvency (Karachi Division) Act (III of 1909)---

----Ss. 26, 15(3) & 9---Sindh High Court Rules (Original Side), Rr.586(2) & 586(1)---Insolvency petition---Meeting of creditors before adjudication as insolvent---Scope---Petitioners had not submitted documents which were required to be produced under S.15(3) of the Insolvency (Karachi Division) Act, 1909---Contention of the petitioners was that the required information/documents could be produced by the petitioners in a meeting of the petitioners' creditors to be called under S.26 of the Insolvency (Karachi Division) Act, 1909---Validity---Said contention was without any force as meeting of creditors under S.26 of the Insolvency (Karachi Division) Act, 1909 could only be called after an order of adjudication against an insolvent was passed and on application of a creditor before the Official Assignee under the Sindh High Court Rules (Original Side)---If no such order of adjudication as insolvent had been passed against the petitioners, no meeting under S.26 of the Act could be called.

Hussain Bux Balouch for Petitioners.

Kadir Bakhsh Umrani, Official Assignee.

Date of hearing: 19th July, 2012.

P L D 2012 Sindh 527

Before Syed Hassan Azhar Rizvi and Salahuddin Panhwar, JJ

SHAFI MUHAMMAD BHANGWAR and 3 others---Applicants

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.D-30 of 2012, decided on 29th August, 2012.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Penal Code (XLV of 1860), Ss. 193, 194 & 195---Constitution of Pakistan, Art. 10A---Possession of narcotic, false evidence, giving or fabricating false evidence with intent to procure conviction---Quashing of proceedings---Trial Court giving directions to register F.I.R. against police officials (complainant and prosecution witnesses) after acquitting a nominated accused in a narcotics case---Legality---Trial Court found that police officials (applicants) had foisted the narcotic upon the acquitted accused, lodged a false F.I.R. against him and gave false evidence in court---Contention of police officials was that while issuing directions for lodgment of F.I.R., Trial Court had not issued a show cause notice to them, therefore, they had been condemned unheard---Validity---No provision existed in the Control of Narcotic Substances Act, 1997 which empowered the court to register a case against complainant and prosecution witnesses if the prosecution failed to prove the charge against the accused---Sections 193, 194 and 195, P.P.C. provided penal clauses regarding false evidence in judicial proceedings, but concerned court had to justify circumstances which warranted legal action against complainant and witnesses regarding false evidence or fabricating false evidence---Show cause notice was required under the law before initiating criminal proceedings and same would meet the spirit of "fair trial" as envisaged under Art. 10A of the Constitution---Police official had not been issued any show cause notice regarding false evidence or any negligence committed by them, therefore, they were condemned unheard and course adopted by the Trial Court was in violation of the maxim "audi alteram partem"---Trial Court had not assigned any reasons in respect of its direction for registration of F.I.R. against police officials regarding false evidence during the trial---Sufficient material was not available against police officials to make out a prima facie case to arraign them---Impugned judgment was modified to the extent of directions of registration of case against police official and consequently proceedings against them were quashed.

Constitutional Petition No.D-118 of 2001 rel.

Abdul Rehman Bhutto for Applicants.

Muhammad Yaqoub Dahani, the State counsel.

Date of hearing: 29th August, 2012.

P L D 2012 Sindh 531

Before Maqbool Baqar, Faisal Arab and Sajjad Ali Shah, JJ

SINDH HIGH COURT BAR ASSOCIATION, SUKKUR through President---Petitioner

versus

PAKISTAN through Secretary Ministry of Law Parliamentary Affairs and Justice, Islamabad and another---Respondents

Constitutional Petitions Nos.D-3125 and 3286 of 2011, decided on 19th March, 2012.

Per Maqbool Baqar, J; Faisal Arab and Sajjad Ali Shah, JJ agreeing.

(a) Constitution of Pakistan----

----Arts. 175A, 177(1), 193(1) & 199---Constitutional petition---Process of appointment of Judges of the Constitutional Courts-Scope--Independence of judiciary was inextricably linked and connected with the process of appointments of Judges of the Constitutional Courts.

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

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

Arts. 175A, 177(1), 193(1) & 199---Constitutional petition---Process of appointment of Judges of the Constitutional Courts---Evaluation of suitability of a nominee---Judicial Commission, jurisdiction of---Evaluation of the calibre, competence, legal acumen and the overall suitability of a nominee for appointment as a Judge of a Constitutional Court fell exclusively within the domain of the judicial consultees---Decision of the Judicial Commission in such regard was not justiciable.

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

(c) Constitution of Pakistan----

----Arts. 175A, 177(1), 193(1) & 199---Constitutional petition---Process of appointment of Judges of the Constitutional Courts---Parliamentary Committee---Functions and competence---Scope---Scope of Parliamentary Committee's function and competence was limited to consider the antecedents, which were to be examined on the basis of material obtained by the Committee/executive.

Munir Hussain Bhatti and others v. Federation of Pakistan and another PLD 2011 SC 407 rel.

(d) Constitution of Pakistan---- .

----Arts. 175A, 177(1), 193(1) & 199--=Constitutional petition---Process of appointment of Judges of the Constitutional Courts---Power of Parliamentary Committee to refuse nomination of Judicial Commission---Scope---Parliamentary Committee could not refuse to accept the nomination of the Judicial Commission only on the basis of antecedents, such as character, moral and/or financial integrity (of a nominee)---Parliamentary Committee's refusal to accept the nomination by the Judicial Commission should be based on very strong and justifiable reasons pertaining to the criteria falling within its domain and the reasons so given were amenable to judicial scrutiny/review.

Munir Hussain Bhatti and others v. Federation of Pakistan and another PLD 2011 SC 407 rel.

(e)Constitution of Pakistan----

----Arts. 175A & I99---Constitutional petition---Additional Judges of High Court, confirmation of---Powers of Judicial Commission and Parliamentary Committee---Scope---Parliamentary Committee refusing confirmation/permanent appointment of Additional Judges of the High Court whose names had been recommended by the Judicial Commission---Legality and procedural propriety=--Members of Judicial Commission ("Commission ") after thorough deliberations on professional calibre, competence, legal acumen, antecedents, commitment and in view of the evaluation report submitted by a member of the Commission, unanimously recommended names of six Additional Judges of the High Court for confirmation and forwarded their names to the Parliamentary Committee ("Committee ")---Committee accepted recommendations of the Commission in respect of four nominees (names) but refused to accept recommendation in respect of the two Judges in question on the basis of observations made by Chief Justice of the High Court in a pro forma prepared by him; on basis of reports of intelligence agencies and on basis of information from Federal Revenue Board---Contentions on behalf of interveners (two said Judges) were that question of professional calibre, competence, legal acumen and overall suitability of a potential nominee fell within the exclusive domain of the Commission; that Art.175A of the Constitution required the decision of judicial appointments to be made by a majority, therefore, remarks and opinions expressed by Chief Justice of the High Court in his pro forma could not be used as a pretext for refusing to accept unanimous decision of Commission; that reliance of Committee on intelligence reports of agencies for refusing to confirm names of two said Judges was not justified; that stance of the Committee that as per information from the Federal Revenue Board, one of the said Judges had not paid any income tax and as such he did not have any substantial law practice or evaded tax, was wholly irrelevant as question of enjoying substantial law practice was to be examined by the Commission and did not fall within the domain of the Committee---Validity---Members of the Commission after evaluating overall suitability of the two Judges in question and after examining judgments/orders rendered by them during the two years period they functioned as Additional Judges of the High Court, unanimously nominated them for confirmation---Chief Justice of the High Court, who was a member of the Commission and whose earlier observations had been relied upon by the Committee to refuse confirmation of two Judges in question, also agreed to recommend their names for confirmation after collective deliberations by the Commission---Committee could not lawfully rely upon the opinion of Just one member of the Commission expressed by him prior to collective deliberations, for refusing to accept the ultimate collective decision of the Commission---Pre-deliberation evaluation of the Chief Justice of the High Court disappeared when it merged into the final and unanimous recommendation of the Commission--Question as to whether one of the said Judges had adequate practice so as to generate taxable income or not was clearly within the domain of the Commission and not the Committee---Committee's refusal to accept unanimous recommendations of the Commission by placing reliance on intelligence reports was not justified, as one of these reports clearly showed that there was not complaint/report of corruption, while the other report was bereft of any reason and did not justify or explain opinions expressed therein---Impugned decision of Committee not only suffered from illegality, irrationality and procedural impropriety, but in large part had purportedly been made for considerations which were clearly beyond the well prescribed domain of the Committee---Constitutional petitions were allowed, impugned decision of Committee in respect of the two Judges in question was set aside and concerned authority was directed to implement the recommendations of the Commission and issue notification in respect of the two Judges accordingly .

Munir Hussain Bhatti and others v. Federation of Pakistan and another PLD 2011 SC 407 rel.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Sharaf Faridi v. Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; Zafar Ali Shah's case PLD 2000 SC 869; Chief Justice of Pakistan Iftikhar Muhammad Chaudry v. President of Pakistan PLD 2010 SC 61; Mehram Ali's case PLD 1998 SC 1445 and Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879 ref.

(f) Constitution of Pakistan----

----Arts. 175A, 177(1), 193(1) & 199---Constitutional petition---Process of appointment of Judges of the Constitutional Courts---Judicial Commission, members of---Collective opinion---Opinion of an individual member---Scope---Article 175A of the Constitution expressly mandated a collective decision of the Judicial Commission and left no room for individual opinions of any one member of the Commission, particularly when such opinion was purely an individual opinion, without benefit of the views of other members.

Per Faisal Arab and Sajjad All Shah, JJ ; agreeing with Maqbool Baqar, J;

(g) Constitution of Pakistan----

---Arts. 175A, 193(1), 197 & 199---Constitutional petition---Judicial Commission of Pakistan Rules, 2010, R. 3(2)---Process of appointment of Judges/Additional Judges of the High Court---Initial nomination of names for appointment---Powers of Chief Justice of the concerned High Court---Scope---Initial nomination of names for appointment as Additional Judge or Judge in the High Court was to be made exclusively by the Chief Justice of the concerned High Court and after receiving such initial nomination, the Chairman of the Judicial Commission convened a meeting of the Commission where the nomination was considered---Judicial Commission could then either recommend or reject such nomination but on its own it did not initiate the nomination process.

(h) Constitution of Pakistan----

----Arts. 175A, 193(1), 197 & 199---Constitutional petition---Additional Judges of High Court, confirmation of---Process---Obligation on Chief Justice of the concerned High Court to send name of Additional Judge to Judicial Commission---Scope--- When the nominee of the Chief Justice of the High Court was appointed as an Additional Judge of the High Court and the stage had arrived to consider his name for confirmation as a Judge, the Chief Justice of the High Court was left with no alternative but to send the name of such Additional Judge to the Judicial Commission for consideration--=Name of such Additional Judge had to be placed by the Chief Justice of the High Court before the Judicial Commission---Decision whether to recommend name of such Additional Judge for confirmation rested exclusively with the Judicial Commission, though the Chief Justice of the High Court (a member of the Judicial Commission) was at liberty to express his own opinion about performance of the Additional Judge.

Dr. Muhammad Farough Naseem for Petitioner (in C.P. No.D-3125 of 2011).

Anwar Mansoor Khan for Petitioner (in C.P.No.D-3286 of 2011).

Makhdoom Ali Khan for the Intervenors.

Ashikue Raza, D.A.G. along with Sadaqat Ali Standing Counsel.

Date of hearing: 19th March, 2012.

P L D 2012 Lahore 1

Before Muhammad Khalid Mehmood Khan, J

MUTALI---Petitioner

Versus

KHIZAR HAYAT and 6 others---Respondents

Civil Revision No.532 of 2007, decided on 13th June, 2011.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13(1)---Pre-emption suit---Talb-i-Muwathibat, performance of---Proof---Plea in plaint was that pre-emptor came to know at his house about sale through "S" on 28-3-2002 at 9/10 a.m.---Pre-emptor's statement that he came to know at his Baithak about the sale through "S" without specifying its time and person, who was sitting with him---Statement of informer "S" that he informed pre-emptor about sale without specifying date, time and place where he informed pre-emptor; and that he came to know about the sale from Patwari---Validity---Requirement of S.13(1) of Punjab Pre-emption Act, 1991 was that jumping demand must be made in presence of a group of persons and not a single person, as single person would not constitute a sitting, meeting or Majlis---Such evidence and plaint would show that no one was present with pre-emptor, rather he was alone when he was informed about sale---Evidence on record showed that pre-emptor, informer and vendor were real brothers inter se, thus, pre-emptor and informer could not be believed not to have knowledge about suit sale---Pre-emptor had failed to prove requirement of S 13(1) of Punjab Pre-emption Act, 1991---Suit was dismissed in circumstances.

Exford English Dictionary; Chamber 21st Century Dictionary; Black Law Dictionary 18th Edn.; Feroze-ul-Lughat Published by Feroz Sons Limted; Abdul Kareem v. Mst. Jannat Bibi 2005 SCMR 1228; Qaisar Mansoor Malik v. Mst. Jhando through Legal Heirs and 13 others 2004 YLR 537; Abdul Karim Khan v. Asif Ali Khan and others PLD 2001 SC 137 and Mian Pir Muhammad and others v. Faqir Muhammad through LRs and others PLD 2007 SC 302 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13(1), Expln. I---Words "sitting", "meeting" and "Majlis" used in S. 13(1), Expln. I of Punjab Pre-emption Act, 1991---Connotation---Such words would mean a group of persons and not a single person---Jumping demand by pre-emptor must be made before a group of persons and not a single person and at least before two persons before whom information about sale was given by informer --- Reasons stated.

Exford English Dictionary; Chamber 21st Century Dictionary; Black Law Dictionary 18th Edn.; Feroze-ul-Lughat Published by Feroz Sons Limted and Abdul Kareem v. Mst. Jannat Bibi 2005 SCMR 1228 rel.

(c) Words and phrases---

----"Sitting", "Meeting" and "Majlis"---Meaning

Exford English Dictionary; Chamber 21st Century Dictionary; Black Law Dictionary 18th Edn.; Feroze-ul-Lughat Published by Feroz Sons Limted and Abdul Kareem v. Mst. Jannat Bibi 2005 SCMR 1228 ref.

Ch. Anees-ur-Rehman for Petitioner.

P L D 2012 Lahore 7

Before Sagheer Ahmad Qadri, J

Group Captain Syed MUHAMMAD FAZAL---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Rawalpindi Cantt.---Respondent

Writ Petition No.1072 of 2011, decided on 16th June, 2011.

Pakistan Air Force Act (VI of 1953)---

----Ss. 41(1), 71, 60, 2, 3 & 162-B---Constitution of Pakistan, Art.199(3)---Constitutional petition---Maintainability---Petitioner, a Group Captain of Pakistan Air Force had challenged his conviction and sentence under Ss.41(1), 71 and 60 of the Pakistan Air Force Act, 1953, by the Field General Court Martial, on the ground that at the time of his trial he was not subject to Pakistan Air Force Act, 1953, having already been retired from his service---Sections 2 and 3 of the Pakistan Air Force Act, 1953, had provided for the persons subject to the said Act and termination of application of the said Act, respectively---Letter dated 21-7-2009 issued by the Deputy Chief of Air Staff, Air Headquarters, had been annexed with the parawise comments, submitted by the respondent/Federation of Pakistan---According to said letter the date to be struck of strength (SOS) was 4-7-2010, whereas date of struck of duty (SOD) was 5-7-2009 and service leave of petitioner was shown as 365 days---Date of struck of duty of the petitioner although was 5-7-2009, yet he was on LPR of 365 days, when he was asked to appear before the Field General Court Martial and was charge sheeted and he, therefore, at the time of his trial was subject to Pakistan Air Force Act, 1953 and was liable to be charged and tried accordingly---Under Section 162-B of the Pakistan Air Force Act, 1953, right of appeal had been provided to the petitioner, which fact had further been elaborated at the time of confirmation of his sentence through promulgation certificate, which had been placed on record by the petitioner himself---Petitioner had not availed the remedy of appeal---Article 199(3) of the Constitution had created a bar in the way of the petitioner for getting the required relief---Constitutional petition, thus, was not maintainable and the same was dismissed accordingly.

Muhammad Akram Khan v. Islamic Republic of Pakistan through Secretary to the Government of Pakistan, Ministry of Law and Parliamentary Affairs, Islamabad and another PLD 1969 SC 174; The State v. Zia-ur-Rehman and others PLD 1973 SC 49; Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan v. Saeed Ahmad Khan and others PLD 1960 SC 266; Brig. Retd. F.B.Ali and another v. The State PLD 1975 SC 506; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Saifuddin Saif v. Federation of Pakistan and 3 others PLD 1977 Lah. 1174; Syed Muhammad Anwar Shohrat Bokhari v. Federation of Pakistan and 3 others PLD 1981 Lah. 742; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 SC 1263; Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149; Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498; Capt. Syed Jameel Ali Shah v. Federal Government, Ministry of Defence through Chief of the Army Staff G.H.Q, Rawalpindi 2004 PCr.LJ 560; Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866; Muhammad Azhar Siddique and another v. Government of Punjab through Chief Secretary, Lahore and 18 others PLD 2010 Lah. 138 and Mushtaq Ahmed and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others PLD 2007 SC 405 ref.

Muhammad Akram for Petitioner.

Azhar Naveed, Standing Counsel for Federation.

P L D 2012 Lahore 12

Before Abdul Waheed Khan, J

MUZAFFAR HUSSAIN---Petitioner

Versus

Mst. BIVI and 7 others---Respondents

Civil Revisions Nos.711, 712 and 713 of 2005, heard on 11th July, 2011.

(a) Punjab Pre-emption Act (IX of 1991)--

----Ss. 13 & 16 ---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Death of pre-emptor during pendency of suit and impleadment of his legal heirs therein as plaintiffs---Statement of son of deceased pre-emptor in court that he was present along with his father at time of performance of Talb-i-Muwathibat---Validity---Pre-emptor expired before recording of his statement, thus, he could not depose about his performance of such talbs---Plaint did not mention name of pre-emtpor's son and his presence at time of performance of Talb-i-Muwathibat by his deceased father---Such statement of pre-emptor's son was contrary to pleadings and was inadmissible---Right to acquire suit property by right of pre- emption would arise on date of sale---Legal heirs of deceased pre-emptor had no right on date of sale and could not improve their right to pre-empt suit land by inheritance as cause of action had already come into existence---Notice of Talb-i- Ishhad was not exhibited in statement of pre-emptor's son, thus, same could not be given any weight---Suit was dismissed in circumstances.

Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965; Abdur Rahim v. Muhammad Tahir Khan and others 2010 MLD 1230 and Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478 rel.

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

----Ss. 10 & 151---Consolidation of suits---Evidence of parties recorded in one suit could not be placed and considered in other suit for passing a judgment ---Principles.

Abdur Rahim v. Muhammad Tahir Khan and others 2010 MLD 1230 rel.

Sheikh Naveed Sheharyar for Petitioner.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 11th July, 2011.

P L D 2012 Lahore 18

Before Ijaz ul Ahsan and Mehmood Maqbool Bajwa, JJ

Ch. NAZIR AHMED---Appellant

Versus

ALI AHMED and another---Respondents

Regular First Appeal No.279 of 2009, decided on 13th September, 2011.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Partnership Act (IX of 1932), S.69(1)---Specific Relief Act (I of 1877), Ss. 12, 39 & 42---Suit for specific performance, cancellation of document and declaration---Rejection of plaint---Statutory bar---Unregistered firm-Plaintiff filed his suit on the basis of an unregistered partnership deed and Trial Court in view of the bar contained in S.69(1) of Partnership Act, 1932, rejected the plaint---Plea raised by plaintiff was that while applying provisions of O.V11, R.11 C.P.C., Trial Court was not entitled to look into the grounds of defence raised by defendants in his written statement---Validity---Plaintiff according to his own showing was a partner with defendants in a firm which was unregistered and all such facts could be gleaned from the contents of plaint, without looking at any other document, including written statement filed by defendants---Bar contained in S.69 of Partnership Act, 1932, was fully attracted to the facts and circumstances of the case---High Court in exercise of appellate jurisdiction, declined to interfere in the order passed by Trial Court---Appeal was dismissed in circumstances.

Maxwell on Interpretation of Statutes; Mrs. Shaista Begum v. Government of Sindh and 2 others 1994 MLD 274; Malik Subhat Khan v. Malik Ajab Khan and others 2003 CLD 123 and Habib Bank Ltd. Karachi v. Mian Muhammad Yaqoob Mian Muhammad Ashfaq Shafi and 3 others 1982 CLC 714 rel.

Mian Sohail Ahmad for Appellant.

Alamgir and R.A.Majid for Respondents.

Date of hearing: 23rd June, 2011.

JUDGEMENT

IJAZ UL AHSAN, J.--The appellant is aggrieved of an order dated 28-4-2009 passed by a learned Civil Judge at Lahore. Through the impugned order, an application under Order VII, rule 11, C.P.C. read with section 69 of the Partnership Act and section 35 of the Stamp Act for rejection of plaint filed by the respondent was accepted, in consequence of which the plaint filed by the appellant was rejected.

1. The brief facts leading to the filing of the present appeal are that the plaintiff and defendant No.1, who are real brothers inter-se, were working as carpenters in Kuwait. They set up a carpentry shop in partnership with each other. In 1986 both brothers decided to establish a school in memory of their mother. With mutual consent respondent No.1 provided land measuring 32-marlas at Allama lqbal Road, Garhi Shahu, Lahore, for construction of the school. The appellant allegedly contributed forty thousands Kuwaiti Dinars at the relevant time (equivalent to Pak Rs.28,80,000/-) for construction of the building. It is apparent from the contents of the plaint that the brothers agreed to run the business in partnership and in this regard executed a partnership deed on 22-2-1986. A copy of the partnership deed was appended with the plaint. It is significant to note that partnership deed was on plain paper. It was neither registered nor stamped.

2. According to the contents of the plaint, the respondent was charged with the responsibility of running the affairs of the school. The partnership deed also provided a mechanism for allocation of profits which arrangement need not be gone into at this stage being irrelevant for the purposes of this lis.

3. It appears that the business of the parties flourished both in Kuwait and Pakistan. In the year 2003 the brothers decided to separate their business in Kuwait. However, according to the contents of the plaint, it was mutually agreed that, the school set up in Pakistan would continue to be run under the partnership deed which was kept in tact till its expiry. In May-2005, the appellant allegedly approached respondent No.1 and demanded his share in profit. The matter was lingered on and no profit was paid. The appellant subsequently learnt that respondent No.1 had illegally and unlawfully transferred the entire school property in favour of his son through Waqaf-ul-Ulad deed being dated 20-1-2004. The appellant was aggrieved of the said act and claimed in the plaint that, "the plaintiff is entitled to get his profit from the net profit of the school each year and refusal qua the profit of the year 2004 and 2005 and also to disobey the partnership deed in its true letter and spirit is illegal and unwarranted".

4. In paragraph-9 of the plaint regarding cause of action, the plaintiff stated as follows:--

"That the cause of action accrued in favour of the plaintiff and against the defendant No.1 on 22-2-1986 when the plaintiff and the defendant No.1 entered into partnership deed."

In the prayer clause following amongst other prayers was made:--

"Under the above circumstances and facts, it is most respectfully prayed that a decree of Declaration, Specific performance of the partnership deed.... ... .. .. .. ... .. ... .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. It be declared that the defendants are bound to act upon the partnership deed dated 22-2-1986 executed between the plaintiff and the defendant No.1 in its true letter and spirit.

1. The respondent filed a written statement. However, subsequently an application under Order VII, rule 11, C.P.C. read with section 69(1) of the Partnership Act and section 35 of the Stamp Act was moved for rejection of the plaint on the ground that the plaint was liable to be rejected being barred by law and without cause of action. Vide order dated 28-4-2009, the application was allowed and the plaint filed by the appellant was rejected.

2. The learned counsel for the appellants submits that the impugned judgment and decree is illegal, insofar as, the learned trial court was not entitled to look into the grounds of defence raised by the respondent while applying the provisions of Order VII, rule 11, C.P.C. He argues that it was incumbent upon the learned trial court not to travel beyond the four corners of the plaint. He points out that the learned trial court examined the contents of the plaint and defence pleas raised by the respondent to reach its conclusions which has rendered the impugned judgment and decree without jurisdiction. He adds that the contents of the plaint clearly indicate that the suit was not filed by or against an unregistered firm. The contents of the plaint indicate that the same was filed in the personal name of the appellant against the respondents in their personal names and capacities. As such provisions of section 69(1) of the Partnership Act were not attracted. He further argues that the appellant and respondent No.1 had an agreement to run a school, the appellant sued the respondent on the basis of that agreement and sought rendition of accounts. Such suit is not hit by the embargo imposed by section 69(2) of the Partnership Act. The learned counsel finally argues that even if for the sake of argument it is presumed that the suit has been filed by and against an unregistered firm, the Waqf-ul-Ulad deed executed by respondent No.1 in favour of respondent No.2 had the effect of implied dissolution of the firm, in consequence of which section 69(3) of the Partnership Act was rendered inapplicable and irrelevant.

3. The learned counsel for the respondents, on the other hand, has supported the impugned judgment and decree. He has vehemently argued that in the first place, the partnership deed attached with the plaint was neither stamped nor registered. Further, from the contents of the plaint it was evident that the appellant sought enforcement of alleged rights arising out of the same and wanted relief from the court in terms of specific performance of partnership deed. He therefore argues that the suit was clearly hit by provisions of Order VII rule 11 CPC read with section 69 of the Partnership Act and the plaint was rightly rejected.

4. We have heard the learned counsel for the parties and have examined the record with their assistance.

5. A perusal of the plaint shows that the appellant admitted that there was a partnership deed dated 22-2-1986 between the appellant and respondent No.1 which related to their joint business of setting up and running a school in Lahore. The said document spelt out the terms and conditions which had mutually been settled between the parties dealing with various aspects of the partnership business including but not limited to allocation of profits and their respective rights and obligations. It was alleged in paragraph-6 of the plaint that it was mutually agreed by the appellant and respondent No.1 that after separation of their business in Kuwait in 2003 that the partnership deed relating to the school business at Lahore will be kept in tact and the parties will honour their commitments. The appellant also categorically admitted to have received some profits arising out of the partnership business. It is noticed that in various paragraphs of the plaint including paragraphs Nos.8 and 9 the existence of a partnership deed and a partnership business was categorically admitted and in the prayer clause specific performance of the partnership deed was sought along with a declaration that the respondent was bound to act upon the partnership deed dated 22-2-1986 executed between the parties in its true letter and spirit.

6. The contents of the plaint leave us in no manner of doubt that this was a suit filed by one disgruntled partner against another seeking rendition of accounts and profits of the partnership in addition to specific performance of the partnership deed. It is important to note that the partnership deed was produced by the appellant himself with the plaint in support of averments made in the plaint to establish that there was indeed a partnership business between the appellant and the respondent. The terms and conditions to run the said business had been incorporated in the partnership deed. It was alleged that the respondent had violated the terms and conditions of the partnership deed which had given rise to a cause of action in favour of the appellant. It is also not denied that the partnership deed was never registered. In this background, the aforesaid application under Order VII, rule 11, C.P.C. was moved on the ground that the suit was barred by law in terms of an embargo against such suits contained in section 69 of the Partnership Act 1932. For ease of reference section 69 is reproduced below:--

"69. Effect of non-registration.--(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.

(3) The provisions of subsections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect-

(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm, or

(b) the powers of an official assignee, receiver or Court under the Insolvency Karachi Division Act, 1909, or the Provincial Insolvency Act, 1920, to realize the property of an insolvent partner."

1. From a plain reading of section 69(1) the words "no suit shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered" are clear and unambiguous. These admit of no other interpretation. Admittedly, the appellant according to his own showing was a partner with respondent No.1 in a firm which was unregistered and all these facts can be gleaned from the contents of the plaint without looking of any other document including the written statement filed by the respondents.

2. A plain reading of section 69(1) seen in the backdrop of the averments of the plaint makes it abundantly clear that the bar contained in section 69 of the Act is fully attracted to the facts and circumstances of the present case. In this regard it would be profitable to refer to Maxwell on Interpretation of Statutes:--

"A statute is the will of the Legislature, and the fundamental rule of interpretation to which all others are subordinate, is that a statute is to be expounded, according to the intent of them that made it. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. The subject of all interpretation of a statute is to determine what intention is conveyed, either expressly or impliedly, by the language used, so far as is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it. When the intention is expressed, the task is one of verbal construction only; but when the statute expresses no intention a question to which it gives rise and yet some intention must necessarily be imputed to the Legislature regarding it, the interpreter has to determine it be inference grounded on certain legal principles.

"The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning; and, secondly, that the phrases and sentences are to be construed according to the rule of grammar. From these presumptions it is not allowable to depart where the language admits of no other meaning. Nor should there be any departure from them where the language under consideration is susceptible of another meaning, unless adequate grounds are found either in the history or cause of the enactment or in the context or in the consequences which would result from the literal interpretation, for concluding that interpretation does not give the real intention of the legislature.

"When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need for interpretation. Absoluta sentential exponsitore non indigent. Such language best declares, without more, the intention of the Lawgiver, and is decisive of it. The rule of construction is, to intend the legislature to have meant what they have actually expressed. It matters not, in such a case, what the consequences may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous.

In the second cited case of United Cotton Factory, Hydrabad v. Ahmad Khan, PLD 1960 Karachi 774, held as follows:

"The provisions of section 69 of the Partnership Act are mandatory and there is no power of condonation vested in the courts to grant to the defaulting firm in this respect any relief against the disability imposed by this section. The prohibition contained in the section is against the institution of the suit or the proceedings of the nature mentioned therein and its effect, therefore, has to be determined at the time of the institution of the suit or proceedings. The section entails a disability on the part of a court to take cognizance of the suit or proceedings from their very inception in the same way as it would not take the cognizance of a suit barred by limitation or of a suit suffering from a defect of jurisdiction in the form in which it is instituted."

In the case of Mrs.Shaista Begum v. Government of Sindh and 2 others (1994 MLD 274), it was held as follows:--

"In case of non-registration of a firm, the partnership firm and its partners would suffer from legal disability in filing suits against parties and as against one another in terms of section 69 of the Partnership Act. Similarly under section 68 of Partnership Act "Any statement, intimation or notice recorded or noted in the Register of Firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated."

In the case of Malik Subhat Khan v. Malik Ajab Khan and others (2003 CLD 123).--

"Plaintiff/respondent No.1 claimed to be partner on the basis of Partnership Deed Exh.PW.1/1 but the said partnership, as stated above, was not registered with the Sub-Registrar of Firms. The effect of non- registration of the firm would be that the partnership firm and its partners would suffer from legal disability in filing suit against the party and as against one another, therefore, the suit filed by him was hit by the provisions of section 69 of the Partnership Act, 1932. The learned trial Court, while appreciating the law applicable to the case, had rightly dismissed the suit of respondent No.1/plaintiff."

Likewise in the case of Habib Bank Ltd., Karachi v. Mian Muhammad Yaqoob Mian Muhammad Ashfaq Shafi and 3 others [1982 CLC (Karachi 714], the Court came to the following conclusion:--

P L D 2012 Lahore 25

Before Ijaz ul Ahsan, J

FAT ENTERPRISES through Managing Partner, Lahore---Petitioner

Versus

GOVERNMENT OF PUNJAB and 3 others---Respondents

Writ Petition No.228 of 2011, decided on 17th August, 2011.

(a) Words and phrases---

----"Theatre and related fields"---Definition---Production of stage plays would fall within definition of phrase "theatre and related fields".

(b) Lease---

----Bids for lease of cinema/theatre at expiry of its previous lease, invitation of --- Plea of incumbent lessee that during previous lease of ten years, he had made huge investment for installation of equipment, seats and converting cinema into cinema-cum-theatre, thus he had automatically earned preferential right to its fresh lease---Validity---Incumbent lessee had given undertaking to lessor that he would not claim any such preferential right by virtue of such investment at time of expiry of his lease---Had such been an intention of parties to give such preferential right incumbent lessee, then same would have been incorporated in his lease---Incumbent lessee, therefore, had no such right.

(c) Constitution of Pakistan--

----Art. 199---Constitutional petition---Bids for lease of cinema, invitation of---Petitioner claimed to be highest bidder by offering to pay a sum of Rs.3,50,000/- per month for being sole bidder---Acceptance of respondent's bid by Authority for being higher than petitioner by Rs.81,000/- per month---Petitioner's willingness to offer Rs.4,50,000/- per month instead of Rs.4,31,000/- as offered by respondent---Respondent's willingness to improve upon petitioner's offer by offering Rs.4,75,000/- per month---Process of improving upon offer made by each party before court culminated in a final bid of Rs.10,25,000/- per month offered by respondent---Petitioner failed to match such bid of respondent---Interest of Authority stood adequately served by increase in rent from Rs.4,31,000/- per month to Rs.10,25,000---High Court dismissed constitutional petition with observations that Authority would grant lease to respondent according to standard terms and conditions subject to payment of rent @ Rs.10,25,000/- per month in addition to security deposit and other charges, if any, required to be paid under relevant rules and regulations.

Ali Sibtain Fazli for Petitioner.

Syed Moazzam Ali Shah for Respondent No.1.

Imran Aziz Khan and Ghulam Murtaza Chaudhry for Respondent No.3.

Faisal Zaman Khan, Addl. Advocate-General.

Date of hearing: 9th May, 2011.

P L D 2012 Lahore 33

Before Ijaz Ahmad Chaudhry, C J

AMJAD IQBAL---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, BHALWAL, DISTRICT SARGODHA and 9 others---Respondents

Criminal Revision No.978 of 2010, decided on 26th October, 2011.

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

----Ss. 204 & 91---Penal Code (XLV of 1860), Ss.302/324/148/149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting---Issue of process---Power to take bond for appearance---Sessions Court vide impugned order had summoned the accused in private complaint under Ss.302, 324, 148 and 149, P.P.C. through bailable warrants---Question for determination was whether the court was competent to release the accused summoned in a private complaint upon their furnishing bail bonds or they were required to file independent bail petitions for their release---Sections 91 and 204, Cr.P.C. deal with the procedure regarding procurement of attendance of accused---Once the accused had appeared before the court pursuant to the process issued to them, the purpose of the said sections would come to an end and then the court had to determine whether the offence was bailable or non-bailable---If the offence was bailable court would release the accused upon submission of bail bonds and if the offence was non-bailable court would either release them on bail upon an application or send them to judicial lock up---When accused had appeared before the court pursuant to process under S.204, Cr.P.C. in a non-bailable offence, court could not release them merely on filing of surety bonds, rather they could be released after giving fresh bail petition---Impugned order being violation of law was set aside with the direction to accused respondents to file bail petitions within ten days before Trial Court for decision on merits---Revision petition was accepted accordingly.

Luqman Ali v. Hazroo and another 2010 SCMR 611 ref

Noor Nabi and 3 others v The State 2005 PCr.LJ 505; ldrees Ahmad and others v. Zafar Ali and another 2010 SCMR 64; Sher Zaman v. Muhammad Ishaq and others PLD 1985 SC 144; Riaz Ahmad v. Federation of Pakistan and 6 others 2002 YLR 1658 and Mehdi Khan v. Bashir Ahmad and 2 others 2002 YLR 2566 ref.

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

----S. 204---Issue of process---Scope---If a person appears before the court pursuant to process under S.204, Cr.P.C. in a non-bailable offence, court cannot release him merely on filing of surety bonds, rather he can be released after giving bail.

Luqman Ali v. Hazroo and another 2010 SCMR 611 ref

Mirza Shahid Baig for Petitioner

Abdul Samad Khan, Additional Prosecutor-General for Respondents

Khalid Mian for Respondents Nos. 2 to 9.

Date of hearing: 7th October, 2011.

P L D 2012 Lahore 38

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD AWAIS---Petitioner

Versus

Mst. ZAHIDA PARVEEN---Respondent

Writ Petition No.16081 of 2010, decided on 25th November, 2011.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Jurisdiction of Family Court---Scope---Plaintiff (wife) filed suit in Family Court for recovery of gold ornaments on the basis that in Column No.17 of Nikah Nama, there was a condition that gold ornaments weighing eight tolas valuing Rs.2,00,000 would be given to her, but the defendant (husband) did not give said ornaments---Contention of defendant was that suit filed before Family Court was not maintainable as same was triable by civil court---Family Court dismissed the suit holding that matter was not triable by a Family Court---Appellate Court disagreed with the findings of Family Court and found that claim of plaintiff fell within the jurisdiction of Family Court and Appellate Court remanded the case for fresh trial to the Family Court---In the present case gold ornaments, in question had never changed hands from the defendant to the plaintiff---Till determination of entitlement to acquire belongings, it could not be said that the gold ornaments had become the property of the plaintiff and that she had acquired proprietary rights---Entry in Column No.17 of the Nikah Nama was still a promise of the defendant with the plaintiff, enforceable through courts of plenary jurisdiction, but on the basis of such promise, family suit was not maintainable as it fell out of the ambit of S.5 and Schedule of West Pakistan Family Courts Act, 1964---Family Court had no jurisdiction to determine the claim lodged before it by the plaintiff---Appellate Court had misinterpreted the law by holding that the claim of plaintiff was actionable before the Family Court---Impugned judgment of Appellate Court was set aside declaring same to be without lawful authority and of no legal consequence.

Muhammad Akram v Mst. Hajira Bibi PLD 2007 Lah 515; Nasrullah v District Judge PLD 2004 Lah. 588 and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 rel.

Nasrullah v. District Judge PLD 2004 Lah 588 distinguished.

Sardar Abdul Mjeed Dogar for Petitioner

Ch. Abdul Majeed for Respondent No.1

Date of hearing: 25th November, 2011.

P L D 2012 Lahore 41

Before Syed Muhammad Kazim Raza Shamsi, J

TAYYAB HUSSAIN---Petitioner

Versus

RENT CONTROLLER, GUJRAT and others---Respondents

Writ Petition No.15395 of 2010, decided on 21st June, 2011.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15, 22(2) & 28(2)---Constitution of Pakistan, Art.199---Constitutional petition---Application seeking leave to contest ejectment petition---Limitation---Condonation of delay---Tenant had filed application seeking leave to contest ejectment petition beyond the period of ten days as prescribed under S.22(2) of Punjab Rented Premises Act, 2009---Such delayed leave application was not only entertained by the court, but was also granted---Court, which did not enjoy any jurisdiction to condone the time for filing said application, had exercised jurisdiction in entertaining application, which was not vested in it under mandatory provisions of the statute---If such practice of entertaining a time barred petition under S.22 of Punjab Rented Premises Act, 2009, was not curbed, same could lead to long standing litigation between the parties, which would waste the precious public time, would cause inconvenience to the parties and would defeat spirit of legislation---High Court in such like matters could interfere in its constitutional jurisdiction---Order passed by Special Judge (Rent) being not maintainable in the eyes of law, was set aside---Special Judge (Rent) was directed to proceed with the matter and pass an order under S.22(6) of Punjab Rented Premises Act, 2009.

Zulfiqar Ahmed Warraich for Petitioner

Nemo for Respondents

Date of hearing: 21st June, 2011.

P L D 2012 Lahore 43

Before Asad Munir, J

SHAKEEL SAOOD KHAN---Petitioner

Versus

RIZWANA KHANUM and another---Respondents

Writ Petition No.21133 of 2010, decided on 26th July, 2011.

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

----S. 5, Sched., Ss.10 & 14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on the ground of cruelty on the basis of Khula'---Word "dower" employed in S.10(4) of West Pakistan Family Courts Act, 1964---Connotation---Defendant in his written statement had asserted that plaintiff was not entitled to dissolution of marriage till she returned the gold ornaments weighing 13 tolas mentioned at serial No.16 of Nikah Nama which was given to her at the time of marriage---Family Court decreed the suit subject to return of Rs.5,000 paid to her as Haq Mehr and ornaments, weighing 13 Tolas---Appellate Court modified judgment and decree passed by the Family Court to the extent that gold ornaments, were not liable to be returned for being bridal gifts---Validity---Defendant had contended that no appeal against the dissolution of marriage, ordered under S.10(4) of West Pakistan Family Courts Act, 1964 was competent in view of the bar contained in S.14(2)(a) of the said Act---Contention was repelled as appeal was not filed against the dissolution of marriage, but was directed against amount of consideration determined as dower and payable to the defendant on ground of Khula'---Word "dower" employed in S.10(4) of West Pakistan Family Courts Act, 1964 had to be given its ordinary and plain meaning; and could not be stretched to include bridal gifts or benefits other than dower received by the wife---Dower and bridal gifts or benefits other than the dower could not be treated as synonymous---Alleged gold ornaments were in addition to Haq Mehr/dower and not in lieu thereof and did not form part of the dower---Gold ornaments in question, mentioned at serial No.16 of the Nikah Nama, were bridal gifts which could not be confused with dower and were not liable to be returned to the defendant on the ground of Khula'.

Mst. Shaista v. Sheikh Liaquat Ali Sathi and 2 others PLD 2006 Lah. 158 and Samia Akbar v Muhammad Zubair PLD 1990 Lah 71 distinguished.

Shahnaz Begum v. Muhammad Shafi and others PLD 2004 Lah 290; Muhammad Shaban v Judge Family Court and others 2003 YLR 2708; Muhammad Samiullah v. Muhammad Ilyas and others PLD 1987 Lah 420 and Naila Azmat v. Judge Family Court and others 1999 MLD 3090 rel

Ch. Sameed Ahmad Wains for Petitioner

Asif Miran for Respondent No.1

Date of hearing: 17th June, 2011.

P L D 2012 Lahore 47

Before Sagheer Ahmad Qadri, J

Group Capt. Syed MUHAMMAD FAZAL---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Home Department and 3 others---Respondents

Writ Petition No.1533 of 2011, decided on 5th July, 2011.

Pakistan Air Force Act (VI of 1953)---

----Ss. 60 & 71---Official Secrets Act (XIX of 1923), S.3(1)(c)---Pakistan Prison Rules, 1978, R.243---Government of Punjab Notification No.SO(R&P)4-24/10(Part I), dated 5-4-2011---Constitution of Pakistan, Art.199---Constitutional petition---Claim for class "A" in civil prison---Petitioner, a Group Captain was convicted under Ss.60, 71 of Pakistan Air Force Act, read with S.3(1)(c) of Official Secrets Act, 1923 to undergo one year R.I. and he was also dismissed from service---Petitioner had claimed that as he was classified as 'A' class prisoner in warrants of commitment, he was entitled for 'A' class in the prison---Petitioner had prayed that a direction in that respect be issued---Validity---Discretion lay with the concerned court under R.243 of Pakistan Prison Rules, 1978 to classify prisoners for keeping/detaining in jail in a specific class, but the final authority in that respect was with the concerned government---Punjab Government Notification No.SO(R&P)4-24/10 (Part I) dated 5-4-2011, provided that prisoners involved in the subversive, espionage or anti-State acts under Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961, were not entitled for superior class facilities in jail---Petitioner in circumstances, was not entitled for any such facility to be treated as 'A' class prisoner---Constitutional petition was dismissed.

Muhammad Akram for Petitioner

Nadeem Akhtar Bhatti, A.A.G.

Hassan, Deputy Superintendent, Adiala Jail.

Date of hearing: 5th July, 2011.

P L D 2012 Lahore 52

Before Muhammad Ameer Bhatti, J

Messrs SYED BHAIS (PVT.) LTD. through Director---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Local Government and 3 others---Respondents

Writ Petitions Nos. 10703, 10823 and 10945 of 2011, decided on 7th July, 2011.

(a) Constitution of Pakistan---

----Art. 199---Companies Ordinance (XLVII of 1984), S.196--- Constitutional petition---Company---Only competent person can file and initiate legal proceedings---Act of ratification of petition can only be availed, if Directors were empowered in the Articles of Association.

2005 CLD 1208 ref

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Contractual obligation---Unclean hands of petitioner---Effect---Petitioners having failed to perform their obligations within the stipulated period, had no right to seek any remedy before the High Court with unclean hands.

PLD 2009 SC 28 and 2007 SCMR 1318 ref

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contractual obligation---Arbitration clause mentioned in the contract---Disputed questions of fact---Controversy between the parties hinged upon the pivotal point as to whether the physical work (construction) executed by the petitioners was in accordance with the contract or not---Such question, held, could not be resolved by High Court in exercise of constitutional jurisdiction under Art.199 of the Constitution, as the court had no mechanism to resolve the question involved---Where the disputed questions of facts had been raised, particularly when floating as the surface of the record and arbitration clause was provided in the contract, constitutional petition was not maintainable, however each case had to be decided on its own peculiar facts and circumstances.

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

----S. 24-A---Constitution of Pakistan, Art. 199---constitutional petition---Contractual obligations not covered by any statute---Benefit of S.24-A of General Clauses Act, 1897 could not be extended to the petitioners---Principles.

(e) Constitution of Pakistan---

----Art. 199---Companies Ordinance (XLVII of 1984), S.196---Constitutional petition---Maintainability---Company---Constitutional petition, in the present case, had not been filed by the petitioner on the basis of the resolution of the company---Effect---When law required a thing to be done in a particular manner, the same must be done accordingly and if prescribed procedure was not followed, presumption would be that the same had not been legally done---Subsequent resolution of the company authorizing the petitioner to ratify would not resolve the issue as for that matter there should have been some powers vesting in the Directors to ratify the wrong and no such power had been provided in the Memorandum and Articles of the company---Constitutional petition, on such score, was not maintainable.

2005 CLD 1208 ref

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

----S. 126---Bank guarantee---Default---Written demand---Notice of default before encashment---Words of guarantee made it clear that the very first written demand constituted the notice of default, meaning thereby that the "notice of default" and "on such written demand" had been amalgamated into one and there was no need to serve notice separately---Guarantee must follow its terms and conditions---Guarantee was an independent and self governing document and only words of the same could be considered for its decision without considering agreement or contract for making any decision on it---Principles.

(g) Interpretation of statutes---

----Any condition cum provision of law which has no consequence is considered advisory and directory but not having any mandatory consequence---Provision which has no mandatory effect, if not complied with, does not vitiate the effect of the act/order for that matter.

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

----S. 126---Bank guarantee---Encashment---Scope---Bank guarantee shall be considered for its encashment along with its conditions---Encashment by Bank in violation of the terms of the guarantee---Effect.

PLD 2003 SC 191 ref

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

----S.126---Constitution of Pakistan, Art.199---Constitutional petition---Bank guarantee---No terms attached to the guarantee and no form of default asserted therein---Once guarantee placed for encashment cannot be stayed and Bank is bound to encash it and courts are refrained to interfere in such like matters.

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

----S.126---Constitution of Pakistan, Art.199---Constitutional petition---Bank guarantee---Arbitration clause provided in the contract---Effect---Once such guarantee put for encashment cannot be stayed and has to be encashed and aggrieved person may challenge the encashment in the ordinary course of law or avail the remedy of arbitration as provided under the contract.

(k) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---While sitting in writ jurisdiction, High Court cannot delve upon factual depth to resolve the whole dispute in a slipshod manner---Questions which involve factual controversies cannot be resolved by High Court through summary procedure under Article 199 of the Constitution---Where the matter needs evidence which exercise cannot be undertaken by High Court for which the petitioners have to approach the proper forum.

Kh. Saeed-uz-Zafar, Asjad Saeed and Ch. Muhammad Naseer for Petitioner

Shakil-ur-Rehman, Additional Advocate-General along with Shehryar Sultan DG, LG and CD Department and Ch. Abrar Ahmad, Director Legal, LG and CD Department.

Khurram Mushtaq for Respondents Nos. 1 to 3.

Syed Shadab H. Jafferi and Pervaiz Akhtar Tahir for Respondent No.4

Dates of hearing: 16th, 17th, 20th, 21st, 23rd and 24th June, 2011.

P L D 2012 Lahore 73

Before Sagheer Ahmad Qadri, J

ZAFAR ALI---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No.127 of 2011, decided on 3rd May, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 514---Forfeiture of bond---Petitioner stood surety for accused to the tune of Rs.3,00,000 and accused remained appearing in the court, but during last stage of the trial, when case was fixed for recording defence evidence, accused absented himself from the court---Trial Court on the same day issued show-cause notice to the petitioner/surety to appear and explain as to why the surety bond may not be forfeited in favour of the State---Trial Court on the next date of hearing declared accused as proclaimed offender, separated his case from other co-accused and started the proceedings under S.514, Cr.P.C.---Validity---Under provisions of S.514, Cr.P.C. it was mandatory for the Trial Court to pass speaking order showing the reasons for forfeiture of bail bond---Petitioner sought time from the Trial Court to produce accused for whom he stood surety, but the Trial Court, did not offer such opportunity to him---No doubt provisions of S.514, Cr.P.C. were enacted to initiate action against a surety in case of forfeiture of bail bond and recovery of the penalty, but those provisions were not meant to be used as a trap for surety---Subsequently efforts of the surety became fruitful when accused was produced by him in the court, where accused gave explanation of his absence that he was abducted by some unknown persons who took him to Khyber Pakhtunkhwa---Accused accompanied surety to surrender him before the court and Trial Court arrested accused and sent him to lock up which had shown the bona fide on the part of the surety---Surety having made genuine efforts, had produced accused in the Trial Court, he was not liable to be sanctioned by any penalty---Impugned order was set aside in circumstances.

Ghulam Qadir Sial v. State 1997 PCr.LJ 554 and Shan-e-Muhammad v. State 2009 PCr.LJ 962 rel.

Mian Zahid Hussain Chishti for Petitioiner.

Malik Muhammad Amjad Rafique Deputy Prosecutor General.

P L D 2012 Lahore 80

Before Ch. Muhammad Tariq and Sayyed Mazahar Ali Akbar Naqvi, JJ

Mst. SHAMIM MAZHAR ABBASI---Appellant

Versus

SECRETARY LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT DEPARTMENT, LAHORE and 2 others---Respondents

Intra-Court Appeal No.98 of 2011, decided on 14th July, 2011.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.6---Constitutional petition---Intra Court appeal---Building plan---Discrimination by authorities while sanctioning such plan---Effect---Appellant filed application to Municipal authorities for commercialization of his plot and sanctioning of building plan for construction of a commercial building---While sanctioning the building plan, authorities directed the appellant to provide 15 feet set back on the side facing main road, while 10 feet set back either side and the appellant complied with the said directions---Appellant, thereafter, came to know that authorities had deprived him from his valuable immovable property by misrepresentation as he had surrendered 10 feet set back facing 30 feet road, while there were no rules/regulations in the Building byelaws or under the Local Government laws to surrender land for parking on two sides of a commercial building---Local Commission in its report had observed that no such set back in any of the buildings situated in the vicinity of appellant's building, had been left---Said report was never challenged by the authorities by filing objection petition nor the authorities had raised any oral objection in that regard---Counsel for the authorities could not produce any provision of law to ask an owner of land to surrender such land---Record of case highlighted that the behaviour of authorities towards the appellant was not only wedded with discrimination, but unconstitutional, illegal and void---Authority had travelled beyond its jurisdiction which was a glaring example of highhandedness, in which authorities had tried to extract maximum because of helplessness of the appellant---Impugned orders passed by all the forums below, were set aside and surrender deed was cancelled and authorities were directed to sanction a revised plan of appellant's building as prayed in the constitutional petition.

Ms. Ambreen Nawaz Ch. for Appellant.

Rana Zahid Ali for Respondents.

Sadagat Ali Khan, Addl. A.-G.

P L D 2012 Lahore 83

Before Ijaz ul Ahsan, J

WATER AND POWER DEVELOPMENT AUTHORITY and another---Petitioners

Versus

ASSISTANT DIRECTOR MINES AND MINERALS, ATTOCK and others---Respondents

Writ Petition No.4968 of 2010, decided on 28th October, 2011.

West Pakistan Land Revenue Act (XVII of 1967)---

----S. 49---Punjab Minor Minerals Concession Rules, 1990, R.2---Regulations of Mines and Oil Fields and Minerals Development (Government Control) Act (XXIV of 1948), Ss. 2 & 4---Constitution of Pakistan,. Art. l99---Constitutional petition---Right of government in mines and minerals---Scope---All mines and minerals are the property of the government, notwithstanding the fact as to who owns the surface area---Where the petitioner owned the surface area for all intents and purposes, the minerals excavated continued to belong to the Provincial Government which was entitled to recover the value of its property--. Minerals wherever located, belong to the government and could be excavated only after getting a mining lease on the terms and conditions agreed between the parties---Acquisition of land (surface area) did not confer on the acquiring authority any right on minerals contained in the land in question--Principles.

Muhammad Iqbal Khan and others v. Collector, Mansehra and others PLD 2004 SC 659 distinguished.

Mian Ashiq Hussain for Petitioners.

Sadaqat Ali Khan, Addl. A.-G. Punjab with Ijaz Hadayat Assistant Director, Mines and Minerals for Respondents.

Date of hearing 6th October, 2011.

P L D 2012 Lahore 94

Before Ijaz u lAhsan, J

MUHAMMAD AMIN---Petitioner

Versus

Qazi MAZHAR UL HAQ and others---Respondents

Writ Petition No.5400 of 2010, decided on 28th October, 2011.

Suits Valuation Act (VII of 1887)

11---Pecuniary jurisdiction of appellate court---Scope---Forum of appeal is to be determined on the basis of original value of the suit and pecuniary jurisdiction of appellate court was to be derived from valuation in the plaint---Principles.

Ilahi Bakhsh and others v. Mst.' Bilqees Begum PLD 1985 SC 393 ref.

Constitution of Pakistan--- `

----Art. 199---Constitutional jurisdiction of High Court---Scope---Order' passed in revision---High Court, only in exceptional circumstances interferes in exercise of constitutional jurisdiction---Principles.

Mst. Iqbal Begum through her L.Hs. v. Muhammad Akbar and 5 others 1992 CLC 232; Nawabzada Malik Habibullah Khan v. The Pak. Cement Industries Limited and others 1969 SCMR 965 and Abdul Aziz Shah and another v. Abdul Ghafoor and another 1985 SCMR 221 ref.

Habib-Al-Wahab Alkhari for Petitioner.

Muhammad Ryas Sheikh for Respondents.

Date of hearing: 21st October, 2011.

P L D 2012 Lahore 98

Before Asad Munir, J

SADIA SULTAN---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE HAFIZABAD and 2 others---Respondents

Writ Petition No.4075 of 2009, decided on 9th September, 2011.

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

----Ss. 5, 9(1)(b) & 10(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on grounds of wife having developed hatred towards husband, his cruel treatment, his failure to perform marital obligations, she having. been deserted and contracting of second marriage by him secretly without her permission or Arbitration Council---Failure of pre-trial conciliation efforts between spouses and passing of decree by Family Court on ground of Khula' subject to return of dower, if any, received by wife---Dismissal of wife's appeal by Appellate Court---Validity---Wife could seek dissolution of her marriage on any one or more grounds enumerated in S.2 of Dissolution of Muslim Marriages Act, 1939---Wife would lose her dower if she sought dissolution of marriage on sole ground of Khula', but not when she raised other grounds in support thereof unless she failed to prove such other grounds---Wife's entitlement to dower would remain unaffected and intact, if she proved other grounds in addition to Khula'---Petitioner (wife) had not sought decree on the sole ground of Khula'---Family Court had not decided' such other grounds raised by petitioner in support of her claim---Where wife had taken other gourds in addition to Khula' for seeking such decree, then order under proviso to S.10(4) of West Pakistan Family Courts Act, 1964 could not be passed to deny the wife benefit of dower by its return or relinquishment---High Court set aside impugned judgments and decrees and remanded case to Family Court to frame additional issues, if not framed earlier, and decide the suit on the basis of evidence to be produced by parties.

Habib-ur-Rehman v. Additional District Judge, Lahore and others 1984 SCMR 1430; Khurshid Bibi v. Muhammad Amin PLD 1967 SC 97; Mukhtar Ahmad v. Ansa Naheed and 2 others PLD 2002 SC 273 and Mst. Saima Irum and 3 others v. Tariq Javed and another 2006 MLD 83 rel.

Muhammad Kazim Khan for Petitioner.

Muhammad Asif Ismail for Respondent No.3.

P L D 2012 Lahore 103

Before Ijaz ul Ahsan, J

PAKISTAN STEEL MILLS CORPORATION (PVT) LTD through Incharge Law---Petitioner

Versus

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

Writ Petition No.17004 of 2010, decided on 13th September, 2011.

Punjab Finance Act (XV of 1977)---

----S. 3---Constitution of Pakistan, Arts.163 & 199---Constitutional petition---Professional tax---Demand of such tax by Punjab Government from petitioner-company having its sales office in Punjab Province and registered office and factory in Sindh Province---Plea that petitioner was already paying such tax to Sindh Government, thus, Punjab Government was not competent to levy such tax on basis of its sales office located at Lahore; and that Federation by virtue of an entry in Federal Legislative List of the Constitution had exclusive jurisdiction to levy tax on corporation---Validity---Provinces could impose and collect such tax for same falling within legislative competence of Provincial Assembly---According to S.3 of Punjab Finance Act, 1977, only restriction that existed on competence of Provincial Assembly was that its rate could not exceed the limit that might be fixed by an Act of Parliament---Payment of such tax to Sindh Government by petitioner for having its presence there would not legally or constitutionally bar Punjab Government to recover the same from petitioner for being engaged in profession, trade, calling or employment within its territories---Constitutional petition was not competent against impugned notice, which related only to submission of documents for assessment and finalization of petitioner's case---High Court dismissed the petition.

Province of Punjab through Secretary, Excise and Taxation, Government of Punjab and others v. Sargodha Textile Mills Ltd. Sargodha and others PLD 2005 SC 988 rel.

Judgment of Lahore High Court in W.P. No.5692 of 2009 ref.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Constitutional petition was not competent against impugned notice, which related only to submission of documents for assessment and finalization of petitioner's case.

Mian Sarfraz ul Hassan for Petitioner. Faisal Zaman Khan, Addl. A.-G.

P L D 2012 Lahore 107

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD AMIR HABIB---Petitioner

Versus

ZAHEER AHMAD and 2 others---Respondents

Writ Petition No.2625 of 2010, heard on 10th August, 2011.

Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 22---Constitution of Pakistan, Art.199---Ejectment petition---Application for leave to defend---Striking off defence of tenant---Rent Controller ordered issuance of Proclamation in the newspapers on special date---Tenant appeared on the said date, filed Vakalatnama, whereupon he was directed to file the written statement---Rent Controller, struck off the defence of the tenant on the ground that leave application was not filed within the prescribed time and passed ejectment order against the tenant---Appeal by the tenant having remained unsuccessful, tenant filed constitutional petition---Validity---Tenant appeared before the Rent Controller in response to the Proclamation published in the newspaper, which Proclamation did not contain the condition that leave application was to be filed within 10 days---No notice in the prescribed form was received by the tenant---Where first appearance was made by the tenant in ejectment petition, through Proclamation in newspapers, it was duty of the court to inform the tenant, when he did not appear through counsel, to file leave application within 10 days from that date and also should fix date of 10 days for having the leave application---Order in such regard should be a speaking order---Said procedure having not been followed by the Rent Controller nor noticed by the Appellate Court, judgments of Rent Controller and Appellate Court, were not sustainable in the eyes of law---Impugned order were set aside and Rent Controller was directed to decide the leave application of the tenant on its own merits afresh.

PLD 2009 Lah. 489 rel.

Talish Umar Ch. for Petitioner.

Arshad Ali Warraich for Respondents.

Date of hearing: 10th August, 2011.

P L D 2012 Lahore 110

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD ANWAR---Petitioner

Versus

NADIA NASREEN and others---Respondents

Writ Petition No.167 of 2011, decided on 26th September, 2011.

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

----S. 5, Sched. & S.14---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance---Annual increase of 15%---Family Court fixed maintenance allowance of plaintiff at the rate of Rs.1500 per month with annual increase of 15%---Said order of Family Court had been maintained by the Appellate Court---Validity---Defendant had alleged that courts below while imposing increase of 15% per annum upon payment of monthly maintenance allowance, had proceeded against the spirit of law---Held, annual increase in the payment of maintenance allowance not been provided in any provision of the West Pakistan Family Courts Act, 1964 and it was for the legislature to take into consideration the growing prices of the articles, whereafter the same could legislate the law for imposing annual increase in the payment of maintenance allowance, till then, the courts had no jurisdiction to impose or levy any increase upon the payment of maintenance allowance---Increase levied by the courts below upon the payment of maintenance allowance lacked statutory sanction---Petition was partly allowed by modifying the judgment of Family Court to the extent of levy of 15% increase---Plaintiff would be entitled for the maintenance allowance of Rs.1500 per month without any increase---Order accordingly.

Ch. Inam Rasool Deo for Petitioner.

Ayaz Safdar Sindhu for Respondent No.1.

P L D 2012 Lahore 112

Before Rauf Ahmad Shaikh and Abdul Waheed Khan, JJ ABDUL MAJEED and 2 others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary to Government of Pakistan

and 8 others---Respondents

I.C.A. No.648 of 2011, in C.M. No.3205 of 2010 in W.P.No.19685 of 2010, decided on 13th December, 2011.

Law Reforms Ordinance (XII of 1972)---

----S. 3(3)---Intra-court appeal---Maintainability---Short order---Interlocutory order---Limitation---Review petition filed against order passed by High Court in constitutional petition was dismissed by High Court through short order and reasons for dismissal were to be recorded later on---Intra-court appeal against order of dismissal passed by High Court which was to be filed within 20 days of passing of impugned order was filed after expiry of more than 35 days of said period of limitation---Appeal being barred by time was liable to be dismissed---Contention of appellant was that review petition was dismissed through a short order and reasons for dismissal were to be recorded later on and since no reasons were assigned therein, appellant could file an appeal as and when the certified copy of the order containing detailed reasons were made available to appellant by the Copying Agency---Aggrieved party must avail its remedy from the date of short order rather than waiting for the detailed reasons and allowing the limitation to pass by---Contention of appellant was repelled in circumstances---Even otherwise appeal had been filed against interlocutory order which did not dispose of the entire case---Under subsection (3) of S.3 of Law Reforms Ordinance, 1972 no appeal would lie from an interlocutory order or an order which did not dispose of the entire case before the court---Intra-court appeal being not maintainable, was dismissed, in circumstances.

Petrosin Corporation Pvt. Ltd. and others v. OGDC through Managing Director PLD 2011 SC 235 and Dr. Syed Raza Gardezi and others v. Nazaz Ali and others PLD 2004 Kar. 143 ref.

Petrosin Corporation Pvt. Ltd. and others v. OGDC through Managing Director PLD 2011 SC 235 rel.

Qazi Misbah-ul-Hassan for Appellants.

Salman Aslam Butt for Respondents Nos. 2 and 3.

Sami-uz-Zamir for Respondent Nos. 8 and 9.

P L D 2012 Lahore 115

Before Ch. Shahid Saeed, J

YAR MUHAMMAD KHAN and others---Petitioners

Versus

SAJJAD ABBAS and others---Respondents

Civil Revisions Nos.382 and 73 of 2000, heard on 15th August, 2011.

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

----S. 11---Specific Relief Act (I of 1877), Ss. 42 & 8---Suit for declaration and possession---Sale of plaintiff's land during his minority by his elder brother through a fictitious, but registered power of attorney---Defendant claimed to be bona fide purchaser for consideration not having notice of plaintiffs minority and to have spent huge amount on developing suit land---Suit dismissed by Trial Court on ground of limitation while declared the plaintiff to be minor at time of suit transaction---Appellate Court decreed suit---Validity---Record showed that plaintiff was minor at time of execution of general power of attorney, thus, he was not competent to make same and suit sale made on its basis was void---No permission had been obtained from Guardian Judge before getting power of attorney and selling suit land---Plaintiff and defendant were fore-front neighbours, thus, defendant's plea that he was unaware of plaintiffs minority was not convincing---Due to non-filing of cross-objection in appeal filed by plaintiff, defendant would be deemed to have admitted minority of plaintiff---Neither sale proceeds of suit land had been paid to plaintiff nor spent on him, thus, land could not be said to have been sold for welfare of minor, which showed mala fide---Defendant was not bona fide purchaser of suit land---Defendant was enjoying possession of suit land from time of suit sale in his favour, thus, he was not entitled to return of its sale proceeds and cost of improvements, if any made by him on suit land---Plaintiff's mother had not supported suit sale---Suit was decreed in circumstances.

Nawab Khan represented by Legal Heir and others v. Zarif Khan and others 1985 SCMR 1428, Aziz Ahmed and others v. Muhammad Ramzan and others 2011 SCMR 921 and Yamin Khan and 5 others v. Rais Jhangli Khan and another 1999 CLC 1755 ref.

Banarasi Das v. Nathu Mal and others AIR 1914 Lah. 534 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 rel.

(b) Administration of justice--

----If basic transaction is void, then whole structure raised thereon will collapse-- llustration.

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

----Ss. 12 & 27(b)---Suit for specific performance of sale agreement---Vendee's claim for return of sale proceeds and cost of improvements made on suit land---Scope---Where vendee remained in possession of suit land and enjoyed its produce etc., then if suit was decreed against him, then he would not be entitled to receive back sale proceeds and cost of improvement.

Banarasi Das v. Nathu Mal and others AIR 1914 Lah. 534 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 rel.

Ashfaq Qayyum Cheema for Petitioners.

Muhammad Yaqoob Sidhu for Respondents.

Date of hearing: 15th August, 2011.

P L D 2012 Lahore 121

Before Ijaz Ahmed Chaudhary, C J

SOHAIL RIAZ---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Education and 2 others---Respondents

Writ Petition No.406 of 2011, decided on 22nd September, 2011.

Calendar of the University of the Punjab (2002)---

----Vol-I, Chap. VII, Regln. 23---Constitution of Pakistan, Art. 199---Constitutional petition---Prayer for re-evaluation of answer book/sheet of candidate---Validity---High Court lacked jurisdiction to direct for such re-evaluation or declare a failed candidate as passed---Reasons stated.

Re-evaluation of the answer book is prohibited. The logic behind this embargo is that answer books are secret documents and in case it is provided to the candidates or their representatives, the possibility of their tampering with or loss cannot be ruled out. Further the process of checking of answer sheets is being carried out by competent, honest and impartial staff appointed with the approval of the concerned Board and the Vice Chancellor.

Marking of numbers on answer sheets is a technical job, therefore, besides the examiner no body else including the candidate is in a position to adjudge his ability. Thus, the jurisdiction of High Court under Article 199 of the Constitution, cannot be invoked for obtaining decision on merits, which the functionary alone is entitled to take under the relevant law. High Court cannot order for re-evaluation of answer sheets of any candidate while exercising its power under Article 199. Likewise, High Court lacks jurisdiction to declare a fail candidate to be as pass.

High Court lacks jurisdiction in the matter of re-evaluation of answer sheet of any candidate. The logic behind this approach is that if re-evaluation is allowed, then there would be no end to the litigation by candidates who remain unsuccessful in certain papers and the University authorities would not be able to take any examination to its logical end.

Regulation 23 of Chap. VII of Vol. I of Calendar of the University of the Punjab has been enacted after approval by the Syndicate Committee of the University, thus, it cannot be declared illegal and unlawful by High Court merely for the reason that it does not suit to any particular person. Further High Court cannot substitute the result of a failed candidate as successful while directing for re-evaluation of the answer book of a candidate. High Court dismissed the constitutional petition.

Baleegh-uz-Zaman for Petitioner.

Farooq Qureshi Chishti for Respondents Nos. 2 and 3.

P L D 2012 Lahore 125

Before Muhammad Ameer Bhatti, J

MUHAMMAD AFZAL---Appellant

Versus

MUHAMMAD ZAMAN and others---Respondents

R.S.A. No.15 of 2004, decided on 25th July, 2011.

(a) Pardanashin lady---

----Execution of document by pardanashin or old or illiterate lady---Burden of proof---Scope stated.

Every illiterate woman, whether she is parda-observing or not, is protected unless circumstances suggest that she was of an exceptional character and able to manage her affairs independently. The protection has been extended on the consideration that parda-observing, old and illiterate women can easily swallow the bait and cautious approach is required when the parties happen to be close relatives. Old and illiterate ladies would be entitled to the same protection, which is available to the parda-observing ladies. Burden of proof lies heavily on person relying upon a document to prove that the executant of her own free will, full understanding of the implications entered into the transaction in his favour especially when such person being close relative of the lady was in a position to attain her confidence.

1981 CLC 1055; PLD 1959 Lah. 932; 1984 CLC 2826; PLD 1969 Kar. 324 and 1989 CLC 1584 rel.

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

----S. 12---Suit for specific performance of sale agreement---Execution of agreement denied by defendant (an old and illiterate lady)---Proof---Evidence on record showed that defendant was a simpleton (seedi saadhi) and Pendoo Aurat of 60/65 years of age at the relevant time; and that she was having healthy husband and grown up male children, but none was present at the time of execution of agreement---Validity---Plaintiff was duty bound to associate sons and husband of defendant before entering into agreement with her---Suit transaction might have been ostensibly made by defendant, but possibility of influence exercised by plaintiff (being her close relative) could not ruled out as the moment she was relieved of plaintiff's influence, she refused to honour same---Mere reading over agreement to defendant by scribe after being written would not fulfil requirement of law in absence of proof to the effect that same was substantially understood by her and subject to her free and intelligent act ---Plaintiff being beneficiary of such agreement must have to prove that defendant had an independent advice---Plaintiff had failed to prove that defendant was not a pardanashin, old and illiterate lady and she had alienated suit land with her free consent and with independent advice of her living sons and husband---Relief of specific performance of agreement being discretionary could be refused by the court even if its execution was proved---Suit was dismissed in circumstances.

1988 CLC 2456, 1984 SCMR 890; PLD 1975 SC 295; PLD 1963 SC 191; 1977 SCMR 280 and PLD 1980 SC 642 ref.

Muhammad Tufail and 4 others v. Akbar Ali and 4 others 2004 SCMR 1370; Ch. Muneer Hussain v. Mst. Wazeeran Mai @ Mst. Wazir Mai PLD 2005 SC 658; PLD 1990 SC 642; 1994 SCMR 1194; 1998 SCMR 1354; 2004 UC 458; 2002 YLR 2466 and 2004 SCMR 1370 rel.

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

----Ss. 12 & 27---Suit for specific performance of agreement---Scope---Relief of specific performance being discretionary, which discretion could be exercised on equitable terms---Court could refuse to grant such relief even if execution of agreement was proved.

1994 SCMR 111 rel.

A.K. Dogar and Ch.Liaquat Ali Sial for Appellant.

Saeed-uz-Zafar Khawaja and Basharat Ali Janjua for Respondents.

Dates of hearing: 15th and 18th July, 2011.

P L D 2012 Lahore 132

Before Ijaz ul Ahsan, J

MUHAMMAD ASLAM and 3 others---Appellants

Versus

MUSHTAQ AHMED and 2 others---Respondents

Regular Second Appeal No.48 of 2003, decided on 29th August, 2011.

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

----S. 12---Suit for specific performance of sale agreement --- Two suits regarding suit land---Suit by second vendee filed after 2-1/2 years of plaintiff's suit---Plaintiff alleged second agreement to be ante dated and forged prepared by vendor to defeat plaintiff's right under suit agreement for being prior in time---Vendor's plea in defence of plaintiffs suit was that he had not received earnest money from plaintiff, thus, agreement to sell stood cancelled; and that he had transferred the suit land through his general attorney to second vendee by way of mutation --- Conceding statement later on made by vendor to have received entire sale consideration from plaintiff---Proof---Vendor had not appeared as witness to rebut or deny having executed agreement in favour of second vendee---Patwari in his evidence had deposed to have entered mutation of sale in favour of second vendee on directive of general attorney of vendor---Marginal witnesses of second agreement and general attorney of vendor in their statements had confirmed its execution by vendor---Vendor had not cancelled general power of attorney on basis of which his attorney had entered mutation of sale in favour of second vendee---Second vendee through confidence inspiring evidence had established agreement in his favour by vendor---Second agreement was prior in time and in its part performance second vendee was given possession of suit land---Second vendee in his suit for permanent injunction has obtained restraint order against vendor and plaintiff, and plaintiff had made statement before court that he would not interfere with possession of second vendee---Plaintiff had failed to discharge burden to prove the second agreement as forged and ante-dated---Suit filed by second vendee was decreed in circumstances.

Khan Muhammad v. Muhammad Din through L.Rs. 2010 SCMR 1351 ref.

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

----S. 100---Second appeal---Concurrent findings of fact could not lightly be interfered in second appeal.

Syed Zaman Haider for Appellant No.1.

Zahid Saleem for the remaining Appellants.

Ch. Muhammad Amin Javed for Respondents.

Date of hearing: 7th February, 2011.

P L D 2012 Lahore 141

Before Ch. Shahid Saeed. J

Mst. SHARIFAN BIBI and others---Petitioners

Versus

ABDUL MAJEED RAUF and others---Respondents

Civil Revisions Nos.847 and 986 of 2000, decided on 16th September, 2011.

(a) Benami transaction---

----Proof---Essential ingredients.

There are four ingredients to prove a benami transaction:

(i) source of consideration;

(ii) from whose custody the original title deed and other documents came in evidence;

(iii) who is in possession of the suit property; and

(iv) motive for the benami transaction.

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

----S. 42---Limitation Act (IX of 1908), S.3 & Art. 120---Suit for declaration---Benami transaction---Proof---Plaintiffs being brothers of defendant's predecessor claimed suit house standing in name of deceased to be benami for they having contributed in its government dues and cost of construction---Proof---Sale deed of suit house issued in name of defendant's predecessor on 31-12-1963 was never challenged during his lifetime by plaintiffs till 4-1-1987, when they filed the present suit---Maximum time of six years was available to plaintiff for filing suit for benami transaction, but he kept silent for more than 24 years, thus, suit was time barred---Plaintiffs in support of their claim had not produced in evidence either their parents, who were alive during pendency of suit or their other sisters---Factum of joint living of plaintiffs in suit house would not prove payment of its dues by them---Oral assertions of plaintiffs could not override documentary evidence in form of sale deed of suit house in name of defendant's predecessor---Voters List, National Identity Cards, Ration Cards, Employment Letters of plaintiffs could prove their joint living in suit house, but could not prove their title thereto---Evidence on record showed that deceased was allotted suit house, who paid whole dues thereof and sale deed was accordingly made only in his favour---Plaintiff had failed to prove essential ingredients of benami transaction that they were owners of suit house to extent of 2/3rd share therein---Suit was dismissed in circumstances.

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

----S. 103---Verbal evidence could not override documentary evidence in the case.

(d) Civil Procedure Code (V of 1908)

----S. 115---Revisional jurisdiction of High Court---Scope---Findings on law and fact by Appellate Court would not be immune from interference by High Court where Appellate Court disregarded material oral or documentary evidence or based its decision on no-evidence resulting into grave miscarriage of justice.

Abdul Wahid Chaudhry for Petitoners.

Zafar Iqbal Chohan for Respondents.

Date of hearing: 6th September, 2011.

P L D 2012 Lahore 148

Before Abdul Waheed Khan, J

SULTAN AHMAD---Petitioner

Versus

JUDGE FAMILY COURT and 5 others---Respondents

Writ Petition No.27527 of 2011, decided on 19th January, 2012.

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

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance for minors---Execution of decree---Petitioner, who was the paternal grandfather of the minors, assailed order of Executing Court whereby house belonging to the petitioner was attached and ordered to be auctioned---Petitioner contended that he was not a party to the suit and the judgment debtor was alive as well as physically and mentally fit, therefore, the decree could be executed against him and not any other person---Validity---Admittedly, the petitioner was the paternal grandfather of the minor decree-holders and the father, who was the judgment debtor, was avoiding satisfaction of said decree by hiding---Executing Court had no alternative but to pass the impugned order---Minors could not be left merciless and unattended---When the judgment-debtor father, who was the real son of the petitioner, was not available, the petitioner (grandfather) was bound to provide maintenance allowance for his grandchildren---Constitutional petition was dismissed.

Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930 fol.

Mehboob Rasool Awan for Petitioner.

Naveed Sheharyar Sheikh for Respondents Nos. 2 to 5.

Nemo for Respondent No.6.

P L D 2012 Lahore 150

Before Muhammad Anwaarul Haq, J

SULTAN MUHAMMAD KHAN GOLDEN---Petitioner

Versus

Begum ABIDA ANWAR ALI and 5 others---Respondents

Criminal Revision No.422 of 2010, decided on 19th January, 2012.

(a) Criminal trial---

----Simultaneous civil and criminal proceedings---Likelihood of conflicting judgments---Stay of criminal proceedings during pendency of civil proceedings---Plaintiff (petitioner) initiated civil proceedings in the matter by filing suit for permanent injunction, wherein defendants joined the same by filing application under Order I, Rule 10, P.P.C.---Plaintiff (petitioner) subsequently managed to register F.I.R. and initiated criminal proceedings in the same matter and during such criminal proceedings opted to file a fresh (second) civil suit against the defendants---Defendants filed application for stay of criminal proceedings, which was accepted by the Trial court on the grounds that there was a likelihood of contrary judgments of civil Court and criminal court if both proceedings were continued side by side---Plaintiffs application before Trial Court for recalling the stay order was also dismissed---Grievance of plaintiff was that there was no justification for Trial Court to stay criminal proceedings when both civil and criminal proceedings, being independent could proceed side by side---Validity---Present civil suit between parties involved serious dispute of title and genuineness of the power of attorney---Plaintiff having taken different stances in both civil and criminal proceedings, Trial Court had rightly found that there was every likelihood of conflicting judgments regarding the same matter, therefore, civil proceedings should be completed first rather than the criminal proceedings---Plaintiff failed to point out any illegality/irregularity of procedure, jurisdictional infirmity or perversity of reasoning in the order of Trial Court so as to warrant an interference to declare the same as illegal---Revision petition was dismissed accordingly.

Malik Khuda Bakhsh v. The State 1995 SCMR 1621; Abdul Qadir Khan Mamdot v. Regional Police Officer, Multan and 5 others 2011 MLD 1773; Seema Fareed and others v. The State and another 2008 SCMR 839; Aftab Din v. S.H.O., Anti-Corruption (Establishment), Mianwali and another 2007 YLR 236; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; M.Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691 and Saliad Hussain v. The State PLD 1997 Kar. 165 distinguished.

Muhammad Akbar v. The State and another PLD 1968 SC 281; Abdul Haleem v. The State and others 1982 SCMR 988 and A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 rel.

(b) Administration of justice---

----Simultaneous civil and criminal proceedings---Propriety---Exception---Criminal and civil proceedings could run side by side but in appropriate cases where the controversy in the F.I.R. and civil suit filed by same party rested upon the determination of title or the genuineness of a document, criminal proceedings could be stayed till the disposal of the civil suit.

Muhammad Iqbal Malik for Petitioner.

Ch. Muhammad Akram Tahir, Deputy District Public Prosecutor for the State.

Pervez Inayat Malik, for Respondents Nos. 1 and 2.

Muhammad Mubashir Khan for Respondents Nos. 3, 4 and 5.

Date of hearing: 19th January, 2012.

P L D 2012 Lahore 154

Before Asad Munir, J

Mian MUHAMMAD SABIR---Petitioner

Versus

Mst. UZMA PARVEEN and 2 others---Respondents

Writ Petition No.223013 of 2009, decided on 5th July, 2011.

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

----S. 5, Sched. & S.17---Civil Procedure Code (V of 1908), S.11---Second suit for maintenance by divorced daughter against her father---Res judicata, principle of---Applicability---Scope---Rejection of plaint in plaintiff's first suit by Family Court for want of jurisdiction to entertain maintenance claim by a daughter against her father---Father's plea that daughter's second suit for maintenance was barred by res judicata---Validity---Period of past maintenance claimed in first suit was six years, while in second/present suit was five years---Family Court had not decided first suit on merits, rather had rejected plaint on technical or preliminary ground for want of jurisdiction---Res judicata would not apply where first suit was not decided on merits---Family Court had exclusive jurisdiction to entertain all claims of maintenance without any exception and had no jurisdiction to exclude maintenance claim of a daughter against her father---Order of Family Court rejecting plaint in first suit for being void order was liable to be ignored---Such plea of father was overruled in circumstances.

Muhammad Yaqub and 13 others v. The Municipal Committee, Lyallpur PLD 1971 SC 664 and Mst. Parveen Akhtar v. Ghulam Akbar and others 1991 CLC 1393 rel.

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

----S. 5 & Sched.---Suit for maintenance by divorced daughter against her father---Maintainability---Liability of father to maintain his daughter till her marriage would pass on after her marriage to her husband---Husband's liability to maintain his wife would continue till subsistence of marriage, but not after dissolution of marriage---Female losing her marital status would revert to her status of a single lady and would need financial support in same manner as she needed before her marriage---Divorced daughter, if not gainfully employed or having means at her disposal to take care of her basic needs, could claim maintenance from her father, whose means would be kept in view while determining her maintenance---Father could not deny maintenance to divorced daughter, if she was living with her mother instead of father---Custody of daughter till her marriage would belong to mother and father as her guardian could not complain if she did not live with him---Illustration.

P.K. Pakrichi v. P.K. Kunhacha ILR Vol.XXXVI Mad. 385 and Arbab Mir Muhammad v. Mst. Iram Iltimas and 4 others PLD 2005 SC 24 ref.

Muhammad Shafi v. Surraya Begum and 7 others 2000 MLD 2030; Hafiz-ur-Rehman v. Najma Bano and others 2001 CLC 1273; Syed Ziaul Hassan Gilani v. Mian Khadim Hussain and 7 others PLD 2001 Lah. 188; Mahommedan Law, 5th Edn. p.1367 by Ameer Ali; Outline of Muhammadan Law IVth Edn. p.214 by Asaf A.A. Fyzee and Abdul Rauf and others v. Mrs. Shereen Hassan PLD 2001 SC 31 rel.

Aftab Rahim for Petitioner.

Fida Hussain Rana for Respondent No.1.

P L D 2012 Lahore 160

Before Syed Ejaz Hussain Shah, J

ALLAH BAKHSH---Petitioner

Versus

MEMBER (J-VIII) BOARD OF REVENUE, PUNJAB and 11 others---Respondents

Writ Petition No.11251 of 2011, decided on 13th September, 2011.

West Pakistan Land Revenue Act (XVII of 1967)---

----S. 45---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan, Art.199---Constitutional petition---Declaratory suit---Variations in entries of revenue record---Implementation of decree passed by civil court by Revenue Authorities---Plaintiffs in their suit had challenged mutation whereby their shares in the inheritance of their predecessor were reduced---Suit was dismissed by the Trial Court, but was decreed by the Appellate Court---Decree passed by the Appellate Court in favour of the plaintiffs remained intact uptil the Supreme Court---District Officer on application of decree holder granted permission for correction of the revenue record in accordance with said decree---Judgment-debtors assailed said order of District Officer in appeal, which appeal was dismissed by Executive District Officer and dismissal order remained intact up to Board of Revenue---Contention of the judgment-debtors throughout was that the decree-holders, could not get the declaratory decree implemented by the Revenue Authorities; and that Revenue Authorities had no jurisdiction to implement the judgment and decree of the civil court, passed in declaratory suit---Validity---Section 45 of West Pakistan Land Revenue Act, 1967, had provided for the making of such entries in record of rights or in a periodical record which were supported by a decree or order---Revenue Officers were bound to give effect to the decree of the civil court and Revenue Staff could not go beyond the decree---Revenue Officer was under obligation to correct and bring up to date revenue record in conformity with the binding adjudications of civil courts, who alone were arbiters of civil rights of the parties---Revenue Officer must accept decree of civil court and act upon it to give effect to it in revenue record---Impugned orders did not call for any interference, in circumstances.

2002 YLR 2533; 2002 YLR 1302 and 1991 MLD 1681 distinguished.

Khushi Muhammad and others v. Member Board of Revenue and others 1992 CLC 125; Muhammad Nawaz and others v. Fateh Sher 2008 SCMR 1658; Abdul Hameed, Ex-Patwari v. Member (Revenue) and 3 others 2005 SCMR 1617 = 2005 PLC (C.S.) 1367 rel.

Ch. Muhammad Tariq Mang for Petitioner.

P L D 2012 Lahore 165

Before Asad Munir, J

Mst. HUMAIRA MAJEED---Petitioner

versus

HABIB AHMAD and 2 others---Respondents

Writ Petition No.19942 of 2010, decided on 2nd December, 2011.

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

----S. 5 Sched. & S.17---Civil Procedure Code (V of 1908), O.XX, R.10---Recovery of gold ornaments--Decree---Non-mentioning of value of ornaments---Decree passed by Family Court did not state value of gold ornaments to be recovered from judgment debtor---Validity---Such decree was not in the usual form as it directed delivery of gold ornaments but did not state alternative of money payable in case of non-delivery of gold ornaments by judgment debtor---Decree in question was not framed in accordance with the provisions of O.XX, R.I0, C.P.C.---In view of S.17 of West Pakistan. Family Courts Act, 1964, provisions of O.XX, R.10, C.P.C. were not stricto sensu applicable to a decree obtained in a Family suit---No provision existed in West Pakistan Family Courts Act, 1964, similar or corresponding to O.XX, R.10, C.P.C.---Decree passed under West Pakistan Family Courts Act, 1964, for recovery of dowry articles including gold ornaments or other movable property was lawful and executable, even if it did not state monetary value payable in case movable property was not delivered.

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

----S. 5 & Sched.---Constitution, of Pakistan, Art. 199---Constitutional petition--- Dowry articles, recovery of----Amount instead of articles---Suit for recovery of gold ornaments was decreed by Family Court in favour of wife---Family Court, while framing the decree, did not mention recovery of money in alternate of articles---During execution of decree, judgment debtor instead of delivering the gold ornaments preferred to pay value of ornaments as on the date of filing of suit---Validity---Judgment debtor had no option to insist that he be allowed to pay price of gold ornaments instead of delivering the same---Executing Court could not order determination of price of gold ornaments without finding that delivery of gold ornaments was not possible---Decree holder had throughout claimed return of her gold ornaments lying with judgment debtor---Decree holder was entitled to seek recovery of gold ornaments instead of their value which had given rise to the controversy on account of dispute as to the market rate applicable---If judgment debtor did not return gold ornaments but was allowed to make payment of an amount which was illusory, being not at all equivalent to the price of weight of gold ornaments that would result in gross injustice to decree holder---Judgment debtor was liable to return the gold ornaments or gold of that weight to decree holder failing which he would make payment of the price as would fetch equal weight of gold at the time of payment subject to adjustment or return of any money paid during execution proceedings by judgment debtor to decree holder---Petition was allowed accordingly.

Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 distinguished.

Karthiyani Amma Gouri Amma v. Padmanabha Pillai Narayana AIR (38) 1951 Travancore-Cochin 176 and L. Tilok Chand v. L. Damodar Dass AIR (32) 1945 1945 Pesh. 5 rel.

Mian Saeed-ud-Din Ahmad for Petitioner.

Ibrar Hassan for Respondent No.1.

P L D,2012 Lahore 170

Before Seed Muhammad Kazim Raza Shamsi, J

M. UMAR FRAZ---Petitioners

versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petitions Nos.15500 and 15501 of 2008, decided on 11th October, 2011.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance for minor---Appellate Court fixed maintenance allowance for minor child at Rs.3000 per month with an annual increase of 15 per cent'in the same---Validity---Contention of petitioner that grant of increase of 15 per cent in maintenance allowance did not have any statutory sanction appeared to be on a correct dimension---Appreciation of provisions of West Pakistan Family Courts Act, 1964 showed that the Act nowhere directed the court to allow such increase in payment of maintenance allowance to minors---Increase was fixed by the °court having been influenced by circumstances prevailing in the society forgetting that the duty of court was to implement law as it had been enacted---Courts could not be allowed to challenge the wisdom of legislature which consciously did not provide any such rule to impose levy on the allowance---Legislature, may, at any stage, keeping in view rate of inflation, prices of articles of daily use, expensive education and health as well as needs of the minor in the future, may promulgate legal provisions for meeting with such situations---Till - the time such amendment was made by the legislature, the court was supposed to follow the law in its -original form---Grant of 15 per cent increase in maintenance allowance of minor by Appellate Court was wholly unwarranted and to that extent constitutional petition was allowed---High Court provided guidelines and recommendations for the legislature to amend the West Pakistan Family Courts Act, 1964 accordingly.

Dr. Tariq Shaheen v. Miss. Wafiah Fatima and others C.P. No.76-L of 2007 and Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and others Civil Appeal No.748 of 2008 rel.

(b) Interpretation of statutes ---

----Court being influenced by circumstances prevailing in the society forgetting its duty to implement the law as it had been enacted could not challenge the wisdom of the legislature.

Muhammad Zawar Shah for Petitioner.

Imran Idrees Butt and Ihsan Qadar Sial for Respondents.

P L D 2012 Lahore 174

Before Syed Mansoor Ali Shah, J

CAPITAL STEEL RE-ROLLING MILLS through Partner-- Petitioner

versus

MANAGING DIRECTOR, SNGPL, LAHORE and another---Respondents

Writ Petition No.20431 of 2011, decided on 17th October, 2011.

Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)--

----Arts. 14 & 15---Constitution of Pakistan, Art.199---Constitutional petition---Wafaqi Mohtasib (Ombudsman)---Delegation of powers---Scope---Objection was raised with regard to issuance of order on behalf of Wafaqi Mohtasib, by a Consultant appointed in the Office, while the post of Wafaqi Mohtasib was vacant---Validity---At no time quasi judicial power of Mohtasib to decide a matter had been delegated to any of the staff or any of the Committee Members, who at the best could assist the Mohtasib in performing his functions---Such assistance might entail carrying out field inspections and investigations to a limited extent provided in Art.14(1) of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, and no more---High Court directed the Secretary Wafaqi Mohtasib to hold a detail inquiry into the matter and to initiate departmental action against the officers/consultants, who had violated the law by passing interim orders on behalf of Wafaqi Mohtasib---High Court further directed the Secretary to ensure that no judicial order/interim order should be issued in future by the staff/consultants working at Wafaqi Mohtasib---Objection was disposed of accordingly.

Mian Muhammad Javaid for Petitioner.

Ch. Muhammad Hussain, Deputy Attorney General for Pakistan. Umar Sharif for Respondent SNGPL.

Amjad Ali Khan, Secretary, Mazhar Ali Khan, Additional Secretary and Brig.(R) Shamshad Ali, Consultant, Wafaqi Mohtasib, Lahore Secretariat in person.

P L D 2012 Lahore 178

Before Syed Muhammad Kazim Roza Shamsi, J

NADEEM ZAFAR and others---Petitioners

versus

MUHAMMAD ISMAEEL and others---Respondents

Writ Petition No.3605 of 2011, decided on 11th October, 2011. (a)

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 30---Interpretation and object of S.30, Punjab Rented Premises Act, 2009---Word "shall" as used in S.30---Connotation---Examination of S.30 of the Punjab Rented Premises Act, 2009 revealed that it consisted upon two parts, firstly, that it required that written intimation shall be sent to the tenant informing him about new ownership and secondly, the new landlord shall apply to the Rent Registrar for entering his name as the landlord of the premises---Section 30 nowhere provided that if no notice either to the tenant or to the Rent Registrar was sent, ejectment petition could be liable to be dismissed ---Word "shall" though had been used, but it appeared that the intention of the legislature while enacting the provision of law could be that the cases of the parties should not be thrown out of the court on the basis that notice of change of ownership had not been sent---Such intention of the legislature was also evident from the Preamble to the Punjab Rented Premises Act, 2009, where it was provided that. the purpose of the Act was to provide expeditious remedy in rent matters but it did not allow expeditious disposal at the cost of technicalities---Word "shall" used in S. 30, in view of legal position of the law as well as rules of interpretation shall be read as "may "---Such interpretation found further support from other facts; that the question of default of payment in rent was to be determined by the court after recording the evidence of the parties or in cases where the default was evident from the record or in case where the relationship of landlord and tenant wasdenied by the parties, such determination had to be undertaken even if no notice, as required under S.30 of the Act, was sent---Purpose of enactment of S.30 of the Act' was to regulate and register the new landlord so that dispute of denial of tenancy could be avoided which was a consistent practice when the repealed law was in field, and where ejectment petitions remained pending in courts for years for the determination of the title of landlord---Keeping in view expediency, and the mechanism provided for expeditious disposal of rent matters, the ejectment petitioner may not be non-suited on the ground that he did not send intimation regarding new ownership either to the tenant or to the Rent Registrar, particularly, when tenant had notice of the same when ejectment petition was instituted against him.

(b) Punjab Rented Premises Act (VII of 2009) ---

----Ss. 30 & 15---Constitution of Pakistan, Art. 199---Constitutional Petition---Ejectment petition filed by the petitioner was dismissed by Appellate Court on the ground that notice as required under S. 30 of the Punjab Rented Premises Act, 2009, regarding change of ownership was not served upon the respondent (tenant)---Validity---Petitioner had served notice upon the respondent (tenant) informing him that he purchased the property from his brother and then raised the demand for payment of rent, and to such extent he had complied with one requirement of S.30 of the Punjab Rented Premises Act, 2009 about sending intimation of change of ownership but he did not apply for registration as new landlord to the Rent Registrar---Petitioner (landlord), in view of the interpretation of the S.30 of the Punjab Rented Premises Act, 2009, could not be penalized for such disobedience as such non-compliance did not materially affect rights' of the respondent (tenant) who had already denied the relationship of landlord and tenant between himself and the petitioner---Respondent (tenant), prior to the institution of the ejectment petition had admitted that he had knowledge that the previous landlord had sold the property to the petitioner---Landlord, in view of such admission of the respondent (tenant), could not be non-suited merely on the ground that he did not apply to the Rent Registrar for entering his name as the new landlord---Dismissal of petitioner's ejectment petition by Appellate Court was against the spirit of law and was not sustainable---Order of Appellate Court was set aside, and case was remanded to the Appellate Court---Constitutional Petition was allowed, accordingly.

Sh. Sajid Mehmood for Petitioners.

Ali Akbar Qureshi for Respondents.

P L D 2012 Lahore 183

Before Asad Munir, J

SHAMAS ALI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SAMBRIAL and another---Respondents

Writ Petition No.13141 of 2011, decided on 25th November, 2011.

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

----S.5 & Sched.---Divorce on basis of Khula'---Benefits, return of---Principle---In case_ of dissolution of marriage on the ground of Khula', question of return of Haq Mehr (dower) received has to be adjudged in the light of conduct of husband which means that where evidence indicates that dissolution of marriage is caused by or is attributed to faulty conduct of husband, then the husband would become disentitled to return of dower otherwise due---Such rule is based on a sound rationale as it would be unjust to deny dower to a wife who has been forced into seeking dissolution on account of reprehensible acts or omissions of her husband.

Mst. Balgis Fatima v. Najam-ul-Ikram Qureshi PLD 1959 Lah. 566; Qammar Alam Sheikh v. Mst. Robina and others 1997 CLC 985; Mst.Zahida Bibi v. Muhammad Maqsood 1987 CLC 57 and Muhammad Kaleem Asif v. Additional District Judge PLD 2009 Lah. 484 ref.

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

----S. 5 & Sched. ---Constitution of. Pakistan, Art. 199--- Constitutional petition---Divorce on basis of Khula---Benefits, return of---Plaintiff was third wife of defendant and she filed suit for dissolution of marriage on the ground of deep hatred for defendant who was not only involved in personal scandals but also had a criminal record---Family Court decreed the suit in favour of wife on the basis of Khula' subject to. return of gold ornaments and Rs.1000/- received by her from defendant as dower at the time of marriage---Judgment and decree passed by Family Court was modified to the extent that condition of return of dower had been dispensed with---Validity---Plaintiff was a virgin lady less than 20 years old and she was lured into marriage by defendant even though he had contracted two marriages earlier--Plaintiff admitted that she had developed aversion to him but offered no explanation for such aversion---Impression could not be dispelled that it was the cruel conduct of defendant that compelled plaintiff to seek dissolution of her marriage with defendant---Couple lived together as husband and wife for a number of years which must be regarded as a benefit received by husband also disentitling him to seek return of entire dower---Plaintiff was not liable to return dower to defendant except part of dower i.e. Rs.1000/- which she voluntarily offered to return to defendant in consideration of dissolution of marriage on the ground of Khula'---High Court in exercise of constitutional jurisdiction, maintained the judgment and decree passed by Lower Appellate Court with the modification that plaintiff would return Rs.1000/- to defendant---Petition was disposed of accordiiigly.

Ch. Irshad Ahmad Ghumman for Petitioner.

Rao Muhammad Pervaiz for Respondent No.2.

P L D 2012 Lahore 188

Before Sayyed Mazahar All Akbar Naqvi, J

MUHAMMAD ADREES---Petitioner

versus

NAZAR HUSSAIN, ADDITIONAL SESSIONS JUDGE, LAHORE/EX-OFFICO JUSTICE OF PEACE and another---Respondents

Writ Petition No.19310 of 2010, heard on 2nd December, 2010.

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

----S. 154---Information in cognizable cases---Duty of S.H.O.---Statutory duty has been cast upon Officer Incharge of police station to enter information regarding commission of any cognizable offence---Requirement of law is that Police Officer has to record F.I.R. mandatorily of a cognizable case under 5.154, Cr. P. C.

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

----S. 22-A(6)---Powers of Justice of Peace---Nature---Ex-Officio Justice of Peace is not for specific hours, rather he is empowered to act/proceed round the clock---Powers conferred on Justice of Peace under S.22-A(6), Cr.P.C. though are not at par with those of writ of mandamus, but are substantially of that nature.

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

----S. 22-B---Duties of Justice of the Peace---Scope---Justice of Peace under no provision of law can direct or even observe with regard to the nature of offence, e.g. it is civil or otherwise---Duty of the Ex-Officio Justice of Peace is to go through the contents of the application, and if any cognizable offence is made out, to order the S.H.O. to proceed under S.154, Cr. P. C.

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

---Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art.199---Constitutional petition---Registration of F.I.R.---Additional Sessions Judge/Ex-Officio Justice of Peace after having gone through the police report had arrived at the conclusion that the dispute between the parties was of civil nature, regarding which a civil suit was already pending and he dismissed the petition of the complainant for direction to S.H.O. for registration of criminal case against accused, vide impugned order---Registration of criminal case could not be refused on the ground of pendency of civil litigation between the parties, especially when the application for registration of the case had been filed prior to filing of civil suit---Even otherwise, civil suit pertained to civil rights of the parties, which in no way would bar initiation of criminal proceedings, if the same were proved---Impugned order was against the law and facts of the case--Justice of Peace had no jurisdiction to comment upon the fact that the matter was of civil nature---Impugned order was consequently set aside with the direction to S. H.O., to record the version of the complainant and proceed strictly in accordance with law as provided under S.154, Cr.P.C.---However, if the version of the complainant was proved to be false, he could be proceeded against under S.182, P.P.C.-Constitutional petition was accepted accordingly.

Kehar Khan v. Additional Sessions Judge and Ex-Officio Justice of Peace Kotri and 3 others 2009 PCr.LJ 634; Allah Ditta v. Additional Sessions Judge, Khushab and 12 others 2008 PCr.LJ 908; Mst. Rehana Jalal v. S.H.O. Police Station Kot Addu and 3 others 2009 PCr.LJ 138; Mst. Almas Sarwar v. Additional Sessions Judge, Sargodha and 3 others 2010 PCr.LJ 1466 and Muhammad Bashir v. Station House Officer Okara Cantt. and others PLD 2007 SC 539 ref.

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

----Ss. 154, 22-A & 22-B---Registration of F.LR.---Pendency of civil litigation---Effect---Registration of criminal case cannot be refused on the ground of pendency of civil litigation, especially when the application for registration of case had been filed prior to filing civil suit---Even otherwise, civil suit pertains to civil rights of the parties and the same in no way bars initiation of criminal proceedings, if the same are proved.

Moeen Ahmed Siddiqui for Petitioner.

Imtiaz Ahmed Kaifi, Addl. A.-G. for the State.

Malik Anwar Hayat for Respondents.

Date of hearing: 2nd December, 2010.

P L D 2012 Lahore 194

Before Mehmood Maqbool Bajwa, J

AMAN ULLAH---Petitioner

versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.7024 of 2011, decided on 30th June, 2011.

Criminal Procedure Code (V of 1898)-

--S. 549---Pakistan Army Act (XXXI of 1952), S.94---Penal Code (XLV of 1860), Ss.302/109---Constitution of Pakistan, Art.199---Constitutional petition---Delivery to military authorities of persons liable to be tried by Court Martial---Case of accused respondent being an army personnel had been separated by Sessions Court in view of the intimation sent by the competent Authority showing intention to try him by Court Martial---Validity---As and when an army personnel had committed a "civil offence" Trial Court would be required to send a reference under 5.549, Cr. P. C., read with S.94 of the Pakistan Army Act, 1952 and if the Prescribed Officer had formulated opinion of institution of proceedings before a Court Martial, then ordinary criminal court would not be competent to try such army individual---Reference sent by Trial Court was legal compulsion within the meaning of S.549, Cr. P. C. read with S.94 of the Pakistan Army Act, 1952, and in view of the decision of the Prescribed Officer impugned orderseparating the trial of accuses respondent wua Constitutional petition, therefore, had no force and the same was dismissed accordingly.

Abdur Rashid v. The State PLD 1986 FSC 290 distinguished.

Imtiaz Hussain Khan Baluch for Petitioner.

Rana Shamshad Khan, A.A.-G. and Amir Afzal, S.I. with record.

P L D 2012 Lahore198

Before Umar Ata Bandial and Asad Munir, JJ

SARFARAZ AHMED and 15 others---Petitioners

versus

BORDER AREA COMMITTEE, LAHORE and 7 others---Respondents

Writ Petition No.12-R of 2010, heard on 5th October, 2011.

West Pakistan Border Area Regulation (MLR 9 of 1959)---

----Sched. 3, Conditions Nos.9 & 11 [as amended by Punjab Amendment Ordinance (III of 1981)]---Scheme for Determination of Price, Terms and Conditions for the Allotment of Land under MLR 9 (1961), Paragraph 6---West Pakistan Land Revenue Act (XVII of 1967), S.42---Constitution of Pakistan, Arts.25 & 199---Constitutional petition---Border area land---Transfer---Arbitrary determination of rights---Mutation of inheritance---Requirement of "No Objection Certificate"---Dispute was with regard to transfer of land situated in Border area by military allottee and requirement of "No Objection Certificate" from General Head Quarter (GHQ)---All transfers in question were transfers to vendees from legal heirs of military allottees concluded in year, 1997 or before---Border Area Committee vide its order dated 23-12-2009, cancelled all transfers recorded from allottees for lack of "No Objection Certificate" from GHQ, which included cancellation of mutation of inheritance attested in year, 1987, recorded in favour of heirs of military allottee---Validity---Order passed by Border Area Committee was wrong because mutation of inheritance recorded transfer made by operation of law, which should be subject to limited scrutiny and not "No Objection Certificate"---As to subsequent transactions, consistency with GHQ practice would require that those concluded prior to year, 1997 should be granted ex post facto "No Objection Certificates"---For grave uncertainty on account of foregoing matters that resulted to members of public who had proprietary interest in land transferred by military allottees or their successors mandated that the same be cleared of all confusion and doubt about the law---State of ambiguity in Border Area Committee, GHQ and Revenue authorities policy and action led to arbitrariness in determination of rights affected by such law---Arbitrariness was a serious form of discrimination under Art.25 of the Constitution---High Court directed the Border Area Committee to intimate concerned competent authorities to frame rules and regulations that would formalize criteria for granting "No Objection Certificate" to transferees of military allottees and notify available or new procedure for obtaining the same, so that elements of discrimination that were likely to pervade decision by Border Area Committee in matters regarding proprietary interests of transferees of military allottees---High Court further directed the authorities that steps must be taken for record in respect of rights of persons interested in land allotted under West Pakistan Border Area Regulation, MLR-9 of 1959, should be maintained and available for public inspection either in the offices of Border Area Committee or at Tehsil offices, where the record duly authenticated by Border Area Committee should be available for inspection by public---Case was remanded by High Court to Border Area Committee for decision afresh---Petition was allowed accordingly. Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another PLD 2008 SC 591 rel.

Mian Subha Sadiq Kallason for Petitioners.

Ghulam Farid Sanotra, Ch. M. Tufail Soherwardi, Hafeez-ur-Rehman Mirza, Muhammad Farid, Malik Muhammad Ahmad Khan, Tallat Farooq Sh. and N.A. Butt for Petitioners in connected petitions.

Abdul Ali Saleem for Respondent No.2.

Amir Zahoor Chohan for BAC.

Date of hearing: 5th October, 2011.

P L D 2012 Lahore 204

Before Muhammad Ameer Bhatti, J

Rana JAHANGIR KHAN---Petitioner

versus

MANZOOR AHMAD---Respondent

Civil Revision No.3963 of 2010, decided on 9th January, 2012.

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

----O. V, Rr. 21 & 23---Service of summons on defendant residing within territorial jurisdiction of another court---Scope---Summons would not be issued to such defendant directly, rather same would be issued to court in whose jurisdiction he was residing and would be served on him by such court---Summons served on such defendant in violation of mandatory provisions of O. V, R. 21, C.P.C. would have no legal sanctity and would be liable to be struck down---Illustration.

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

----O. V, Rr. 20, 21 & 23---Defendant residing within territorial jurisdiction of another court---Substituted service through publication in newspaper on ground that service on defendant in ordinary way was not possible---Validity---Record showed that summons along with service report had not been received from another court, but no enquiry for such purpose as required by O.V, Rr.17, 18 & 19, C.P.C. had been held---Trial Court was not justified to adopt substituted mode for service of summons without reaching to conclusion that defendant was keeping out of way for purpose of avoiding service---Trial Court had not observed the provisions of law---Record did not support finding of Trial Court regarding service of summons on defendant not to be possible in ordinary way---Substituted service was illegal and entire exercise done by Trial Court on its basis was declared to be without lawful authority.

(c) Administration of justice---

----Where law provided a particular mode for a particular thing to be done in a particular manner, then same should be done in such manner or should not be done at all.

Raja Humayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307 and Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 rel.

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

----O. V, R. 21, O. XXXVII, Rr. 2 & 3---Limitation Act (IX of 1908), S. 5 & Art. 156---Suit for recovery of amount on basis of cheque---Defendant residing within territorial jurisdiction of another court---Delay in filing leave application, condonation of---Plaintiff voluntarily appeared in court on 7-8-2010 and 24-8-2010 before Duty Judge and filed leave application on 2-9-2010---Dismissal of leave application for being time barred---Validity---Record showed that defendant had neither been issued ordinary summons in terms of O. V, R. 21, C.P.C. nor substituted service in accordance with law nor summons in Form 4 of Appendix-B, C.P.C. along with copy of plaint---Court was obliged to issue summons to defendant in Form 4 along with copy of plaint informing him that he had specified limited period to approach court for getting leave to defend suit, otherwise his right to defend suit would be struck down---Court's proceedings did not show that subsequently any warning for seeking leave to defend suit had been given to defendant or an order for handing over him copy of plaint was passed---Such omissions on part of Trial Court was major cause of filing leave application out of time---Had Trial Court warned defendant after handing over him copy of plaint for filing leave application, then position would have been altogether different---Trial Court had violated basic provisions of law---Defendant alone could not be made to undergo penal consequences in face of contributory negligence on part of court---Act or omission of court would not suffer or prejudice anyone Filing of leave application on 2-9-2010 was not due to negligence of defendant only, rather he had been victim of act of court, which furnished sufficient cause for condondation of delay---High Court set aside impugned order while directing Trial Court to decide leave application on merit in accordance with law.

Sh. Salu-ud-Din v. Ahmed Saeed 2005 YLR 2450; Lal Muhammad through Legal Heirs v. Allied Bank of Pakistan Ltd. and 2 others PLD 1990 Pesh. 71; Muhammad Riaz v. Syed Ibrar Shah 2007 MLD 1613; Muhammad Aamir Rauf v. Ahmad Nawaz 2010 YLR 1422; Abdul Karim v. Nazir Ahmad PLD 1998 Lah. 163; Haji Muhammad Ali v. Muhammad Ramzan 2003 CLC 1233; Zahoor Ahmed v. Asif Hussain 2001 MLD 1759; Cotton Export Corporation of Pakistan (Pvt.) Limited v. Messrs Nagina Cotton Industries Ginning Pressing Oil Mills and 6 others 1993 CLC 2217; Waseem Iqbal v. Tanveer Ahmad ;2008 CLC 1612; Ghulam Muhammad v. Abdul Ghaffar and 2008 MLD 109; Muhammad Amin v. Ali Ahmad 1986 CLC 2356; Messers Qureshi Salt and Spices Industries, Khushab and another v. Muslim Commercial Bank Ltd. Karachi through President and 3 others 1999 SCMR 2353; Bagh Ali v. Habib Bank Ltd. and 2 others PLD 1986 Lah. 124; Mian Muhammad Amjad Amin v. Rana Bashir Ahmad 2004 SCMR 836; Muhammad Ramzan Shakir v. Muhammad Mushtaq 2007 YLR 2482; Muhammad Shareef v. Muhammad Ramzan and 3 others 2006 CLC 618; Lal Khan v. Allah Bakhsh and others PLD 1985 Lah. 610 and Ikramullah and others v. Said Jamal 1980 SCMR 375 ref.

Mian Muhammad Talal Adil v. Mian Muhammad Lutfi 2005 SCMR 720 rel.

(e) Act of Court---

----Act or omission of court would not suffer or prejudice anyone.

Mian Muhammad Talal Adil v. Mian Muhammad Lutfi 2005 SCMR 720 rel.

Mian Javed Arain for Petitioner.

Muhammad Qamar-uz-Zaman for Respondent.

Date of hearing: 9th January, 2012.

P L D 2012 Lahore 213

Before Umar Ata Bandial, J

FAKHAR ABBAS and others---Petitioners

versus

PUNJAB PUBLIC SERVICE COMMISSION and others---Respondents

Writ Petitions Nos.4716, 6551, 4913, 6360, 5994 and 5724 of 2011, heard on 10th October, 2011.

Punjab Public Service Commission Regulations, 2000---

----Regln. 39---Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), S. 8---Constitution of Pakistan, Art.199---Constitutional petition---Chances, fixed number of---Relaxation of age limit---Petitioners appeared in first test held in year, 2008, under Punjab Public Service Commission Regulations, 2000, for selection of Assistant District Prosecutors but they could not pass the written test---Punjab Public Service Commission in subsequent examinations changed the criteria of test/examination---Plea raised by petitioners was that their attempt in year, 2008, be excluded from the counting as it was set for completely different standard of learning---Validity---If prescribed course for written examination had been substantially curtailed in scope and complexity, then such a change would alter the level and quality of examination prescribed---Meaning of Regln.39 of Punjab Public Service Commission Regulations, 2000, was that candidate should get a limited number of chances to seek competitive selection---Such limitation necessarily imported requirement that a candidate would be tested at a uniform and consistent level---Full Commission of Punjab Public Service Commission unanimously recommended revision of syllabus of written examination for posts in question to make it easier, the support received for such proposal by Provincial Government and revision of syllabus from a wide scope to limited subjects concerned with professional duties to be performed by Assistant District Public Prosecutors, were the matters that indicated that first examination held in year, 2008, administered by Punjab Public Service Commission was an exception and not a part of a consistent testing scheme enforced by the Commission for the selection of posts in question---Examination held in year, 2008, was the first examination held by the Commission under the provisions of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006---Examination in question had exposed certain defects, which were corrected through experience and implemented in subsequent examinations---High Court observed that it would be fair and just that first examination held in year, 2008, be treated as an aberration and an exception and not as an opportunity/chance availed by petitioners for the purposes of Regln.39 of Punjab Public Service Commission Regulations, 2000---Petition allowed accordingly.

Messrs Mushtaq Ahmad Mohal, Umar Farooq Khan, Sarfraz Ahmad Cheema, Khalid Parvaiz Waraich for Petitioners.

Zaka-ur-Rehman Awan, Addl. A.G. along with Muhammad Farooq Raja, Deputy Director (Legal) PPSC and Muhammad Mumtaz Dogar, Law Officer, Prosecution Department for Respondents.

Date of hearing: 10th October, 2011.

P L D 2012 Lahore 217

Before Abdus Sattar Asghar, J

MUHAMMAD SALEEM NAWAZ---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, CHISTIAN, and 2 others---Respondents

Writ Petition No. 3982 of 2010/BWP, heard on 25th January, 2012.

Punjab Rented Premises Ordinance (XXI of 2007)---

----Ss. 8, 9(b), 19(4), 22(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment petition, maintainability of---Non-compliance with Ss. 8, 9(b), 19(4) and 22(3) of the Punjab Rented Premises Ordinance, 2007---Effect---Respondent's (landlord) ejectment petition was allowed by the Rent Tribunal and upheld by Appellate Court---Petitioner (tenant) assailed the orders of the court- below in the constitutional petition on the ground that the ejectment petition filed by the landlord was not maintainable in the eye of law---Validity---Before the filing of the ejectment petition, it was incumbent on the landlord to bring the tenancy in conformity with the provisions of the Punjab Rented Premises Ordinance, 2007 by depositing the 10 per cent penalty of the annual value of the rent of the premises as stipulated under Ss. 8 and 9(b) of the Punjab Rented Premises Ordinance, 2007 and to submit his affidavit and affidavits of two witnesses along with the ejectment petition under S.19(4) of the Punjab Rented Premises Ordinance, 2007---Landlord had admitted that he had not fulfilled such requirements under Ss. 8, 9(b) and 19(4) of the Ordinance before the filing of ejectment petition---Landlord had not lodged any application before the Rent Tribunal showing any "sufficient cause" or "reasonable explanation" for non-filing of such affidavits in support of the ejectment petition and for the non-depositing of the 10 percent penalty of the annual value of rent under S.19(4) of the Ordinance---Established principle of law that when the law required anything to be done in a particular manner, the same must be done accordingly and if the prescribed procedure was not followed, it would be presumed that the same had not been done in accordance with law---Departure from a clear procedure of law not sufficiently explained with reasonable cause, therefore, rendered the ejectment petition of landlord as not maintainable in the eye of law---Courts below had lost sight of such fact in the impugned orders---Orders of courts below were set aside, and the constitutional petition was allowed accordingly with the observation that the landlord may file fresh ejectment petition before the Rent Tribunal.

Khalil-ur-Rehman and another v. Dr. Manzoor Ahmed and others PLD 2011 SC 512 fol.

Muhammad Saleem Faiz for Petitioner.

Aejaz Ahmed Ansari for Respondent No.3.

Date of hearing: 25th January, 2012.

P L D 2012 Lahore 222

Before Umar Ata Bandial, J

PHARMA WISE LABS. LTD.---Petitioner

versus

SECRETARY HEALTH and others---Respondents

Writ Petition No.5096 of 2009, decided on 14th December, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Certification of Bio Equivalence/ Bio Availability (B.E.B.A.)---Petitioner was a pharmaceutical company and its grievance was that no laboratory was willing to conduct test on anti T.B. drugs prepared by it---Validity---Federal Government had recognized four domestic institutions to conduct necessary tests for a drug which was essential for preventing a dangerous disease and must be readily available across the country at all level at affordable prices---High Court noted it with concern that beyond minutes of committee, there was no formal document recognizing said four institutions or otherwise empowering them to conduct tests and observed that in order to make decision of Federal Government effective and beneficial, it was essential that a formal instrument notifying the four institutions recognizing them as the approved institutions for conducting B.E./B.A. tests be issued---Such step was necessary so that domestic capability in drug manufacturing, which necessarily would reduce pricing of drugs available for public use, be empowered and supported so that necessary medication was available across the country to all levels of society---High Court directed the authorities to issue necessary notification before the end of current financial year---Petition was disposed of accordingly.

Muhammad Aslam Javaid for Petitoner.

Zaka-ur-Rehman Awan, Addl. A.G.

Raja Adnan for Respondent No.4

P L D 2012 Lahore 224

Before Sh. Ahmad Farooq and S.M. Kazim Raza Shamsi, JJ

Sh. MUHAMMAD NAWAZ AKRAM and 8 others---Petitioners

versus

THE STATE and another---Respondents

Writ Petition No.26822 in Criminal Appeal No.1865 of 2011, heard on 14th December, 2011.

Penal Code (XLV of 1860)---

----Ss. 427/149, 337-F(iii)/149 & 148---Anti-Terrorism Act (XXVII of 1997), S.25(8)---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Suspension of sentence---Despite the bar contained in S.25(8) of Anti-Terrorism Act, 1997, High Court was not deprived of the jurisdiction to release a convict on bail during the pendency of his appeal, under the extraordinary constitutional jurisdiction---Constitutional petition, therefore, was maintainable---Thirty one co-accused in the case had been acquitted by Trial Court---Offences under which the accused had been convicted and sentenced did not fall within the Scheduled offences, punishable under the Anti-Terrorism Act, 1997---Jurisdiction of Trial Court as well as legality of the impugned judgment required reappraisal of evidence on record---Sentence of two years' R.I. awarded to accused was short and their appeal was not likely to be heard in the near future---Every apprehension existed that before decision of their appeal accused would have undergone their entire sentence, in case they were not released on bail and in that event it would be impossible to compensate them for their illegal detention in jail, if ultimately they were acquitted in their appeal---On the contrary, in the event of dismissal of their appeal by High Court, accused if released on bail, could be rearrested for undergoing their remaining sentence---Question of length of sentence undergone by accused was immaterial in the such circumstances---Sentence of accused was suspended and they were released on bail accordingly.

Muhammad Bilal alias suleman v. Fdederation of Pakistan 2011 PCr.LJ 411; Allah Ditta Khan v. The State PLD 2002 SC 845; Nazeer Ali alias Nazeer v. The State 2011 YLR 403; Ghulam Murtaza and another v. The State 2007 YLR 1293; Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2589, Ishtiaq Hussain and another v. The State 1995 MLD 1450; Allah Din and others v. Special Judge, Anti-Terrorism Court No.1, Lahore and others PLD 2008 Lah. 74 and Muhammad Latif and 2 others v. The State PLD 1996 Lah. 196 ref.

Kh. Haris Ahmed and Ms. Syeda Maqsooma Bokhari for Petitioner.

Azam Nazir Tarrar and Muhammad Ikhlaq, DPG for Respondents.

Date of hearing: 14th December, 2011.

P L D 2012 Lahore 229

Before Umar Ata Bandial;, J

QAISER MEHMOOD---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.4983 of 2011, decided on 29th April, 2011.

(a) Punjab Land Acquisition Rules, 1983---

----Rr. 10(1)(ii) & 11(iii)---Constitution of Pakistan, Art.199---Constitutional petition---Religious sites---Scope---Executive authorities, under Rules 10(1)(ii) and 11(iii) of Punjab Land Acquisition Rules, 1983, give an assurance that specified types of religious sites have been excluded from compulsory acquisition, however the specified lands are not prohibited or exempted under Punjab Land Acquisition Rules, 1983, from compulsory acquisition---Provisions of Punjab Land Acquisition Rules, 1983, are directory in effect and meant to safeguard such specific sites against desecration or destruction---No consequences of breach have been stated in Punjab Land Acquisition Rules, 1983.

Messrs Mehraj Flour-Mills v. Provincial Government 2001 SCMR 1806 and Pakistan through Secretary Finance, Islamabad v. Aryan Petro Chemical Industries (Pvt.), Ltd., Peshawar 2003 SCMR 370 rel.

(b) Land Acquisition Act (I of 1894)---

----Ss. 4, 6 & 17(4)---Punjab Land Acquisition Rules, 1983, Rr.10(1)(ii) & 11(iii)---Civil Procedure Code (V of 1908), S.151--- Constitution of Pakistan, Art. 199---Constitutional petition---Interim injunction---Waqf land---Acquisition proceedings---Land in question was included in the notification of acquisition issued by authorities---Petitioner assailed acquisition of land in question and sought interim injunction on the ground that it was a Waqf land and the same could not be acquired compulsorily and in the alternative, high compensation was claimed by him---Validity---Petitioner was taking an alternate position in the matter of compulsory acquisition of disputed land---Whilst opposing acquisition, petitioner was claiming compensation at a rate which was about eight times the settled rate of compensation that was being awarded for similar land---Ambivalence of petitioners in the matter indicated that there was a point of time / compensation when petitioner was willing to trade his plea of Waqf as a ploy and a bargaining point, and the same had undermined credibility of plea taken by petitioner---Petitioner's land contained marble factory and was not a religious site---Only the income of marble factory stood dedicated to a religious purpose--- No injury or violence would be committed to Waqf if marble factory was relocated or another income generating asset was built from compensation for compulsory acquisition of petitioner's land--- Such measures were equally consistent with Waqf deed and provisions of Sharia permitted alienation of land dedicated to Waqf and re-application of proceeds of its sale for charitable purpose specified for the Waqf---High Court directed the authorities to relocate petitioner's marble factory in accordance with law or otherwise he would be fairly compensated for land, buildings and machinery constituting acquired assets of petitioner in accordance with law---High Court vacated interim injunction already issued in favour of petitioner---Application was dismissed in circumstances.

Syed Zulfiqar Ali Shah v. LDA 1989 SCMR 873; Sahibzada Mansoor Ahmad v. Chief Administrator, Auqaf 1993 MLD 2529; PLD 1992 FSC 398 and Muhammad Nadeem Arif v. Inspector General of Police, Punjab, Lahore 2011 SCMR 4089 ref.

Beli Ram and brothers v. Chaudhri Muhammad Afzal PLD 1949 PC 8 and Mian Inam Karim v. Mirza Israr-ul-Qadir 1984 SCMR 1427 rel.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.

Zaka-ur-Rehman Awan, Addl. A.G.

Farooq Hassan Sheikh, Legal Officer/P.M.U. Ring Road.

M. Arshad Khan, A.L.C.O.

P L D 2012 Lahore 234

Before Ijaz-ul-Ahsan, J

MUSHTAQ HUSSAIN and others---Petitioners

versus

MUHAMMAD INAYAT and others---Respondents

Civil Revision No.486 of 2004, decided on 28th November, 2011.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat, performance of---Witness of such Talb being real son of pre-emptor---Validity---Statement of such witness for being an interested witness could not be accepted blindly, rather would require careful consideration.

PLD 2001 SC 67rel.

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

----Arts. 2(c) & 3---Witness having stated falsely about one material issue---Effect---Remaining evidence of such witness could not be believed.

AIR 1939 PC 95rel.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Talb-e-Muwathibat and Talb-e-Ishhad, performance of---Pre-emtpor's plea that he came to know about suit sale after 1-1/2 months and then performed Talb-e-Ishhad---Validity---Evidence on record showed that pre-emptor was nephew of vendee; and that pre-emptor being a retired Patwari was living in the same village and in possession of suit land before its sale---Pre-emptor in such circumstances could not be believed to have remained ignorant about suit sale for such a long time---Pre-emptor, in circumstances, had come to know about suit sale just after the same took place, but not at the time as alleged by him.

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

----Art. 133---Statement of a witness on a point neither cross-examined nor suggested to him to be false---Effect---Such part of statement would be deemed to have been admitted by opposite party---Illustration.

(e) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Talb-e-Ishhad, notice of---Denial of vendee to have received such notice---Failure of pre-emptor to summon the postman along with postal record in evidence---Effect---Proof of due service of such notice would become doubtful.

2007 SCMR 1105rel.

(f) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Talbs, performance of---Proof essential for success in such suit stated.

Pre-emption is a feeble right and in order to succeed, performance of the Talbs at the time and in the manner specified in law must be established to the hilt.

Sh. Zamir Hussain for Appellants.

Ghulam Asghar Khokhar for Respondents.

Date of hearing: 18th October, 2011.

P L D 2012 Lahore 240

Before Umar Ata Bandial, J

IMTIAZ AHMED---Petitioner

versus

ADDITIONAL DISTRICT JUDGE

and 14 others---Respondents

Writ Petition No.6833 of 2010, decided on 7th September, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition challenging judicial orders of courts below---Maintainability---High Court would interfere with such orders ordinarily on ground of jurisdictional defect or commission of illegality therein.

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

----S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Dismissal of suit for non-prosecution---Non-issuance of notice of restoration application to defendants and fresh notices after suit restored---Passing of ex parte decree on 6-4-2009 and getting possession of suit house by plaintiff through its execution---Application under S.12(2), C.P.C. for setting aside ex parte decree by legal heirs of a defendant, who died on 14-1-2008 during pendency of suit---Order of Trial Court allowing application under S.12(2), C.P.C. and setting aside whole decree upheld by Appellate Court---Plaintiff's plea that such decree could be set aside partly to the extent of deceased defendant and not other defendants, who had not participated in proceedings under S. 12(2), C.P.C.---Validity---Plaintiff had obtained ex parte decree at the back of defendants and against a dead person, whose signatures appearing on Vakalatnama did not tally with his signatures on suit agreement---Such ex parte decree could not enjoy sanctity attached to a judicial order---Ex parte decree had been set aside on grounds of fraud committed by plaintiff and disclosure of sufficient cause by defendants for their non-appearance---Fraud would vitiate most solemn proceedings---Tainted actions would be void ab initio wholly and not partly---Section 12(2), C.P.C. equated fraud with illegality invalidating a defective order fully and not by some degree---Such ex parte decree must be set aside wholly and not partly as there were no degrees of invalidity---Plaintiff had not pointed out any jurisdictional defect in the impugned orders---High Court dismissed constitutional petition, in circumstances.

Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Khadim Hussain v. Abid Hussian and others PLD 2009 SC 419 rel.

(c) Pleadings---

----Decision of court based on grounds not raised by a party in his pleadings---Validity---Such objection might have substance, if opposite party was caught by surprise and suffered prejudice as a result thereof by showing that material rebutting such findings was prevented from being brought on record---Illustration.

Ch. Sir Muhammad Zafrullah Khan v. The Custodian of Evacuee Property, West Pakistan and Karachi and others PLD 1964 SC 865 rel.

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

----S. 12(2)---Ex parte decree passed against several defendants, setting aside of---Scope---Relief of setting aside such decree would be extended to a party having approached the court---Consenting judgment debtors could seek re-opening of decree having attained finality---Fraud would vitiate most solemn proceedings---Tainted actions would be void ab initio wholly and not partly---Section 12(2), C.P.C. equated fraud with illegality invalidating a defective order fully and not by some degree.

Mst. Shaukat Ara v. Mst. Banu Begum through legal heirs and others PLD 2009 SC 437; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Khadim Hussain v. Abid Hussian and others PLD 2009 SC 419 rel.

Mian Abdul Qaddous and Habib Ullah Bukhari for Petitioner.

Ch. Muhammad Arshad for Respondents.

P L D 2012 Lahore 245

Before Abdus Sattar Asghar, J

Mst. SHAISTA SHAHZAD and another---Petitioners

versus

ADDITIONAL DISTRICT JUDGE

and others---Respondents

Writ Petitions Nos.585 and 1439 of 2009/BWP, decided on 20th January, 2012.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional Petition---Suit for recovery of maintenance allowance, dower and additional amount stipulated in the Nikahnama as payable to wife conditional in the case of divorce---Suit of wife (petitioner) was decreed to the extent of maintenance allowance only by the Appellate Court, and said order was assailed by both wife and the husband (respondent) in the constitutional petition---Validity---Family Court had no jurisdiction to entertain the wife's suit for recovery of additional conditional amount in case of divorce incorporated in the Nikahnama--Wife's claim for dower amount was devoid of any force as the same had been categorically mentioned in the Nikahnama as having been paid to the wife at the time of Nikah---Wife in her cross-examination had admitted that she never questioned the entries in the said Nikahnama before any forum and the same had been duly signed by her---Plea of husband that the wife was not entitled to claim any maintenance allowance was devoid of any force as a valid Nikah under Islamic Law confers upon the wife the right of maintenance and imposed on her the obligation to be faithful and obedient to her husband for performance of her marital duties---Record showed that after the recitation of Nikah, the wife never refused to effect union and perform her marital obligations, rather the husband himself refused to obtain Rukhsati on the pretext that he had to complete his studies and ultimately divorced the wife---Courts below had rightly decreed that wife's suit for maintenance allowance from the date of Nikah till the date of divorce as well as for the period of Iddat --- No factual or legal infirmity having been found in the judgment and decree of Appellate Court, constitutional petition was dismissed.

Muhammad Aslam v. Mst. Fateh Khatoon 1969 SCMR 818; Nasrullah v. District Judge, Mianwali and 2 others PLD 2004 Lah. 588; Muhammad Masood Abbasi v. Mst. Mamona Abbasi 2004 YLR 482; Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186; Muhammad, Amjad v. Azra Bibi and 2 others 2010 YLR 423; Muhammad Yaqoob v. Mst. Siani Bibi alias Shamma and 2 others 2010 YLR 2466; Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 and Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515 ref.

Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 fol.

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

----S.5 & Sched.---"Personal property and belongings of the wife"---Meaning---Nikah, under Islamic law was not a sacramentum but a civil contract between Muslim man and woman which was entered into for procreation and legalization of children, and the spouses after consenting to it, were bound to respect it and live within the limits prescribed by Allah---Contract of Nikah under Islamic Law could be dissolved by the husband at his will or by the mutual consent of husband and wife without the intervention of the court or by a judicial decree at the suit of husband or wife---Wife under Islamic Law could not divorce herself from her husband without his consent except under a contract whether made before or after marriage---If a Muslim wife could lawfully stipulate for a divorce under a contract then she could also stipulate for future claim in case of divorce apart from the dower fixed at the time of Nikah---Any such stipulation, therefore, could not be termed as against public policy of the Islamic Law---Any claim on basis of such stipulation arising out of the civil liability could be safely termed as an actionable claim---Any right within the meaning of "actionable claim" was prima facie alien the "personal and belonging of the wife" incorporated in the Sched. to S.5 of the West Pakistan Family Courts Act, 1964.

Hameed-uz-Zaman for Petitioners.

Abdul Jaleel Khan for Respondents Nos. 3-4.

P L D 2012 Lahore 256

Before Umar Ata Bandial

and Mansoor Akbar Kokab, JJ

MAZHAR-UL-HAQ---Petitioner

versus

FEDERAL LAND COMMISSION OF PAKISTAN

and others---Respondents

Writ Petition No.8463 of 2000, decided on 15th November, 2010.

Land Reforms Regulation, 1972 [M.L.R. No.115]---

----Paras. 11 & 29---Constitution of Pakistan, Art.199---Constitutional petition---Resumption of land---Suo motu jurisdiction---Ex parte order--Condemned unheard---Federal Land Commission in exercise of suo motu jurisdiction under para 29 of Land Reforms Regulation, 1972, issued an order against vendee of declarant without summoning or hearing the vendee resultantly mutations of sale in favour of vendee were set aside---Appellate authority dismissed the appeal as time barred but Chief Land Commissioner in exercise of revisional jurisdiction remanded the matter for making a fresh resumption order---Validity---Petitioner as a successor in interest of vendee had a live interest to defend---Resumption order did not give declarant a choice under para.11 of the Regulation about land to be surrendered for resumption---Finality of ex parte order by Federal Land Commission needed not to be disturbed as that order operated to affect size of declarant's holding but not validity of sale mutation made by him to his vendee---Identity of land to be surrendered for resumption could not be fixed by ex-parte order by Federal Land Commission---Order passed by Chief Land Commissioner rested on right premises---Petition was allowed accordingly.

Mst. Raj Bibi and others v. Addl: CLC PLD 1975 Lah. 408 and Mst, Zuhra Khatoon and 8 others v. The Member Federal Land Commission, Rawalpindi 1985 SCMR 312 ref.

Sh. Naveed Shehriyar and Noorul Hassan for Petitioner.

Ahmad Rauf, Addl. A.G.

Malik Noor Muhammad Awan for Respondents Nos. 10 to 12.

Ch. Muhammad Ashraf Wahla for Respondents Nos.8 and 9.

Malik Rab Nawaz for Shaheena Shams Respondent.

Syed Ijaz Qutab for Respondent No.7.

Mian Amanullah Chaughata for Applicant.

Date of hearing: 15th November, 2010.

P L D 2012 Lahore 260

Before Abdus Sattar Asghar, J

BASHIR AHMAD---Petitioner

Versus

THE STATE and 5 others---Respondents

Writ Petition No.859 of 2012, decided on 8th February, 2012.

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

----Ss. 61, 167 & 344---Penal Code (XLV of 1860), S.397---High Court (Lahore) Rules and Orders Vol.III, Chap. II, Part B, R.7---Constitution of Pakistan, Art.199---Robbery---Constitutional petition---Detention of accused by police, extension of physical remand of accused by Magistrate---Scope, limitations and grounds---Section 61, Cr.P.C stipulates that a police officer cannot detain a person in custody for more than twenty four hours in the absence of a specific order of Magistrate under S.167, Cr.P.C---Section 167, Cr.P.C enables a Magistrate to pass an order extending the detention of an accused for a term not exceeding fifteen days and he has to record his reason for doing so---Section 344, Cr.P.C postulates that no Magistrate shall remand an accused person to custody for a term exceeding fifteen days at a time and if sufficient evidence has been obtained to raise suspicion that accused might have committed an offence and it appears likely that further evidence may be obtained by a remand, it is a reasonable cause for remand.

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

----Ss. 167 & 344---High Court (Lahore) Rules and Orders Vol.III, Chap. II, Part B, R.7---Constitution of Pakistan, Arts. 9, 10 & 199---Robbery---Constitutional petition---Remand of accused---Scope and principles---Security of person, safeguards as to arrest and detention---Remand is not to be granted mechanically on the request of the police, rather a Magistrate is expected to perform his duty with eyes and ears open as required under the law after judicious application of mind and not in a perfunctory manner---Before granting a remand, Magistrate is under a legal obligation to satisfy himself if under the circumstances remand is to be granted or not---Liberty of an accused cannot be compromised merely on a formal request of police and it is the sacred duty of a Magistrate to safeguard the fundamental rights of life and liberty of a person.

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

----Ss. 167 & 344---Penal Code (XLV of 1860), S. 397---High Court (Lahore) Rules and Orders Vol.III, Chap. II, Part B, R.7---Constitution of Pakistan, Art.199---Constitutional petition---Extension of physical remand of accused---Magistrate had declined further extention in physical remand of the accused (respondents) and remanded them to judicial lockup---Revision petition of accused against the order of the Magistrate was dismissed---Contention of petitioner (complainant) was that remanding of the accused to judicial lockup without exhausting the fifteen days limit of physical remand was illegal and amounted to miscarriage of justice---Validity---Magistrate had examined the police file before deciding the question of remand and found that no investigation was conducted despite police having obtained six days physical remand of the accused---Accused could not be remanded to the police in routine to exhaust the limit of fifteen days physical remand or to get their confessional statement or to compel them to effect recovery of stolen property on the basis of expectation that mere passage of time may lead to the guilt of the accused---No legal infirmity was found in the orders of both the courts below, by which they refused to grant further physical remand of the accused---Constitutional petition was dismissed in circumstances.

Muhammad Rafique Mallana for Petitioner.

Mubashir Lateef Gill, Asstt. A.-G. with Khalid S.-I. for the State.

P L D 2012 Lahore 264

Before Umar Ata Bandial, J

CHAIRMAN INDUS MOTORS CO.---Appellant

versus

MUHAMMAD ARSHAD and others---Respondents

F.A.O. No.118 of 2009, heard on 25th October, 2010.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss.6, 8 & 31(b)---Consumer protection---Replacement of product---Change of gearbox of car---Consumer purchased brand new car and due to some manufacturing defect its gearbox leaked and the same was replaced by the manufacturer---Trial Court decreed the case in favour of consumer and directed manufacturer to replace defective car with brand new one---Plea raised by manufacturer was that such relief conferred unjust enrichment upon consumer because of increased value of new model and diminished value of purchased vehicle due to its continuous use by consumer as it did not have the same impact and was liable to be treated differently---Validity---Original manufacturer's seal of gearbox was broken and replaced locally---New gearbox supplied in sealed condition by manufacturer was not fitted in the vehicle---Unsealing of gearbox was as serious as unsealing of engine of a new vehicle---Trial Court was correct to hold that consumer was supplied a defective car by manufacturer and that its repair by dealership diminished its value so as to deprive the consumer of brand new car that he had purchased---Consumer demanded replacement of vehicle at the time of detection of defect and took delivery of repaired vehicle after signing customer's satisfaction report under protest---Manufacturer was liable for defective construction of gearbox housing and for breach of warranty by consequent repair that the engine installation and gearbox assembly remained in original condition---Manufacturer's liability had arisen under the provisions of Ss.6 and 8 of Punjab Consumer Protection Act, 2005---High Court directed the consumer to return his purchased vehicle to manufacturer who would forthwith refund the full price thereof received from consumer---High Court further directed that in case consumer did not return the vehicle to manufacturer he would lose his right of receiving accrued profit on the price paid, resultantly judgment passed by Trial Court was modified---Appeal was dismissed accordingly.

Eastern Automobiles Limited v. Tasadaq Hussain PLD 1959 Lah. 681 rel.

(b) Punjab Consumer Protection Act (II of 2005)---

----S. 31---Consumer protection---Maxim: Restitutio in integrum---(entire restitution)---Applicability---Where restitutio in integrum is not possible in strict terms, then compensatory financial adjustment may be made---If deterioration in value of defective goods has taken place through use by a customer who has paid price of such goods, then vendor may be compensated for consequent diminution in the value of goods---Equally when restitution is granted as relief in a case where a defective product is not used by a customer and vendor does not provide its replacement, then customer is entitled to rental cost of a like product for the period until a replacement is provided---Such adjustments address the object of restitutionary relief---Entitlement of customer to receive rental cost is based on the obligation of a vendor, who had received full price of defective product, either to pay the customer, profit on the price received or to pay the rental cost of the product for the period until a replacement is provided.

Imran Aziz Khan for Appellant.

Ch. Fasih-uz-Zam along with Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 25th October, 2010.

P L D 2012 Lahore 271

Before Rauf Ahmad Sheikh

and Syed Iftikhar Hussain Shah, JJ

Mst. SURRAYA IQBAL---Appellant

versus

P.A.R. CO. and others---Respondents

Diary No.2217 of 2011, decided on 6th June, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 26---Court Fees Act (VII of 1870), Sched. II, Arts.17(iii) & (iv) & Sched. 1, Art.1---Appeal against rejection of reference to civil court made under S.18 of the Land Acquisition Act, 1894---Affixing of court-fee---Reference under S.18 of the Land Acquisition Act, 1894 was made on an application to the effect that the compensation awarded was inadequate and the same was not acceptable to the appellant---Reference under S.18 was not a suit although the award given in the proceedings was deemed to be decree under S.26 of the said Act---Articles 17(iii) and 17(iv) of Sched. II of the Court Fees Act, 1870 would not apply and appeal against the judgment rejecting the award and upholding compensation determined by the Collector would fall under Art. 1 of Sched. I of the Court Fees Act, 1870.

Land Acquisition Officer and Collector, L.B.O.D., WAPDA, Hyderabad and another v. Muhammad Juman and another 2000 YLR 1123 and Smt. Siawati Kuer v. The State of Bihar AIR 1972 Patna 294 distinguished.

Malik Ahmad Shahzad Jhurar for Appellant.

P L D 2012 Lahore 273

Before Ch. Muhammad Younis, J

MUHAMMAD SADIQ---Petitioner

versus

AYAZ MEHMOOD---Respondent

Civil Revision No.714-D of 2002, heard on 9th January, 2012.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Arts. 129 & 133---Civil Procedure Code (V of 1908), O. VIII, Rr. 4 & 5---Pre-emption suit---Talb-e-Ishhad, performance of---Plaint containing plaintiff's plea to the effect that he sent notice of Talb-e-Ishhad to defendant through registered post with acknowledgment due---Denial of such para of the plaint by defendant without stating about such notice---Validity---Defendant in written statement had not categorically denied receipt of such notice---Plaintiff and witnesses of Talb-e-Muwathibat and Talb-e-Ishhad stated in court to have signed such notice and about its sending to defendant---Defendant during cross-examination had not put even a single suggestion to such witnesses about non-sending, non-serving or non-receiving of such notice---Defendant in examination-in-chief had not denied sending of such notice to him or its receipt by him---Postal receipt of such notice was lying on record without any objection from defendant's side---In absence of any categorical denial, such notice sent at correct address of defendant would be deemed to have reached its destination---Plaintiff had fulfilled requirements of Talb-e-Ishhad---Suit was decreed in circumstances.

Fateh Muhammad and 2 others v. Gulsher 2000 CLC 409; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Muhammad Ajmal Khan v. Muhammad Younis Khan 2009 MLD 549; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162; Chief Engineer, Hydel (North) and Porject Director, WAPDA, WARSAK v. Zafrullah Shah and another 2003 SCMR 686; Haji Feroze Khan and another v. Amir Hussain through L.Rs. and others 2004 SCMR 1719; Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410; Ghulam Abbas and another v. Manzoor Ahmed and another 2008 SCMR 1366; Muhammad Sharif v. Muhammad Yousaf 2008 MLD 307 and Asif Rasheed Khan Durrani v. Haji Hazrat Gul 2010 CLC 27 ref.

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

----Art. 133---Specific portion of a witness's statement not challenged in cross-examination---Effect---Such portion of statement would be deemed to have been admitted.

(c) Witness---

----Minor contradictions in statements of witnesses---Not fatal.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 117---Pre-emption suit---Talb-e-Ishhad, notice of---Receipt of such notice denied on oath by defendant or its sending at incorrect address---Effect---Plaintiff would be obliged to prove service of such notice upon defendant.

Muhammad Siddiq Awan for Petitioner.

Sardar Bilal Firdous for Respondent.

Date of hearing: 9th January, 2012.

P L D 2012 Lahore 279

Before Malik Shahzad Ahmad Khan, J

ALAM DIN---Petitioner

versus

MUHAMMAD HUSSAIN and 2 others---Respondents

Civil Revision No.536 of 2009, decided on 16th November, 2011.

(a) Malicious prosecution---

----Damages for---Plaintiff was mentioned as one of the accused in the F.I.R.---Plaintiff after his arrest in the case remained in judicial lock-up for some period, but acquitted after trial by extending him benefit of doubt---Plaintiff's claim for recovery of damages for malicious prosecution---Proof---Police after holding detailed investigation had declared plaintiff guilty of charges and placed his name in Column No.3 of Challan submitted in Trial Court---Trial Court as well as High Court had dismissed plaintiff's application for his acquittal moved under S.249-A, Cr.P.C., during trial---Prosecution of plaintiff could not be declared to be malicious merely on ground of his acquittal in such case---Trial Court had acquitted plaintiff not on ground of registration of false case, but on ground of failure of prosecution to prove its case beyond reasonable doubt---Acquittal of plaintiff by extending him benefit of doubt would establish that defendant had not lodged such case without reasonable and probable cause and for having malice against plaintiff---Suit was dismissed in circumstances.

Hicks v. Faulkner (1881) 8 QBD 167; Denning L.J. in Tempest v. Snowden (1952) 1 KB 130; Sher Muhammad v. Maula Bux 1995 CLC 1134; Sadaruz Zaman v. The State 1990 SCMR 1277; Feroze Khan v. Fateh Khan and 2 others 1991 SCMR 2220; Mahmood Akhtar v. The Muslim Commercial Bank Ltd. and another PLD 1992 SC 240; Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700; Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476 and United Bank Ltmited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734 rel.

(b) Malicious prosecution---

----Damages for---Factors essential to be proved by plaintiff stated.

The basic elements, on the basis of which a suit for recovery of an amount as damages for malicious prosecution can be accepted or rejected, are that: (a) the prosecution of the plaintiff by the defendant; (b) there must be a want of reasonable and probable cause for that prosecution; (c) the defendant must have acted maliciously i.e. with improbable motive and not to further the ends of justice; (d) the prosecution must have ended in favour of the person proceeded against; and (e) it must have caused damage to the party proceeded against.

Prosecutor may be wrong, but if he honestly believed that accused had committed a criminal offence, he cannot be initiator of malicious prosecution. Even otherwise, malice alone would not be enough, there must also be shown to be absence of reasonable and probable cause.

The maxim "the reasonable and probable cause" means that it is an honest belief in the guilt of the accused based upon full conviction, based on reasonable grounds of the existence of a state of circumstances, which assuming them to be true would reasonably lead any ordinary prudent man to the conclusion that the person charged was probably guilty of crime imputed.

If reasonable and probable cause is established, then question of malice becomes irrelevant.

Mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed cannot expose the former to the charge of malicious prosecution, unless it is proved by the plaintiff that the prosecution was instituted without any justifiable reason and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect.

Acquittal on extension of benefit of doubt does not mean that accused was falsely implicated and possibility would be excluded that accused might also have been involved in the matter.

Hicks v. Faulkner (1881) 8 QBD 167; Denning L.J. in Tempest v. Snowden (1952) 1 KB 130; Sher Muhammad v. Maula Bux 1995 CLC 1134; Sadaruz Zaman v. The State 1990 SCMR 1277; Feroze Khan v. Fateh Khan and 2 others 1991 SCMR 2220; Mahmood Akhtar v. The Muslim Commercial Bank Ltd. and another PLD 1992 SC 240; Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700; Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476 and United Bank Ltmited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734 rel.

Atif Farzauq Raja for Petitioner.

P L D 2012 Lahore 287

Before Sh. Ahmad Farooq and Syed Muhammad Kazim Raza Shamsi, J

TARIQ MASOOD---Petitioner

versus

DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU, LAHORE and another---Respondents

Writ Petition No.20947 of 2010, decided on 22nd December, 2011.

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

----S. 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Jurisdiction of High Court under Art.199 of the Constitution---Scope---High Court under Art.199 of the Constitution has the jurisdiction to grant bail to an accused facing prosecution for an offence under the National Accountability Ordinance, 1999.

Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668 ref.

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

----S. 9(b) & 3---Criminal Procedure Code (V of 1898), Ss.497 & 499---Bail---Provisions of Ss.497 & 499, Cr.P.C. will not stricto sensu apply to the cases falling under the National Accountability Ordinance, 1999, in view of its Ss.3 and 9(b).

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

----S. 9(b)---Criminal Procedure Code (V of 1898), Ss.497 & 499---Bail---Demand for cash security---Area of asking security from the accused, who is allowed bail, is vacant and the court is not enjoined under the law to mathematically follow the system of securities provided in the Code of Criminal Procedure---Under the new dispensation i.e. Ehtasab Ordinance, 1997, which was an earlier enactment on the subject of accountability, court has ample power to ask for cash security in appropriate cases.

The State v. Muhammad Hussain Babar PLD 1997 Lah. 605 ref.

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

----S. 9(2) & 10---Constitution of Pakistan, Art.199---Constitutional petition---Bail---Cash security demanded in bail granting order challenged---Accused had allegedly misappropriated the entire sale proceed of the land of a society amounting to Rs.54,65,562---Trial of accused was in progress---Bail had been granted to accused in the case by High Court subject to deposit of Rs.25,00,000 as cash security with the Trial Court and furnishing of bail bonds etc.---Amount so deposited was directed to be refunded to accused in case of his acquittal by Trial Court---Accused sought permission to pledge some property in lieu of cash deposit, but the same was not acceptable, as on verification his share in the property was only to the extent of Rs.4,37,000---Releasing the accused without getting deposit cash security of Rs.2.5 million, would amount to putting a premium on his alleged act of misappropriation, embezzlement of a huge amount and commission of fraud with the public-at-large---Petition for modifying the order of deposit of cash security was consequently dismissed---High Court observed that if the accused was still prepared to deposit the aforesaid amount with Trial Court through some source, he was directed to be released on bail on the same terms and conditions as mentioned in the bail order---Constitutional petition was disposed of accordingly.

Mian Mahmud Ali Qasuri and others v. The State PLD 1963 Supreme Court 478; Muhammad Khokhan and another v. The State 2005 PCr.LJ 1674; Ahmed v. The State 2005 YLR 236; Imdad Hussain v. The State 2011 MLD 940; Haji Aziz-ur Rehman v. The State 2006 YLR 960; Amir Sardar v. The State 1990 PCr.LJ 414; Laeeq Ahmed v. The State 2011 YLR 75; Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249 and The State v. Muhammad Hasham Babar PLD 1997 Lah. 605 ref.

Rizwan Mushtaq for Petitioner.

Malik Ghulam Rasood, Addl. Deputy Prosecutor General NAB with M. Sultan Nazir, Asstt. Director NAB for Respondent.

Date of hearing: 13th December, 2011.

P L D 2012 Lahore 293

Before Nasir Saeed Sheikh and Rauf Ahmad Sheikh, JJ

Dr. MAJID NAEEM---Petitioner

versus

NATIONAL ACCOUNTABILITY BEREAU through Chairman and 3 others---Respondents

Writ Petition No.25554 of 2011, decided on 24th November, 2011.

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

----S. 24(d)---Criminal Procedure Code (V of 1898), Ss.156 & 173---Reinvestigation and submission of subsequent challan in the court---Extent and scope---Even after submission of challan in the Trial Court, further reinvestigation of the case can always be made by the investigating Agency.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

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

----S. 24(d), 18(e), 9 & 10---Constitution of Pakistan, Art.199---Constitutional petition---Remand of accused for investigation after submission of Reference against him in the court---Validity---NAB Authorities were competent under the law to conduct investigation in the case despite the fact that Reference against accused had already been filed in the Accountability Court and some evidence had also been recorded therein---Accused had not joined the investigation during the inquiry and his warrants of arrest were issued, in consequence whereof he was arrested---Provisions of S.18(e) read with provisions of S.24(d) of National Accountability Ordinance, 1999, had fully authorized the NAB Authorities to undertake the investigation of the case---Accountability Court had recorded strong and valid reasons for grant of physical remand of the accused for the purpose of completion of investigation and effecting the recovery of the alleged embezzled amount from him---Impugned order was neither illegal nor without lawful authority---Constitutional petition was dismissed, in circumstances.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31 distinguished.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 rel.

Sardar Muhammad Nawaz v. Mst. Firdouos Begum 2008 SCMR 404 ref.

Ahmad Awais for Petitioner.

Haroon Rasheed Cheema, Addl. Deputy Prosecutor-General along with Aamir Shahid, Asstt. Director, NAB.

P L D 2012 Lahore 300

Before Nasir Saeed Sheikh, J

ADIL TEXTILE MILLS through Chief Executive and another---Petitioner

versus

SUI NORTHERN GAS PIPELINE LIMITED through Authorised Officer ---Respondent

Civil Revision No.3255 of 2011, decided on 22nd December, 2011.

Civil Procedure Code (V of 1908)

---0. VIII, R.10-Non-filing of written statement after successive adjournments---Scope of O. VIII, R.10, C.P.C.---Trial Court, after successive adjournments of the case, closed the right of the defendants to submit written statement under Order VIII Rule 10 of the C.P.C.---Validity---Provisions of Order VIII, Rule 10 of the C.P.C. were only to be applied if the Trial Court had specifically called upon the defendant in a suit to submit the written statement---Trial Court, in none of the order sheets, had "required the defendants to submit the written statement"---Right to submit written statement could only be closed by the civil courts by invoking provisions of Order VIII, Rule 10 of the C.P.C. if there was an order passed "requiring" the defendant to ' submit the written statement ---If adjournments were granted by the Trial Court for submission of written statement in routine matters then the penal provisions of Order VIII, Rule 10, C.P.C. would not apply--' Right of defendants to submit written statement had not been lawfully closed by the Trial Court---High Court directed Trial Court to allow the defendants to submit written statement within a period of one month Revision was accepted, accordingly.

Muhammad Fayyaz Butt v. Metropolitan Corporation Limited through Administrator, Lahore 1997 CLC 55 distinguished.

Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and Q others 1987 SCMR 1365 quoted.

The Secretary, Board of Revenue, Punjab Lahore and another v. Khalid Ahmad Khan (1991 SCMR 2527) rel.

Nemo for,Petitioners.

Bilal Kashmiri for Respondents.

P L D 2012 Lahore 305

Before Sagheer Ahmad Qadri, J

ABDUL WAHAB and 3 others---Petitioners

versus

ADDITIONAL SESSIONS JUDGE, OKARA and 3 others-Respondents

Writ Petition No. 18528 of 2011, heard on 23rd January, 2012.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 5 & 7---Constitution of Pakistan, Art.199---Constitutional petition--- Prevention of illegal possession of property, investigation and procedure, eviction and mode of recovery as an interim relief---Possession on basis of Patadari---Compromise between the parties---Functus officio---Lessee (petitioner) were in possession of the disputed land on basis of Patadari and on expiry of the agreement allegedly illegally possessed the land---Lessor (respondent) filed complaint against the lessee under the Illegal Dispossession Act, 2005 and during trial, Trial Court disposed of the matter as having been compromised---Under the terms of the compromise, lessee presented a cheque to the lessor which was dishonoured and lessor contending that lessee had violated the terms of the compromise, moved application before Trial Court for restoration of possession of land, which was allowed---Validity---In the compromise agreement possession of lessee had specifically been accepted by lessor and it was an admitted fact that lessee was previously in possession of the land as Patadar---In view of the compromise, possession of lessee remained lawful and not illegal or that of a trespasser, however condition of payment of lease amount was fixed and lessee issued cheques for making the payment, which 'subsequently were dishonoured---Trial Court never termed the possession of the lessee as illegal and complaint filed by lessor was disposed of in terms of the compromise, subsequent to which no proceedings remained pending before the Trial Court---Subsequent order passed by Trial Court for the restoration of possession on the basis of violation of the terms and conditions of the compromise, was without jurisdiction as Trial Court had become functus officio after passing the compromise order---No provision existed in the Illegal Dispossession Act 2005, for restoration of the possession of the property in dispute subsequent to the disposal of the complaint---Impugned order of Trial Court was illegal, without any jurisdiction and ineffective upon the rights of the lessee---Constitutional petition was allowed accordingly.

Rao Abid Mushtaq for Petitioners.

Munir Ahmad Bhatti for Respondent No.4.

Shahid Mubeen, Addl. A.-G. with Waris, S.I. and Ghulam Abbas Patwari for Respondents.????? .

Date of hearing: 23rd January, 2012.

P L D 2012 Lahore 311

Before Muhammad Yawar Ali and Kh. Imtiaz Ahmad, JJ

BILAL---Applicant

versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.2 of 2011 in Criminal Appeal No.104 of 2006, decided on 1st December, 2011.

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

---Ss. 426(1-A)(e) & 439---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Suspension of sentence---Accused had applied for suspension of sentence for a second time, on grounds of statutory delay in hearing of his appeal, but same was declined by the High Court mainly on the ground that complainant had filed criminal revision for enhancement of sentence of the accused and notice had been issued to him---Validity---Question was whether order of High Court passed in criminal revision, wherein it stated that criminal appeal of accused was to be heard along with the revision, amounted to a notice being issued to the accused in terms of S. 439, Cr. P. C---Only order passed by High Court in criminal revision was that revision was to be heard along with the appeal of the accused, which could not be equated to putting the accused on notice for enhancement of sentence---Nothing on record showed that accused had been responsible for the delay in the hearing of the appeal--- Tentative assessment of observations made by Trial Court showed that accused/ was not a hardened or desperate criminal---sentence of accused was suspended in circumstances and he was released on bail.

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

426-Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd--- pension of sentence---Scope---Notices issued to accused for enhancement of sentence---Inappropriate to suspend the sentence of an accused, who was earlier sentenced to imprisonment for life and notices had been issued by the High Court for enhancement of his sentence.

Mst. Parveen Akhtar v. Niaz Ali and another 2011 SCMR 1107 ref.

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

---Ss. 439---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-Amd---Revision---Notice of proceedings to applicant PrinciplesJoint reading of Ss.439(2) and 439(6), Cr.P.0 showed that mere pendency of a revision petition which was in the knowledge of the applicant would not mean that notice had been issued to the applicant for enhancement of his sentence---Only after criminal revision for enhancement for sentence was admitted to regular hearing, could it be said that the accused had been put on notice as to why his sentence should; not be enhanced.

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

----S. 439(2) ---Penal Code (XLV of 1860), S.302(b)---Qatl-e-Amd---Revision---Enhancement of sentence-Service of notice of revision petition---No particular manner of service to accused has been prescribed in S.439(2), Cr.P.C. however, in the absence of a prescribed procedure under section 439(2) Cr.P.0 it would be incumbent upon the court to issue a show-cause notice to the accused/convict regarding enhancement of sentence.

Javed Ahmad alias Jaida v. The State and another 1978 SCMR 114 ref.

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

----S. 439---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-Amd Enhancement of sentence---Issuance of show-cause notice under S.439 Cr.P.C---Mere presence of accused during pendency of appeal would not amount to a substantial compliance of mandatory requirement that sentence of an accused cannot be enhanced without issuing notice to him.

Nazal alias Nazoo v. The State 2000 PCr.LJ 2075 ref.

Ch. Saghir Ahmed for Applicant.

Malik M. Jaffar Arian Deputy Prosecutor General.

Sh. Jamshed Hayat for the Complainant.

P L D 2012 Lahore 315

Before Rauf Ahmad Sheikh, J

Haji MUHAMMAD ILYAS---Petitioner

Versus

DEPUTY INSPECTOR GENERAL OF POLICE (INVESTIGATION), LAHORE and 6 others---Respondents

Writ Petition No.20662 of 2011, decided on 15th November, 2011.

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

----Ss. 156 & 173---Police Order [22 of 2002], Art.18(6)---Penal Code (XLV of 1860), S.365---Kidnapping or abduction---Constitution of Pakistan, Art.199---Constitutional petition---Transfer of investigation---Validity---Provincial Ombudsman himself had not passed any order for transfer of investigation in the case, and he had only forwarded the grievance of the complainant to concerned police authorities regarding dishonest investigation---Board was constituted under Art.18(6) of the Police Order, 2002, which made recommendations for transfer of the case, and the same were approved by the Deputy Inspector General of Police (Investigation)---Deliberations were to be made by the Board---Reinvestigation of a criminal case after submission of the final report under S.173, Cr.P.C. was not legally barred, if some new event or incident would appear warranting reinvestigation or further investigation---Conclusion of investigation of criminal case on "Nian" (Special Oath) was illegal and such ground alone was sufficient to pass an order for transfer of investigation for reinvestigation and further investigation, especially when the son of the complainant had yet not been recovered---Police Officers were under obligation to conduct and conclude investigation purely on merits and strictly in accordance with law---Slipshod manner to draw conclusions on "Nian" etc. was one of the glaring examples of maladministration---Investigating Officer was duty bound to unveil the truth and collect all relevant material/evidence in this regard---Impugned order of transfer of investigation was neither improper nor illegal, rather the same had been passed to achieve the above objects---Constitutional petition was dismissed in circumstances.

Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Javaid Iqbal v. Additional Inspector General of Police, Lahore and 4 others PLD 2008 Lah. 488 and Bahadur Khan v. Muhammad Azam and 2 others (2006 SCMR 373 ref.

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

----Ss. 156 & 173---Penal Code (XLV of 1860), S.365---Kidnapping or abduction---Reinvestigation or further investigation---Extent and scope---No legal bar on reinvestigation or further investigation of a criminal case after submission of the final report under S.173, Cr.P.C., if new event or incident takes place to warrant the same.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

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

----S. 156---Penal Code (XLV of 1860), S. 365---Kidnapping, abduction---Investigation---Conclusion on "Nian" (Special Oath)---Validity and effect---Conclusion of investigation of criminal cases on "Nian" (Special Oath) is illegal and such ground alone is sufficient to pass an order for transfer of investigation for reinvestigation and further investigation.

Sheraz Zaka for Petitioner.

P L D 2012 Lahore 319

Before Mehmood Maqbool Bajwa, J

MUHAMMAD JAVED IQBAL---Appellant

versus

ABDUL LATIF ALVI---Respondent

Consumer Appeal No.F.A.O. 287 of 2008, decided on 12th December, 2011.

Punjab Consumer Protection Act (II of 2005)---

----S. 2(c)---'Consumer", "Service provider"---Consumer Court jurisdiction of---Scope---To confer jurisdiction upon Consumer Court, there must be a "consumer" having grievance either against a manufacturer or service provider, however buyer for re-sale or hire for any commercial purpose were excluded from the definition of a "consumer"---Contribution of amount on monthly basis by the complainant with group of persons in order to pay the same turn by turn on monthly basis, did not bring complainant within the definition of "consumer" provided in S.2(c)(i) of Consumer Protection Act, 2005---Section 2(c)(ii) of the Act defined "consumer" as a person who hired services for a consideration, but in the present case, every contribution paid and received equal amount and the "collector", by collecting the amount on monthly basis had no additional benefit which could be termed as "consideration" in order to establish the complainant as a "consumer"---Section 21 of the Consumer Protection Act, 2005 was not applicable in view of the facts of the case and specifically S.21(c) and (d) of the Consumer Protection Act, 2005, did not apply as no representation regarding particular kind, standard or equality of service was made by the collector of the amount and similarly there was no representation on part of the "collector" concerning his skill, qualification or experience in providing alleged service---Grievance of complainant was outside the jurisdiction of Consumer Court---Impugned order of Consumer Court was set aside---Appeal was allowed.

Agha Zafar Iqbal for Appellant.

Malik Muhammad Rasheed Awan for Respondent.

P L D 2012 Lahore 323

Before Ijaz Ahmad Chaudhry, C J

THE STATE---Petitioner

versus

D.P.O., MULTAN and others---Respondents

Writ Petition No.22901 of 2011, decided on 1st November, 2011.

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

----Ss. 342/355/506(2)---Telegraph Act (XIII of 1885), S.25---Constitution of Pakistan, Art.199---Constitutional petition---Wrongful confinement, assault or criminal force with intent to dishonour person, criminal intimidation---Pursuant to the news published in print as well as electronic media, High Court had taken cognizance of the matter regarding physical torture of two students of University, by their fellow students, and their subsequent disgrace by them in the University Hostel---Judicial inquiry held by Sessions Judge about the said unethical incident had revealed that the sluggish and partial attitude of the University Administration, especially the staff responsible for security of the Hostel, had fully facilitated the accused, including one outsider, to play havoc with the fate of the students, who were putting up in the University Hostels---Nobody had taken the responsibility of the incident, rather pointed fingers towards the others---Right from the bottom up to the top, the attitude of the persons deployed to mange the affairs of the Hostel was objectionable and invited serious objections qua their conduct---Affairs of the University Hostels had been deteriorated due to political intervention of different parties---Non-appointment of regular Vice-Chancellor of the said University for the last six months, was one of the foremost reasons for such incident---Steps already taken by University Administration or proposed to be taken in future, were not sufficient to provide a calm, secure and healthy atmosphere to the students putting up in hostels of different educational institutions, as the same could only be helpful to provide timely relief to the concerned persons, but not in the long run---Constitution of Pakistan, provided safeguards to all the citizens without any distinction against any kind of torture and maltreatment and cast heavy responsibility on the Government to take measures for eradication of such unsocial acts---High Court, being the custodian of the Constitution, formulated guidelines for strict compliance by all the stakeholders---Copy of present order was directed to be sent to Chief Minister, of the Province for its onward transmission to all the Heads of the Educational Institutions, having the facility of Hostels, for strict implementation of the guidelines mentioned therein, in addition to making them part of the Prospectus of their institution---District Police Officer was directed to ensure fair and impartial investigation of the aforesaid criminal case as early as possible and to pursue the matter before the court with due diligence, so that the accused, if found guilty, be taken to task---Constitutional petition was disposed of accordingly.

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

----Ss. 342/355/506(2)---Telegraph Act (XIII of 1885), S.25--- Constitution of Pakistan, Art.199---Constitutional petition---Wrongful confinement, assault or criminal force with intent to dishonour person, criminal intimidation---Guidelines formulated and enumerated by High Court for strict compliance by Educational Institutions for eradication of unsocial acts prevailing therein.

Muhammad Hanif Khatana, Addl. A.-G.

Col (R) Muhammad Arshad, Chief Security Officer and Muhammad Ishaq, Asstt. Legal Cell, Baha-ud-Din Zikria University, Multan.

Dr. Aatif Ikram, S.P. Gulgasht, Multan,

P L D 2012 Lahore 329

Before Nasir Saeed Sheikh and Rauf Ahmad Sheikh, JJ

AMER BAKHT AZAM through Attorney and 3 others---Appellants

versus

COOPERATIVE MODEL TOWN SOCIETY (1962) LTD. and 7 others---Respondents

Intra-Court Appeal No.216 of 2007, decided on 8th December, 2011.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Co-operative Societies Act (VII of 1925), S.54---Punjab Private Site Development Schemes (Regulations) Rules, 2005, Rr.1(d) & 14---Constitution of Pakistan, Art.199---Intra court appeal---Maintainability---Open space specified for fruit garden in Master Plan of Housing Society---Leasing out such land by Society for establishing thereon a store---Constitutional petition challenging such agreement dismissed by Single Bench of High Court on ground of availability of an alternate remedy under relevant rules and laws---Writ petition had not challenged any order passed by Development Authority as defined in R.1(d) of Punjab Private Site Development Schemes (Regulations) Rules, 2005---Remedy of arbitration under S.54 of Co-operative Societies Act, 1925 could not be considered as a remedy falling within definition of "an appeal, revision or a review" as provided in first proviso to S.3(2) of Law Reforms Ordinance, 1972---Finding in impugned judgment regarding availability of an alternate remedy to writ petitioner would not be binding on Division Bench of High Court while examining its correctness---Intra court appeal filed against impugned judgment was maintainable, in circumstances.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344; Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107; Mst Nargis Khatoon v. Director General, Punjab Broadcasting Corporation and others 1994 PLC (C.S.) 735; Vice-Chancellor, University of Health Sciences v. Breeha Zainab and others 2011 MLD 1652 and Mst. Sabira Sultana v. Asif Firdous 2011 YLR 1543 ref.

Bilal Hassan Minto for Appellants.

Main Iftikhar Ahmad for Respondents Nos. 1 and 2.

Mian Muzaffar Hussain for Respondent Nol.7/LDA.

P L D 2012 Lahore 336

Before Muhammad Qasim Khan, J

LIAQAT ALI KHAN---Petitioner

versus

DISTRICT COORDINATION OFFICER, BAHAWALPUR and 3 others---Respondents

Writ Petition No.5500 of 2010, decided on 16th November, 2010.

(a) West Pakistan Maintenance of Public Ordinance (XXXI of 1960)---

----Ss. 3(1) & 26---Constitution of Pakistan, Art.199---Constitutional petition---Detention of petitioner for being criminal minded involved in criminal cases, having close links with a banned sectarian organization, providing shelter and financial assistance to desperate criminals including terrorists involved in sectarian and sabotage activities---Validity---Power of DCO to issue detention order was not absolute---Detention order would amount to curtailing fundamentally guaranteed right of liberty of a person---DCO had issued impugned detention order on the basis of reports of agencies without considering worth of material made available to him---Nothing on record to establish that petitioner was an active member of banned sectarian organization or having close links thereto---Petitioner had not been convicted in criminal cases registered against him, rather their trial was pending---Press clippings, alleged press releases or some writings on letter pads could not be used against petitioner to connect him with such charges---Providing financial assistance or shelter to desperate criminals was an offence, for which no criminal case had been registered against petitioner---Registration of one or two criminal cases with regard to providing financial assistance or shelter to desperate criminals would not be a valid ground for passing a detention order, unless such culprit was not only found repeatedly involved, but was also convicted for such misdeeds and his activities were found prejudicial to public peace and tranquility---Grounds of detention mentioned in impugned detention order were vague and based upon presumption and speculations---High Court had opted to burden DCO to pay from his pocket an amount of Rs.50,000 as fine, but on request of Law Officer and undertaking of Counsel of DCO that in future his client would not act in such inhuman manner, High Court abstained itself from imposing such fine---High Court set aside impugned detention order in circumstances.

State through Advocate-General, Sindh, Karachi v. Mst. Taji Bibi 2002 SCMR 914; Mrs. Mamoona Saeed v. Government of the Punjab and others 2003 YLR 2379; Muhammad Mushtaq v. District Magistrate, Sheikhupura and another 1997 MLD 1658; Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Hafiz Muhammad Saeed and 3 others v. Government of the Punjab, Home Department through Secretary, Lahore and 2 others 2009 YLR 2475; Mst. Misbah Tabassum and 2 others v. Government of Punjab through Secretary, Home Department, Lahore and 3 others 2007 PCr.LJ 1776 ref.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Muhammad Mushtaq v. District Magistrate, Sheikhupura and another 1997 MLD 1658; Mst. Misbah Tabassum and 2 others v. Government of Punjab through Secretary, Home Department, Lahore and 3 others 2007 PCr.LJ 1776 rel.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----Ss. 3(1) & 26---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Detention order issued by DCO---Presence of alternate and adequate remedy of filing a representation before Home Secretary---Effect---High Court through its order had directed Home Secretary to decide before next date of hearing earlier pending representation of petitioner or treat constitutional petition as his representation---Representative of Home Secretary on next date of hearing stated that decision of such representation would not be possible before Eid-ul-Azha due to non-availability of the Secretary---Eid-ul-Azha was one of most sacred and well-celebrated religious festival of Muslims---Such lame excuse put forth on behalf of the Secretary made clear that he was adamant to keep the petitioner confined---Alternate remedy of representation in such circumstances had lost its adequacy and efficacy---High Court was constitutionally obliged to jealously safeguard security, dignity and freedom of a person---High Court proceeded to decide constitutional petition on merits.

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

Syed Munawar Hussain Naqvi and Muhammad Sarwar Chaudhry for Petitioner.

Malik Mumtaz Akhtar, Addl. A.-G., Sardar Riaz Ahmad Dahir, Asstt. A.G. with Muhammad Jamil DSP, Athar Naveed Inspector/SHO and Qamar Assistant Superintendent Jail.

Malik Faiz Bakhsh for Respondent DCO-Bahawalpur.

P L D 2012 Lahore 345

Before Abdus Sattar Asghar, J

GHULAM QADIR---Petitioner

versus

ADDITIONAL SESSION JUDGE and others---Respondents

Writ Petition No.25157 of 2011, decided on 21st February, 2012.

Probation of Offenders Ordinance (XLV of 1960)---

----S. 5---Penal Code (XLV of 1860), S. 438---Constitution of Pakistan, Art.199---Constitutional petition---Release on probation---All accused (respondents) confessed their guilt during course of trial and Trial Court recorded their confession and released them on probation for a period of one year subject to furnishing of surety bond---Complainant (petitioner) filed revision petition before the court below against the probation order after a period of one year and three months, which was dismissed on the grounds that it was time barred by limitation; that accused persons had faced the agony of the trial for seven years and that they had also completed their probation period---Validity---Section 438, P.P.C did not fall within the exception provided under S.5(1)(a) of the Probation of Offenders Ordinance 1960, therefore, Trial Court was authorized to pass the probation order of releasing the accused on probation---Revision filed against the probation order was rightly dismissed keeping in view the fact that same was filed after about fifteen months of passing of the probation order as well as after expiry of probation period completed by the accused, who faced the agony of the trial for seven years---Punishment provided under S.438, P.P.C was to be interpreted in favour of the accused to exclude the offence from falling within the exception envisaged under S.5(1)(a) of the Probation of Offenders Ordinance 1960---Complainant had no case to invoke the constitutional jurisdiction of the High Court to interfere with the impugned orders lawfully passed by the courts below---Constitutional petition was dismissed.

Ch. Khadim Hussain for Petitioner.

P L D 2012 Lahore 349

Before Umar Ata Bandial and Muhammad Farrukh Irfan Khan, JJ

NAZIR AHMAD and 13 others---Appellants

versus

CITY DISTRICT GOVERNMENT through District Administrator and 6 others---Respondents

I.C.As. Nos.553, 519, 520, 545, 565, 549, 530, 523, 583, 595, 524, 642 of 2011 and Writ Petitions Nos.21506, 23414, 21137, 20978, 20963, 21275, 27087, 24129 and 24130 of 2011, heard on 20th December, 2011.

Punjab Local Government Ordinance (XIII of 2001)---

----Sixth Sched. Cl.2(4)---Law Reforms Ordinance (XII of 1972), S.3---Intra-court Appeal---Cattle farmers---Alternate land---Grievance of appellants was that authorities had declined to provide them alternate land for keeping their cattle for milk purposes---Validity---Single Judge of High Court had carefully considered main points based on Cl.2(4) of Sixth Sched. to Punjab Local Government Ordinance, 2001, regarding claim for alternate accommodation to be provided to affectees of prohibited zone---Appellants were not affectees of original prohibition created in year, 1983 as a consequence of which alternate accommodation was provided by authorities in two colonies---Appellants were either new vendors of milk in the city and, therefore, new owners of milk animals or returnees from cattle colonies, who had started business after implementation of the prohibition---Division Bench of High Court did not find appellants entitled to alternate accommodation in a cattle colony and authorities were duty bound to notify areas where milk animals/cattle could be kept by the persons in such trade---Division Bench of High Court directed the authorities to issue notification in such respect at the earliest possible and declined to interfere in the judgment passed by single Judge whereby constitutional petitions filed by appellants were dismissed---Intra-court appeal was dismissed in circumstances.

Dr. Abdul Basit for Petitioners.

Nadeem Ahmad Sheikh for Appellants (in I.C.A. 519/2011).

Javaid Iqbal Qureshi for Petitioners (in W.P. 23414 of 2011).

Rana Habib ur Rehman for Petitioners (in W.P. No.21506 of 2011).

Naveed Zafar Khan for Petitioners (in W.P. No.20963 of 2011).

Ch. Saleem Sadiq Simab for Appellants (in I.C.As. Nos.523, 524 and 525 of 2011).

Malik Shafqat Rasool Gorchha for Petitioners (in W.P. No.21275 of 2011).

Ch. Imran Ali for Appellants (in I.C.A. 545 of 2011).

Rana Zia Abdul Rehman for Petitioners (in W.Ps. Nos.24129 and 24130 of 2011).

Ch. Basharat Ali for Appellants (in I.C.A. 565 of 2011).

Ch. Ghulam Murtaza for Petitioners (in W.P. No.27087 of 2011).

Ch. Ahmad Masood Gujjar for Appellants (in I.C.A. 642 of 2011).

Iftikhar Amad Mian for Respondents Nos. 1 to 5.

P L D 2012 Lahore 353

Before Umar Ata Bandial and Ayesha A. Malik, JJ

MUZAMIL SULTAN---Appellant

versus

FEDERATION OF PAKISTAN and others---Respondents

I.C.A. No.746 of 2011, decided on 19th April, 2012.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Civil Procedure Code (Amendment) Ordinance (X of 1980), S.15---Constitution of Pakistan, Arts. 175(2) & 199---Intra-court appeal filed under S.15 of the Civil Procedure Code (Amendment) Ordinance, 1980, against an interlocutory order passed by the High court in a constitutional petition-Maintainability---Original civil jurisdiction and constitutional jurisdiction of High Court---Scope, interpretation and distinction---Present Intra-court appeal had been filed against an interlocutory order passed by the High Court in a constitutional petition---Contention of the appellant was that Intra-Court appeal was maintainable under S.15 of the Civil Procedure Code (Amendment) Ordinance, 1980, notwithstanding the fact that the impugned interlocutory order was passed in constitutional jurisdiction, and that the High Court when exercising jurisdiction under Art.199 of the Constitution, was exercising 'original civil jurisdiction'---Validity---Article 175(2) of the Constitution provided for two distinct jurisdictions; a constitutional jurisdiction and a jurisdiction conferred by or under any law---Constitutional jurisdiction was a unique jurisdiction as it was created and conferred by the Constitution---Original civil jurisdiction was a jurisdiction created and conferred by or under a law---Constitutional jurisdiction could not be taken away, curtailed or abridged by any other law whereas a jurisdiction created by or under a law could be taken away, abridged or curtailed by a law---Such clear distinction between the two jurisdictions rendered it impossible to read ordinary civil jurisdiction in the constitutional jurisdiction, therefore, even in the most general meanings, constitutional jurisdiction was very different from civil jurisdiction, and both could neither be equated nor could there be an overlap between the two---Distinction between the two jurisdictions as provided for in Art.175(2) of the Constitution had to be retained---High Court when exercising constitutional jurisdiction in a civil matter, was not exercising original civil jurisdiction---Original jurisdiction of a court conferred the power to hear a case for the first time, therefore, even though at times constitutional jurisdiction had been referred to as constitutional jurisdiction of an original "kind", it was not a court of first instance exercising civil jurisdiction---Judgment deciding a constitutional petition would not be a judgment in the exercise of the original civil jurisdiction of the High Court within the meaning of S.3(1) of the Law Reforms Ordinance, 1972---Fact that an aggrieved person came directly to the High Court under Art.199 of the Constitution did not mean that the court exercises original jurisdiction---Words, "original" and "civil" jurisdiction had specific legal meanings, which even in the most general sense should be interpreted in accordance to the meaning attributed to them---Interpreting original civil jurisdiction under S.15 of the Civil Procedure Code (Amendment) Ordinance, 1980, so as to include constitutional jurisdiction would mean creating artificial categories within the constitutional jurisdiction, which clearly was not the intention of the Constitution---Intra-court appeal was not maintainable, in circumstances and was dismissed, accordingly.

Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. PLD 1993 SC 109; Lahore Race Club through Secretary and others v. Raja Khushbakht-ur-Rehman 2008 CLD 1117 and Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore, The Member, Board of Revenue, West Pakistan Lahore and Muhammad Saeed PLD 1968 SC 171 ref.

Asad Ali and 9 others v. Settlement and Claims Commissioner, Karachi and another PLD 1974 Kar. 345 rel.

Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543 and Hussain Bakhsh v. Settlement Commisisoner, Rawalpindi and others PLD 1970 SC 1 distinguished.

(b) Words and phrases---

---"Jurisdiction", meaning of--- Jurisdiction is the authority conferred upon a court to decide a matter before it and it enables the court to adjudicate on a particular subject matter in a given case.

(c) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction of High Court--- Nature.

Under Article 199 of the Constitution, High Court has corrective and directory jurisdiction which has to be tampered with equity. It is discretionary jurisdiction and the High Court cannot go into disputed questions of fact. This jurisdiction provides expeditious remedy in a case where the executive or any other authority has acted illegally, without going into an elaborate inquiry as to the facts.

Syed Wajih-ul-Hassan. Zaidi v. Government of Punjab and others 1997 SCMR 1901; Secretary to the Government of Punjab Forest Department, Punjab Lahore through Divisional Forest 0fficer v. Ghulam Nabi and 3 others PLD 2001 SC 415 and Messrs Ittehad Cargo Service and 2 others v. Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 rel.

(d) Constitution of Pakistan---

----Art. 175---Jurisdiction of courts---Scope---Non-usage of expressions such as ordinary, extraordinary, statutory or special in relation to the jurisdiction of courts in Art.175 of the Constitution---Effect---Interplay of such words were just nomenclatures given to describe a jurisdiction and could be misleading.

Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543 ref.

(e) Interpretation of statutes---

----Where words and phrases are used in a statute with a technical meaning then they must be interpreted with the technical meaning that they have acquired.

Maxwell, Interpretation of Statute 12th Edn. ref.

Salman Aslam Butt assisted by Muhammad Haroon Mumtaz for Appellant.

Shahram Sarwar Chaudhry, Jamil Ahsan Gill, Asim Hafeez and M. Ikram for Respondents.

M. Nasim Kashmiri, Deputy Attorney General for Pakistan for the State.

P L D 2012 Lahore 362

Before Ijaz Ahmad Chaudhry, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Nasir Saeed Sheikh and Asad Munir, JJ

SHEHRI-CBE through General Secretary and 15 others---Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY through Chairman and 6 others---Respondents

Writ Petitions Nos.1226 and 2111 of 2006, decided on 16th September, 2011.

Disposal of Land by Development Authorities (Regulations) Act (XII of 1998)---

----Ss. 4 & 5---Constitution of Pakistan, Arts.9, 26, 39 & 199---Constitutional petition---Park/playground earmarked as such in year 1951 in its Town Planning Scheme of Master Plan and being in use by residents of locality for last 55 years---Decision of Development Authority to set up shopping arcade, cinema theatre and bowling alleys at the suit site---Plea of Authority was that proposal to establish cinema theatre and shopping arcade at suit site had been abandoned, but underground car parking and incomplete structure at site should be allowed to be used for other useful public purpose i.e. public library or gymnasium---Validity---Residents of such area had acquired residential plots/houses on representation of Authority that suit site being an open area would not be designated for residential, commercial or industrial purposes or built upon---Such residents and public at large had acquired a vested interest in such park---Playground had attained greater significance due to urbanization of the Scheme---Existence of parks and playgrounds had become an integral and necessary part of modern urban life---Right of inhabitants of a locality to demand non-conversion of park/playground to any other use was a fundamental right emanating from Art.9 of the Constitution---Construction of car parking lots under public parks was common in modern urban centers---Construction could always be raised upon minuscule portion of a park for facility or benefits of public, but massive construction over a measurable portion would violate sanctity and integrity of a park---Construction over 18% of suit area as sought by Authority, if allowed, would result in the park/playground being converted into a public building with lawns, which could not be permitted---Existence of underground car parking on suit area with a green grass top would not destroy its essential feature as a park/playground---High Court allowed the Authority to complete/utilize underground car parking after obtaining requisite approvals from concerned/other authorities, and if necessary after amending the Scheme in accordance with law, and directed the Authority to remove incomplete structure from the suit site---Chairman Development Authority was further directed to conduct inquiry against the delinquent officials---Order accordingly.

Sheri CBE and others v. Lahore Development Authority and others 2006 SCMR 1202; PLD 2010 SC 759; Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223; PLD 1979 Lah. 79 Saeen Muhammad and 2 others v. the Government of Punjab and 3 others PLD 1979 Lah. 79; Muhammad Sharif and others v. Muzaffar lqbal and others 1983 CLC 3091; Dr.Abdul Rauf and others v. Sh. Muhammad Iqbal and others 1991 SCMR 483; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; PLD 2006 SC 514 and 2010 SCMR 885 rel.

Sajid Memood Sheikh and Muhammad Azhar Siddique for Petitioners.

Salman Akram Raja and Zia-ud-Din Ansari for Respondents.

Date of hearing: 20th June, 2011.

P L D 2012 Lahore 370

Before Muhammad Khalid Mehmood Khan and Muhammad Ameer Bhatti, JJ

Chaudhry MUHAMMAD ANWAR---Appellant

Versus

HABIB BANK LTD. through Manager---Respondent

Regular First Appeal No.72 of 2007, heard on 1st February, 2012.

Negotiable Instruments Act (XXVI of 1881)---

----S. 10---"Payment in due course"---Meaning---Pay-Order---Bank's right to stop payment of pay-order at the request of its purchaser or issue duplicate pay order without request/consent of its beneficiary---Scope and procedure stated.

Pay-order is a banking instrument, which the Bank issue on receipt of cash from the purchaser in favour of a third party. The beneficiary of pay order is a person in whose favour and benefit pay order is issued. There are three parties in the transaction of pay order, one is the purchaser, second is the issuer and third one is the payee.

Under section 10 of Negotiable Instruments Act, 1881 payment in due course means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to pay person thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of amount therein mentioned.

In a pay order there are three parties, without consent of payee a duplicate pay order cannot be issued.

Section 10 of Negotiable Instruments Act, 1881 shows that payment in due course is a discharge of obligation by the issuer of instruments, if the beneficiary fulfils this condition "The holder and presenter is the real beneficiary of instrument."

Under the Banking Law and Procedure, the pay order cannot be paid or encashed at the counter of bank, and it can be collected through banker of beneficiary. The banker of beneficiary while presenting the pay order confirms the payee bank in this undertaking "payees account credited". This means collecting bank is confirming paying bank that amount collected will be credited to the account of real payee. It is the responsibility of collecting bank to confirm and ascertain the identity of his account holder.

United Bank Limited v. Trustees of the Port of Karachi 1994 CLC 2116 and vadlamany Venkatesam and another v. Mangipudi Viswanadham and another AIR 1918 Mad. 512 ref.

Khawaja Saeed uz Zafar for Appellant.

Miss Umbreen for Respondent.

Date of hearing: 1st February, 2012.

P L D 2012 Lahore 378

Before Ayesha A. Malik, J

MUHAMMAD SALAH-UD-DIN---Petitioner

Versus

NADRA---Respondent

Writ Petition No.11212 of 2012, decided on 4th May, 2012.

National Database and Registration Authority Ordinance (VIII of 2000)

----Ss. 9 & 5(3)---National Database and Registration Authority (NIC) Rules 2002, R.13---Constitution of Pakistan, Art. 199---Constitutional petition---Correction on National Identity Card issued by NADRA---Petitioner had sought correction on his national identity card on the ground that the name of his father had been incorrectly entered---NADRA (respondent) refused to make the necessary correction on the ground that for a change in the father's name; a court order was necessary---NADRA, to support such contention, relied on its Registration Policy and Standard Operating Procedures (SOPs)---Validity---Error was clearly a typographic mistake---National database was required to be maintained by NADRA, and every citizen was required to be registered and to effectuate such registration, every citizen was issued a national identity card---National Identity Card (CNIC) was a legal document for the identification of a citizen, and its issuance meant that the information contained therein was valid and correct---NADRA, by not correcting an error in its database or on the CNIC, was, in fact, going against the spirit of the Ordinance, and was not performing its primary function and was perpetuating a wrong in its own database, thereby negating the purpose of the national identity card---NADRA, was bound to maintain a correct database and was bound to print correct information on the CNIC and was obligated to correct any error in its database or the CNIC it issued to a citizen---Standard Operating Procedures (SOPs) and Registration Policy were internal instructions to enable NADRA to achieve optimum level of efficiency and to ensure consistency and infirmity in its procedure and process---Standard Operating Procedures (SOPs) did not have the force of law and were not binding on the NADRA---Standard Operating Procedures were internal documents, at best, and could not form the basis of denying the petitioner the right to have the correct information maintained in the citizen database and printed on the CNIC---Standard Operating Procedures could not form the basis for NADRA to refuse to correct an error in its record because if the error was not corrected, it would negate the very purpose of issuing a CNIC to a citizen---Delay in filing an application for correction of an office mistake could not hamper or prevent the process of actually correcting the NADRA database, or the CNIC---High Court directed NADRA to treat the pending request of the petitioner as a correction of an office mistake and to correct the petitioner's father's name in the database and issue him a new CNIC---Constitutional petition was allowed, accordingly.

Ghulam Subhani for Petitioner.

Badar Munir Malik, Standing Counsel with Jameel Khan, Legal Advisor, NADRA on court's call.

P L D 2012 Lahore 383

Before Sagheer Ahmad Qadri and Rauf Ahmad Sheikh, JJ

ABDUL WASAY and others---Petitoiners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous Nos.39/B and 58-B of 2012, decided on 3rd May, 2012.

Criminal Procedure Code (V of 1898)---

---S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 15---Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, Sched. V---Possession of narcotics, aiding, abetment or association in narcotic offences---Bail, refusal of---Ephedrine as a controlled substance---Scope---Vehicle of accused persons had been intercepted at a checkpoint and after their search, 25 kilograms of controlled substance, Ephedrine, was found in their possession, which the accused persons were carrying without any license/permit---Contentions of the accused persons was that they were arrested on the conspiracy of the owner of a pharmaceutical company, who provided the vehicle and controlled substance to the accused persons for transportation and subsequently informed the Anti-Narcotics Force officials about it; that accused persons had some business dealings with the said owner of pharmaceutical company and he involved the accused persons in the case to get rid of his liability; that officials of the Anti-Narcotics Force had investigated the matter and found force in the contentions of the accused persons; that police investigation officer also found the contentions of the accused persons to be plausible and placed them in column No.3 of the report submitted under S.173, Cr.P.C; that accused persons were no more required for further investigation, and that their implication in the case could only be considered after recording of evidence---Validity---Ephedrine was a controlled substance falling under Schedule V of the Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, therefore, possession of same clearly fell within the ambit of S.6 of the Control of Narcotic Substances Act, 1997---Keeping Ephedrine without any licence or lawful permission was in violation of S.6 of the Control of Narcotic Substances Act, 1997, which was punishable under S.9 of the said Act---Contention of the accused persons that they were trapped by the owner of a pharmaceutical company with whom they had some business dealings, was not supported by any evidence---Investigation officer had placed the accused in column No.3 of the challan and observed that controlled substance had been recovered from the accused persons and their guilt had to be decided by the court in accordance with the law---Since huge quantity of controlled substance was recovered from the accused persons and they had no valid licence for the same, no ground for grant of bail was made out---Bail petitions of accused persons were dismissed, in circumstances.

Shan Zeb Khan for Petitioners.

Ahsan Hameed Lilla for Petitioner (in Crl. Misc. No.58-B of 2012).

Ch. Muhammad Zahid Mehmood, Special Prosecutor for ANF.

P L D 2012 Lahore 386

Before Amin-ud-Din Khan, J

ZAFAR IQBAL and others---Petitioners

Versus

Mst. NASIM AKHTAR and others---Respondents

Civil Revisions Nos.65-D and 66-D of 1998/BWP, decided on 22nd November, 2011.

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

----S. 115, O.XX, R.5 & O.XLI, R.33---Minute scrutiny of evidence by revisional court and first Appellate Court---Scope---Judgment would be pronounced on preponderance of evidence---Civil court would be bound to probe into every minor detail of evidence both documentary and oral before reaching to a conclusion---High Court, in its revisional jurisdiction and first Appellant Court could make such scrutiny.

(b) Stamp Act (II of 1899)---

----Ss. 3, 10 & 11---Agreement for sale of immovable property written on a plain paper affixing thereon court-fee of 8 annas---Validity---Such agreement would be required to be written on a non-judicial stamp paper, and in case of its non-availability, non-judicial stamp would be required to be affixed---Judicial stamp had absolutely no value for such agreement.

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

----S. 13---Transfer of Property Act (IV of 1882), S.54---Agreement for sale of immovable property---First page of such agreement not containing signature of vendor, vendee or any witness or identifier, whereas second page thereof not containing signature of vendee---Validity---Such agreement would not constitute a contract---Alleged vendee would not be bound by such agreement for not being its signatory.

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

----S. 12---Suit for specific performance of sale agreement---Sale of suit property by vendor in favour of subsequent vendee---Plaintiff's failure to prove prior sale agreement in his favour by vendor---Effect---Proof of sale deed in favour of subsequent vendee would become unnecessary in such circumstances.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement for sale of immovable property---Part of suit property promised to be sold to plaintiff transferred by vendor to another person in year 1960---Plaintiff filed the suit in year 1980---Validity---Such part sale would constitute a clear denial on part of vendor giving cause of action to plaintiff to institute suit and limitation would start from such point---Suit was dismissed for being time-barred.

Ch. Naseer Ahmed and Muhammad Naveed Farhan for Petitioners.

Main Ahmad Nadeem Arshad for Respondents.

Date of hearing: 22nd November, 2011.

P L D 2012 Lahore 392

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD ASLAM---Petitioner

Versus

AYYAN GHAZANFFAR and 2 others---Respondents

Writ Petition No.9564 of 2012, heard on 7th May, 2012.

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

----S. 13(3)---West Pakistan Land Revenue Act (XVII of 1967), Chap.VIII---Constitution of Pakistan, Art. 199 ---Constitutional petition---Suit for recovery of maintenance allowance of minors---Enforcement of decree against attorney of the defendant---Maintainability---Suit was decreed by Family Court, and since the defendant was out of the country, the petitioner-grandfather of the minors, appeared to defend the suit on behalf of the defendant on the basis of a deed of Special Power of Attorney---Executing Court placed liability for the decree on the petitioner (grand father) and issued non-bailable warrants of arrest against the petitioner---Contention of the petitioner (grandfather) was that the judgment-debtor had movable and immovable property in the country which could be attached for the satisfaction of the decree and that the petitioner after initial hearing, had subsequently disassociated himself from the proceedings of the Family Court in the suit, and therefore, he could not be held liable under provisions of the West Pakistan Family Courts Act, 1964---Validity---Departure from express provisions of S.13(3) of the West Pakistan Family Courts Act, 1964 would violate the law and the procedure prescribed for execution of decree in the said provision was to be resorted to---Provisions of the Civil Procedure Code, 1908, although were excluded by S.17 of the Act, but general principles thereunder could be invoked for due administration of justice where no procedure was provided in the West Pakistan Family Courts Act, 1964---Family Court was empowered to direct recovery of decree amount from the arrears of land revenue and Chap.VIII of the West Pakistan Land Revenue Act, 1967 provided procedure for such recovery, and therefore, when a specific produce had been provided for enforcement of the decree, resort to general provisions of the Civil Procedure Code, 1908 would not be permissible---Judgment-debtor was bound to satisfy the decree whether himself or through his attorney and the basic liability was still upon the judgment-debtor and not the attorney---Executing Court, in the present case, had attached a car belonging to the defendant and the decree holders had placed on record "Fard Taleeqa" mentioning 8 items of movable properties of the judgment-debtor/ defendant within Pakistan---Deed of power of attorney was to be strictly construed and a power which had not been assigned in specific terms could not be presumed to have been given by the principal to the attorney---Attorney was given to the petitioner (grandfather) to defend the suit on behalf of the defendant and never provided for any liability to the effect that in case of any possible decree against the defendant/ judgment debtor, the same could equally be executable against the attorney---Attorney in his independent capacity could not be booked for satisfaction of the decree which was never granted against him---High Court set aside impugned orders of the Executing Court and directed the Executing Court to proceed according to S.13(3) of the West Pakistan Family Courts Act, 1964 and directed the revenue authorities to recover decretal amount as arrears of land revenue---Constitutional petition was allowed, accordingly.

Muhammad Pervez v. Mst.Nabila Yasmeen and 2 others 2004 SCMR 1352 distinguished.

Nasir Khan v. Tahira Rashida 1986 CLC 2381 and Mst. Sameena Bibi and 2 others v. Additional District Judge/Appellate Authority, Gujrat and 2 others 2007 CLC 987 rel.

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

----S. 17---Civil Procedure Code (V of 1908), Preamble---Provisions of the Civil Procedure Code, 1908, although were excluded by S.17 of Act, but general principles thereunder could be invoked for due administration of justice where no procedure was provided in the West Pakistan Family Courts Act, 1964.

Mst. Sameena Bibi and 2 others v. Additional District Judge/Appellate Authority, Gujrat and 2 others 2007 CLC 987 rel.

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

----S.13---West Pakistan Land Revenue Act (XVII of 1967) Chap.VIII--Enforcement of decree---Procedure---Family Court was empowered to direct recovery of decree amount from the arrears of land revenue and Chapter VIII of the West Pakistan Land Revenue Act, 1967 provided procedure for such recovery, and therefore, when a specific procedure had been provided for enforcement of the decree, resort to general provisions of the Civil Procedure Code, 1908 would not be permissible.

Muhammad Mahmood Chaudhry for Petitioner.

Syed Kazim Bukhari for Respondents.

Date of hearing: 7th May, 2012.

P L D 2012 Lahore 398

Before Muhammad Khalid Mehmood Khan, J

GHAYASUDDIN---Petitioner

Versus

MEDICAL SUPERINTENDENT, SERVICES HOSPITAL, LAHORE and another---Respondents

Writ Petitions Nos.7336, 7292, 7247 and 5627 of 2012, decided on 17th April, 2012.

(a) Punjab Destitute and Neglected Children Act (XVIII of 2004)---

----Ss. 3(e), 3(k), 5 & 28---Constitution of Pakistan, Arts. 9, 25-A, 38 & 199---Constitutional petition---Entrustment of the custody of an unclaimed child---Status of an unclaimed child under the Punjab Destitute and Neglected Children Act, 2004---Scope---Constitutional guarantees provided to a child---Scope---Child in question, was born in Pakistan and the Constitution provided constitutional guarantees of life, education, health, food and medical facility to every child born in the country irrespective of the fact whether the child is owned or not owned by his/her parents---Definition of "child" provided in the Punjab Destitute and Neglected Children Act, 2004, read with the Preamble of the Act showed that an 'unclaimed child' was a child in terms of S.3(e) of the Act---Under S.28 of the Punjab Destitute and Neglected Children Act, 2004, court could direct the child to be admitted in a Child Protection Institution or his custody could be given to a suitable person who was willing to bring up the child---Provincial Government had not as yet established the Child Protection Institute, therefore, option left with the court was to entrust the custody of the child to a suitable person---Person who wanted to adopt the child was a businessman and a taxpayer and undertook to bring up the child like his own child---Constitutional petition of said person was accepted and hospital was directed by the High Court to hand over the custody of the child to him subject to the execution of an undertaking by him that he would bring up the child as per his best resources and would help him to become a useful member of the society, and submit a report on yearly basis to the Deputy Registrar of the High Court till the child was 18 years of age.

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

----Ss. 22-A & 22-B---Duties of Justice of Peace---Scope---Justice of Peace is the custodian of the rights of the citizens and before taking any action against anyone, he is duty bound to examine the facts.

Nadeem ud Din Malik for Petitioner.

Jahanzeb Chattha for Respondent No.2.

Huria Zulfiqar for Respondent No.1.

Iftikhar Ahmad Mian for CDGL

Aamir Abbas Khan Emergency Officer.

Ijaz Farrukh Law Officer (Health).

P L D 2012 Lahore 404

Before Rauf Ahmad Sheikh, J

Ch. SUNEEL SHAMSHAD AHMED---Petitioner

Versus

DIRECTOR-GENERAL, NAB PUNJAB, LAHORE---Respondent

Diary. No.1278 of 2012, decided on 2nd February, 2012.

National Accountability Ordinance (XVIII of 1999)---

----S. 25(b)---Voluntary return and plea bargaining---Office objection, disposal of---Accused petitioner had been convicted and sentenced by the Accountability Court in a Reference---Accused had voluntarily returned the amount, and he had sought the approval of his plea bargain and voluntary return of money through the Additional Deputy Prosecutor General, NAB---Section 25(b) of the National Accountability Ordinance, 1999, revealed that when the trial was pending, the Trial Court would accord the said approval and in case the appeal was pending this power would vest with the Appellate Court---When no appeal was pending, whether it was not filed or it had been decided, the court competent to accord approval would be the Trial Court only---Accused petitioner in the present case had not filed any appeal---Chairman NAB should approach the Trial Court through a Reference under S.25(b) of the National Accountability Ordinance, 1999, for approval of the plea bargain of the accused---Office objection was disposed of accordingly.

Barrister Saeed-ur-Rehman, ADPG, NAB, Rawalpindi for Petitioner.

P L D 2012 Lahore 406

Before Mazhar Iqbal Sidhu, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE and another---Respondent

Criminal Miscellaneous No.16743-B of 2011, decided on 28th December, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 497, 403 & 561-A---Constitution of Pakistan, Art.13(a)---Penal Code (XLV of 1860), Ss.420/468/467/471---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating, forgery, using as genuine forged document, criminal misconduct---Bail petition converted into quashment petition---Quashing of F.I.R.---Double punishment---Accused after registration of the case, in departmental proceedings had been dismissed from service and in appeal his dismissal was converted into major penalty of forfeiture of his past five years service with order to recover all the amounts received by him illegally from the public treasury, which was done and then the accused had been reinstated to his service---Accused, thus, had endured the penalty imposed upon him departmentally, and he could not be vexed twice for the same cause/wrong as per provisions of S.403, Cr.P.C. read with Art.13(a) of the Constitution---Now nothing was to be recovered from the accused and continuance of present proceedings in the case against him would amount to a sheer abuse of process of law and the court---Bail petition was, consequently, converted into a petition under S.561-A, Cr.P.C. and the F.I.R. along with its emanating proceedings was quashed in circumstances.

Hafiz Muhammad Rizwan for Petitioner.

Noor Ahmad Bhatti, DPP with Khalil Ahmad A.S.-I., (ACE), Kasur.

Noor Muhammad AEO, Kasur (Representative), Muhammad Aslam, Admn. Assistant, Dy. DEO (M), Kasur.

P L D 2012 Lahore 408

Before Ch. Muhammad Younis, J

Mst. RUQAYYA BIBI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KHUSHAB and 2 others---Respondents

Writ Petition No.25490 of 2011, decided on 13th April, 2012

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

----S.18---Constitution of Pakistan, Art. 199---Constitutional petition---Recovery of dowry articles---Evidence through attorney---Principle---Wife objected to recording of evidence of husband through attorney---Validity---If attorney was well conversant with all facts of case, there was no legal bar in West Pakistan Family Courts Act, 1964, whereby any of the parties could be deprived from appointing an attorney, if the party was not available due to reason beyond his control---Legislature enacted provisions of S.18 in West Pakistan Family Courts Act, 1964, keeping in view only the matters relating to dissolution of marriage, dower, maintenance, restitution of conjugal rights and custody of children---Provisions of S.18 of West Pakistan Family Courts Act, 1964, were meant for such category of cases where personal appearance of spouses was essential enabling court to apprise itself of the real controversy/differences between the parties and for such purpose a mandatory provision of reconciliation was also included in West Pakistan Family Courts Act, 1964---Recovery of dowry articles was a civil liability which was included in Schedule of West Pakistan Family Courts Act, 1964---Provisions of S.18 of West Pakistan Family Courts Act, 1964, were just enabling provisions and husband could not be deprived to defend the suit against him through his attorney---High court declined to interfere in concurrent orders passed by both the courts below, whereby application filed by wife was dismissed---Petition was dismissed in circumstances.

2010 MLD 904 ref.

1981 SCMR 395; 1998 CLC 1011 and 2006 MLD 1752 rel.

Muhammad Tariq Bashir Awan for Petitioner.

Zahid Hussain Khan for Respondent No.3.

P L D 2012 Lahore 411

Before Abdus Sattar Asghar, J

MUHAMMAD SHAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.100/2011/BWP and Criminal Miscellaneous No.967 of 2012, decided on 16th April, 2012.

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

----Ss. 426 (1-A) (b) & 439---Penal Code (XLV of 1860), Ss.334/ 337-A(iii)/337-F(iii)---Itlaf-i-udw, shajjah-i-hashimah, ghayr-jaifah-mutalahimah---Petition for suspension of sentence on grounds of delay in disposal of revision petition---Validity---Accused had filed revision petition before the High Court impugning order of Appellate Court below, which had maintained the sentence and conviction awarded to the accused by the Trial Court---Said revision petition was pending adjudication and contention of accused was that same had not been decided within a period of one year of his conviction---Validity---Appeal of accused had been decided by the Appellate Court below within three months of his conviction, therefore, right of appeal had already been exhausted by the accused before the Appellate Court below---Section 426 (1-A), Cr.P.C was exclusively meant for delay in disposal of an appeal and accused could not get benefit of the said section by invoking discretionary revisional jurisdiction of the High Court---Section 426(1-A), Cr.P.C, did not furnish any statutory ground for suspension of sentence during the pendency of a revision petition on account of delay in its disposal--- Petition for suspension of sentence was dismissed, accordingly.

Muhammad Ayub v. Muhammad Yaqub and the State PLD 1966 SC 1003 rel.

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

---Ss. 426 (1-A) (b) & 439---Suspension of sentence on grounds of delay in disposal of revision petition---Validity---Section 426(1-A), Cr.P.C, did not furnish any statutory ground for suspension of sentence during the pendency of a revision petition on account of delay in its disposal.

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

----Ss. 439 & 426(1A)(b)---Suspension of sentence during pendency of revision petition---Scope---High Court, in exercise of its discretionary revisional jurisdiction, in exceptional cases of genuine hardship can suspend the sentence of a convict during pendency of his revision petition, for example where the convict during pendency of his revision petition develops an ailment of the nature that would result in his death, if he is kept in detention/confinement and where he cannot be provided requisite treatment under detention in a government or other hospital.

Muhammad Ayub v. Muhammad Yaqub and the State PLD 1966 SC 1003 rel.

Khawaja Azhar Abbas for Petitioner.

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

Malik Dost Muhammad Awan for the Complainant.

P L D 2012 Lahore 415

Before Ali Baqar Najafi, J

NADEEM---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.5063-B of 2012, decided on 25th April, 2012.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392 & 411---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery, dishonestly receiving property stolen---Bail, grant of---Further inquiry---Identification of accused through a photograph instead of an identification parade---Validity---Contentions of accused were that he was not nominated in the F.I.R. and was involved in the offence on basis of supplementary statement of the complainant, which was recorded after one month and eleven days of the incident; that no identification parade was held and accused was allegedly recognized by the complainant on basis of a photograph; that alleged recovery was planted upon the accused, and that accused was not required for investigation anymore---Validity---Accused was neither named in the F.I.R. nor any identification parade was held to connect him with the commission of the alleged offence---Identification of accused through a photograph could not be a substitute for identification through an identification parade---Mere involvement of accused in other cases did not debar him from bail, if he was otherwise entitled for the same---Registration of F.I.Rs. against the accused was no ground to refuse bail unless same were accompanied by conviction orders---Alleged recovery of weapon at the instance of the accused was not significant, as weapon was allegedly not used during the occurrence--- Evidentiary value of recovered mobile phone and cash could be determined at the trial---Case of accused fell within the purview of S.497(2), Cr.P.C, and required further inquiry---Bail petition of accused was accepted and he was admitted to bail.

Zulfiqar Ali v. The State 1991 PCr.LJ 1125 rel.

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

----Art. 22---Identification of accused through photographs/pictures as a substitute for an identification parade---Person's right perception of an object---Criteria---Mere photograph could not be a valid substitute for establishing identity of an accused through identification parade as required under Art.22 of Qanun-e-Shahadat, 1984---Person's right perception of an object, seen by him depended upon the criteria, (i) nearness to the object; (ii) capacity to see with distinctness; (iii) required light, and (iv) the three dimensional effect of the object--- Identification through snap/pictures did not properly meet such criteria.

Zulfiqar Ali v. The State 1991 PCr.LJ 1125 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 392 & 411---Bail---Principles---Registration of other F.I.Rs. against the accused---Effect---Registration of other F.I.Rs. against the accused was no ground to refuse bail unless same were accompanied by conviction orders.

Basharat Ali for Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor General for the State along with Muhammad Afzal, S.I. with record.

P L D 2012 Lahore 418

Before Kh. Imtiaz Ahmad, J

RIZWAN MAQSOOD---Petitioner

Versus

Mst. TAHIRA JABEEN KAUSAR and another---Respondents

Writ Petition No.864 of 2012, decided on 2nd April, 2012.

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

----Ss. 5 & 9---Husband (petitioner) assailed orders of the Family Court whereby his application for framing of an issue with regard to his counter-claim against the wife was dismissed by the Trial Court---- Validity---Under S.9 of the West Pakistan Family Courts Act, 1964, provisions with regard to certain counter claims such as restitution of conjugal rights and dissolution of marriage including, khula, had been incorporated; and no separate suit would lie for the same---No other provision existed in the West Pakistan Family Courts Act, 1964 with regard to any other type of counter claim---Schedule of S.5 of the Act provided nine types of suits in which the family court had jurisdiction, which were dissolution of marriage, including khula, dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage, dowry and personal property belonging to a wife; and except for said claims Family Court had no jurisdiction for other claim---Wife, if allegedly, had taken articles belonging to the defendant-husband, said situation did not come within the jurisdiction of the Family Court to adjudicate upon---Constitutional Petition was dismissed.

Aftab Ahmad Butt v. Babra Raheem 2007 CLC 575 and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 distinguished.

Makhdoom M. Niaz Inqlabi for Petitioner.

P L D 2012 Lahore 420

Before Malik Shahzad Ahmad Khan, J

ABRAR HUSSAIN---Petitioner

Versus

MEHWISH RANA and 3 others---Respondents

Writ Petition No.3276 of 2011, decided on 20th March, 2012.

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

----S. 17-A---Interim maintenance---Object, purpose and scope---Purpose behind provisions for interim maintenance is to ensure that during pendency of such proceedings with Family Court, financial constraints faced by minors are ameliorated.

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

----S.17-A---Interim maintenance---Quantum---Determining factors---Family Court should broadly look into the social status of parties; earning of husband; his capacity to pay; requirements of minor; and on this touchstone fix interim maintenance.

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

----S.17-A---Interim maintenance---Powers of court---Family Court has uninhibited powers to enhance or decrease quantum of maintenance after appraising, deciphering and examining evidence produced during trial---Findings regarding interim maintenance normally cannot be interfered with, if the same were fixed upon the parameters in such regard.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Interim order---Petition under Art. 199 of the Constitution is maintainable even against an interim order, if the same is void ab-initio, without jurisdiction or if the same has attained the status of a final order.

Suleman and 4 others v. ASJ Nankana Sahib and 3 others PLJ 2007 Lah. 1173 and Muhammad Hassan v. Judge Family Court, Bhalwal and another 2008 YLR 1826 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Appeal against interim order, absence of---Effect---When Legislature has specifically prohibited filing of appeal against an interim order and if constitutional petition is allowed to be filed against such order, it would tantamount to defeating and diverting the intent of Legislature.

Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165; Mohtarma Benazir Bhutto, MNA and Leader of the Opposition, Bilawal House, Karachi v. The State 1999 SCMR 1447 and Mushtaq Hussain Bukhari v. The State 1991 SCMR 2136 rel.

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

----S. 17-A---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Interim maintenance---Interim maintenance fixed by Family Court was assailed by husband on the plea of its being exorbitant and beyond his means---Validity---Order passed by Family Court could neither be termed as void ab initio nor without jurisdiction and the order had also not attained status of final order---Order for interim maintenance was passed by Family Court, who had jurisdiction to pass such order under S.17-A of West Pakistan Family Courts Act, 1964---Husband did not challenge jurisdiction of Family Court in his written statement, he was not condemned unheard and was provided opportunity of hearing before passing the interim order---Quantum of interim maintenance allowance was prima facie rightly fixed by Family Court, while keeping in view the status of parties and expenses of minors---Husband was unable to point out any patent illegality or material irregularity in the order of interim maintenance, therefore, petition which had been filed against interim order passed by court of competent jurisdiction, after providing an opportunity of hearing to parties was not maintainable in the eyes of law---High Court declined to interfere in interim maintenance fixed by Family Court---Petition was dismissed in circumstances.

Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Benedict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918 and Muhammad Irfan v. Judge Family Court, Sargodha and 2 others 2008 CLC 585 rel.

Mian Altaf-ur-Rehman for Petitioner.

Mian Sohail Anwar for Respondents Nos.1 to 3.

P L D 2012 Lahore 430

Before Ijaz Ahmad, J

ARSHAD PETER---Petitioner

Versus

Mst. SHUMAILA and 3 others---Respondents

Writ Petition No.12452 of 2010, decided on 22nd March, 2012.

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

----S. 5 & Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and medical expenses---Husband and wife were both professing the Christian faith at the time of marriage---Suit was decreed by Family Court and thereafter wife filed an execution petition---Contention of the husband was that he had converted to Islam in the year 2007 and had in the same year divorced the wife; and therefore, the wife could only be entitled to maintenance allowance only till she rejoins the husband or on completion of "iddat"---Validity---Quantum of maintenance allowance, both past and future, was to be calculated and determined by the Executing Court, and the terminus ad quem (point of termination) for the same would be when the "talaq" pronounced by the husband would become effective---In a case of a husband renouncing Christianity and embracing Islam, the convert Muslim husband would have a scriptural (Kitabia) women as his wife and such a union was permitted by Islam and may continue till the wife obtained a decree for dissolution of marriage or the husband pronounces "Talaq" in accordance with the law of the religion professed by him---Divorce was not denied by the wife and had been pronounced by the husband in accordance with his new religion and was legal; subject to limitations and safeguards provided by the Holy Quran---Divorce, in the present case, was effective from after the expiry of the period of "Iddat"---Wife, would be entitled to the maintenance allowance till when the said period of "Iddat" expired---Constitutional petition was allowed, accordingly.

Muncherji Cursetji Khambata v. Jessie Grant Khambata AIR 1935 Bom. 5; Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC 51 and Frooq Leivers v. Adelaide Bridget Mary PLD 1958 (W.P.) Lah. 431 rel.

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

----S. 5 & Sched.---Dissolution of marriage in a case where a Christian wife of a Christian husband embraces Islam---In a case where the spouses at the time of marriage were Christian, and the wife renounces her religion and converts to Islam, she, in such an eventuality, being a Muslim woman would be one married to a non-Muslim, both professing their scriptural religions---Wife, in such a case, would be on the intervention of a court be entitled to a decree for dissolution of marriage---Court, in such a case, would call upon the husband to embrace the new faith of the wife and if he refuses to do so, the court may pronounce the dissolution of marriage.

Mobeen Ahmad Siddiqui for Petitioner.

Aric John for Respondent No.1

P L D 2012 Lahore 433

Before Kh. Imtiaz Ahmad and Rauf Ahmad Sheikh, JJ

UMAR AFZAL---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT NO.2, RAWALPINDI and 3 others---Respondents

Writ Petition No.2948 of 2011, heard on 2nd February, 2012.

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

----Ss. 7, 2, 4 & 14---Anti-Terrorism Act (XXVII of 1997), S.12---Penal Code (XLV of 1860), Ss.302/365-A/377/109---Constitution of Pakistan, Art.199---Constitutional petition---Anti-Terrorism Court vide impugned order had declined to send the case of accused back to the Juvenile Court, on the ground that it had the jurisdiction to try the minor accused persons---Validity---Juvenile Court was only competent to determine the age of accused under S.7 of the Juvenile Justice System Ordinance, 2000, in case of a controversy, as had been done in the present case and the Anti-Terrorism Court had no jurisdiction, once again, to get their age determined which also implied that in the matter of a minor/juvenile only the Juvenile Court had the jurisdiction to try the same---Perusal of Ss.2(b), 2(e), 2(f) and 4(3) of the Juvenile Justice System Ordinance, 2000, had made it clear that whatever was offence under any law including the Anti-Terrorism Act, 1997, it was an offence under Juvenile Justice System Ordinance, 2000---Minor could be tried under the Anti-Terrorism Act, 1997, but after coming into force of Juvenile Justice System Ordinance, 2000, its S.4(3) had taken away this jurisdiction and now every case in which a child is accused of an offence, is exclusively triable by the Juvenile Court---According to S.14 of the said Ordinance, the provisions of the Ordinance were in addition to and not in derogation of any other law for the time being in force, but said section could not be read in isolation, but it had to be read along with Ss.2 and 4 of the Ordinance---Special Court constituted under the Anti-Terrorism Act, 1997, had not been declared a Juvenile Court, therefore even if the powers be vested with the Presiding Officer of such court, he could not try, entertain and adjudicate the cases of juveniles; thus, only the Juvenile Court had the exclusive jurisdiction to try the cases of juvenile offenders---Observation of Trial Court that it had the jurisdiction to try the minor was erroneous, as it was not a Juvenile Court---Impugned order was, consequently, set aside with the direction to Anti-Terrorism Court to send the case to Juvenile Court for trial---Constitutional petition was allowed accordingly.

Aleem Ashraf v. The State 2005 MLD 1028 rel.

Muhammad Din v. Muhammad Jehangir and 4 others PLD 2004 Lah. 779 and Qamar Hussain Shah v. The State PLD 2006 Kar. 331 distinguished.

Meraj and 3 others v. Judge Anti-Terrorism, Northern Areas, Gilgit and another 2007 PCr.LJ 1011 and Zia Ullah v. Najeeb Ullah and others PLD 2003 SC 656 ref.

Sardar Muhammad Ishaq Khan for Petitioner.

Mohib-ur-Rehman Abbasi for Respondent No.3.

Nadeem Akhtar Bhatti, A.A.-G. for the State.

Date of hearing: 2nd February, 2012.

P L D 2012 Lahore 440

Before Ch. Muhammad Younis, J

AMIR AFTAB HUSSAIN---Petitioner

Versus

LAND ACQUISITION COLLECTOR, PUNJAB PROVINCIAL HIGHWAY DEPARTMENT, RAWALPINDI and 4 others---Respondents

Writ Petition No.145 of 2012, decided on 14th May, 2012.

Land Acquisition Act (I of 1894)---

----Ss. 4, 6, 9(1), 11, 12(2), 17(4), 18 & 23---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition of land---Mandatory notice, non-issuance of---Effect---Land owned by petitioner was acquired by authorities for construction of public road---Plea raised by petitioner was that he was out of country and no- notice under S.12(2) of Land Acquisition Act, 1894, was given to him---Validity---Every land owner had an independent legal right in respect of his holding and no ex-parte and arbitrary proceedings could be initiated by the authorities---Land Acquisition Collector was bound to follow provisions of Land Acquisition Act, 1894, strictly---Petitioner admittedly remained out of country from 22-8-2009 to 20-12-2011 and he filed present petition on 19-1-2012 soon after his arrival in Pakistan---Mandatory notice under S.12(2) of Land Acquisition Act, 1894, was not given to petitioner at all, so award to the extent of petitioner was declared to be illegal and void and acquisition of land of petitioner stood vitiated and the same was set aside---High Court directed Land Acquisition Collector to proceed under S.11 of Land Acquisition Act, 1894, afresh and new award in respect of acquired land belonging to petitioner should be made after fulfilling all requirements of law--- Petition was allowed accordingly.

2003 MLD 801; PLD 1979 (Quetta) 35; PLD 1970 Lah. 321; PLD 2011 Lah. 402; 1983 CLC 1879; AIR 1924 Patna 608; PLD 1972 Lah. 458; 1989 CLC 1941; PLD 1987 SC 447; 2010 SCMR 421; PLD 1998 SC 24; AIR 1980 SC 1037; 2007 SCMR 1357; PLD 1972 SC 279; PLD 1992 Lah. 151; PLD 2002 Pesh. 50; PLD 1976 Lah. 820, 2004 YLR 1969; PLD 1994 Kar. 140; PLD 1993 Kar. 237; 2004 PLC (C.S.) 201; 2004 SCMR 649; 2003 SCMR 1025; 2005 SCMR 594 and PLD 1962 Lah. 151 ref.

PLD 1967 SC 191; 1994 MLD 2425; PLD 1983 Lah. 578; PLD 1084 Pesh. 35; 2007 SCMR 38 = 2007 CLD 90; KLR 2009 Civil Cases 9 and PLD 1970 Lah. 321 distinguished.

Ch. Afrasiab Khan for Petitioner.

Shahid Mahmood Abbasi, A.A.G.

P L D 2012 Lahore 445

Before Ibad-ur-Rehman Lodhi, J

ABDUL MAJEED---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 4 others---Respondents

Writ Petition No.22305 of 2010, decided on 18th May, 2012.

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

----S. 5 & Sched. ---Constitution of Pakistan, Art. 199---Constitutional petition---Maintenance allowance for minors, recovery of---Petitioner was grandfather of minors and he failed to provide maintenance allowance as fixed by Family Court---Plea raised by petitioner was that he was a pensioner having meagre sources of income and was unable to pay maintenance to minors as fixed by Family Court---Validity---By putting a person with 76 years of age behind the bars, the minors would not be adequately compensated with regard to their maintenance, when grandfather was a pensioner and not in a position to maintain the minors---Such was not enough to attend miseries of the minors---High Court observed that system of Zakat could be linked up with Family Court to the extent that if Family Court was of the view that persons liable to pay maintenance were poor and those who should have to receive maintenance also fell under the clause of eligible persons entitled to receive Zakat funds, then suitable directions to Zakat and Ushr Council be also issued---Family Courts were also expected not to deal with delicate matters touching the rights of people, particularly destitute ladies and needy minors and instead of dealing with their such affairs in mechanical manner, there was a need to adopt new line of action to start with creation of a society, which was dreamed of as a social welfare State---By putting person behind the bars for non-providing maintenance to deserving people, no service was being offered to such needy people but their miseries were being added---High Court directed the authorities to register the minors as regular beneficiaries from District Bail-ul-Maal---Petition was disposed of accordingly.

Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Sohail Muhammad Shees Farooq v. Mst. Minza Roomana and another 1998 MLD 1972; Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930; Ghulam Nabi v. Muhammad Asghar and 3 others PLD 1991 SC 543; Abdul Ghani v. Muhammad Ishfaq and others 1994 CLC 444; Abdullah v. Jawaria Aslam and 2 others 2004 YLR 616 and Mawra Arshad v. Sheikh Ehsan Ghani 2005 SCMR 1293 ref.

(b) Constitution of Pakistan---

----Arts. 5 & 7---Loyalty to State and obedience to Constitution and law---Every child born in Pakistan is subject matter of the Constitution and State is responsible to provide all what has been guaranteed in the Constitution.

(c) Constitution of Pakistan---

----Part-II, Chap. 2 [Arts. 29 to 40]---Principles of policy---Scope---Each organ and authority of the State and each person performing on behalf of an organ or authority of the State is responsible to act in accordance with such principles in so far as they relate to the functions of the organ or authority.

(d) Constitution of Pakistan---

----Arts. 31 & Part II, Chap.2 [Arts. 29 to 40]---Principles of Policy---Islamic way of life---Any organ of the State can be directed by an order of the Court to observe Principle of Policy in their respective spheres of working.

Shahid Shaukat for Petitioner.

Muhammad Nasir Chohan, A.A.G. for Respondents.

Date of hearing: 26th April, 2012.

P L D 2012 Lahore 455

Before Nasir Saeed Sheikh, J

TAISEI CORPORATION---Petitioner

Versus

A.M. CONSTRUCTION COMPANY (PVT.) LTD.---Respondents

Civil Revision No.691 of 2012, decided on 14th May, 2012.

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

----O. VII, R. 10---Return of plaint, application for---Essential factors requiring consideration by court stated.

The provisions of Order VII, Rule 10 of C.P.C. are in fact the incorporation of the fundamental principle of law that only a court or tribunal having the jurisdiction to entertain and adjudicate upon a matter is competent to proceed with the matter, and if an objection to the competence of the institution of the suit before a court of law under the C.P.C. is raised and the objection is sustained, the court has to return the plaint for its presentation to the court in which the suit should have been instituted.

For the purpose of deciding the application under Order VII, Rule 10 of C.P.C., the contents of the plaint as presented in the court are only to be looked into particularly if the objection qua the jurisdiction as raised is to be decided only on the basis of legal arguments addressed by the parties. If the question of jurisdiction requires probing into some disputed facts, then the matter has to be resolved after framing of necessary issue and recording of evidence of the parties.

Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618; Shah Muhammad v. Khushal Muhammad and 3 others 1981 CLC 1191; Messrs Agricides (Pvt.) Ltd. v. Messrs Ali Agro Supply Corporation Ltd. 1988 CLC 59; Miss Shah Begum v. Ashraf Ali Naz PLD 1993 Kar. 151; Dr. Muhammad Saleem Khan v. Amanullah Khan 1998 CLC 1995; Ahmed Nawaz and 4 others v. Abdul Khalique and 13 others 2002 MLD 1783 and Aziz Bibi and others v. Aijaz Ali and others 2007 YLR 21 rel.

(b) Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011)---

----Ss. 2(d), 3 & 4---Arbitration Act (X of 1940), Ss.14, 30 & 33---Civil Procedure Code (V of 1908), O.VII, R.10---Application for filing in court award rendered by Arbitrator appointed by International Chamber of Commerce (ICC)---Applicant's plea that letter of Arbitrator regarding rendering of award was received within jurisdiction of civil Court at place "L", where cause of action arose partly---Respondent's application under O.VII, R.10, C.P.C. for return of applicant's such application that civil court at place "L" lacked jurisdiction to entertain same as such award being a foreign arbitral award, regarding which only High Court had jurisdiction under Recognition and Enforcement of (Arbitration Agreement and Foreign Arbitral Awards) Act, 2011; and that only High Court at place "K" had territorial jurisdiction to entertain such matter---Validity---Respondent had not denied factum of principal office of applicant at place "L", wherefrom all necessary letters between parties had been exchanged---Record showed that execution of final agreement of sub-contract had taken place at place "K", but its execution was preceded by numerous letters exchanged between parties from their respective working places/offices---Cause of action regarding such sub-contract had partly accrued to applicant within territorial jurisdiction of court at place "L", where its principal office located---Application under S.14 of Arbitration Act, 1940 was not one of such kind of legal proceedings to be decided by court constituted under Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---Respondent had not made application for recognition and enforcement of such award to a court constituted under S.2(d) of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---No jurisdiction had been conferred upon court constituted under S.2(d) of the said Act to entertain application of nature of S.14 of Arbitration Act, 1940---Court considered under S.2(d) of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 had been constituted with specific limited powers of giving recognition and enforcement to a foreign Arbitral award, thus, general powers conferred upon ordinary civil court under provisions of Arbitration Act, 1940 including S.14 thereof would remain available to a party affected by an award---Parties had specifically agreed that such sub-contract would be governed by Pakistan law---Impugned award was a domestic award to be dealt with in accordance with Pakistan law---Respondent had not raised objection that such award could be challenged in seat of arbitration abroad---Arbitrator had elected to file such award in High Court at place "K"---Subsequent making of an application under S.6 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 by respondent to High Court at place "K" would not divest civil court at place "L" to entertain applicant's application under S.14 of the Arbitration Act, 1940, which was not entertain able by court constituted under S.2(d) of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---Civil Court at place "L" had jurisdiction to entertain applicant's application under S.14 of the Arbitration Act, 1940---Respondent's application under O.VII, R.10, C.P.C. was rejected, in circumstances.

Messrs Brady and Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 and Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618 rel.

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

----Art. 79---"Execution of agreement"---Connotation.

The term "execution of an agreement" between the parties means not only the placing of signatures upon the document, but also include the process of making the two signatories of the agreement to fully understand and comprehend the different terms and conditions of the agreement finally concluded.

Kh. Ahmed Hussain for Petitioner.

Uzair Karamat Bhandari for Respondents.

Date of hearing: 27th April, 2012.

P L D 2012 Lahore 480

Before Rauf Ahmad Sheikh, J

ABDUL HAQ and Legal Heirs---Petitioners

Versus

MUHAMMAD SAJJAD and 2 others---Respondents

Civil Revision No.1621 of 2012, decided on 16th May, 2012.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 5---Talb-e-Muwathibat---Essence---Consultation before making Talb-e-Muwathibat---Effect---Statement of the plaintiff showed that the pre-emptor was sitting in the courtyard and after a consultation of 2/3 minutes; he made the pronouncement of filing suit for pre-emption---Talb-i-Muwathibat meant "jumping demand" and if the same was made after consultation and pondering over; same could not be deemed to be Talb-i-Muwathibat---Consultation would signify pondering over the benefits of filing the suit for pre-emption, which negated the spirit of Talb-i-Muwathibat as was elucidated in Explanation No.1 under S.13 of the Punjab Pre-emption Act, 1991---Once a person made consultation or pondered over, he could not say that he had made a "jumping demand" which was the essence of Talb-i-Muwathibat---Argument that Talb-i-Muwathibat connoted immediate pronouncement within reasonable time and 2/3 minutes spent on consultation would not deprive the pre-emptor of his right was devoid of any force---Person who was in need of the property or wanted to avoid "zarar" within the meaning of S.6 of the Punjab Pre-emption Act, 1991 would not make consultation before making the pronouncement but would immediately make his intention regarding the filing of the suit, clear---Revision was dismissed.

2002 SCMR 219; AIR 1925 Patna 743 and 1994 CLC 506 distinguished.

M. Taki Ahmad Khan for Petitioner.

P L D 2012 Lahore 483

Before Amin-ud-Din Khan, J

ARSHAD AHMAD alias M. ARSHAD and others---Petitioners

Versus

MUHAMMAD YAR and others---Respondents

Civil Revision No.196 of 2004, decided on 16th November, 2011

(a) Islamic Law---

----Gift---Suit for declaration of ownership on basis of gift---Proof---Plaintiff would be bound to plead gift in plaint and prove firstly factum of gift independent of any instrument and secondly the instrument, if his claim was based thereupon.

(b) Islamic Law---

----Gift---Essential ingredients, offer, acceptance and delivery of possession.

Muhammadan Law by Mulla, Para.149 rel.

(c) Islamic Law---

----Gift, making of---Method---Muslim can also make gift orally---Instrument of gift in writing must fulfil all legal formalities.

Muhammadan Law by Mulla, Para.147 rel.

(d) Registration Act (XVI of 1908)---

----Ss. 17 & 49---Gift deed regarding property of value more than Rs.100---Registration of such deed would be necessary.

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

----S. 42---Suit for declaration of ownership on basis of alleged gift deed---Declaratory decree passed by Trial Court set aside by Appellate Court---Validity---Declaratory decree under S.42 of Specific Relief Act, 1877 could be passed for declaring a pre-existing right, but could not create a new right---Not necessary to file such suit, if alleged gift deed was sufficient to transfer right in suit property in favour of plaintiff and alleged donor was also alive and willing---Plaintiff had filed such suit in order to get his rights created in suit property by court through a declaratory decree---Such suit was not competent---Decree granted by Trial Court was nullity in eyes of law and Appellate Court had rightly set aside the same---High Court dismissed revision petition in circumstances.

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

----S. 42---Suit for declaration of ownership on the basis of alleged gift deed---Maintainability---Declaratory decree under S.42 of Specific Relief Act, 1877 could be passed for declaring a pre-existing right, but could not create a new right.

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

----S. 115(1), first proviso---Revision petition---Documents to be filed along with such petition---Scope---Petitioner would be bound to produce complete certified copies of pleadings, evidence etc., of case with such petition---Petitioner would be liable to suffer loss for non-producing such copies---Court had to decide such petition on basis of available record.

Aejaz Ahmad Ansari for Petitoners.

Mian Muhammad Tayyib Watto for Respondents.

Date of hearing: 16th November, 2011.

P L D 2012 Lahore 488

Before Abdus Satter Asghar, J

AWAIS SHEIKH---Petitioner

Versus

SECRETARY MINISTRY OF INTERIOR, ISLAMABAD and 2 others---Respondents

Writ Petition No.16553 of 2012, decided on 22nd June, 2012.

Foreigners Act (XXXI of 1946)---

----S. 14-C---Constitution of Pakistan, Art.199---Constitution petition---Custody/detention of foreigners pending deportation---Scope---Petitioner sought direction for release from jails of some foreign nationals convicted under the Foreigners Act, 1946 on the charge of invalid travel documents---Validity---Foreigner who had been sentenced under S.14-C, Foreigners Act, 1946 may be kept under custody for another three months beyond the period of sentence in order to make arrangements during that time for his deportation---Foreigner could not be confined for unlimited period for his deportation under the Act---High Court directed the authorities to take necessary action in accordance with law expeditiously---Constitutional petition was disposed of accordingly.

Awais Sheikh, Advocate in person.

Muhammad Saeed Tahir Solehri, A.A.G. on court calls.

P L D 2012 Lahore 490

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD KHALID---Petitioner

Versus

MUHAMMAD NAEEM and 6 others---Respondents

Writ Petition No.901 of 2011, heard on 30th May, 2012.

Arbitration Act (X of 1940)---

----Ss. 18, 14 & 17---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Constitution of Pakistan, Art.199---Constitutional petition---Consolidation of proceedings ongoing simultaneously before Rent Controller in an ejectment petition and civil court for enforcement of award under Ss.18, 14 & 17 of the Arbitration Act, 1940---Scope---Ejectment petition before the Rent Controller was in its final stage of adjudication, and the matter had also been referred to a panel arbitrators; whose award was filed before the civil court for enforcement---Petitioner had sought amalgamation of proceedings on the ground that the Presiding Officer before whom the petition for enforcement of award was filed was also incidentally the Rent Controller in the matter---Said application of the petitioner was' dismissed---Validity---Ejectment petition before Rent Controller was at concluding stage whereas the petition moved under Arbitration Act, 1940 before the civil court was at the initial stages---Proceedings under the 'Arbitration Act, 1940 were to be taken up by the civil court while ejectment petition was to be decided by the Rent Controller who was a persona designate under the provisions of the West Pakistan Rent Restriction Ordinance, 1959; as such, the two jurisdictions were entirely different---Pleadings, issues, evidence and other material in both the matters being different, ought to be decided independently and separately---Civil Judge could be assigned different jurisdictions, for example, as a Rent Controller or Family Judge, but it did not mean that while exercising different jurisdictions, all proceedings before the same Civil Judge could be amalgamated---Presiding Officer, in the present case, was the same who was acting as a Rent Controller, and also the Civil Judge, but in one he was a persona designata and was exercising quasi judicial jurisdiction, whereas with regard to the other he was acting as a Civil Judge under the Provisions of the Civil Procedure Code, 1908---Neither two jurisdictions nor the proceedings under two entirely different laws could be consolidated or amalgamated---Constitutional petition was dismissed, in circumstances.

Pakistan through General Manager, FAFI, Lahore. v. Messrs Agro Marketing Corporation Ltd. and 2 others 1981 CLC 443 rel

Ijaz Hussain Shah and 12 others v. Ghulam Akbar -Shah 2000 YLR 1207 and Manzoor Ahmad. v. Messrs FACTO (Pakistan) Ltd. and others 1996 MLD 265 ref.

M.A. Fatmi for Petitioner.

Khalifa Shujaat Amin for Respondents.

Date of hearing: 30th May, 2012.

P L D 2012 Lahore 493

Before Muhammad Khalid Mahmood Khan and Thad ur Rebhan Lodhi, JJ

SECRETARY WAFAQI MOHTASIB and 6 others---Appellants

Versus

CAPITAL STEEL RE-ROLLING MILLS through Partner and 2 others---Respondents

I.C.A. No.709 of 2011, decided on 28th June, 2012.

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Art. 19---Law Reforms Ordinance (XII of 1972), S. 3-Infra-court appeal---Wafagi Mohtasib---Delegation of power---Scope---Dispute was with regard to passing of orders by consultants especially when office of Wafaqi Mohtasib was vacant---Validity---Delegatee under Art.19 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, had no independent right to do any act on behalf of Wafaqi Mohtasib---Authorized/delegate could investigate and probe into complaint but he/she had to submit his recommendations to Wafaqi Mohtasib for appropriate orders---Wafaqi Mohtasib was the only person under Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, who could pass recommendations and consultants/ authorized officer could only investigate and probe the matter and to submit his report or recommendations to Wafaqi Mohtasib, delegate thus had no independent powers to issue any recommendations---Reason for not delegating powers to consultants/authorized officers to recommend directly, as Wafaqi Mohtasib was under oath under Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, whereas consultant was only the appointee of Wafaqi Mohtasib and was not under oath---Oath of Ombudsman read with Art.19 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, showed that Wafaqi Mohtasib had no authority to delegate his. powers to pass .any final recommendation, hence if the Principal (Ombudsman) was unable to delegate his powers, his agent could not claim that he had the powers to act as Ombudsman-Judgment passed by Single Judge of High Court was set aside to the extent of initiating of inquiry against ' consultants who had passed recommendations in absence of Wafaqi Mohtasib---Intra-court appeal was allowed accordingly.

Reference No.2 of 2005 (PLD 2005 SC 873); Karim Bakhsh v. Mst. Mubarik Jan PLD 1970 Pesh. 169; Jodhey and others v. State through Ram Sahai 1952 Cri.LJ All.H.C. 1282; Philips Electrical Industries of Pakistan I_ d. v. Pakistan and others 2000 YLR 2724; Messrs Shaheen Air International Ltd. (SAI) and others v. Messrs Voyage De Air and others 2006 SCMR 1684; Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs Islamabad v. Dr. Mubashir Hassan and others PLD 2012 SC 106; Judicial Review of Administrative Action, First Edn. P.173; VINE v. National Dock Labour Board 1957 AC 488 and Al-Jehad Trust and another v. Federation of Pakistan and others PLD 2011 SC 811 rel.

'Zia-ul-Qamar Bhatti, Dy. A.-G. for Pakistan.

Re-Rolling Mills (Muhammad Khalid Mahmood Khan, J)

Uzair Karamat Bhandari for Appellants.

Umar Sharif for Respondents Nos.2 and 3. (Sui Northern Gas Pipelines).

Date of hearing: 6th June, 2012.

P L D 2012 Lahore 503

Before Ayesha A. Malik, J

Messrs TOYOTA GARDEN MOTORS (PVT.) LTD. through Chief Executive Officer, Lahore---Petitioner

versus

GOVERNMENT OF PUNJAB through Home Secretary, Punjab, Lahore and 2 others---Respondents.

Writ Petitions Nos.14645, 14360 and 14663 of 2012, heard on 22nd June, 2012.

(a) Punjab Procurement Rules, 2009

----R. 36---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Scope---Contract for procurement of ambulances---Petitioners, who had participated in the bidding process, impugned the decision of the Provincial Government whereby contract for procurement of ambulances was awarded to the respondent; on the ground that the said actions were contrary to the Punjab Procurement Rules, 2009---Maintainability---Constitutional petition was maintainable as the only issue to be decided was whether the contract awarded to the respondent was in accordance with the Punjab Procurement Rules, 2009 and no disputed question of fact was involved.

PLD 2001 SC 415 and Executive District Officer (Revenue) District Khushab at Jauharabad and others v. Ijaz Hussain and another 2011 SCMR 1864 ref.

(b) Punjab Procurement Rules, 2009--

----Rr. 36. 30 & 29---Constitution of Pakistan, Art. 199---Constitutional petition---Contract for procurement of ambulances---Bid---Lowest evaluated bid---Principles---Petitioners, who had participated in the bidding process, impugned the decision of the Provincial Government whereby contract for procurement of ambulances was awarded to the respondent; on the ground that the said actions were contrary to the Punjab Procurement Rules, 2009---Validity---Technical Scrutiny Committee rejected the bid of the respondent because they offered vehicles which did not conform to technical specifications and the bid of the petitioner was accepted, however, the Standing Purchase Committee objected to the report of the Technical Scrutiny Committee and decided that open competition be held which included vehicles offered by the respondent; and on the revised bid of the respondent, the contract was awarded to the respondent---Validity---Said procedure adopted by the Standing Purchase Committee and in the manner in which contract was awarded to the respondent were contrary to the Punjab Procurement Rules, 2009---Lowest evaluated bid must conform to the evaluation criteria and other conditions specified in the bidding document and it should be the lowest in terms of the costs---Bid of the respondent was not in accordance with the specifications provided in the bidding document and the respondent had offered a vehicle which was not specified in the bidding documents---Once the Technical Scrutiny Committee had rejected the bid of the respondent, the Standing Purchase Committee could not set out new specifications and then award the contract to the respondent---Standing Purchase Committee did not have the mandate to overrule the findings of the Technical Scrutiny Committee and by ignoring the decision of the Technical Scrutiny Committee, the Standing Purchase Committee had violated the Punjab Procurement Rules, 2009---Decision taken by the Standing Purchase Committee in favour of the respondent was illegal and was set aside---High Court directed that fresh tenders be issued for the procurement---Constitutional petitions were allowed, accordingly.

(c) Punjab Procurement Rules, 2009--

----Scope and object---Punjab Procurement Rules, 2009 ensured transparency and open competitive bidding and provided a procedural safeguard to achieve value for money and prevent abuse in the procurement process---Awarding a contract to a rejected bidder negated the spirit of open competitive bidding.

Ahmad Waheed Khan for Petitioner (in W.P. No.14645 of 2012).

Ch. Khalid Masood for Petitioner (in W.P.No.14360 of 2012).

Muhammad Sultan Gujjar for Petitioner (in W.P.No.14663 of 2012).

Malik Asif Ahmad Nissoana for Respondents.

Ras Tariq Chaudhry for Respondent No.11.

Waqas Qadeer Dar, Asstt. A.-G. with Ali Hassan, Head of the Law Wing Rescue, 1122 for Respondents.

Date of hearing: 22nd June, 2012.

P L D 2012 Lahore 512

Before Syed Iftikhar Hussain Shah and Ibad-ur-Rehman Lodhi, JJ

NIAZ AKHTAR---Appellant

versus

THE STATE and others---Respondents

Criminal Miscellaneous No.565-M of 2012 in Criminal Appeal No.518 of 2010, decided on 19th July, 2012.

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

---S. 426(1-A)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and trafficking of narcotic---Petition for suspension of sentence, refusal of---Question was as to whether person involved in offences governed by Control of Narcotic Substances Act, 1997, could be termed as dangerous criminal and whether he could avail the benefit of S.426(1-A), Cr.P.C.---Recovery of 25 kilograms of charas stood proved against the accused and he was sentenced to imprisonment for life by the Trial Court---Contention of accused was that there was no likelihood of hearing of his appeal in the near future and his statutory right of suspension of sentence and release on bail had matured---Validity---Selling narcotics directly affected the moral and social fabric of the society and had the potential of destroying the health and family life of a large number of people in addition to bringing a bad name to the country---Substances like heroin/charas had been declared as dangerous drugs on account of their dangerous effects---Accused seemed to be involved in the business of drug trafficking at a large scale---Such business was not only prohibited by law but was also against the Injunction of Islam ordained in the Holy Quran and Sunnah---Petition for suspension of sentence was dismissed, in circumstances.

Muhammad Asghar v. The State 1992 MLD 1554 and The State through Deputy Director Anti-Narcotics Force, Karachi v. Mobin Khan 2000 SCMR 299 rel.

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

----S. 426(1-A)---Control of Narcotic Substances Act (XXV of 1997), S.9---Suspension of sentence, availability of---Person dealing in large quantity of heroin---Such a person could safely be termed as a "dangerous criminal" for purposes of S.426, Cr.P.C.

Muhammad Asghar v. The State 1992 MLD 1554 rel.

Muhammad Younas Bhatti for Petitioner.

Rana Kashif Saleem Arfaa, PPPD.

P L D 2012 Lahore 515

Before Syed Mansoor Ali Shah and Muhammad Khalid Mehmood Khan, JJ

Messrs HUDABIYA PAPER MILLS LTD. and others---Petitioners

versus

NATIONAL ACCOUNTABILITY BUREAU-Respondent

Writ Petitions Nos.3114 to 3120 of 2010, decided on 4th October, 2011.

(a) Political question, doctrine of---

----Meaning and scope.

Ronald D Rotunda & John E, Novwak-Treatise on Constitutional Law-Substance and Procedure - 2nd Edition, P.275, Vol.-1; Craig R Ducat and Harold W Chase-Constitutional Interpretation, 5th Ed-p.15; Justice Brennan in Baker v. Carr-369 US 186; Fazal Karim-Judicial Review of Public Actions-p1061, Vol.2; The Judge in a Democracy (p.177-186), Princeton University Press, 2006; Khawaja Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah.725 at 774-775; PLD 1997 SC 426 at 519-520; Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 at 190 and Fazal Karim-Judicial Review of Public Actions, p.1062-3 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Political question, doctrine of---Test and scope---Institutional non-justiciability---Power of court to look into political matters---Scope---Desirability of a matter to be taken up by court---Test of the doctrine of political question rested on two questions; firstly whether there was a legal standard or criteria to adjudge the issue and secondly, whether it was desirable to decide the dispute in court or should it rather be resolved by other organs of the State---Concerning institutional non-justiciability, the question of desirability of taking up the matter might arise, not because the court could not adjudicate the matter but because it might be suitable that the matter was first reviewed and resolved by another branch of the government---Court had the power to look into any matter without prejudice to its political content, especially if there was violation of law and fundamental rights of the citizen were under threat, therefore, except a few matters like foreign policy, declaration of war or signing a peace pact, etc. which had been traditionally left to the government purely because it was desirable that these matters be handled and resolved outside court---Such ouster however was not absolute by any count---Besides matters of international relations or other matters of State which did not directly affect an individual or a citizen, the doctrine of political question had no feet in matters where enforcement of fundamental rights of a citizen were involved---No matter how deeply political the issue, the doctrine could not thwart or restrict the exercise of judicial power in such matters---Any restraint on the part of constitutional court, in case of a constitutional or legal breach would amount to a judicial "under-reach" and would seriously undermine the raison d'etre of a constitutional court.

Barak-The Judge in A Democracy-p.186; Tom Bingham-The Rule of Law-p.4 and Thomas Paine-Common Sense (1176-Oxford University Press) p.34 ref.

(c) Constitution of Pakistan---

----Arts. 184(3) & 199---Actions/decisions of State---Judicial review---Scope---No decision or action of the State could be outside the four corners of law and it would always remain susceptible to judicial scrutiny and audit.

(d) Constitution of Pakistan---

----Arts. 184(3) & 199---State action---Political decision---Judicial review---Scope---No State action or decision could escape judicial review by the constitutional courts including the most political of decisions.

(e) National Accountability Ordinance (XIII of 1999)---

----S. 10(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Unconstitutional and unlawful recovery of property---Political question, doctrine of---Applicability---National Accountability Bureau (Bureau) had taken over various properties belonging to petitioners (relatives of acquitted accused) in pursuance of conviction of accused by Anti-Terrorism Court and Accountability Court---Contentions of petitioners were that recovery of properties from them on account of the sentence, fine and forfeiture imposed on accused was wholly illegal and without lawful authority because the petitioners could not have been coerced into handing over their properties on behalf of accused simply on account of family relationship, and that even otherwise accused had been acquitted from the cases---Contentions of the Bureau were that takeover of the properties in question was on the "verbal orders/instructions" of the Government, purportedly issued in pursuance of "Settlement Agreement" entered into between the accused and the Federal Government, and that subject matter of the present petitions involved a "political question," therefore, the court was not empowered to issue any writ in the matter---Validity---Present case was a text book case of State excess and naked infraction of fundamental rights of the petitioners---Present matter was not a matter of foreign policy or war between countries or any other State policy which lacked judicially manageable standard by which courts could resolve the dispute---Fact that the petitioners were related to the acquitted-accused did not attract the doctrine of political question---Contention that there had been a "Settlement Agreement" between the petitioners and "other agencies" was evasive and almost fictional when considered in juxtaposition with the fact that the Bureau neither produced copy of said "Settlement Agreement" nor was it aware of its contents---Doctrine of political question was not even remotely attracted to the present case---Constitutional petitions were allowed accordingly.

(f) National Accountability Ordinance (XIII of 1999)---

----S. 10(a)---Anti-Terrorism Act (XXVII of 1997), S. 7 ---Constitution of Pakistan, Arts. 4, 10A, 23, 24 & 199---Constitutional petition---Maintainability---Unconstitutional and unlawful recovery of property---National Accountability Bureau (Bureau) had taken over various properties belonging to petitioners (relatives of acquitted accused) in pursuance of conviction of accused by Anti-Terrorism Court and Accountability Court---Contentions of petitioners were that recovery of properties from them on account of the sentence, fine and forfeiture imposed on accused was wholly illegal and unconstitutional because the petitioners could not have been coerced into handing over their properties on behalf of accused simply on account of family relationship, and that even otherwise accused had been acquitted from the cases---Contention of the Bureau were that takeover of the properties in question was on the "verbal orders/instructions" of the Government, purportedly issued in pursuance of "Settlement Agreement" entered into between the accused and the Federal Government, and that petitioners had failed to disclose any act of the Bureau which was violative of constitutional guarantees---Validity---Lawful properties of the petitioners had been forcibly taken over by the Bureau and since retained without lawful authority, which was a clear infringement of constitutional guarantees under Arts.4, 10A, 23 and 24 of the Constitution---Impugned action of Bureau was without the backing of law and therefore the due process provided under Arts.4 and 10A of the Constitution stood offended---Articles 23 and 24 of the Constitution mandated that every citizen should have the right to hold his property and no person should be compulsorily deprived of his property except in accordance with law---Said constitutional guarantees of the petitioners had also been trampled upon by no less but the leading accountability authority in the country without demur---Constitutional petitions were allowed accordingly.

(g) National Accountability Ordinance (XIII of 1999)---

----S. 10(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Arts. 4, 10A, 23, 24 & 199---Constitutional petition---Laches---Scope---Unconstitutional and unlawful recovery of property---Recurring wrong---Effect---National Accountability Bureau (Bureau) had taken over various properties belonging to petitioners (relatives of acquitted accused) in pursuance of conviction of accused by Anti-Terrorism Court and Accountability Court---Contentions of petitioners were that recovery of properties from them on account of the sentence, fine and forfeiture imposed on accused was wholly illegal and unconstitutional because the petitioners could not have been coerced into handing over their properties on behalf of accused simply on account of family relationship, and that even otherwise accused had been acquitted from the cases---Contention of Bureau was that present petitions had been filed after nine years of the taking over of properties in question---Validity---Act of taking over and thereafter retention of properties of the petitioners by the Bureau was a stark transgression of the Constitutional protections and guarantees provided under Arts.4, 10A, 23 and 24 of the Constitution---Forcibly depriving the petitioners of their lawful properties was unconstitutional and in the nature of a recurring wrong---Laches could not stall enforcement of fundamental rights guaranteed under the Constitution---Constitutional petitions were allowed accordingly.

Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Province of Punjab through Secretary, Irrigation and Power Department, Lahore v. Deputy Settlement Commissioner, Lahore and others 1991 SCMR 1592 rel.

(h) Constitution of Pakistan---

----Arts. 184(3) & 199---Enforcement of fundamental rights---Laches---Effect---Laches could not stall enforcement of fundamental rights guaranteed under the Constitution.

Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Province of Punjab through Secretary, Irrigation and Power Department, Lahore v. Deputy Settlement Commissioner, Lahore and others 1991 SCMR 1592 rel.

(i) National Accountability Ordinance (XIII of 1999)---

----S. 10(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Art.199---Constitutional petition---Unconstitutional and unlawful recovery of property---National Accountability Bureau (Bureau) had taken over various properties belonging to petitioners (relatives of acquitted accused) in pursuance of conviction of accused by Anti-Terrorism Court and Accountability Court---Bureau contended that takeover of the properties in question was on the "verbal orders/instructions" of the Government, purportedly issued in pursuance of "Settlement Agreement" entered into between the accused and the Federal Government---Bureau filed applications for production of additional documents by petitioners including the said "Settlement Agreement" and for impleading accused and Federal Government as party to present proceedings, with the contention that said applications ought to be decided first---Validity---Applications for impleading Federal Government or accused carried little weight in the light of the fact that the Bureau neither produced copy of said "Settlement Agreement" nor was it aware of its contents---In the absence of any "Settlement Agreement" shown to the Court involving the petitioners, the Federal Government or acquitted accused were not necessary parties---Other application of Bureau through which it prayed for direction to petitioners to place on record the "Settlement Agreement" or any other document which could form tangible basis for the impugned action of the Bureau, reinforced the fact that Bureau was not in possession of the "Settlement Agreement" and therefore, had no lawful justification to hold the properties---Applications were dismissed, in circumstances--- Constitutional petitions were allowed, accordingly.

(j) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public official/functionary---Discharge of duty---Scope---Transgression or infraction of law---Effect---Every public officer or public functionary had to discharge his duties as a trustee on behalf of the people, with the highest level of dedication, commitment, integrity, transparency and fairness at his command---Like any trustee, a public functionary, must hold the interest of the public supreme---Decisions and orders of the public functionaries must at all times be just, fair, equitable, transparent, speaking, well-reasoned and within the four corners of law---Any transgression or infraction of law by the public functionary was open to judicial review by the courts, who sat as auditors of legality over such decisions.

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

----S.24A---Constitution of Pakistan,Art.199---Constitutional petition---Exercise of power by public official/authority under enactments---Scope---Decision/order to be in writing---Significance---Verbal order---Legality and effect---Section 24A of the General Clause Act, 1897 provided that power to make any order or give any direction conferred on any authority, office or person, must be exercised reasonably, fairly, justly and for the advancement of the enactment---Inbuilt in the said section was the self-evident and unquestionable requirement that the decision or order must be in writing---Written order identified its author and its recipient---Written form was the only medium that brought to fore the reason behind the order and it was the order in writing that underwent accountability of judicial review, therefore, for an order to be in writing was integral to good governance and the rule of law---Verbal order of a public functionary had no legal existence and did not constitute an order---Running of the government on verbal orders amounted to domesticating the government into a personal fiefdom and trivializing the affairs of the State into a household affair, which could not be permitted---Governance through verbal orders was bound to be chaotic, corrupt, disorderly and unaccountable---Verbal orders in the affairs of government or the public sector had no sanctity of law.

(l) Rule of law---

----Relevance to democracy---Scope---Democracy, concept of---Aspects stated.

Aharon Barak-The Judge in a Democracy by Page 23-24), Princeton University Press, 2006 and Aharon Barak-The Judge in a Democracy-Princeton ref.

(m) National Accountability Ordinance (XIII of 1999)---

----S. 10(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Arts. 4, 10A, 23, 24 & 199---Constitutional petition---Unconstitutional and unlawful recovery of property---National Accountability Bureau (Bureau) had taken over various properties belonging to petitioners (relatives of acquitted accused) in pursuance of conviction of accused by Anti-Terrorism Court and Accountability Court---Contentions of petitioners were that recovery of properties from them on account of the sentence, fine and forfeiture imposed on accused was wholly illegal and without lawful authority because the petitioners could not have been coerced into handing over their properties on behalf of accused simply on account of family relationship, and that even otherwise accused had been acquitted from the cases---Contentions of the Bureau were that takeover of the properties in question was on the "verbal orders/instructions" of the Government, purportedly issued in pursuance of "Settlement Agreement" entered into between the accused and the Federal Government---Validity---Bureau had submitted that the "Settlement Agreement" had taken place with the Federal Government, however, it failed to place before the Court, copy of the "Settlement Agreement", the details of its contents or more importantly the lawful justification of assuming jurisdiction in the matter when there was no case/reference filed against the petitioners with the Bureau---Bureau has succumbed to verbal instructions of the political government in power at that time---Lawful properties of the petitioners had been forcibly taken over by the Bureau and since retained without lawful authority, which was a clear infringement of Constitutional guarantees under Arts.4, 10A, 23 and 24 of the Constitution---Impugned action of taking over and holding the properties of the petitioners was declared unconstitutional, ultra vires of National Accountability Ordinance, 1999 and without lawful authority---Bureau was directed to release the properties of the petitioners and to pay compensatory costs in the sum of Rs 1,50,000. per constitutional petition which were to be deposited in the Prime Minister's Flood Relief Fund--- Constitutional petitions were allowed accordingly.

Jinnah Speeches and Statements 1947-1948-Talk to Civil Officers at Government House, Peshawar-OXFORD ref.

Kawas B. Aga and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others PLD 2010 Kar.182; |The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others 1998 SCMR 2386; Province of Sindh through Secretary, Home Department and others v. Roshan Din and others PLD 2008 SC m132; Inayatullah v.Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020; Mst. Afsana v. District Police Officer, (Operation), Khairpur and 5 others 2007 YLR 1618 and M.D. Tahir , Advocate v. Federation Government and others PLD 1999 Lah. 409 rel.

Shahid Hamid, Abid Aziz Shaikh and Miss Ayesha Hamid for Petitioners.

Talib Haider Rizvi and Khurram Raza for Respondents.

Date of hearing: 4th October, 2011.

P L D 2012 Lahore 536

Before Nasir Saeed Sheikh, J

Malik ALLAH YAR KHAN---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.21582 of 2012, decided on 11th September, 2012.

(a) Constitution of Pakistan---

----Arts. 199 & 19---Constitutional petition---Manner of addressing Judges of superior courts---Use of the terms "My Lord" and "Your Lordship"---Religious propriety---Contentions of petitioner were that said terms used for addressing Judges were part of British colonial system; that they were un-Islamic as only God Almighty was the Lord and no man could be the Lord of any man, and that the term "Sir" should be used instead of "My Lord"---Validity---None of the Judges of the Superior courts had ever issued any command, direction or instruction to the members of the legal fraternity to necessarily address them with the terms "My Lord" or "Your Lordship"---Said terms which were a courteous and respectful form of address had their origin in the British judicial system---No source of legal literature pointed towards the fact that British members of the Bar ever addressed the Judges of the superior courts with the term "My Lord" and "Your Lordship" with an attribution of placing the Judges near to the concept of "God Almighty"---English judicial system practised the use of titles "My Lord" or "Your Lordship" in recognition of the known ability, nobility and learning of the office holders of the higher judiciary and Judges were not imagined or thought to be involving the touch of Godly attributes---Form of judicial system inherited by Pakistan after independence had no origin relatable to application of the concept of God Almighty with the office of a Judge---Term "Lord" in its ordinary meanings had reference to the qualities of ability, nobility and learning of the persons who were appointed as Judges of the superior courts---When members of the Bar adopted the ceremonial and historical form of addressing a Judge by using the words "My Lord" or "Your Lordship", the concept of freedom of thought of speech as enunciated in the Constitution fully gave protection to such a practical exercise---Such practice could not be directed to be discontinued by an order passed by the High Court on religious grounds--- Regarding contention of the petitioner of the usage of the word "Sir" instead of "My Lord", the word "Sir" could not be separated from its colonial touch as such a "title or honour" used to be conferred by British rulers of the subcontinent only upon those persons who proved their loyalty to the United Kingdom and the Empire---Ordinary meaning of the terms "Lord" and "Your Lordship" were to be preferred and needed to be kept in mind and there was no scope for attaching to such words of address the religious concepts of communities practising some other religion---Constitutional petition was dismissed in circumstances.

Mozley and Whiteley's Law Dictionary Eighth Edn. P.213; Jowitt's Dictionary of English Law, pp.1118-1119; Concise Law Dictionary by P.G.Osborn 4th Edn. P.208; Survey of Universal Knolwedge Enchclopedia Britannica, Vol. 14, p.308; Encyclopedia Britannica, Vol. 14, p.389; Modern Legal Usages 2nd Edn. by Bryan A. Garner, p.579; PLD 1974 Journal 73; PLD 1973 Journal 61; Role of Lawyers and Judges PLD 1976 Vol.1 Journal, pp.3 & 4; Surat-Al-Baqarah, S.4 Vs. 30-34; K.J. Aiyers Law Terms and Phrases 4th Edn. p.474; Pakistan Textile Mill-owners' Association, Karachi and 2 others v. Administrator of Karachi and 2 others PLD 1963 SC 137; Secretary, Labour Department, N.-W.F.P. Government, Peshawar and 2 others v. Colony Sarhad Textile Mills and others (1979 PLC 124); Ashiq Hussain and others v. The State (1989 SCMR 392); Miss Sumaeea Zareen v. Selection Committee; Bolan Medical College, Quetta and others (1991 SCMR 2099), Hafiz Abdul Hameed v. Nek Muhammad (1994 SCMR 2255), Messrs State Cement Corporation of Pakistan Ltd. v. Collector of Customs, Karachi and another 1998 PTD 2999 SCC; (2006 SCMR 514); Pakistan through Secretary Finance and others v. Messrs Lucky Cement and another 2007 SCMR 1367 and Messrs Absestos Cement Industries Ltd. v. Lahore Municipal Corporation and others 1994 SCMR 262 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Courtroom etiquette---Customary practice of bowing before a Judge---Religious propriety---Contention of petitioner was that gesture by lawyers of bending their heads before a Judge while entering and leaving the courtroom was against the spirit of fundamental teachings of Islam---Validity---Expressing gesture of respect towards the seat of Justice which Judges occupy in the courts of law had no reference to demonstrating a conduct of worship, which was unequivocally reserved for Allah Almighty---Bending of head before the Judges in the court room was a customary practice for showing respect and it was a silent and decent method adopted since decades to pay respect to the seat of the Justice which a Judge occupied---Constitutional petition was dismissed accordingly.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Courtroom décor---Placement of seat of a judge at a higher pedestal---Propriety---Contention of petitioner was that placing of seats of the Judges in the superior court at some height was annoying to the members of the Bar---Validity---Placing of the seats of the Judges at a higher pedestal in the courts was only for the symbolic display of the authority of courts, which the courts enjoyed with respect to the persons to whom a direction was intended to be issued---Such placement of the seat reflected the intention of the law givers that when a person performing the functions of the Federation, or Province or Local Authority appeared before the court of law on a complaint lodged by a private person, he must have an impression that he was appearing before an authority superior to that functionary and the order of such authority i.e. the court was to be complied with---Constitutional petition was dismissed accordingly.

(d) Constitution of Pakistan---

----Arts. 199--- Constitutional petition---Maintainability---Constitutional petition seeking to give Provincial Government control over the working of a High Court and its premises---Constitutional institution of the High Court could not be directed to be placed under the supervision of the Federation or the Province, which concept certainly would be contrary to the basic theme of Constitution---Constitutional petition was dismissed accordingly.

(e) Words and phrases---

----"Lord"--- Meaning and explanation.

Oxford Advanced Learner's Dictionary, New 8th Edn., p.913; Oxford Paper Back Thesaurus (Indian Edn.) p.523; www.freedictionary.com http://www.freedictionary.com and Advanced Law Lexicon by P.Ramanatha Aiyar's 3rd Edn. Vol.3, p.2801 ref.

(f) Words and phrases---

----"Lordship"---Meaning and explanation.

Black's Law Dictionary; Wharton's Law Lexicon 14th Edn. P.612; Manual of Law Terms and Phrases 4th Edn. By K.J.Aiyer's, p.330 and Law Terms and Phrases by Sardar Muhammad Iqbal Khan Mokal, p.562 ref.

(g) Words and phrases---

----"Sir"---Definition and meaning.

Oxford Advanced Learner's Dictionary New 8th Edn. P.1437 ref.

(h) Words and phrases---

----"Sir"---Origin of the word.

http:en.wikipedia.org/wiki/Sir ref.

A. K. Dogar for Petitioner.

Date of hearing: 6th September, 2012.

P L D 2012 Lahore 554

Before Ayesha A. Malik, J

SAMINA ANWAAR ULLAH KHAN---Petitioner

versus

GENERAL MANAGER, SNGPL, LAHORE and others---Respondents

Writ Petition No.15232 of 2012, decided on 30th August, 2012.

Complaint Resolution Procedure Regulations, 2003, (Sui Northern Gas Pipelines Ltd.)

----Reglns. 3 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Sui-gas connection---Restoration---Disputed question of fact---Alternate remedy---Grievance of petitioner was that supply of her domestic Sui-gas was disconnected on the ground that it was being used as commercial---Validity---Dispute of petitioner required factual inquiry as to whether petitioner was using domestic gas connection for commercial purposes and in constitutional jurisdiction detailed inquiry could not be undertaken---Provisions of Complaint Resolution Procedure Regulations, 2003, provided for an adequate remedy to petitioner in relation to her dispute of wrongful disconnection of service in supply of gas---Remedy of statutory appeal was adequate and effective and there was no basis to invoke extraordinary jurisdiction of High Court---Petition could not be decided without factual inquiry on the issue whether petitioner was using domestic connection for commercial purposes and also because an efficacious and adequate remedy was available to petitioner, which she might avail, if so desired---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

Anjuman Fruit Arhtian and others v. Deputy Commissioner, Faisalabad and others 2011 SCMR 279 rel.

Ashfaq A. Malik for Petitioner.

Umar Sharif with Syed Ijaz Mehboob, Billing Officer for Respondents.

Date of hearing: 30th August, 2012.

P L D 2012 Peshawar 1

Before Dost Muhammad Khan and Waqar Ahmad Seth, JJ

SIRAJ---Appellant

Versus

ASMAT ULLAH and another---Respondent

Criminal Appeal No.51 of 2009, decided on 22nd September, 2011.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd---Dying declaration, appreciation of---Essential conditions enumerated.

For believing a dying declaration and convicting a person on its basis, the following essential conditions must be established by the prosecution:--

(i) That the dying man was in full senses, conscious and alert to the surroundings, was fully oriented in space and time and was able to make a coherent speech.

(ii) that the dying declaration otherwise rings true and is sound in substance to be relied upon.

(iii) that it is free from promptness given by the outside quarter.

(iv) that the victim/dying man was in a position to identify his culprit, and

(v) that the doctor present at the occasion shall give a fitness certificate about the condition of the dying man.

It is universal principle of criminal justice that dying declaration by itself is not a strong evidence being not tested by way of cross- examination. The only reason for accepting the same is the belief phenomenon of the court of law that a person apprehending death due to injuries, caused to him, is ordinarily not expected to speak a falsehood. To believe or disbelieve a dying declaration thus is left to the ordinary human judgment, however, the courts always insist upon strong, independent and reliable corroboratory evidence for the sake of safe dispensation of justice. Relying blindly and without proper scrutiny on such statement, would be no less dangerous approach on the part of the courts of law.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd---Appreciation of evidence---Dying declaration---Principles---Dying declaration by itself is not a strong evidence being not tested by way of cross-examination---Only reason for accepting a dying declaration is the belief of the court that a person apprehending death due to the injuries caused to him is ordinarily not expected to speak a falsehood---To believe or not to believe a dying declaration, thus, is left to the ordinary human judgment; however, courts always insist upon strong, independent and reliable corroboratory evidence for the sake of safe dispensation of justice---Relying blindly without proper scrutiny on such statement would be no less dangerous approach on the part of the courts of law.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd---Appreciation of evidence---Dying declaration---Rule of caution laid down.

A dying declaration has got a degree of sanctity under the law, on the belief that the dying man is placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons on false charges. But, in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In Pakistan the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons along with the guilty to satisfy, their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age-old habits and deep-rooted rancours and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty? It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses, becomes absolutely necessary.

Tawaib Khan and another v. The State PLD 1970 SC 13 ref.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-e-amd---Appreciation of evidence---Dying declaration---Reliability---Scope---Somebody being hostile to accused appeared to have managed making the report while thumb impression of the deceased was taken on the same when he was in coma condition---Crime spot was a market consisting of eleven shops, but none of the shopkeepers had come forward to support the prosecution---Pointation memo and the recovery memo were in serious clash---Crime empties had been retained at police station without any explanation for nine months and were sent to Arms Expert along with the crime pistol for procuring the report---Even otherwise, recovery having been witnessed only by police officials without associating any independent witness therewith, was unbelievable---Crime was an unwitnessed one---Deceased on account of his fatal injuries was not at all in senses and was unable to make a dying declaration---Dying declaration was an unreliable piece of evidence and Trial Court had illegally received undue influence from the same, acting on surmises and conjectures---Accused was acquitted in circumstances.

Sher Bahader and another v. The State 1972 SCMR 651; Muhammad Yaseen v. The State 1978 SCMR 303; Muhammad Banaras v.Shah Fakhar Zaman 1985 SCMR 505 and Tawaib Khan and another v. The State PLD 1970 SC 13 ref.

Ghulam Mohyuddin Malik for Appellant.

Matiullah Balouch for the State.

Hussain Ali for the Complainant.

Date of hearing: 22nd September, 2011.

P L D 2012 Peshawar 9

Before Shah Jehan Khan and Syed Sajjad Hassan Shah, JJ

NASEEM AHMED ANSARI---Appellant

Versus

HOUSING AND WORKS DEPARTMENT through Secretary and 4 others---Respondents

R.F.A. No.48 of 2002, decided on 22nd September, 2011.

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

----S. 25(3)---Mere promise to pay time-barred debt without any writing duly signed by both parties---Validity---Such promise would not be considered a good consideration and valid agreement---Principles.

It is clear from provisions of section 25(3) of the Contract Act, 1872 that whenever the suit is barred by the Limitation Act, 1908, the acknowledgement is not acceptable in any other mode unless it is offered by one party and accepted by the other and reduced into writing and duly signed by both the parties, then it forms a valid contract, because it contains a promise to pay wholly or in part on the stipulated date or period mentioned therein as it expresses an intention to pay which can be construed to be a promise within the meaning of the above section. According to the provision of above subsection, the old date is not revived, but it is considered to be a good consideration for the promise to pay, this amounts to a new promise to pay the debt to the creditor and this is a sort of measure of his right. Where there is nothing in writing and just a promise to pay for a time barred debt, it would not be considered as good consideration and also that there is novation of contract in the shape of promise to pay under which fresh consideration passes from the promisee and there is on the part of the promisor, the receipt of such consideration as well as a promise to pay for a time barred debt, thus, on fulfilment of aforestated two requirements of law, amounts to a valid agreement, even if the previous debt has been barred by time. In such eventuality, the plaintiff can enforce his right of recovery of his outstanding dues, if otherwise, proved by cogent and convincing evidence.

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

----O. XXVII, R. 1---Contract Act (IX of 1872), S.2---Suit against Government Department and its officials for recovery of amount due on account of extra work done as per drawings changed during course of construction---Plaintiff's plea that he did such work on verbal direction/order of such officials---Validity---Mere verbal direction or order of officials would not amount to a promise made on behalf of Government Department unless same was duly made in writing with sanction of Competent Authority after amending original agreement by adding fresh condition thereto---No verbal direction for raising construction under control of government functionaries would be acceptable except work done in accordance with terms and conditions prescribed in agreement---Government would not be under any legal constraint to pay suit amount to plaintiff on basis of such verbal direction/order---Record did not show that plaintiff had incurred suit amount in extra construction work as per requirement of law---In case of verbal direction passed by such officials without sanction of competent authority, plaintiff could claim suit amount from them in their private capacity but not as officers in their official capacity---Suit was dismissed in circumstances.

Liaqat Ali Khan Orakzai for Appellant.

Badiuz Zaman Khan, D.A.G., Zahid Yousaf Qureshi, A.A.G. and Muhammad Ali Shah, DDOR Swabi for Respondents.

Date of hearing: 22nd September, 2011.

P L D 2012 Peshawar 15

Before Attaullah Khan and Azmatullah Malik, JJ

MUHAMMAD NADEEM ANWAR---Appellant

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN---Respondent

Intra-Court Appeal No.1 of 2010, decided on 30th November, 2011.

(a) Words and phrases---

----"Same offence"---Definition

Black's Law Dictionary ref

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

----Ss. 10(2), 282-K, 230(7) & 234(6)---National Accountability Ordinance (XVIII of 1999), Ss. 9(a) & 10(a)---Criminal Procedure Code (V of 1898), S. 403---General Clauses Act (X of 1897), S.26---Constitution of Pakistan, Art. 13---Double jeopardy---Scope---Complaint under Ss.282-K, 230(7) & 234(6) of Companies Ordinance, 1984 pending before Company Judge against appellant---Conviction of appellant by Accountability Court for offences of having obtained loan facilities in other names fraudulently and used the same for his personal benefits, purchased properties at exorbitant prices and received kickback---Appellant's application before Company Judge that he had already been convicted by Accountability Court in same offence, thus, he could not be proceeded against for second time under provisions of Companies Ordinance, 1984---Dismissal of such application by Company Judge---Validity---Difference in elements to be proved in two instances would not make them same offences---Charges levelled against appellant in Accountability Court were under Ss.9(a) & 10(a) of National Accountability Ordinance, 1999, which related to fraudulent, misappropriation, dishonest/corrupt practices or obtaining any benefit wilfully, which he could not obtain lawfully---Offences for which appellant was charged under the Companies Ordinance, 1984 related to violation and non-compliance of statutory requirements in respect of books of accounts, keeping true and fair contents of balance-sheet and making false statement---Essential ingredients and substance of such offences under National Accountability Ordinance, 1999 were quite different from such offences under Companies Ordinance, 1984 and were not similar---Appellant could be prosecuted under Companies Ordinance, 1984 and same would not amount to double jeopardy in terms of Art.13 of the Constitution and S.403, Cr.P.C.---High Court dismissed appeal in circumstances.

Black's Law Dictionary; PLD 1990 FSC 62 and PLD 1977 Kar 145 rel

Ms. Jamila Aslam for Appellant

Barrister M. Zhaoorul Haq and Ms. Zara Tajwar for Respondents

Date of hearing: 24th November, 2011.

P L D 2012 Peshawar 22

Before Attaullah Khan and Syed Sajjad Hassan Shah, JJ

MUHAMMAD NOMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.109 of 2010, decided on 14th June, 2011.

(a) Explosive Substances Act (XI of 1908)---

----S. 5---West Pakistan Arms Ordinance (XX of 1965), S.13---Anti-Terrorism Act (XXVII of 1997), S.7---Possessing explosive substance, unlicensed arms and act of terrorism---Appreciation of evidence---Eleven items were shown to have been taken into possession on the pointation of accused in the F.I.R., while in the recovery memo, twelve articles had been shown---Such difference had made the recovery of alleged articles, doubtful---Confessional statement of accused was recorded after accused remained in police custody for six days; and accused was handed over to the Investigating Officer after recording of his confessional statement---Both those defects were material, because when confessional statement was recorded and accused had remained in police custody for more than twenty four hours, same would become not believable---Case property was not sealed---Every possibility existed that those items were not the same which were allegedly recovered on the pointation of accused---Contradiction was noticed between the F.I.R. and statement of prosecution witness with regard to time of occurrence---Prosecution case was full of doubts and the Trial Court had failed to appraise the evidence brought on record in its true perspective---Prosecution having not been able to prove its case against accused beyond any shadow of reasonable doubt, impugned judgment of conviction passed by the Trial Court, was set aside and accused was set at liberty.

Muhammad Israr v The State 2002 PCr.LJ 1072; 1996 PCr.LJ 358 and Imran Bashir Farooqi v The State 1990 PCr.LJ 677 rel

(b) Criminal trial---

----Recovery---Eleven items were shown to have been taken into possession on the pointation of accused in the F.I.R., while in the recovery memo, twelve articles had been shown---Such difference had made the recovery of alleged articles, doubtful.

(c) Criminal trial-

----Confession---Confessional statement of accused was recorded after accused remained in police custody for six days; and accused was handed over to the Investigating Officer after recording of his confessional statement---Both those defects were material, because when confessional statement was recorded and accused had remained in police custody for more than twenty four hours, same would become not believable.

Farooq Akhtar for Appellant

Jahanzeb Ahmed Chughtai for the State

Date of hearing: 14th June, 2011.

P L D 2012 Peshawar 27

Before Miftah-ud-Din Khan and Mian Fasih-ul-Mulk, JJ

ISRAFEEL---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.58 of 2008 with Murder Reference No.4 of 2008, decided on 16th March, 2010.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Qatl-e-amd and causing disappearance of evidence of offence---Appreciation of evidence---Deceased disappeared from his house on the morning of 6-8-2003, but no report regarding the occurrence was made by complainant up to 7-8-2003 at 1030 hours, till recovery of the dead body---Nobody was shown as eye-witness to the occurrence in said F.I.R.---Conduct of the complainant had shown that report was lodged after preliminary investigation, recovery, consultation and deliberation between Police and complainant---Occurrence had taken place at night and there was no eye-witness to the occurrence---Only incriminating evidence against accused was that on his pointation, alleged weapon of offence 'pickaxe' was recovered from the cattle shed of accused---Said 'pickaxe' was not found stained with human blood which could not be termed as weapon of offence, in circumstances---No one had seen the pickaxe in the hand of accused---Nothing on record existed that said cattle shed was exclusively owned by accused---Recovery from cattle shed not proved to be owned and possessed by accused, was of no help to prosecution in the case---No other incriminating circumstantial evidence was available on record to connect accused with commission of offence---No one had seen the deceased in the company of accused from the time of disappearance till recovery of dead body---Motive by itself would not prove the charge against accused---In the absence of ocular account and strong circumstantial evidence, mere abscondance, could not be considered as a corroborative or supportive piece of evidence---Other co-accused had been acquitted in the case under S.265-K, Cr.P.C. on the basis of the same charge and motive for the offence---As the prosecution had utterly failed to produce confidence inspiring evidence to prove various interlinked chains of circumstantial evidence, Trial Court was not justified in ordering conviction of accused in an offence carrying capital punishment---Impugned order of conviction and sentence passed by the Trial Court, was set aside and accused was acquitted and was released, in circumstances.

2008 SCMR 1297; 2009 SCMR 230; 1992 SCMR 2088;2002 MLD 1168; PLD 2001 SC 540; 2003 MLD 595; 1968 PCr.LJ 53; 2002 SCMR 1602 and PLD 2004 SC 342 ref.

Sajjad Afzal Khan for Appellant

Abbas Khan Sangeen, D.A.G. and Muhammad Javed Khan Tanoli for the Complainant

Date of hearing: 16th March, 2010.

P L D 2012 Peshawar 32

Before Miftah-ud-Din Khan and Khalid Mehmood Khan, JJ

RABNAWAZ---Appellant

Versus

ABDUR REHMAN and 3 others---Respondents

Criminal Appeal No.36 of 2006, decided on 15th September, 2011.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd---Appeal against acquittal---Prosecution witnesses were not trustworthy, because they, despite being maternal cousin inter se, had denied that relationship---Prosecution story was full of contradictions based on dishonest and illogical improvements---Occurrence had been proved unseen as prosecution witnesses were untrustworthy and case had been cooked up after due consultations and deliberations---Presumption of innocence was attached to every accused but after acquittal accused was clothed with double presumption of innocence---No case was made out by appellant/complainant for reversal of impugned acquittal---Appeal against acquittal was dismissed.

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

----Ss. 410 & 417(2-A)---Appeal against conviction and appeal against acquittal---Distinction---Principles of appeal against acquittal, were different from the ones against conviction---Presumption of innocence of accused was double in case of acquittal---Appellate Court would not interfere unless conclusion reached by the courts below was not supported by evidence on record---Principles on question of setting aside the acquittal detailed.

2009 SCMR 946 rel

Ghulam Muhammad Khan Sappal for Appellant

Muhammad Karim Anjum and Qudratullah Khan for the State

Date of hearing: 15th September,.2011.

P L D 2012 Peshawar 35

Before Syed Sajjad Hassan Shah, J

Mst. SAHIB JANEY BIBI---Petitioner

Versus

DISTRICT POLICE OFFICER, D.I. KHAN and 4 others---Respondents

Criminal Miscellaneous Quashment Petition No.142 of 2010, decided on 20th July, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A(6) & 561-A---Penal Code (XLV of 1860), Ss.506/452---Criminal intimidation, house-trespassing---Application for registration of case and arrest of accused---Petition for quashing of order---Powers of Justice of Peace under S.22-A(6), Cr.P.C.---Scope---Justice of Peace directed the Local Police to register case against respondent---Application under S.22-A(6), Cr.P.C. for registration of case---Police having not arrested respondent/accused, the petitioner filed another application under S.561-A, Cr.P.C. praying to arrest the accused---Justice of Peace directed Police to arrest the accused---Said order of Justice of Peace was operative and no appeal had been filed thereagainst---Petitioner had filed another application under S.22-A(6), Cr.P.C. for initiating the contempt proceedings against Police Authorities because they had not arrested accused, which application was dismissed and petitioner had filed petition under S.561-A, Cr.P.C. for quashing of said order---Powers bestowed upon Justice of Peace under S.22-A(6), Cr.P.C., were that he would direct the Police to act in accordance with law---Justice of Peace passed comprehensive and meaningful order directing the Investigating Officer to procure the arrest of accused and to produce him before the competent court for further proceedings under the law---Justice of Peace under S.22-A(6), Cr.P.C. could pass direction only to that extent and nothing more---Justice of Peace could not arrogate to himself the power of redressing the actual grievance itself and was supposed to perform the role of a facilitator and that of a bridge or a contact between the complaining person and the Police Authority---Jurisdiction under S.22-A(6), Cr.P.C. did not allow Justice of Peace to put his responsibility on the shoulder of another higher Police Authority and to start exercising executive power himself, which the law had vested in the Police Authorities---Application seeking for initiating the contempt proceedings against respondent for implementation of certain order earlier passed by Justice of Peace, was not maintainable, in circumstances.

Ghulam Hur Khan Baloch for Petitioner

Qudratullah Khan for Respondents Nos. 1 to 3 & 5

Sultan Shehryar Khan Marwat for Respondent No.4

Date of hearing: 20th July, 2011.

P L D 2012 Peshawar 39

Before Attaullah Khan, J

ABDUL RASHID KHAN---Petitioner

Versus

THE STATE and 14 others---Respondents

Criminal Miscellaneous Quashment Petition No.19 of 2011, decided on 2nd June, 2011.

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

----S. 169---Release of accused when evidence deficient---Powers of Investigating Officer---Scope---Investigating Officer had been empowered under S.169, Cr.P.C. to release an accused, if he would find that the evidence was not sufficient; or there was lack of reasonable ground to justify the connection of accused with the offence---Main theme of said S.169, Cr.P.C., was availability of sufficient or deficient evidence; that was the test on which the Investigating Officer had to form opinion about guilt or innocence of accused---Investigating Officer, could only release an accused under S.169, Cr.P.C., if no sufficient evidence was available---Court had to examine as to whether the evidence collected by the Investigating Officer was sufficient or not---If the evidence available against accused was deficient or not sufficient to connect accused with the commission of offence, accused could be released under S.169, Cr.P.C. by the Investigating Officer; if it was otherwise, the Investigating Officer had no such power under S.169, Cr.P.C.

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

----Ss. 169 & 561-A---Penal Code (XLV of 1860), Ss.386/427/430/447/ 506/148/149---Extortion, mischief, criminal trespass and criminal intimidation---Quashing of order---Accused persons having been released on plea of alibi, it was to be seen as to whether the plea of alibi would come within the definition of 'deficient evidence' or not---Only evidence before the Investigating Officer regarding the plea of alibi, was the statements of accused persons, which Investigating Officer believed without any further inquiry into said fact---If that tendency was encouraged, then almost all accused in the criminal cases would take the plea of alibi by simply stating that he was not present on the spot---Whether the plea of alibi was true and worth consideration, was the job of the Trial Court and not of the Police---Application submitted for registration of case by the petitioner/complainant, contained certain allegations, which, prima facie, connected accused persons with the offence---In the present case some of accused persons were absconder---Evidence in the case, was not deficient, in circumstances---Offence against accused persons being bailable was one of the grounds for the release of accused under S.169, Cr.P.C.---One part of S.506, P.P.C. being not bailable, was no such ground---Plea of alibi could not be a ground of release on bail, unless further evidence was deficient---One of accused persons was Police Official, which spoke volumes of ulterior motive on the part of Investigating Officer---Impugned order being illegal, were quashed---Release orders of accused in the interest of justice and to provide fair opportunity of hearing to accused persons, would remain intact till the decision by court of competent jurisdiction on bail petition to be submitted by accused persons.

Esa Khan v. Nawab Khan PLD 2006 Pesh 165; Shah Daraz Khan v. Muhammad Jabbar Khan and 2 others PLD 2008 Pesh 63 and Mameez Khan v The State and 2 others 2010 PCr.LJ 1137 ref

Asfar Khan v Nawab Khan 1995 PCr.LJ 549; Basar Khan v. The State and another 2009 PCr.LJ 964 and Dilda v. Safdar and 2 others 1990 PCr.LJ 158 distinguished.

2010 PCr.LJ 1137 and PLD 2008 Pesh 63 rel

Saleemullah Khan Ranazai for Petitioner

Sanaullah Shamim, D.A.-G for the State

Zafarullah Khan for Respondents

Date of hearing; 6th May, 2011

P L D 2012 Peshawar 46

Before Nisar Hussain Khan, J

MIR TIAZ KHAN and 8 others---Petitioner

Versus

THE STATE and 2 others---Respondents

Quashment Petition No.46 of 2011, decided on 11th January, 2012.

(a) Constitution of Pakistan---

----Arts. 23, 25 & 33---Criminal Procedure Code (V of 1898), S.561-A---Penal Code (XLV of 1860), Ss. 419, 420, 468 & 471---Right to acquire property, equality of citizens, parochial and other similar prejudices---Dispute over caste---Quashing of F.I.R.---Accused (petitioners) had purchased property in the village of the complainant (respondent) and at the time of purchase they had mentioned their caste in the documents as "Afghan Purtana" which was also the caste of the complainant---Complainant had alleged that accused by fraudulent and deceitful means were concealing their own caste and were misusing the name of the caste of the complainant, which was wrong and illegal---Validity---Purchasing and acquiring of property was the fundamental right of every citizen in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by the law in the public interest, as enshrined in Art.23 of the Constitution---Accused by purchasing property in the village of the complainant had committed no offence and there was no allegation that they had violated any reasonable restrictions, imposed by law, in the public interest, nor they had transgressed any mandate of the Constitution---Many people live in different parts of the country as well as of the world, having common caste---Caste was not an object or property, for which an exclusive membership may be obtained by an individual---Name of castes could never be used to claim superiority and malign others, but these were only for the identification amongst the people---Article 25 of the Constitution mandates that all citizens are equal before the law and are entitled to equal protection of law while Art.33 of the Constitution clearly postulates that all parochial, racial, tribal and sectarian prejudices amongst citizens were to be discouraged---Allegations of complainant when tested at the touchstone of Arts.25 and 33 of the Constitution, one wondered how allegations levelled by complainant constituted any offence, particularly, when the complainant had got no right to claim excusive entitlement of the caste "Afghan Purtana" when there were hundreds and thousands of people, residing in sub-continent having the same caste---No offence had been committed by the accused in the light of the allegations in the application of complainant for registration of F.I.R.---Contention of complainant that once F.I.R. was registered, let it be tried by the Trial Court and accused could approach Trial Court under Ss.249-K and 265-K, Cr.P.C, was not tenable in the circumstances of the case because even if allegations contained in the application of complainant for registration of case, were admitted, even then, no offence was made out against the accused---Complainant with mala fide, in connivance with the Officer-in-charge of the concerned police station, had entangled the accused on basis of allegations which constituted no offence at all---Petition was allowed and impugned F.I.R. and proceedings pending on the basis thereof were quashed.

(b) Words and phrases---

----"Caste"---Scope and purpose---Caste is not an object or property, for which an exclusive ownership may be claimed by an individual---Name of caste, can never be used to claim superiority and malign the others, but these are only for the identification amongst the people.

(c) Islamic jurisprudence---

----Caste---Superiority on basis of caste---Holy Prophet (p.b.u.h.) commanded in his sermon of "Hujjat-ul-Widah" that no Arab has got any superiority over the Ajam, no white can claim superiority over the black and caste of no one, would be a determining factor of his being beloved to God, rather it would be his honesty, piousness, generosity and devotion to the commandments of God which would be the decisive features and virtues for his fate on the Day of Judgment.

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

----S. 154---Information in cognizable cases---Scope and procedure---Section 154, Cr.P.C. clearly envisages that the Officer-in-charge of police station, shall record the information in concerned book/register, with regard to a cognizable offence---Officer-in-charge is supposed to be aware of the law on the subject and it is his legal obligation to assess the information, so conveyed, that whether any cognizable offence is made out---If no cognizable offence is constituted, in the light of the allegations made, he is not required to register the case.

Irfan Pirzada for Petitioners.

M. Usman Khan Mastikhel and Noor Raza Ali for Respondents.

State by A.A.G.

Date of hearing: 11th January, 2012.

P L D 2012 Peshawar 51

Before Syed Sajjad Hassan Shah, J

Haji BHAI KHAN---Petitioner

Versus

SAIFULLAH KHAN---Respondent

Civil Revision No.112 of 2006, decided on 20th July, 2011.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 6, Expln. I---Phrase "co-owner in the corpus" as used in Khyber Pakhtunkhwa Pre-emption Act, 1987---Meanings.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 6, Expln. I, 20 & 21---Pre-emption suit---Plaintiff claimed to be co-owner in suit land to the extent of 7/8 marlas---Denial of plaintiffs right of pre-emption by defendant and his claim for expenses incurred on attestation of suit mutation---Validity--Plaintiff having all rights of ownership fulfilled condition laid down in S.6 of Khyber Pakhtunkhwa Pre-emption Act, 1987---Plaintiff as co-owner in suit land would substitute defendant to extent of half share therein, thus, plaintiff would be liable to pay half of such expenses to defendant---Suit was decreed to extent 1/2 share of suit land by awarding half of such expenses to defendant.

2006 YLR 1203 ref.

(c) Interpretation of statutes---

----Provision of law would be implemented in letter and spirit and would always be given same meanings as emanating from its plain language.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Proof---Plaint and Talb-i-Ishhad finding mention of acquisition of knowledge by plaintiff about sale through suit mutation, announcement of his intention to pre-empt same and details of suit land---Defendant neither pleaded in written statement not to have received notice of Talb-i-Ishhad nor appeared in person as witness to deny factum of its receipt---Validity---Plaintiff had sufficiently complied with requirements of Talbs---Defendant's attorney in his statement had not expressly denied report of Postman---Presumption of service in such circumstances would arise unless rebutted---Nothing on record to rebut service of notice of Talb-i-Ishhad and report of Postman---Suit was decreed, in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 rel.

(e) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 5 & 15---Pre-emption suit---Waiver---Scope---Defendant's pleas were that plaintiff had knowledge about suit sale; that he was asked to purchase suit land, but he showed his unwillingness to purchased same, thus, plaintiff had waived his right of pre-emption---Validity---Waiver would be an intentional relinquishment of a known right---In order to constitute a valid waiver of right of pre-emption, offer should be to the effect that vendor wished to sell suit land; vendee or other person was ready to pay fixed price and if pre-emptor wished to exercise right of pre-emption, he could purchase same at same price---Waiver could not be inferred from circumstances based upon surmises and conjectures---Offer in general terms by vendee or vendor of his intention to sell land to a stranger would not constitute a waiver of such right---Right of pre-emption neither would stand waived nor could be deemed to have been waived by oral statement of defendant about plaintiff having knowledge of suit sale or offer/refusal to purchase suit land in absence of proof of active participation of plaintiff in finalization of suit land---Nothing was available on record to show that on whose behalf offer of purchase was made to plaintiff; that at how much price vendor was selling suit land and how much price was offered by plaintiff---Defendant had failed to prove waiver of such right---Suit was decreed in circumstances.

Masood Anwar v. Karim Bakhsh 2004 CLC 1692 and Khizar Hayat and 2 others v. Muhammad Ali 2004 CLC 1865 rel.

(f) Waiver--

----Scope---Waiver would be an intentional relinquishment of a known right.

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

----S. 115---Revision---Concurrent findings of fact by courts below based on material available on record---Validity---High Court could not interfere with such findings on ground that appraisal of evidence would suggest another view of matter.

Abdul Ghaffar Khan v. Umar Khan 2006 SCMR 1619 rel.

Rustam Khan Kundi for Petitioner.

Aslam Khan for Respondent.

Date of hearing: 20th July, 2011.

P L D 2012 Peshawar 57

Before Mazhar Alam Khan Miankhel, J

AYAD ZAMAN and others---Petitioners

Versus

Mst. SAJIDA and others---Respondents

Civil Revisions Nos.230 and 231 of 2003, decided on 10th October, 2011.

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

----S. 58---West Pakistan Land Revenue Act (XVII of 1967), S.42---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Mutation of mortgage---Un-interrupted long standing entries in revenue record made on basis of such mutation---Evidentiary value---Parties under law could enter into oral agreements of mortgage and sale etc.---Presumption of truth would attach to such entries for having been made by Revenue Officials during discharge of their official duties---Such mutation supported by its such long standing entries would establish oral mortgage between parties even in absence of record of creation of mortgage ---Illustration.

(b) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1974)---

----S. 5---Transfer of Property Act (IV of 1882), Ss. 58 & 60---Redemption of mortgage---Effect---Mortgagee would cease to have right under law to retain possession of mortgaged land, which he would be liable to surrender to mortgagor.

Ghafoor Ahmad Qureshi for Petitioner.

Abdur Raziq Khan for Respondents.

Date of hearing: 10th October, 2011.

P L D 2012 Peshawar 63

Before Shah Jehan Khan Yousafzai, J

ABDULLAH JAN and others---Petitioners

Versus

ZABARDAST KHAN and others---Respondents

Civil Revision No.11 of 2011, decided on 7th October, 2011.

(a) Easements Act (V of 1882)---

----S. 15---Limitation Act (IX of 1908), Ss. 2(5) & 26---Suit for declaration regarding acquisition of prescriptive right of way---Un-metalled road recorded in revenue record in ownership of defendants claimed to be under use of plaintiffs as general thoroughfare since indefinite period ---Defendants' plea that plaintiffs being Seri land owners had no right of way in Daftari land owned by defendants; and that plaintiffs had alternate 2 feet wide way leading to their houses from general road---Validity---Such plea of defendants based on customs of Swat had ceased its effect on extension of Easements Act, 1882 and Limitation Act, 1908 in the said area---Seri land owner could now claim and enforce right of easement of use of passage over Daftari land provided Seri land owner had utilized Daftari land for passage without permission of Daftari land owner openly, without any interference and as of right for twenty years---According to Shajara Kishtwar, land underneath plaintiffs' houses and suit land were adjacent to each other and disputed way in suit land was only source for access to plaintiffs' houses---Such alternate way was narrow "pakdandi", while human being would normally need a widened way for use of light vehicles for access to their houses particularly in emergency---Width and length of disputed way was 16 & 37 feet respectively, which was only way being used for motorcar, tractor and other light vehicles in between general road and houses of plaintiffs---Evidence on record showed that defendants servient owners of suit land had never been asked for permission of its use by plaintiffs, who had been using same without interruption openly and peacefully for a continuous period of more than twenty years---Plaintiffs through un-rebutted and admitted evidence had matured acquisition of easement right upon suit land against defendants---Revenue staff while preparing first settlement in the area would be required to make title of defendant thereupon subject to right of easement of using such path by plaintiff---Suit was decreed by declaring ownership of defendants to be subject to easement right of way acquired by prescription by plaintiffs and giving effect to the same in revenue record while directing defendants to remove forthwith obstruction made in use of way of plaintiffs.

AIR 1925 Rangoon 137; PLD 1963 Dacca 201 and PLD 1956 (West Pakistan) Lah. 781 ref.

AIR 1926 Patna 460; AIR 1931 Lah. 395; PLD 1963 Dacca 201; PLD 1959 Dacca 491; 2007 SCMR 901 and PLD 1981 SC (AJ&K) 124 rel.

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

----Ss. 115 & 96---Revision---Disputed question of fact---Revisional jurisdiction of High Court---Scope---Trial Court or Appellate Court had jurisdiction to resolve question of fact---High Court could reverse finding of court below, if found same to be suffering from misreading and non-reading of evidence.

(c) Easements Act (V of 1882)---

----S. 15---Acquisition of right to easements by prescription---Proof required for such right stated.

Provision of Section 15 of the Easements Act, 1882 coupled with its illustration provide that if a plaintiff established through cogent evidence the use of land of servient owner without seeking permission of the recorded owner and openly as of right without any disturbance for twenty years, his easement right to use the same land for passage irrespective of title over the land used as thoroughfare shall be entitled for decree for declaration of easement right.

2007 SCMR 901 rel.

Masoodur ur Rahman for Petitioners.

Ali Namdar for Respondents.

Date of hearing: 3rd October, 2011.

P L D 2012 Peshawar 75

Before Mazhar Alam Khan Miankhel andFazal-I-Haq Abbasi, JJ

LAL ZAMIN alias LALONO ZARGAR and others---Petitioners.

versus

ASFANDYAR KHAN and 2 others---Respondents

Writ Petition No.2958 of 2010, decided on 15th December, 2011.

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

----O. VII, R. 11 & S. 11---Specific Relief Act, (I of 1877), S.42---Constitution of Pakistan, Art. 199---Constitutional petition---Rejection of plaint---Scope---Res judicata, principle of---Applicability---Respondents (plaintiffs) had filed suit for declaration against the petitioners (defendants) and during trial respondents produced their evidence but when case was fixed for petitioner's evidence, petitioners filed application under 0. VII, R.11, C.P.C., for rejection of plaint,' contending that suit was barred by principle of res judicata---Petitioner's application for rejection of plaint was allowed by Trial Court but on respondent's appeal, Appellate Court below set aside order of Trial Court---Petitioners' contention was that respondent's suit was barred by S.11, C.P.C., as the parties 'had litigated earlier regarding the same subject matter and in circumstances there was no further need to record evidence and plaint filed by respondents was required to be rejected---Validity---Trial Court had framed the issues and parties were asked to produce evidence in support of their claims---

Respondents had concluded their evidence and the petitioners instead of producing their evidence, moved Trial Court for rejection of plaint---Such application could only be moved when record, itself made the respondents' case fall under any of the clauses under 0. VII, R.11, C.P.C., and it did not require any further evidence to establish the same---Where matters/facts, alleged or denied in the plaint, required evidence to prove the same, provisions of 0. VII, R. 11 CPC, would not apply and settled course in the circumstances would be a full trial---Petitioner's contention regarding applicability of principle of res-judicata, even if was presumed to be true, the matter still would require recording of evidence to establish the fact that the subject matter of the two suits between the parties was the same---No illegality or unlawful exercise of jurisdiction was established in Appellate Court's findings--Constitutional petition was dismissed.

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

---O. VII, R. 11 & S. 11---Sharia Nizam-e-Adl Regulation, 2009, Para.10(8)--- Specific Relief Act, (I of 1877), S.42---Constitution of Pakistan, Art.199---Constitutional petition---Remand of case--Rejection of plaint---Res judicata, principle of---Applicability---Scope---Respondents (plaintiffs) had filed suit for declaration against the petitioners (defendants) and during trial respondents produced their evidence but when case was fixed for petitioner's evidence, they filed application under 0. VII, R. 11 C.P.C., for rejection of plaint, contending that the suit was barred by principle of res judicata---Petitioner's application for rejection of plaint was allowed by Trial Court but on respondent's appeal, Appellate Court below set aside order of Trial Court---Petitioner's contention was that Appellate Court below, by setting aside order of Trial Court, had remanded the case to the Trial Court, which was against para.10(8) of Shariah Nizam-e-Adl Regulation, 2009---Validity---Appellate Court's order could not be held as an order for remand in legal parlance, as respondent's appeal against rejection of plaint was allowed by setting aside order of rejection of plaint passed by Trial Court and the only option available with the Appellate Court was to ,ask for the conclusion of the trial which was pending before the Trial Court--- Petitioner's objection having no force, constitutional petition was dismissed accordingly.

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

----O.VII, 11 & S.11---Specific Relief Act, (I of 1877), S.42---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Rejection of plaint---Res judicata, principle of---Applicability---Respondents (plaintiffs) had filed suit for declaration against the petitioners (defendants) and during trial respondents produced their evidence but when case was fixed for petitioner's evidence, they filed application under O. VII, R.11, C.P.C., for rejection of plaint, contending that suit was barred by principle of resjudicata---Petitioner's application for rejection of plaint was allowed by Trial court but on respondents' appeal, Appellate Court below set aside order of Trial Court---Respondents' contention was that petitioner could have legally challenged the order of Appellate Court below through a revision petition instead of the present constitutional petition, therefore, constitutional petition was liable to be dismissed---Validity---Decision of Appellate Court could be challenged through revision petition and constitutional petition against the same was not maintainable---High Court could convert constitutional petition into ones permissible under law, but even if present constitutional petition was converted into a revision petition, same would still not serve the petitioner's purpose--- Constitutional petition, being merciless, was dismissed.

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

----O. VII, R.11---Rejection of plaint--- Scope--- Application for rejection of plaint can be made at any stage of the proceedings but only when the record, itself makes the plaintiff's case fall under any of the clauses under O. VII, R.11, C.P.C., and it does not require any further evidence to establish the same--- Where matters/facts, alleged or denied in the plaint, required evidence to prove the same, provisions of O. VII, R.11, C.P.C., would not apply and settled course in the circumstances would be a full trial.

Khalil Khan Khalil for Petitioners.

Maazullah Barkandi for Respondents.

Date of hearing: 15th December, 2011.

P L D 2012 Peshawar 80

Before Syed Sajjad Hassan Shah, J

HABIB KHAN and another---Petitioners

versus

Mst. BIBI ZOHRA and 2 others---Respondents

Civil Revision No.99 of 2009, decided on 14th November, 2011.

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

----Arts.64 & 46(5)(6)---Opinion as to relationship of one person to another---Proof essential for forming such opinion stated.

On a question of pedigree, family conduct is admissible to prove relationship and in this connection the treatment of friends and neighbours may be received as presumptive proof of marriage. In this regard, the opinion of the family members regarding relationship rather can be inferred from the family conduct. It can be exemplified by distribution of family property and tacit acknowledgment of relations. In short, the spirit of Article 64 of Qanun-e-Shahadat, 1984 is quite apparent and vivid that the court can form an opinion as to the relationship of one person to another because of the reason that it is the opinion expressed (by conduct) as to the existence of that relationship with any person of the member of the family or those who have the special means of knowledge regarding the relationship of the parties..

Article 64, Qanun-e-Shahadat, 1984 requires that the person claiming the relationships with the deceased must appear in person and to prove his treatment towards the claimant and the opinion of the members of family and his friends towards the person claiming inheritance from the deceased. In absence of such proof, neither opinion can be formed by the court nor did the absence of proof justify the decree in favour of such claimant.

The law envisaged under Article 46 of Qanun-e-Shahadat, 1984 is also of worth mentioning because in order to save the valuable right of a person devolving from his deceased relative is protected under sub-Articles 5 & 6 of Article 46 whereunder it is expressly laid down that the statement if relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption, the, person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised in the matter and made in any will or deed relating to the affairs of the family to which any such deceased person belonged or any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

In Article 46, it is mandated that the statement is admissible when made in respect of pedigree, death, family history not known by all but few' which is incapable of direct proof and person making the statement having the peculiar means of knowledge and having no interest to misrepresent of declarants, members of the family having the greatest interest in seeking the best opportunities of obtaining and no motive for falsifying information on such subjects. In view of the above, the distinction between sub-Articles 5 & 6 of Article 46 is that the former relates to the existence of relationship between the persons alive or deceased, whereas the latter applies to the declarations of relationship between the deceased persons only. Moreover, the former requires special means of knowledge, but the latter does not expressly impose any such restrictions. Besides, according to the former, the declaration may be written or verbal and made on any occasion meaning thereby that ante litem motam, but latter requires not only that the statement should be a written one, but also that it should be contained in some document. The necessary corollary of both the provisions contained in sub-Articles 5 & 6 of Article 46 is that the statement should have been_ made before arising any controversy as to the relationship sought to be proved by the statement arose.

PLD 1986 Pesh. 142 and Mst. Safia v. Bibi and 14 others 2005 MLD 646 rel.

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

----Arts. 117 &. 118---Burden of proof---Scope---Party seeking relief would have to discharge his burden by proving his case on basis of its own evidence---Such party would have to stand on his own legs to succeed and would not be entitled to get benefit of any weakness in case of opposite party.

Mst. Safia v. Bibi and 14 others 2005 MLD 646 and Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 2030 rel.

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

----O. XVIII, R. 2---Production of evidence by parties---Scope---Plaintiff at first instance would prove his case and then defendant would rebut the same.

(d) West Pakistan Land Revenue Act (XVII of 1967)--

----S. 42---Entries in revenue record regarding alienation of ownership of land made by its original owner---Alteration of such entries by attestation of Fard-e-Badar---Scope---Such entries could not be altered by means of such Fard, if original owner had not challenged such transaction in his life time.

Muhammad Ayaz Khan Qasuria for Petitioners.

S.Mastan Ali Zaidi for Respondents Nos. 1 and 2.

A.A.G. for Respondent No.3.

Date of hearing: 14th November, 2011.

P L D 2012 Peshawar 89

Before Nisar Hussain Khan, J

QAZA KHAN and 4 others---Petitioners

versus

Haji UMMAT KHAN---Respondent

Civil Revision No.21-B of 2007, decided on 23rd January, 2012.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

---Ss. 9 & 20---Distribution of property between pre-emptor and vendees---Principle of per capita share---Applicability---Contention of vendees (petitioners) that they were entitled to share the suit property with pre-emptor (respondent) on the princ'i'ple of per capita---Validity---By virtue of their co-ownership, vendees (petitioners) had equal right of pre-emption with the pre-emptor (respondent), as they fell within the same class of co-owners with the pre-emptor---Vendees and pre-emptor stood on the same pedestal of co-ownership, therefore they would share property in equal shares, without being placed in two groups---Where there was more than one pre-emptor, it did not mean that they would take half (1/2) the share and remaining half (112) would go to the single vendee, rather property would be distributed amongst all litigating members on the principle of per capita share---Same principle applied in case vendees numbered more than one and there was only one pre-emptor---Sections 9 and 20 of Khyber Pakhtunkhwa Pre-emption Act 1987, were supplementary to each other and could not be taken in isolation from one another, and conjunctive reading of both said sections made it clear that when vendee and pre-emptor fell within the same class of pre-emptors and had equal right of pre-emption, both would have equal status qua the suit property and it would be shared by them equally---In the present case, there were five vendees and one pre-emptor, therefore property was to be shared by all six in equal shares (1/6 share each)---Market value of suit property had been rightly calculated by the lower court and pre-emptor was directed to pay the amount of his I/6th share in the property according to the value assessed by the lower court--- Revision petition was disposed of accordingly.

Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539 rel.

Haji Zafar Iqbal for Petitioners.

Rustam Khan Kundi and Aslam Khan Machankhel for Respondent.

Date of hearing: 23rd January, 2012.

P L D 2012 Peshawar 92

Before Qaiser Rashid Khan, J

ZAIR ALI---Petitioner

versus

CHIEF ENGINEER (FATA) WORKS AND SERVICES DEPARTMENT, PESHAWAR and 3 others---Respondents

Civil Revision No.288 of 2007, decided on 25th November, 2011.

Constitution of Pakistan---

----Art. 247(7)---Civil Procedure Code (V of 1908), O. VII, R.10---Specific Relief Act (I of 1877), S.54---Suit for injunction---Return of plaint---Plaintiff was awarded a contract for widening and construction of road which was situated in tribal territory---Plaintiff satisfactorily completed the work up to fifty per cent as per required specification and payment was made to the plaintiff in respect thereof---Some Notables and Tribal Elders of the locality, demanded 15% as "Qaumi Commission" from the plaintiff, who filed suit against said demand---Defendant resisted the suit and filed application before the Trial Court under O. VII, R.10, C.P.C. for return of plaint on the ground that the civil court lacked jurisdiction to entertain and adjudicate upon the issue in question as it pertained to Tribal territory---Said application had been concurrently accepted---Validity---Civil court had absolutely no jurisdiction in the matter---Even the jurisdiction of High Court in view of the bar contained under Art.247(7) of the Constitution in the matters hailing from Tribal areas had been excluded---All the matters were out

of the domain and jurisdiction of the court and fell squarely within the jurisdiction of the Political Authorities, where a proper hierarchy was available to attend to such dispute---Both courts below had rightly entertained the application of the defendants for return of the plaint to the plaintiff under O. VII, R.10, C.P.C., through the impugned orders, which warranted no interference and were accordingly upheld.

PLD 2002 SC 526; 1991 SCMR 2400 and PLD 1997 Pesh. 132 rel.

Sarwar Khan Kundi for Petitioner.

Sanaullah Khan Shami, D.A.G. for Respondents.

Date of hearing: 25th November, 2011.

P L D 2012 Peshawar 95

Before Khalid Mahmood, J

DILAWAR---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.543 of 2011, decided on 13th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324/452---West Pakistan Arms Ordinance (XX of 1965), S.13---Qatl-a-amd, house trespass after preparation for hurt, assault or wrongful confinement, possession of illegal weapons---Bail, refusal of---Bail sought on grounds of statutory delay---Abscondance of accused for more than ten years---Heinous nature of crime---Determination of juvenile status- of'the accused---Accused was directly charged in the F.I.R. for the murder of deceased and he remained absconder for more than ten years---Accused was behind bars, for more than three years and ten months waiting for the conclusion of his trial, which had been prolonged due to determination of his status as a juvenile at the time of occurrence---Contention of accused that he was a juvenile at the time of occurrence, was finally repelled by the Supreme Court, therefore, accused could not take advantage of the fact that trial was not concluded within two years---After rebuttal of contention of accused by the Supreme Court, prosecution produced their evidence seven times, which could not be recorded due to absence of counsel of accused---In view of the conduct of accused, his abscondance for over ten years and the nature of the crime, it was not appropriate to release the accused on grounds of statutory delay in conclusion of his trial--- Bail application of accused was refused in circumstances.

Saeed Akhtar Khan for Petitioner.

Miss Andia Iqbal for Respondents.

Abdur Razzaq Chughtai for the Complainant.

Date of hearing: 13th February, 2012.

P L D 2012 Peshawar 97

Before Yahya Afridi and Khalid Mehmood, JJ

ABDUL KHALIQ---Petitioner

versus

Mst. FOZIA BIBI and 2 others---Respondents.

Writ Petition No.19 of 2012, decided on 18th January, 2012.

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

----S. 5, Sched. & S.17-A---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance amount---Fixation of interim maintenance allowance by court---Validity---Defendant while placing reliance on the verse of the Holy Quran, "Surah-Al-Baqarah', had contended that he was a low paid employee having mother and sisters to support, had been burdened by the Trial Court with the payment of heavy amount towards maintenance allowance---Validity---Constitutional petition against interim order of the Trial Court regarding payment of interim maintenance allowance of minor, was not maintainable---Trial Court, however, was required to look into the matter in the light of paying capacity of the defendant; and pass an appropriate order at the time of final adjudication of the matter---Impugned order had been passed by Family Court, having jurisdiction to pass interim order for the maintenance of wife and children of the defendant---Defendant/father was bound to maintain his own children, which was also clear from the Verse of Holy Quran---In the present case, monthly income and other liabilities of the defendant, had not clearly been mentioned in the petition, nor any reason, in that respect had been produced before the High Court---Burden lay on the defendant regarding maintenance of his own child, could not be evaluated---Defendant had rightly averred that in the light of Quranic Verse no one should be burden beyond his means and capacity---Factual controversy being involved in the case in prevailing circumstances, constitutional jurisdiction of High Court could not be invoked---Family Court had ample power to reduce or enhance the maintenance after evaluating the source of income of the defendant, social status of the parties, necessary expenditures of the plaintiff, hike of prices of all the commodities, educational expenses etc.---Trial Court thereafter, could determine the interim as well as regular maintenance of the minor---Family Court was directed to decide the case within a shortest possible time.

Verse 233 of Surah Al-Baqarah of Holy Qur'an rel.

Zafar Iqbal for Petitioner.

Nemo for Respondents.

Date of hearing: 18th January, 2012.

P L D 2012 Peshawar 101

Before Khalid Mehmood, J

Syed SHAH PIR MIAN KAZMI---Petitioner

versus

Mst. NELOFER (widow) and others---Respondents

Civil Revisions Nos.379 and 381 of 2010, decided on 25th November, 2011.

Succession Act (XXXIX of 1925)---

----Ss. 371, 372 & 373---Issuance of succession certificate---Bank account having endorsement of "either or survivor"---Islamic law---Inheritance---Applicability---Scope---Petitioner, and his son, who later on died, opened joint account in the bank, with clear instruction that account would be operated "either or survivor"---After death of son of the petitioner/joint account holder, respondents being legal heirs of deceased applied for issuance of succession certificate, which finally was issued to them being successors of the deceased---Validity---Claim of the petitioner/father of deceased, was that amount deposited in the account, did not come within the legacy of deceased; and that as per instructions and declaration of both account holders when joint accounts were opened, belonged solely to the petitioner---Petitioner had urged that he being survivor of the account holder, was legally entitled to receive the entire amount deposited in the banks---Deceased/son of the petitioner, before his death proceeded abroad and joint accounts were opened during the period when deceased was abroad and was earning handsome amount in Pound Sterling during those days---Amount in Pound Sterling was transferred in the joint account and nothing was on record suggesting that petitioner had any source of such great earnings and that he himself had deposited money in the suit accounts---Respondents/legal heirs of deceased had proved that all the amount was deposited from abroad in shape of Pound Sterling by the deceased---Petitioner had failed to prove that the amount was gifted in his favour by the deceased---Even in cases of nomination, nominee was not entitled to receive the entire amount of the deceased---Such nomination could not override provision of Islamic Law of inheritance---No legal heir could be deprived from receiving their respective share---Appellate Court had correctly appreciated the legal and factual aspect of the case---In absence of any illegality, irregularity, misreading or non-reading of evidence, revision petition against judgment of the courts below, was dismissed in circumstances.

Guran Ditta v. T. Ram Ditta AIR 1928 PC 172; Habib Ullah v. Sheikhupura Central Cooperative Bank Ltd. 1987 SCMR 53 and Safdar Ali Khan v. Public at Large 2004 SCMR 1219 rel.

Malik Mehmood Akhtar for Petitioner.

Tehmas Khan Jadoon for Respondents.

Date of hearing: 25th November, 2011.

P L D 2012 Peshawar 104

Before Khalid Mahmood, J

DEPUTY MANAGER OPERATION PESCO, ABBOTABAD and 2 others---Petitioners

versus

MUHAMMAD NABI AND BROTHERS, Government

Contractors and 2 others---Respondents

Writ Petition No.73 of 2009, decided on 15th February, 2012.

Electricity Act (IX of 1910)---

----Ss.26-A & 26(6)---Constitution of Pakistan, Art.199---Constitutional petition---Electric Inspector, jurisdiction of---Electricity Supply Company (petitioner) assailed orders of Electric Inspector in favour of respondent, on the ground that the Electric Inspector had no jurisdiction to decide the matter under S.26(6) of the Electricity Act, 1910 and that the matter should have been resolved by the civil court as the respondent was charged for dishonestly using electricity through direct connection; and the same fell under S. 26-A of the Electricity Act, 1910---Validity---Respondent had used the electric supply though the impugned electric meter installed at the premises and the respondent was not issued any notice for dishonest or illegal use of electricity---Respondent used electricity meter installed at the premises, and electricity bills were regularly issued wherein the consumed electricity was mentioned---Dispute was regarding the excess readings mentioned in the impugned bills, and in case of any difference or dispute between a licensee or consumer, the forum for resolving such dispute was only the Electric Inspector---Case did not relate to dishonestly extracted electricity but was a dispute regarding overbilling due to incorrect reading---Both forums having exclusive jurisdiction in the matter had rightly appreciated the facts of the case in the passing of the impugned orders---Constitutional petition was dismissed in circumstances.

Water and Power Development Authority v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 distinguished.

Rashid Qamar Abbasi for Petitioners.

Malik Amjid Ali for Respondents.

Date of hearing: 15th February, 2012.

P L D 2012 Peshawar 108

Before Khalid Mahmood, J

Mst. ROZEENA KHATTAK through Attorney---Petitioner

versus

Raja ABDUL RASHEED and 2 others---Respondents

Writ Petition No.634 of 2011, decided on 14th February, 2012.

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

----Ss. 5 & 17---Qanun-e-Shahadat (10 of 1984), Arts. 129(g) & 79---Constitution of Pakistan, Art.199---Constitutional Petition---Suit for recovery of dowry articles and declaration of title on the basis of agreement in favour of the wife at time of Nikah---Suit of wife (petitioner) was decreed by Trial Court and the Appellate Court set aside order of Trial Court to the extent of declaration of title in favour of wife---Contention of the wife was that the husband at time of the marriage had gifted suit land to the wife besides the dower amount, and such fact had been incorporated in the nikahnama---Validity---Admittedly, deed for transfer of land in favour of the wife had been mentioned in the nikahnama---Husband, according to his own version, was in possession of the said deed, but did not produce the same before the Trial Court---Under Art.129(g) of the Qanun-e-Shahadat, 1984, adverse inference would be drawn to the effect that the same was intentionally concealed and it would be deemed as if the same was produced, and the contention of the wife, therefore, stood proved---Husband admitted the contents of the said deed up to the extent of entry regarding dower amount whereas the remainder was denied---Signature of husband were available on the next page of the said deed where the entire agreement was concluded---Wife had produced petition-writer, who verified issuing of stamp paper to the defendant---Signature of husband were available on the register as well as on the overleaf of the stamp paper of the said deed---Signatures on the deed and on the nikahnama were similar, and both documents were not denied by the husband---Appellate Court had not appreciated said deed which was clearly mentioned in the nikahnama in a different column and which specifically related to the deed executed at the time of the Nikah---Deed was produced by the wife, whereas the husband, having the same, did not produce it and therefore, the said deed produced by the wife would be presumed to be correct---Family courts were governed by the special law of the West Pakistan Family Courts Act, 1964, wherein the proof of documents as prescribed under Qanun-e-Shahadat, 1984 in its stricto sensu was not applicable---All entries in the nikahnama were presumed to be correct---Any document or deed mentioned in the nikahnama though not proved under Art.79 of the Qanun-e-Shahadat, 1984, its existence and production of the stamp vendor before the Family Court was sufficient to rely on the said deed and on the same being correct and validly executed---Trial Court had rightly decreed the suit of the wife, and findings of the Appellate Court were liable to be set aside---High Court set aside order of the Appellate Court and restored the decree of Trial Court---Constitutional petition was allowed, accordingly.

Nazim Ali v. Rashid Qamar and 2 others 2006 CLC 289 rel.

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Art. 79---Proof of execution of documents---Scope---Family courts were governed by the special law of the West Pakistan Family Courts Act, 1964, wherein the proof of documents in its stricto sensu was not applicable---Any document or deed mentioned in the nikahnama though not proved under Art.79 of the Qanun-e-Shahadat, 1984; its existence and production of the stamp vendor before the Family Court was sufficient to rely on the said deed and on the same being correct and validly executed.

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

----Art. 129(g)--Adverse inference---Husband, in family matter, according to his own version, was in possession of the deed to transfer land in favour of wife, but did not produce the same before the Trial Court---Under Art.129(g) of the Qanun-e-Shahadat, 1984, adverse inference would be drawn to the effect that the same was intentionally concealed and it would be deemed as if the same was produced.

Nazim Ali v. Rashid Qamar and 2 others 2006 CLC 289 rel.

Miss Shabnam Nawaz for Petitioner.

M. Shoaib Khan for Respondent.

Date of hearing: 14th February, 2012.

P L D 2012 Peshawar 112

Before Yahya Afridi, J

MUHAMMAD AYUB---Petitioner

versus

MEHR GUL through next friend Lal Khan---Respondent

Civil Revision No.47 of 2004, decided on 30th September, 2011.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Suit for pre-emption---Making of Talbs---Validly appointed "agent" could make and perform the requisite 'talbs' on behalf of the "principal"---In case, Talb-e-Muwathibat having been performed by the pre-emptor himself and not by his lawfully appointed agent, S.14 of Khyber Pakhtunkhwa Pre-emption Act, 1987 would not come to the rescue of the pre-emptor.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Making of talbs-Proof through attorney of pre-emptor---Conditions---Mentioning of time, date and place of 'Talb-e-Muwathibat' was a 'sine qua non' for proving right of pre-emption---Particulars of 'Talb-e-Muwathibat' had to be strictly included and mentioned by the pre-emptor in his plaint, or else his claim was to fail---Proof of said 'Talb' had also to be strictly proved by the pre-emptor---'Talb-e-Muwathibat' performed by the pre-emptor himself, was special and personal; and could not be proved through an attorney, however, there could be situations where the 'buyer' would admit the claim of the pre-emptor or there were legal presumptions in favour of the pre-emptor and, denying the pre-emptor of the fruits of his rights of pre-emption because he did not appear as witness to prove the same, would not be legally correct---There could also be situations, where the pre-emptor for being frail, ill or for any other just or reasonable cause was unable to attend the court, could appoint an attorney to depose on his behalf---'Talb-e-Muwathibat' was a personal right, which required direct evidence to prove the performance thereof; regarding the hearing of knowledge of the sale and the intention, and the act of performing the "jumping talb"---Failure of the pre-emptor to prove the said 'facts' would adversely affect his claim; however, such statement, was not absolute, High Court could not shut its eyes to the exception to the said general rule---Special circumstances claimed by the pre-emptor should be clear, real and reasonable for the court to allow an attorney to prove the 'talbs' of the pre-emptor---Once the evidence of the attorney to prove the 'talbs' was allowed by the court due to special circumstances, then the attorney's evidence would be tested on the touchstone of its relevancy, authenticity and proof.

Muhammad Hanif v. Mst. Munawar Bi 1998 SCMR 223; Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957; Mst. Hussan Banu v. Waliur Rehman 2007 SCMR 1344; Falak Sher v.Mir Qalam Khan 1995 CLC 1077; Amir Badshah v. Aminul Haq 2005 CLC 325 and Rashid Khan v. Misal Khan 2011 YLR 1488rel.

PLD 1993 Kar. 237; PLD 1966 SC 854; PLD 1963 SC 296; PLD 1991 SC 546; Kitab-e-Shahadat at Chapt. No.6; Mishkat Sharif Hadis No.3588; Ainul Hidaya 387 and Dore Mukhtar 299 and Fitawae Alamgiri 247 ref.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Arts.70 & 71---Suit for pre-emption---Making of Talbs---Appearing of a party as a witness in his own cause---Neither there was an express bar nor a requirement for a party to appear as a witness in his own cause under the Qanun-e-Shahadat, 1984---'Facts' constituting the claim of the party, had to be proved, through direct oral or documentary evidence, as provided under Arts.70 & 71 of Qanun-e-Shahadat, 1984 which in no way would render the claim of a party to be summarily dismissed, just because he did not appear as a witness to depose and prove his claim---Where 'Talb-e-Muwathibat' had to be proved, and that too strictly; proof of condition precedent of hearing about the sale or knowledge thereof; and announcing the 'jumping talb' would surely require the direct oral evidence of the pre-emptor himself---Failure of the pre-emptor to appear as a witness would have fatal consequences, unless he would bring his case within the settled exemption Rule.

Muhammad Hanif v. Mst. Munawar Bi 1998 SCMR 223 fol.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 13 & 14---Qanun-e-Shahadat (10 of 1984), Arts.17, 18, 19, 70 & 71---Suit for pre-emption---Making of talbs---Proof---Scope---Appearing of a party as a witness in support of his claim---Scheme envisaged under Qanun-e-Shahadat, 1984, did not provide for a party to appear as a witness, but did not impose any express bar upon a party to appear as a witness in support of the claim sought---If a party was able to prove his case through direct oral or documentary evidence or admissions of the other party or on the basis of presumptions, the absence of the party to appear as witness would not be fatal to claim sought---Where the party himself was the pre-emptor and exercised his 'Talb-e-Muwathibat', which required strict proof of the knowledge of the sale, his intention and the announcement of 'jumping talb', non-appearance of the pre-emptor, would be fatal to the claim sought---Said rule for the pre-emptor to appear in person to prove his 'talbs' was not absolute; there could be exceptions to the said rule, in cases where the pre-emptor, in other than the situation envisaged under S.14 of Khyber Pakhtunkhwa Pre-emption Act, 1987, would bring on record special circumstances, whereby it was not reasonably possible for the pre-emptor to appear in person, then on the satisfaction of the court, the pre-emptor could appoint an attorney to prove his 'talbs'---Evidence so rendered would be a "proof" as envisaged under the Qanun-e-Shahadat, 1984.

Adam Khan Jadoon for Petitioner.

Haji Sabir Hussain Tanoli for Respondent.

Date of hearing: 30th September, 2011.

P L D 2012 Peshawar 121

Before Syed Sajjad Hassan Shah, J

FARID ULLAH KHAN KUNDI---Petitioner

versus

RUSTAM KHAN---Respondent

Civil Revision No.425 of 2010, decided on 9th September, 2011.

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

----O. IX, R.13 & O.XX, R.5---Malicious prosecution---Suit for damages---Ex parte decree due to absence of defendant/his counsel/his summoned witnesses on relevant date and rebuttal of plaintiff's evidence---Order of Trial Court refusing to set aside such decree upheld by Appellate Court---Validity---Trial Court had proceeded ex parte against defendant on a date when neither he nor his counsel nor his summoned witnesses were present---Delay had not been caused on account of absence of defendant or his counsel, rather Trial Court could not proceed further on relevant date due to absence of witnesses summoned by defendant---Trial Court on relevant date could have procured attendance of defendant's counsel---No distinction existed between judgment passed ex parte or after contest between the parties---Trial Court while passing ex parte decree had neither referred to pleadings of parties and examined same in juxtaposition of law applicable to such type of suit nor given any findings on issues over which evidence of plaintiff was available on record---Impugned decree passed in haphazard and slipshod manner without complying with provisions of S.2(2)(14) & O.XX, R. 5, C.P.C. would not be deemed to have been passed in accordance with law---Trial Court had decreed suit on sole ground that there was nothing in rebuttal---Trial Court was bound to protect interest of defendant, who had been proceeded ex parte, and before deciding suit must have gone through material brought on record by plaintiff and adjudged same according to law applicable to such type of suit---Defendant had filed appeal within time against ex parte decree, which could be treated as appeal against decree under S. 96, C.P.C.---Appellate Court despite having powers exercisable by Trial Court had failed to exercise same and decided appeal without considering merits of case---High Court set aside judgment and decree of Appellate Court and remanded case for deciding appeal afresh after affording opportunity of hearing to parties.

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

----S. 2(2)(14) & O.XX, Rr. 4, 5---Decree/order/judgment either preliminary or final passed either ex parte or after contest between parties---Duty of court to state its decision on each issue, object of---Essential ingredients of such decree/order/judgment stated.

Without complying with the requirements envisaged under Order XX, Rule 5, C.P.C., the judgment and decree would not be deemed to have been passed in accordance with law.

The wisdom lying behind the provision of Order XX, Rule 5, C.P.C. is that the court must finally and conclusively decide all the questions involved in the suit on its merits. The findings must not be ambiguous or requiring further adjudication leaving the matter in vacuum. When the issues are framed, then it is incumbent for the court to decide the same in the light of available record, but findings must be recorded on each and every issue. It is nowhere provided under O.XX, Rule 5, C.P.C. that in case of ex parte proceedings, the pre-requisites enumerated under the said Rule would not be applicable.

The mere fact that decision made of a matter summarily would not be considered as conclusive determination, because adjudication purports only to be the conclusive of its character, which must have to be determined with reference to its true nature. There is no distinction laid down in between the determination made ex parte or in presence of the parties. The order or decree made as prescribed in the C.P.C., both must be formally expressed and be precise and in deliberate language, amenable to the execution proceedings. If the order or decree made otherwise, rather in slipshod and cursory manner, it would not be considered, as the provisions contained in law have sufficiently been complied with. It also surely facilitates the Appellate Court to determine conclusively and finally the dispute between the parties, in absence whereof no determination can be made without there being any finding in detail and made extensively in the light of the material available on the file. Certain important features embodied in section 2(2), C.P.C. are "formal expression, adjudication and conclusive determination".

It is essential for a decree that there must be a formal expression of the adjudication, because it is to be executed and not the judgment, therefore, the decree must contain the formal expression, which is to be precise, deliberate and couched in legal terminology. So, without its formal expression, it cannot be operated as a decree. In any case, where it is preliminary or final, the characteristic of both of them are one and the same.

Since the "formal expression" is not defined in the Code, however, it is imperative to resort to its dictionary meanings. The word "expression" denotes (1) the action of expressing something, (2) a look on someone's fact that conveys a particular emotion, (3) a word or phrase expressing an idea.

The spirit lying behind the definition of adjudication is that there must be the determination of issues or disputes between the parties in clear terms and the reader must come to the conclusion that this is a true judicial determination of the matter in controversy and the same must be distinguishable from the decision made by the Court findings on the administrative side. It should convey the formal expression of adjudication to its reader, because it is not a judgment put to the execution, but it is the decree which is always executed. Moreover, appeal lies against an order, judgment and decree and while deciding the appeal, the Appellate Court must have some material before it to enable itself either to confirm those findings as are made in accordance with law or if found that the same are not in consonance with the mandate of law to be declared as illegal and unlawful, but if at all the question raised that there is no findings worth the name rendered by the Trial Court, how the Appellate Court would be able to determine it as required under section 2(2), C.P.C.

The judgment always denotes a judicial decision made by a Court or Judge, where the adjudication seems to be made in all the matters in controversy, which would result in final disposal of the suit. The necessary ingredients of a judgment are that there should be a statement of grounds for decision.

The definition of decree as given in section 2(2), C.P.C. does not exclude an ex parte decree nor does it make reference that the decree against minor or a decree which is ab initio void would not be decree.

The finality is always attached to the judgment, which has judicially determined the rights of the parties.

There is no distinction laid down between the judgment passed on contest between the parties or ex parte.

Black's Law Dictionary, 8th Edn.; Concise Oxford English Dictionary and Sardar Ali v. Muhammad Ali PLD 1988 SC 287 rel.

(c) Malicious prosecution---

----Suit for damages---Essential ingredients stated.

In a suit for recovery of damages on account of malicious prosecution, it is the legal duty of the plaintiff first to bring his case within the ambit of those principles prescribed for awarding damages e.g. whether the prosecution was without reasonable and probable cause; whether the prosecution was tainted with malice; whether the plaintiff has provided the detail of damages along with his plaint? All these essentials must be discernable on the face of the plaint even if one of these questions is not appearing thereon or the same is not supported by any material appended with the plaint, suit is not liable to be decreed.

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

----S. 26, O.VI, R.4 & O. VII, Rr. 1 & 11---Suit, institution of---Duty of court stated.

It is the duty of trial court to see at the time of the institution of the suit that whether the plaint possesses the cause of action and not suffering from any fatal legal defect under the law or the suit is within time, and if the suit is for enforcement of certain contracts/agreements, whether the same is enforceable under the law and not hit by any infirmity laid down under the Contract Act, 1872 or patently dishonest or which contained absurd and exaggerated claims.

Shamraz Khan and another v. Muhammad Amin and others PLD 1978 SC 89 rel.

Sh. Iftikharul Haq for Petitioner.

Ziauddin Malik for Respondent.

P L D 2012 Peshawar 132

Before Mazhar Alam Khan Miankhel and Waqar Ahmad Seth, JJ

MUHAMMAD IBRAHIM and others---Appellants

versus

SUI NORTHERN GAS CORPORATION and others---Respondents

R.F.A. No.101 of 2002, decided on 16th November, 2011.

Suit for Damages---

----Scope---Leakage of natural gas in main pipeline in front of plaintiff's house not checked/controlled by Gas Company---Plaintiff's house caught fire due to explosion in pipeline and entry of natural gas in his house burning same completely and causing death of three persons and an infant---Plaintiff's claim for Rs.2 Million for such loss caused due to negligence of company---Proof---Plaintiff had lodged F.I.R. regarding such incident---Reporting of such tragic incident in print and electronic media had compelled Chief Minister to inspect spot, but nothing was done to investigate case by nabbing person responsible for such negligence---Special damage caused to plaintiff would require strict proof---Amount of general damages would not require to be proved by proper accountancy---Loss and damages in general would be measured by rule of thumb as compensatory damages---Corporation had not denied leakage of gas pipeline and occurrence---According to witnesses produced by company cause of occurrence might be terrorist activity or negligent act of inmates of plaintiff's house---Overall situation in country was normal at relevant time and there were no terrorist activities in country---Nothing on record in form of inquiry report of police or Government that such incident was a terrorist act---Company having sole responsibility to have inquired into such incident in its depth to know about its actual cause, but their inaction to do so would be sufficient to reflect their negligence---Plaintiff had established such incident and its apparent cause by producing witnesses, thus, burden shifted to company to prove that occurrence was not due to their negligence---Company had failed to discharge such burden, thus, was liable for such tragic incident---Actual damage and loss caused to plaintiff could be ascertained from over all scenario of the occurrence---Plaintiff was not supposed to prove general damages for pain, torture and suffering---Loss of human life could not be compensated---Suit was decreed by awarding compensatory damages of Rs.2.5 Million and in case of delay in its payment to plaintiff, company would be liable to pay fine at prevailing bank rate.

Punjab Road Transport Corporation v. Zahida Afzal and others 2006 SCMR 207 and Karachi Transport Corporation v. Latif-ur-Rehman 1993 SCMR 1149 rel.

Miss Sitara Begum v. Sui Northern Gas Pipelines Limited R.F.A. 36 of 2004, decided on 16-9-2011 distinguished.

Syed Rehman Khan for Appellants.

Muhammad Shoaib Jally for Respondents.

P L D 2012 Peshawar 139

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

GUL SARWAR KHAN and 8 others---Petitioners

versus

MUHAMMAD WALI KHAN and 2 others---Respondents

Writ Petition No.217-B of 2010, decided on 29th February, 2012.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 5---Civil Procedure Code (V of 1908), O.XXI, R. 35(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Decree for joint possession of immovable property---Pre-emptor (respondent) filed suit for possession through right of pre-emption against vendees (petitioners) being co-sharer in the suit land, which was decreed in his favour---Pre-emptor filed execution of such decree against which vendees submitted an objection application with the contention that pre-emptor was granted some shares in the joint Khata and therefore, pre-emptor was entitled to only symbolic possession and not physical possession of the suit property without partition---Objection application of vendees was dismissed by Trial Court and revision filed thereagainst before court below was also dismissed---Validity---Pre-emptor was granted a decree to the extent of 1/37th share by exercising his right of pre-emption in joint khata----In view of Order XXI, Rule 35(2), C.P.C, when decree was passed in favour of a pre-emptor regarding shares out of a joint property, pre-emptor would be entitled to the issuance of warrant of symbolic possession to the extent of shares regarding which the suit had been decreed---Pre-emptor was entitled to the issuance of warrant of symbolic possession to the extent of 1/37 shares in joint khata regarding which the suit had been decreed and not a warrant of delivery of actual physical possession through partition of the land, which was not the job of the executing court, but rather that of the revenue hierarchy---Constitutional petition was accepted and impugned orders were set aside with direction to executing court for the delivery of symbolic joint possession to the pre-emptor.

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

----O. XXI, R. 35(2)---Khyber Pakhtunkhwa Pre-emption Act (X of 1987), S.5---Constitution of Pakistan, Art. 199---Constitutional petition---Decree for joint possession of immovable property---Principles---When decree was passed in favour of a pre-emptor regarding share out of a joint property, pre-emptor would be entitled to the issuance of warrant of symbolic possession to the extent of shares regarding which the suit had been decreed.

Haji Muhammad Zahir Shah for Petitioners.

Muhammad Wali Khan, Respondent in person.

P L D 2012 Peshawar 142

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

AZAM KHAN---Petitioner

versus

Mst. ISLAM ZADA and 2 others---Respondents

Writ Petition No.54 of 2011, decided on 21st December, 2011.

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

----S. 13---Constitution of Pakistan, Art. 199---Constitutional Petition---Suit for recovery of dower and maintenance allowance---Enforcement of decree---Husband assailed orders of Executing Court whereby his property was ordered to be auctioned and from the sale proceeds 30 tolas of gold be bought for the wife---Suit was decreed for 30 tolas of gold, and Executing Court could not draw any other inference from the explicit language of the decree---High Court modified the orders of the courts below and directed the Executing Court to put the property of the husband to auction by complying with the requisite legal formalities and for the sale proceeds of said property to be deposited in the Executing Court whereafter the Executing Court shall arrange for the purchase of the 30 tolas of gold for the wife and the remainder balance amount shall be paid to the husband---Constitutional petition was disposed of accordingly.

Asghar Ali for Petitioner.

Sardar Naeem for Respondents.

P L D 2012 Peshawar 144

Before Mazhar Alam Khan Miankhel, J

JUNAID---Petitioner

versus

HAKEEM SHAH SAEED---Respondent

Civil Revision No.197 of 2011, decided on 20th February, 2012.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)--

----Ss. 23 & 13---Pre-emption suit---Suit was concurrently dismissed on the ground that the suit property was exempt from pre-emption under S.23 of the Khyber Pakhtunkhwa Pre-emption Act, 1987---Validity---Sale of property which was already in use as a "waqf" property or was in religious or charitable use would be exempt from exercise of right of pre-emption; but a simple sale of property which later on was being used for religious purposes, would have no such protection under S.23 of the Act---Suit property, in the present case, was sold for a certain price and there was nothing on record to establish that said property was a "waqf" property or was used for charitable , religious or public purposes---After the sale of the suit property, a religious school had been functioning there but mere running of religious school would not ipso facto make it a "waqf" property unless so declared---Such property could not claim protection given under S.23 of the Khyber Pakhtunkhwa Pre-emption Act, 1987---High Court set aside concurrent findings of the courts below and suit of plaintiff was decreed---Revision was allowed, accordingly.

Masood-ur-Rehman for Petitioner.

Naeem-ud-Din for Respondent.

P L D 2012 Peshawar 147

Before Syed Sajjad Hassan Shah, J

Sh. ABDUL JABBAR---Petitioner

versus

GHIASUDDIN---Respondent

Civil Revisions Nos.335 and 352 of 2006, decided on 30th January, 2012.

Khyber Pakhtunkhwa Pre-emption Act (IX of 1987)---

----Ss. 13 & 28---Qanun-e-Shahadat (10 of 1984), Arts.113, 30 & 31---Suit for pre-emption---Making of talbs---Determination of sale consideration---Plaintiff who filed pre-emption suit claiming superior right of pre-emption in respect of suit land, had averred in the plaint that owner of suit property had sold the same in favour of defendant/vendee vide registered deed on payment of Rs.1,00,000, but in order to defeat the pre-emption right of the plaintiff a sum of Rs.4,00,000 was entered in the registered deed---Plaintiff also claimed making of the talbs in accordance with law---Trial Court decreed the suit for a sale consideration of Rs.1,33,560---Appeal filed against judgment and decree of the Trial Court was partly allowed, enhancing the sale consideration up to Rs.4,00,000 as mentioned in the registered sale-deed---Validity---Defendant, during cross-examination, had categorically admitted that he received the notice of Talb-e-Ishhad---Said admission enjoyed the blessing of Arts.113, 30 & 31 of Qanun-e-Shahadat, 1984 that once a fact was admitted, it need not be proved---After such admission, plaintiff was absolved of the burden of proof and the findings rendered by the courts below were in accordance with law which could not be interfered with by High Court in exercise of revisional jurisdiction---Payment of sale consideration was made through cheque valuing Rs.4,00,000---Said cheque was available on record which was encashed by the vendor of the property---Documentary evidence as adduced by the defendant had not been rebutted by the plaintiff by means of any valid documentary evidence---Defendant, in circumstances, had succeeded to prove the payment of Rs.4,00,000 as sale consideration of the suit property, which was duly paid by him to the vendor---Findings of the Appellate Court to the extent of market value, were based on proper appreciation of evidence on record and judgment to that extent needed no interference.

Malik Muhammad Bashir and Khuda Bakhsh Khan Baloch for Petitioner.

Muhammad Anwar Awan for Respondent.

P L D 2012 Peshawar 151

Before Mazhar Alam Khan Miankhel and Fazal-I-Haq Abbasi, JJ

Syed MUSARRAT SHAH and another---Petitioners

versus

Syed AHMED SHAH alias LAL BACHA and 8 others---Respondents

Writ Petition No.1912 of 2009, decided on 28th February, 2012.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 147---Affirmation of partition privately effected---Procedure---If there was private partition between the parties/joint owners, any of them had to apply to the Revenue Officer for an order affirming the said private partition---Revenue Officer then would inquire into the matter about the existence or otherwise of private partition; and if he was satisfied after the inquiry, then he had to make an order affirming the private partition between the parties and then had to proceed further under the other relevant provisions regulating the partition proceedings like administration of property excluded from partition, distribution of revenue and rent amongst the co-owners after partition, instrument of partition and deliver of possession to all the concerned according to the partition so reached between the parties and affirmed by the Revenue Officer---Said procedure was required to be adopted by the Revenue Officer even if it was a private partition with consent of the parties.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 147---Constitution of Pakistan, Art. 199---Constitutional petition---Partitions privately effected, affirmation of---Scope---Respondents had argued that since the private partition, every co-owner was enjoying the property according to his respective share and many of them had further alienated their shares in the name of different people---Said very fact alone would not be sufficient to establish on the record that there was a private partition between the parties---Petitioners and the respondents were the co-owners of the property and could deal with their properties being joint owners, could sell and purchase the joint properties---Entire record of the case was silent with regard to any application moved to the Revenue Officer for giving effect to the alleged private partition or any order of the Revenue Officer reflecting the factum of affirmation of private partition, and that was a sine qua non under S.147 of the West Pakistan Land Revenue Act, 1967, for implementation of any private partition---In absence of the same, mere entry of partition mutation, could not be declared to be sufficient, enough to have the protection of law---Exercise of jurisdiction by the Revenue hierarchy, in circumstances, was nothing short of misappreciation as law on the subject and they had failed to consider the record in its true perspective---All impugned orders of Revenue hierarchy, were set aside and case was sent back to Deputy District Officer for initiating a fresh process of partition amongst the co-shares strictly in accordance with provisions of the West Pakistan Land Revenue Act, 1967, regulating the partition of joint properties; by also considering the authenticity of factum of private partition, in accordance with law.

Mumtaz Hussain for Petitioners.

Iqbal Hussain for Respondents.

P L D 2012 Peshawar 156

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

Hafiz MUHAMMAD YOUNIS---Petitioner

Versus

Mst. SHAHEEN QURESHI and 2 others---Respondents

Writ Petition No.12 of 2011, decided on 20th December, 2011.

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

----S.13---Civil Procedure Code (V of 1908), S.48---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and dower---Suit was decreed ex parte by the Family Court and subsequently husband (petitioner) appeared before the Executing Court when the matter was settled through an arbitration agreement and the wife withdrew her execution petition---Thereafter the wife filed another execution petition for satisfaction of the decree of the Family Court---Contention of the husband was that the wife was estopped from filing another execution petition after withdrawal of the first one and that it was stated in the arbitration agreement that in case of any dispute the matter shall be referred to arbitrators---Validity---Wife received only part of the gold ornaments as per the compromise verdict given by the arbitrators and it was specifically provided therein that she could demand the remaining tolas of gold at any time from the husband---Arbitration agreement and verdict nowhere stated that the wife could not agitate her grievance again in case of failure, neglect or refusal of the husband to act in terms of the said agreement---Object of the arbitration was to bring about a compromise between the parties and not to deprive the wife of her lawful right which was granted to her by the Family Court---Wife had no choice but to knock at the door of the Family Court---Decree passed against the husband was still intact and executable---Compromise could not be construed as rendering the decree itself ineffective and the wife had never relinquished her entire claim against the husband---No legal impediment existed to file a second execution petition in case of withdrawal of execution petition from the Executing Court if the decree had not been satisfied---Constitutional petition was dismissed.

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

----S. 48---Second execution petition---Scope---Withdrawal of execution petition from the executing Court---No legal impediment existed to file a second execution petition in case of withdrawal of execution petition from the Executing Court if the decree had not been satisfied.

Hafiz Muhammad Hanif for Petitioner.

Umar Qayyum Khan for Respondents

Date of hearing: 20th December. 2011

P L D 2012 Peshawar 159

Before Attaullah Khan and Waqar Ahmad Seth, JJ

IFTIKHAR KHAN and another---Petitioners

Versus

Mst. AMINA BIBI and 2 others---Respondents

Writ Petition No.1030 of 2011, decided on 22nd March, 2012.

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

----Ss. 17, 13 & 5---Civil Procedure Code (V of 1908), S.48---Constitution of Pakistan, Art. 199---Constitutional petition---Second execution petition, maintainability of---Suit for recovery of maintenance allowance and dower was decreed and execution petition for the same was filed by the wife (respondent); when the parties entered into a compromise and the execution petition was withdrawn by the wife---Subsequently, the wife filed a second execution petition which was dismissed by the Executing Court, but the Appellate Court accepted the same---Contention of the husband (petitioner) was that second execution petition was not maintainable and that after the compromise, the case was a fresh cause of action which required evidence to be recorded---Validity---After the compromise, the husband/judgment-debtor had not taken any ground that any amount towards the satisfaction of the decree was paid privately to the wife---Withdrawal of first execution petition on the basis of compromise was not absolute but was on the basis of settlement arrived at that time, and till the satisfaction of a decree, it could be executed within the given aggregate period of six years, from the date of the decree---Family Court could exercise its own powers to prevent the course of justice being deflected from its path---Family Court had to regulate its own proceedings in accordance with provisions of the West Pakistan Family Courts Act, 1964 and in doing so, it had to proceed on the premise that every procedure was permissible unless a clear prohibition for the same was found in law, meaning thereby that the Family Court could exercise its own powers but was not debarred to follow the principles of the Civil Procedure Code, 1908 coupled with the facts of a case---West Pakistan Family Courts Act, 1964 and the Rules made thereunder had not expressly prohibited the filing of a second execution petition especially in the circumstances when there was nothing on record that after the compromise and withdrawal of the first execution petition, any payment had been made or efforts were completed for satisfying the decree privately---Constitutional petition was dismissed.

PLD 2011 Kar. 24; PLD 2010 SC 891 and 1999 CLC 555 rel.

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

----S. 17 & 5--- Civil Procedure Code (V of 1908), Preamble---Jurisdiction of Family Court---Scope---Family Court could exercise its own powers to prevent the course of justice being deflected from its path---Family Court had to regulate its own proceedings in accordance with provisions of the West Pakistan Family Courts Act, 1964 and in doing so, it had to proceed on the premise that every procedure was permissible unless a clear prohibition for the same was found in law, meaning thereby that the Family Court could exercise its own powers but was not debarred to follow the principles of the Civil Procedure Code, 1908 coupled with the facts of a case.

Kamaluddin Khattak for Petitioners.

Hassan U.K. Afridi, for Respondents.

Date of hearing: 22nd March, 2012.

P L D 2012 Peshawar 164

Before Mazhar Alam Khan Miankhel and Fazal-i-Haq Abbasi, JJ

Mst. SARWAT BEGAM---Petitioner

Versus

FARMANULLAH and 2 others---Respondnets

Writ Petitions Nos.525 and 557 of 2011, decided on 28th February, 2012.

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

----Ss. 10(4) proviso, 5 & Sched.---Constitution of Pakistan Art. 199---Constitutional petition---Suit for dissolution of marriage and recovery of dower---Suit was decreed and marriage was dissolved by the Trial Court on the ground of Khula' instead of on the ground taken by the wife of cruelty by the husband and Trial Court gave no directions for return of benefits to the wife---Appellate Court modified said judgment of Trial Court and found that the total dower fixed between the parties was 25 tolas of gold out of which the wife received 8 tolas at the time of the Rukhsati and out of the remainder 17 tolas of gold, 9 tolas were held to be "Badl-e-Khula" and therefore, the wife would have to surrender her claim to that extent and would be entitled to receive the remaining 8 tolas of gold only---Contention of the wife (petitioner) was that the total dower was 50 tolas of gold since dower was enhanced later by the husband through an agreement executed at the time of marriage in view of the findings of a "jigra"---Validity---Wife had failed to prove the existence of such a decision by a "jirga"---Wife herself had not claimed dissolution of marriage on the basis of "khula" but had claimed dissolution of marriage on the basis of non-payment of dower and cruelty by the husband and had led evidence in such regard, but the same was not held to be sufficient to be relied upon by the courts below---Trial Court by considering that the spouses could not live within the limits ordained by Almighty Allah dissolved the marriage not on basis of the grounds taken by the wife, but on the basis of khula, and in said situation, it became the direction of the Trial Court to fix the amount of "Badl-e-Khula", keeping in view the peculiar facts of the case---High Court modified the judgment of the Appellate Court and keeping in view the period of wedlock between the parties, reduced "Badl-e-Khula" from 9 tolas to 5 tolas and directed that the wife would be entitled to receive the remaining 12 tolas of gold---Constitutional petition was disposed of accordingly.

Muhammad Riaz v. Mst. Noorul Islam and 2 others 1998 CLC 1936 and Dr. Fakhruddin v. Mst. Kosar Takreem and another PLD 2009 Pesh. 92 ref.

Amir Gulab Khan for Petitioner.

Muhammad Saeed Khan Shagla for Respondents

Date of hearing: 28th February, 2012.

P L D 2012 Peshawar 167

Before Mian Fasih-ul-Mulk, J

GHULAM MUHAMMAD---Petitioner

Versus

PAINDA RAHMAN and 4 others---Respondents

Quashment Petition No.138 of 2011, decided on 8th May, 2012.

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

----Ss. 133 & 561-A---Conditional order for removal of nuisance---Nature and scope---Enforcing individual rights or settling private disputes by making resort to the provisions of S.133, Cr.P.C---Scope---Complainants (respondents) had filed a complaint against the accused (petitioner) with the contentions that they had been using an old path for approaching their house but after the construction of a new road, the accused forcibly blocked the road near his fields by making it a part of his land, and that the newly constructed road was not of much use to the complainants as compared to the old path---Magistrate dismissed the complaint of the complainants but court below reversed the findings of the Magistrate---Validity---Perusal of the evidence of the parties revealed that the new road was wider than the old path and had been in existence for the last about six years---New road was easily approachable for all the inhabitants of the area, and even the complainants had admitted that the new road was nearer to their houses than the old path but their apprehension was that their houses were at some height from the new road, which made the approach to their houses difficult---Most important aspect of the case was whether the old path was a public or private path, which aspect had not been established on the record, rather the present complaint was filed by one of the complainants alone in an individual capacity without other inhabitants or land-owners of the area, which denoted the fact that same was not a public road but was made by nearby landowners for approaching their lands---In the present case, aim of the complainants was to enforce their individual rights by making resort to the provisions of S.133, Cr.P.C---Proceedings under S.133, Cr.P.C, were not intended to settle private disputes between members of public or to be used as a substitute to settle civil disputes---New road was constructed about six years back, therefore, on this count too, no action could be taken when the obstruction was in existence for a long period of time---Section 133, Cr.P.C was attracted only in case of emergency and imminent danger---Complainants had not disclosed in their complaint or their evidence as to when the alleged obstruction was made by the accused---No occasion existed for the complainants to have invoked the emergency power under S.133, Cr.P.C, as dispute between the parties did not fall within the said provision---Quashment petition was accepted, impugned order of court below was set aside and order of the Magistrate was restored---Order accordingly.

Mst Sakina v. Habibur-Rahman PLD 1968 Pesh. 21 rel.

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

----S. 133---Conditional order for removal of nuisance---Scope and pre-requisites---Section 133, Cr.P.C , empowered the Magistrate to order the removal of an obstruction from any way or from any public place and before it could be applied, there must be a finding that the construction in question was situated on a way which might be lawfully used for the public or on a public place.

Mst Sakina v. Habibur-Rahman PLD 1968 Pesh. 21 rel.

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

----S. 133--- Conditional order for removal of nuisance---Proceedings under S.133, Cr.P.C---Scope and nature---Such proceedings were not intended to settle private disputes between different members of the public but were intended to protect the public as a whole against inconvenience---Proceedings under S.133, Cr.P.C, being more in the nature of civil proceedings, exercise of power under the provision should be one of judicious discretion objectively exercised on pragmatic considerations of the given facts and circumstances on record.

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

----S. 133---Conditional order for removal of nuisance---Scope---Obstruction in existence for a long period of time---Effect---No action under S.133, Cr.P.C could be taken in such circumstances.

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

----S. 133---Conditional order for removal of nuisance---Essentials---Emergency and imminent danger---Scope---Section 133, Cr.P.C, was attracted only in case of emergency and imminent danger.

Syed Abdul Haq for Petitioner.

Amir Gull Khan for Respondnet.

A.A.G. for the State.

Date of hearing: 8th May, 2012.

P L D 2012 Peshawar 172

Before Mazhar Alam Khan Miankhel and Fazal-i-Haq Abbasi, JJ

Mst. ABIDA AMAN-I-RUM and 3 others---Petitioners

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Public Health and Sanitation Department and 5 others---Respondents

Writ Petition No.718 of 2008, decided on 9th February, 2012.

Land Acquisition Act (Act I of 1894)

----Ss. 4, 9, 10 & 11---Constitution of Pakistan, Art. 199---Constitutional petition---Land Acquisition Collector had initiated acquisition process of the lands owned by the petitioners on the request of the Public Health Department, and notifications under S.4 of the Land Acquisition Act, 1894 were also published in such regard, however, the process of acquisition was stopped---Petitioners assailed notifications under S.9 & 10 of the Act issued by the Land Acquisition Collector whereby he initiated the acquisition process again after 27/28 years---Validity---Acquisition process was dropped without passing any order or taking any other proceedings and then for the first time after about 27/28 years; notices under Ss.9 and 10 of the Act were issued placing reliance on notifications/notices of the year 1980-81 and the notifications were issued at the instance of the Tehsil Municipal Administration instead of the Public Health Engineering Departments, which act was without any legal justification and a derogation from the law---Though there was nothing on record regarding the stoppage of the acquisition process, but silence of the Department in such regard would be sufficient to observe that the department had dropped its idea to acquire the land---Case of the petitioners although did not fall under the provisions of S.5(2)(3) of the Land Acquisition Act, 1894, but considerable delay and silence of the department itself was sufficient to declare the land acquisition process to be the nullity in the eye of law---Land Acquisition Collector while announcing the award in the year 2007 had assessed the market value of the property to be acquired from the period of issue of notification (1980) which itself was a mockery of law, and was absurd and irrational---High Court set aside acquisition Award and observed that if need be, the Department can start a fresh process of acquisition under the law---Constitutional petition was allowed, accordingly.

Cantonment Executive Officer, M.E. Section, Cantonment Board, Bahawalpur v. Syed Iqbal Mustafa and 2 others 1993 CLC 1489 and Province of Punjab and 2 others v. Muhammad Haziq and 3 others 1986 CLC 530 ref.

Sher Muhammad Khan for Petitioners.

Rahim Shah and Muhammad Javed (DAG) for Respondents.

Date of hearing: 9th February, 2012.

P L D 2012 Peshawar 176

Before Mazhar Alam Khan Miankhel, J

SHAH ZIR and another---Petitioners

Versus

SHAHZADA AMAN ROME and 21 others---Respondents

Civil Revision No.5 of 2002, decided on 21st May, 2012.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 53---Settlement of Immovable Property Disputes (Dir and Swat) Regulation [MLR 123], paras 3 & 5-A---Civil Procedure Code (V of 1908), S.9 & O.VII, R.10---Suit for declaration---Suit land situated in Swat, finding mention in revenue record in name of Provincial Land Commission claimed by plaintiffs to be their ancestral property or property purchased by them, thus, prayed for declaring such entries to be wrong and ineffective on their ownership rights---Jurisdiction of civil court---Scope---Land Commission was custodian of properties of Ex-Ruler of Swat and his legal heirs, who were made party in such suit---Plaintiffs claimed their ownership of properties, which were basically owned by Ex-Ruler---Such dispute between the parties would fall within scope of para.3(1) of MLR-123 and would be determinable by a person specially authorized by Provincial Government---Civil Court by virtue of para. 5-A of MLR-123 had no jurisdiction to entertain such dispute---Plaint was returned to plaintiff for its presentation before proper forum.

PLD 1990 Pesh. 91 ref.

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

----O. VII, R. 10---Court lacking jurisdiction to entertain a suit---Effect---Dismissal of suit for want of jurisdiction in such case would not be appropriate, rather plaint should be returned to plaintiff---Court while returning plaint along with necessary documents, should retain photo copies thereof for its own record.

Zahir Khan for Petitioners.

Asghar Ali for Respondents.

Ikramullah Khan, A.A.G. for the State.

Date of hearing: 21st May, 2012.

P L D 2012 Peshawar 181

Before Mian Fasih-ul-Mulk, J

Mian ASMAT SHAH and another---Petitioners

Versus

Mian FAIQ SHAH and others---Respondents

Civil Revision No.25 of 2006, decided on 5th June, 2012.

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

----S. 182---Civil Procedure Code (V of 1908), O.III, R.2---Stamp Act (II of 1899), S.2(21)---Expression "General Power of attorney"---Connotation.

The expression "general power of attorney" has not been defined either in the Civil Procedure Code 1908 or in any other statute, but according to well established principle, a general agent is one who has authority arising out of and in the ordinary course of his business or profession to do some act or acts on behalf of his principal in relation thereto or one who is authorized to act on behalf of the principal generally in transactions of a particular kind or incident to a particular business.

Concentrate Manufacturing Company of Ireland and 3 others v. Seven-Up Bottling Company (Private) Limited and 3 others 2002 CLD 77 and Muhammad Rafique v. Messrs Bawany Sugar Mills Ltd. 1999 MLD 3273 rel.

(b) Arbitration Act (X of 1940)---

----S. 21---Civil Procedure Code (V of 1908), O.III, Rr.1 & 2---Contract Act (IX of 1872), S.182---Reference of matter in suit to arbitration on statement of defendants' counsel by court---Validity---Defendants' counsel was appointed by his general attorney---Contents of Vakalatnama showed that all powers granted to General Attorney by defendants had been conferred upon his counsel---Defendants' counsel was competent to make statement on behalf of defendants for referring matter to arbitration.

Muhammad Hussain and others v. Ghulam Rasool and others 1983 SCMR 231 rel.

(c) Arbitration Act (X of 1940)---

----Ss. 14, 17, 21 & 30---Limitation Act (IX of 1908), Art.158---Award, setting aside of---Objections to award filed beyond 30 days---Objector's plea that no notice under S.14(2) of Arbitration Act, 1940 was served upon him---Validity---Court had referred matter in dispute to Arbitrator with consent of both parties---Objector had duly participated in arbitration proceedings---Award had been filed in court in presence of both parties, thus, there was no need of issuing a notice to objector about filing of award---Such plea of objector was, merely a technical ground having no force in such circumstances.

Ashfaq Ali Qureshi v. Municipal Corporation, Multan 1985 SCMR 597; Messrs Shafi Corporation Ltd. v. Government of Pakistan PLD 1994 Kar. 127; Dr. Abdul Waris v. Javed Hanif and others 1983 SCMR 716 and PLD 1996 SC 797 rel.

(d) Arbitration Act (X of 1940)---

----Ss. 14, 17, 21 & 30---Civil Procedure Code (V of 1908), O.XXXII, R.3---Reference of matter in suit to arbitration by court with consent of parties---Application for setting aside of award filed in court by Arbitrator---Plea of minor defendant that she was minor, but court had referred such matter to Arbitrator without appointing a guardian-at-litem for her---Validity---Minor was duly represented in such through her mother---Award was not liable to be set aside merely on such ground---Court rejected such objection and made award rule of the court in circumstances.

Mst. Naziran Bibi and others v. Muhammad Ashraf and others 2003 SCMR 1831; Murad Khan and another v. Dildar Khan and others PLD 1966 (W.P.) Pesh. 173 and Kameen Khan and 15 others v. Ghazi Marjan and 9 others 1990 MLD 1865 rel.

Abdul Samad Khan Zaidi and S.Arshad Ali for Petitioners.

Abdul Sattar Khan for Respondents.

Date of hearing: 5th June, 2012.

P L D 2012 Balochistan 1

Before Qazi Faez Isa, C J and Mrs. Syeda Tahira Safdar, J

OBAIDULLAH---Petitioner

Versus

Senator MIR MUHAMMAD ALI RIND and 2 others---Respondents

Constitutional Petition No.626 of 2009, decided on 25th August, 2011.

(a) Interpretation of Constitution--

---Two provisions in a statute---Effect---Every effort should be made to reconcile two provisions rather than to attribute redundancy to any provision of the Constitution.

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

----S. 15, proviso--- Constitution of Pakistan, Art.63(1)(h)---Conviction and sentence-Disqualification-Starting date---Respondent was convicted and sentenced by Accountability Court and was disqualified under S.15 (a) of National Accountability Ordinance, 1999, for a period of ten years, to be reckoned from the date he had discharged his liabilities-Effect---Ten years period started to run from 18-6-2001, the day when respondent paid fines/discharged his liabilities and would last till 17-6-2011---On the day i.e. 11-2-2009, when respondent submitted his nomination form to contest for Senate seat, he could not have done so.

(c) Constitution of Pakistan--

----Arts. 62(1)(d)(h) & 199---National Accountability Ordinance (XVIII of 1999), S. 9 (a)---Constitutional petition-Quo warranto, writ of-Good character-Proof---Corruption and corrupt practices---Conviction- False affidavit-Respondent filed false affidavit, at the time of nomination for election to seat of Senate, suppressing the fact that he had been convicted and sentenced by Accountability Court on the charge of corruption and corrupt practices-- Respondent was convicted for corruption and embezzling/stealing from public exchequer, which allegations he had accepted, thus could not be categorized to be "of good character" or "is not commonly known as one who violates Islamic Injunctions" and attracted the bar contained in Art.62(1)(d) of the Constitution---Validity---Under provision of Art.62(1)(d) of the Constitution the disqualification was not time-related but perpetual---Respondent had admittedly made false statement on "Declaration and Oath" and such false declaration on oath was not permissible in Islam and respondent would run foul of Art.62(1)(d) of the Constitution---Two convictions for corruption, embezzlement and misappropriation of public money and for knowingly making a false declaration on oath could not be stated to be "good character" or someone who "is not commonly known as one who violates Islamic Injunctions" in terms of Art.62(1)(d) of the Constitution---Respondent did not qualify to be elected, chosen or continue as member of Parliament---High Court declared that respondent was not qualified to seek office of Senator and directed the respondent to surrender all payments and benefits received by him or expended on his behalf when he acted as Senator, including salary, rent, travelling allowance and daily allowance---Concerned Government was also directed to take action against respondent, in case he would fail to return the benefits derived by him and the government would also be within its rights to prosecute the respondent for filing of a false nomination Form--- Petition was allowed accordingly.

Muhammad Ali Rind v. Zahoor Ahmed PLD 2008 SC 412; Begum Shamsunehar v. The Speaker East Pakistan Provincial Assembly PLD 1965 SC 120 and Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32 ref.

Nadir Ali Chalgari for Petitioner.

Amanullah Tareen, Addl. A.G. for Official Respondents and Syed Mansoor Shah and Amir Muhammad Jogezai, Special Prosecutor NAB and Syed Ayaz Zahoor and Kamran Murtaza for Respondent No.1.

Date of hearing: 22nd August, 2011.

P L D 2012 Balochistan 11

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

Senator ABDUL MALIK and 2 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Economic Affairs and Statistics, Islamabad and 4 others---Respondents

Constitutional Petition No.259 of 2011, decided on 25th August, 2011.

(a) Census Ordinance (X of 1959)---

----Ss. 3 & 7---Constitution of Pakistan, Arts: 130 (6), 151 (5) & 199-Constitutional petition---Census, stopping of---Judicial power---Responsibilities of Ministers-Sitting Ministers of Provincial Assembly sought intervention of High Court to stop the authorities from conducting census in Balochistan Province---Plea raised by the petitioners was that there was a large number of Afghan refugees and adverse law and order situation was prevailing in the province which was not conducive to hold census---Since, after the invasion of Afghanistan, six general elections had been held in Pakistan but question of Afghan refugees was not raised---Number of Afghan refugees had considerably decreased over time and position with regard to them was much better than the one prevailing in years, 1981 or 1998, when last two censuses were held or when previous six general elections took place---Principal responsibility for maintenance of law and order was of the government and two petitioners were sitting ministers, therefore, they were effectively expressing no-confidence in their own government and thus in their own ability---Such petitioners should spend their energies in trying to improve law and order situation rather than to use the same as a pretext to stop a legal and sanctioned activity of the State i.e. holding of census---Petitioners in their capacity as Ministers of the Government were "collectively responsible" in terms of Art.130(6) of the Constitution, therefore, their demand of stopping census by effectively citing their own failure was surprising---Successful Nations do not cite excuses to delay or postpone what requires to be done because of some difficulty but rise to the occasion to overcome the same---Petitioners or people of Balochistan should have no objection to the census taking place, as seats in National Assembly were to be allocated "on the basis of population in accordance with the last preceding census officially published", therefore, if Balochistan would record the actual population it might have more members in National Assembly and thus a greater say in the affairs of Pakistan---Political decision should not be assailed in court and particularly by those who were aggrieved by the decision of their own government---Federal Government was to decide as to when and whether a census was to take place and there was no reason for the courts to interfere--- High Court declined to interfere in the process of census to be conducted in Balochistan province---Petition was dismissed in circumstances.

(b) Census Ordinance (X of 1959)---

----Preamble---Census of houses and population--- Object and scope--- Figures provided by census help parliamentarians and governments, both provincial and federal, and even local authorities to better plan for the future---To consider, whether hospitals, colleges, schools etc. are required to be built and in which particular area---Most nations of the world include even illegal immigrants in their census because illegal immigrants too avail the services provided by the State, province or local authority and thus bona fide citizens or residents are not deprived.?

?????? Muhammad Aslam Chishti and Nadir Ali Chalgari for Petitioners.

?????? Malik Sikandar Khan, D.A.G. for Pakistan for Federal Government and Amanullah Kanrani, A.G. for Provincial Government.

?????? Date of hearing: 22nd August, 2011.

P L D 2012 Balochistan 16

Before Qazi Faez Isa, C.J.

IKRAMULLAH and others---Petitioners

Versus

THE STATE---Respondent

Criminal Quashment Nos.1, 2, 3, 10 and 11 of 2010, decided on 26th August, 2011.

(a) Balochistan Wildlife Protection Act (XIX of 1974)---

----Ss. 9, 10, 19, 27 & 30---Criminal Procedure Code (V of 1898), S.561-A---Quashing of orders---Accused had been charged for the illegal possession and transportation of cranes (birds) which enjoyed protection under the Balochistan Wildlife Protection Act, 1974---All the accused pleaded guilty and they were fined a sum of Rs.1000 each by the Judicial Magistrate and allowed to leave the 190 cranes in their possession---Sessions Court on revision petition preferred by the Executive District Officer, Forest and Wildlife, remanded the cases to the Judicial Magistrate for recovery of all the captured cranes from the accused and their delivery to the Forest Officer, vide impugned orders---Validity---Said cranes had since died on account of a contagious viral infection---Two years had passed since the F.I.Rs. were lodged against the accused---Magistrate had not considered the number of birds in the illegal custody of the accused, but instead the individuals involved, and imposed the maximum stipulated fine of Rs.1000 on each of them---Illegal possession of each crane being a separate offence, fine should have been commensurate with the offence---Fine extending to Rs.1000 had been prescribed in the year 1974 and Magistrate should have taken into consideration the intent of Legislature and the fact that the value of money since the lapse of 37 years had depreciated considerably and that imposition of fine of Rs.1000 per accused and not per crane, could neither be deemed to be sufficient, nor prove to be a deterrent to offenders---State had not filed appeals against the judgments of Magistrate and Sessions Court had not interfered with the judgments of Magistrate on this score, it was not proper to enhance the sentence of accused at present stage---Accused had now paid an amount of Rs.95000, which would reflect on their illegal actions and prove to be deterrent---Cranes having died could not be produced before Trial Court---Fine at the rate of Rs.500 per bird, total Rs.95000 under S.9 of the Balochistan Wildlife Protection Act, 1974, was imposed by High Court, which had been paid by the accused---Case pertained to the illegal possession of 190 cranes, a protected species under the said Act and one of God's creatures---Magistrate had failed to appreciate the importance and gravity of the matter---Petitions were disposed of with such modification.

(b) Wildlife protection---

----Concept in Islam.

Nadir Ali Chalgari for Petitioners (in Crl.Qs. Nos.1, 2, 3, 10 and 11 of 2010).

Miss Sarwat Hina, Addl. P.G. for Respondent (in Crl.Qs.Nos.1, 2, 3, 10 & 11 of 2010)

Date of hearing: 19th August, 2011.

P L D 2012 Balochistan 22

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

GUL MUHAMMAD---Appellant

Versus

THE STATE---Respondent

A.T.A. Criminal Appeal No.6 of 2007 and A.T.A. Murder Reference No.1 of 2007, decided on 29th September, 2011.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-e-amd and act of terrorism---Appreciation of evidence---Both the witnesses though were closely related to each other as well as to the deceased persons, but relationship by itself was not sufficient to brush aside their evidence when they had fully supported the prosecution version and the defence had failed to create any dent in their veracity---Said witnesses were residents of the same village and their presence at the time and place of occurrence, could not be doubted by any degree of seriousness---Accused and the prosecution witnesses being related and known to each other and it being a case of sole accused, neither any question of mistaken identification nor substitution, would arise---Evidence of prosecution witnesses did not suffer from any material contradiction or discrepancy and was consistent with the probabilities, materially fitting in with other evidence; more particularly the medical evidence and supported by the recovery of crime weapon from possession of accused and positive report of Firearm Expert---Complainant was declared hostile by the prosecution to the extent of not identifying of accused before the court, but it was of no significance, as parties had entered into compromise, which was also admitted before the Trial Court---Positive report of Firearm Expert had corroborated the ocular evidence furnished by prosecution witnesses---Prosecution, in circumstances had succeeded to prove its case against accused beyond the shadow of doubt.

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

----Preamble & S.6(2)(g)---Penal Code (XLV of 1860), S.302(b)---Qatl-e-Amd---"Terrorism"---Allegation of "Siyahkari"---Jurisdiction of Anti-Terrorism Court---Any offence, where the offender would take the law in his own hands and awards punishment, that offence would fall within the purview of Anti-Terrorism Act, 1997---Venue of the commission of a crime, the time of occurrence, the motive and the fact that whether or not said crime had been witnessed by public at large, were not the only determining factors for deciding the issue, whether a case did or did not fall within the parameters of Anti-Terrorism Act, 1997---Crucial question would be whether said crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people---Accused, in the present case, had committed the murder of three innocent people on the false allegation of 'Siyahkari', while taking the law in his own hands, such act certainly would have created a sense of fear, panic and terror amongst the villagers---No licence could be granted to anyone to take the law of the land in his own hands and start executing the culprits himself, instead of taking them to the court of law---Murder based on "Ghairat" did not furnish a valid mitigating circumstance for awarding a lesser sentence---Killing of innocent people, specially the women on to pretext of 'Siyahkari' was un-Islamic, illegal and unconstitutional---Under S.6(2)(g) of Anti-Terrorism Act, 1997, in case of unjustified murder by a person, who on account of his immorality or to satisfy his brutal instinct, would take the law in his own hands, was responsible for creating sensation and panic in the society---Offences committed on the pretext of 'Siyahkari' would fall within the domain of Anti-Terrorism Act, 1997, and all the cases pending before the ordinary courts would stand transferred to the Anti-Terrorism Courts.

Holy Quran Sura XXIV (NUUR) Verses 4; Hadith 837 Book 48 (Sahih Bukhari) and PLD 2001 SC 96 rel.

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

----Ss. 302(b) & 311---Anti-Terrorism Act (XXVII of 1997), Preamble & Ss.6(2)(g), 7(a)---Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd---Tazir after waiver or compounding of right of qisas in qatl-e-amd---Anti-Terrorism Act, 1997 was enacted for prevention of terrorism, sectarian violence and speedy trial of heinous offences-Said Act being a special law, private complainant or the legal heirs of the deceased, had no right to compound the "scheduled offence" as those offences were mainly against the State and not against individuals---Offences could not be compounded automatically by legal heirs, but were always through the court; and the court could decline the permission to compromise the offence by the legal heirs of victim---Even the ordinary courts under S.311, P.P.C., could punish accused, if the offence had been compounded, by the legal heirs, on the basis of "Fasad-Fil-Arz"---Not providing the right to compromise the offence by the legal heirs of deceased, was neither violation of Islamic Injunctions; nor of any fundamental rights.

Farzand Ali Mengal for Appellant (in A.T.A. Crl. Appeal No.6 of 2007).

Nasir Marri for the Complainant (in A.T.A. Crl. Appeal No.6 of 2007).

Anwar-ul-Haq Ch. for the State (in A.T.A. Crl. Appeal No.6 of 2007).

Anwar-ul-Haq Ch. for the State (in A.T.A. Murder Reference No.1 of 2007).

Nasir Marri for the Complainant (in A.T.A. Murder Reference No.1 of 2007).

Farzand Ali Mengal for the Respondent (in A.T.A. Murder Reference No.1 of 2007).

Date of hearing: 22nd September, 2011.

P L D 2012 Balochistan 31

Before Qazi Faez Isa, C.J. and Abdul Qadir Mengal, J

CHAMBER OF COMMERCE AND INDUSTRY QUETTA BALOCHISTAN through Deputy Secretary---Petitioner

Versus

DIRECTOR-GENERAL QUETTA DEVELOPMENT AUTHORYT and others---Respondents

C.Ps. Nos. 790 of 2010 and 164 of 2011, decided on 15th December, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---Violation of Fundamental Rights---Concept of 'aggrieved person' or locus standi---Scope---Public interest litigation does not envisage the strict concept of the aggrieved person or locus standi.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Shehla Zia v. WAPDA PLD 1994 SC 693; General Secretary Salt Miners Labour Union (CBA) Khewra, Jhelum v The Director, Industries and Mineral Development, Punjab, 1994 SCMR 2061 and Sindh Institute of Urology and Transplantation v. Nestle Milkpak Limited 2005 CLC 424 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Proposal of building of shops of considerable height around public park---Public trust, doctrine of---Scope---National resources like air, sea, waters and forests are like 'public trust' and should be made freely available to everyone irrespective of status---Constitutional petition relating to such resources was maintainable.

(c) Constitution of Pakistan---

----Arts. 9, 14, 26, 34, 35, 38 & 199---West Pakistan Municipal Committee (Street) Rules, 1962, R.9---Constitutional petition---Public Park proposed to be surrounded by shops of considerable height and no distance between such shops and the park, giving outsiders unrestricted vantage access thereto and naming the Park after a living person in government or occupying any position---Effect---Held, Fundamental Right of dignity (Art.14) would be violated when the users of the Park were holed in within the pit of the Park---Whilst privacy of the home was specifically recognized as a Fundamental Right (Art.14), people in public spaces were also entitled to limited personal space and privacy given the exigencies of the situation and to the extent that same could be ensured---Couples, families or for that matter any person would be deterred from venturing into the Park if every movement of theirs could be monitored, they, in circumstances effectively would be discriminated against, in respect of access to a public place which was yet another Fundamental Right (Art.26) infringed---Provision of Art.34 stipulated that every effort should be made to "ensure full participation of women in all spheres of national life" and another Art.35 call for the "protection of family life"; ventage viewing into the Park might dissuade women and families from visiting the same---"Promotion of social and economic well-being of the people" and provision of "basic necessities of life" was yet another principle (Art.38) to aspire to---Unemployed have time at their disposal and were therefore expected to make more use of a Park, so too the poor who do not have access to private gardens or clubs; thus when impediments were placed to fully enjoy the Park it was the said weaker and vulnerable members of society who would suffer the most---Availability of Parks for enjoyment, recreation, walking, jogging and exercise constituted a basic necessity---If the park was permitted to be enclosed and walled in same would also make it difficult if not possible for trees and plants, which required sunlight to grow, due to obstruction of sunlight and the shadows cast by the building surrounding it---Benefits of trees in urban areas and Parks for health detail with reference to research done on the subject---High Court, in circumstances, declared that no land could be allotted, leased, sold and/or otherwise alienated or shops constructed around the three roads surrounding the Park; that the Park could not be named after a living person and issued directions to the Development Authority to refund the money received by Development Authority pursuant to the offer letters issued by the Development Authority; the ground breaking ceremony plate erected in the Park that shows the name of the person in whose name the Park had been named and that of the political party mentioned thereon be removed; that to remove all references from its records about the previous name of the Park and not to mention the same on any plan or map; and to maintain the Park for the benefit of the people as a place of recreation and not change its use in the future; and the Director General of the Development Authority to submit compliance report about directions through the Registrar of High Court within thirty days.

(d) West Pakistan Municipal Committee (Street) Rules, 1962---

----R. 9---General Financial Rules of the Federal Government, Vol. I & II---National Accountability Ordinance (XVIII of 1999), S.9(vi)---Constitution of Pakistan, Art. 199---Constitutional petition---Public Park named after a living person in government or occupying any position is illegal and ultra vires exercise of power if persons vested with power are permitted to use their power for the wrong purpose, self projection, putting oneself or another person, directly or indirectly, in position of advantage or to gain benefit---Principles.

Baz Muhammad Kakar for Petitioners (in C.P. No.790 of 2010)

Kamran Murtaza for Respondent No.1 (in C.P. No.790 of 2010)

Hadi Shakeel Ahmed and Malik Sher Shah Kasi for Respondents Nos. 1 to 55 (in C.P. No.790 of 2010)

Malik Sikandar Khan Deputy Attorney General for Federation of Pakistan on Court Notice (in C.P. No.790 of 2010)..

Abdul Aziz Khilji, Additional Advocate-General and Rauf Atta, Standing Counsel, Government of Balochistan on Court Notice (in C.P. No.790 of 2010).

Muhammad Qahir Shah for Petitioners (in C.P. No.164 of 2011)

Kamran Murtaza for Respondent No.1 (in C.P. No.164 of 2011)

Tariq Ali Tahir, Additional A.-G for Respondent No.2 (in C.P. No.164 of 2011)

Dates of hearing: 17th, 30th November, and 1st December, 2011.

P L D 2012 Balochistan 57

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

MUHAMMAD KAMRAN MULLAHKHAIL and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others---Respondents

C.Ps. Nos. 649 and 202 of 2011, decided on 24th November, 2011.

(a) Constitution of Pakistan---

----Arts. 8 & 199---Constitutional petition---Laws inconsistent or in derogation of Fundamental Rights---Declaring such laws void---Principles---If any person files a petition alleging that a law contravenes any Fundamental Right conferred by the Constitution, High Court is obliged to examine the same in its constitutional jurisdiction---To contend otherwise would render Art.8 of the Constitution, bereft of meaning and leave citizens denuded of their Fundamental Rights guaranteed by the Constitution.

(b) Constitution of Pakistan---

----Arts. 8 & 199---Constitutional petition---Laws inconsistent or in derogation of Fundamental Rights---Principles---If any law, which may impact upon any inalienable human right, was preferably to be assailed sooner rather than later, if it deemed to have been enacted in contravention of the Constitution.

(c) Code of Criminal Procedure (Balochistan Amendment) Act (XV of 2010)---

----Preamble---Code of Criminal Procedure (Balochistan Amendment) Ordinance (III of 2010), Preamble---Constitution of Pakistan, Arts.199 & Part-II, Chap. 1 [Arts. 8 to 28]---Constitutional petition---"Aggrieved person"---Executive Magistrate---Judicial powers---Laws inconsistent or in derogation of Fundamental Rights, assailing of---Pubic interest---Scope---Petitioner was a practising lawyer who assailed promulgation of Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, whereby judicial powers had been conferred upon Executive Magistrates---Authorities contended that the petition was not maintainable as the petitioner was not an 'aggrieved person'---Validity---Ensuring compliance of laws with human rights/Fundamental Rights and certitude of laws formed bedrock of civilized society---Everyone, in such societies knew their obligations and how those would be dealt with, if charged of having committed an offence---Any person might not also have sufficient time to assail such laws when he or she was facing trial and trial might be over before a challenge could be launched against it---Persons who did not have the requisite knowledge and/or wherewithal to assail such laws might still come within the ambit; therefore, public spirited persons, including lawyers, acting bona fide in public interest, might assail such laws---Constitution, including Fundamental Rights enshrined therein, must not be permitted to be trampled upon and if a public-spirited person acting in public interest had brought the same to High Court's attention, such person should not be discouraged---Objections taken to maintainability of petition on the ground that petitioners were not 'aggrieved person' and therefore, could not approach High Court under Art. 199 of the Constitution and High Court did not have the power to strike down any law even if it violated the Constitution, were not tenable---Petition was maintainable in circumstances.

Ardeshir Cowasjee v. Karachi Building Control Authority, 1999 SCMR 2883; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Miss Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Al-Jehan Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7; PLD 1993 SC 341; Mobashir Hassan v. Federation of Pakistan PLD 2010 SFC 265; Human Rights Commission of Pakistan v. Government of Pakistan PLD 2009 SC 507; S.P. Gupta v. Union of India 1981 (Supp.) SCC 87 and Muhammad Alam v. Planning Development De4partment, Constitutional Petition No.351 of 2009 rel.

(d) Code of Criminal Procedure (Balochistan Amendment) Act (XV of 2010)---

----Preamble---Code of Criminal Procedure (Balochistan Amendment) Ordinance (III of 2010), Preamble---Constitution of Pakistan, Arts.8, 10-A, 175 & 199---Constitutional petition---Laws inconsistent or in derogation of Fundamental Rights---Independence of Judiciary---Executive Magistrates---Judicial powers---Fair trial, right of---Validity---Executive Magistracy setup pursuant to laws under Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, was not under the supervision and control of High Court---Government and not the High Court had the power to appoint, transfer, discipline, remove and grant powers to Executive Magistrates---Such Executive Magistrates were not under the supervision and control of High Court---Fair trial was deemed to be vitiated, if judicial functions were given to Executive and its officers and independence of judiciary could not be secured if the Executive was made a part of the Judiciary---Person would be deprived of a fair trial and due process if he or she was tried before an Executive Magistrate---Constitutional requirements of fair trial and independence of judiciary, held, were contravened by Code of Criminal Procedure (Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010.

Gopalan v. State of Madras AIR (37) 1950 SC 27; Abdul Haque v. State PLD 1976 Lah. 246; Abdul Hafeez v. State PLD 1981 SC 352; New Insurance Limited v. National Bank of Pakistan PLD 1999 SC 1126; Ikhlaq Ahmed v. Government of Punjab 1991 MLD 739; Accountant General v. Ahmed Ali U. Qureshi PLD 2008 SC 522 and Nadeem Ahmed, Advocate v. Federation of Pakistan PLD 2010 SC 1165 rel.

(e) Interpretation of Constitution---

----Trichotomy of powers---Scope---Constitution is based on principle of trichotomy of powers in which the Executive, Legislature and Judiciary have their own defined functions, independent from each other---Executive cannot be given judicial powers as it would encroach upon the exclusive domain of the Judiciary.

(f) Code of Criminal Procedure (Balochistan Amendment) Act (XV of 2010)---

----S. 14(3) & Preamble---Code of Criminal Procedure (Balochistan Amendment) Ordinance (III of 2010), Preamble---Constitution of Pakistan, Arts. 8, 142, 143, 175 [as amended by Constitution (Eighteenth Amendment) Act (X of 2010)] & 199---Constitutional petition---Federal and Provincial laws---Uniformity in laws---Executive Magistrate---Performing judicial functions---Petitioners assailed promulgation of Code of Criminal Procedure (Balochistan Amendment) Act, 2010, whereby Executive Magistrates were given judicial powers---Validity---Executive Magistrates, under Code of Criminal Procedure (Balochistan Amendment) Act, 2010, did not require to have legal education or training---Balochistan Government, under S.14 (3) of Code of Criminal Procedure (Balochistan Amendment) Act, 2010, was empowered to appoint "any person" as an Executive Magistrate and theoretically an illiterate person could be appointed as an Executive Magistrate---Even if the Government only appointed government servants as Executive Magistrates, they would have no legal training, nor were they required to acquire any before being granted judicial powers---Person acquired a legal degree after studying law for many years and Judicial Magistrates were appointed provided they pass prescribed tests and interview demonstrating requisite knowledge of law, procedure and rules of evidence---Executive Magistrates envisaged under Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010 would be no better than laymen---Changes made under Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, showed that the Province of Balochistan sought to specifically undo the changes made to Criminal Procedure Code, 1898, by the Federation, which was in complete contravention of Art.143 of the Constitution---Constitution wanted uniformity of Criminal laws, Criminal Procedure Code, 1898, and evidence in Pakistan, leaving Provinces to legislate only in respect of such matters not already covered by Federal law---Repugnancy between Federal and Provincial laws was complete and absolute and no portion of the Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, could be incised and saved, therefore, it was void in terms of Art.143 of the Constitution---High Court declared Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, ultra vires the Constitution, of no legal effect and void ab initio---High Court further declared that any rule, notification and order issued appointing any person as Executive Magistrate and granting such person powers to conduct trials and any other powers pursuant to Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, were of no legal effect---High Court transferred all proceedings pending before Executive Magistrates appointed pursuant to Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, to judicial Magistrates and or Sessions Judges of concerned districts and set aside the convictions awarded and acquittals made by Executive Magistrates under Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, being coram non judice and directed to adjudicate all such cases afresh by Judicial Magistrates / Session Judges---Petition was allowed accordingly.

Rasheed A. Razvi v. Province of Sindh PLD 2010 Kar. 63; Muhammad Ali Satakzai v. Appointing Authority of the Addl. D&S Judges 2011 PLC (C.S.) 78; Muhammad Ali Satakzai v. Appointing Authority through Registrar Balochistan High Court 2011 SCMR 1030; Muhammad Mansha v. State PLD 1996 SC 229; Amanullah Khan Yousafzai v. Federation of Pakistan PLD 2011 Kar. 451; Water and Power Development Authority v. Muhammad Riaz PLD 1995 Lah. 56; Wattan Part v. Federation of Pakistan PLD 2006 SC 697 and PLD 2002 Central Statutes 92 rel.

Kamran Mullahkhail (in person).

Amanullah Kanrani, Advocate-General for Respondent.

Farhat Nawaz Lodhi and Mehmood Raza for Petitioners (in C.P. No.202 of 2011).

Dr. Khalid Ranjha, Malik Sikandar Khan, Dy. Attorney General and Amanullah Kanrani, A.G. for Respondents. (in C.P. No.202 of 2011).

Date of hearing: 26th September, 2011.

P L D 2012 Balochistan 104

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

Haji GHOUSUDDIN---Appellant

Versus

THE STATE through NAB Authorities, Quetta---Respondent

Criminal Eshtesab Appeal No.7 of 2010, decided on 27th October, 2011.

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

----S. 33-E---West Pakistan Land Revenue Act (XVII of 1967), S.80---Recovery of fine--Arrears of land revenue---Scope---Imprisonment in default of payment of fine---Authorities initiated proceedings against accused for recovery of fine---Accused raised the plea that he had undergone imprisonment in default of payment of fine, therefore, fine could not be recovered by invoking provisions of S.80 of West Pakistan Land Revenue Act, 1967---Validity---Undergoing imprisonment, awarded in default of payment of fine did not operate as a discharge or satisfaction of the order for payment of fine---In spite of undergoing imprisonment in default of payment of fine, liability of accused was still there and it could be enforced for the special reason to be recorded in writing---Provisions of S.80 of West Pakistan Land Revenue Act, 1967, authorized any statutory body to recover any amount as arrears of land revenue subject to' the condition that dues should be determined, affixed and ascertained---Amount of fine had been determined by Supreme Court in appeal to be recovered from accused as arrears of land revenue, therefore, accused could not take advantage of his alleged imprisonment in jail in lieu of payment of fine---Accused failed to point out any illegality or irregularity, which .could force the High Court. to interfere in the order for recovery of fine as arrears of land revenue---Appeal was dismissed.

The State v. Muhammad Kaleem Bhatti 2010 MLD 676 ref

Ahmed Ali Siddiqui v. Sargodha Central Cooperative Banking Limited 1989 SCMR 824 fol

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

----S.11---Penal Code (XLV of 1860), S. 53 (Tenthly)---Fine---Scope---With reference to ordinary crimes, offences or illegal acts, the term "fine is generally used to mean sum of money to be paid to government treasury, ordered by competent court to an offender as a punishment for an offence---In special cases of corruption, misappropriation and embezzlement .9f public money, it was imposed just to recover the embezzled amount/public money and to compensate losses caused by an offender to the State exchequer.

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

----S. 32---Appeal---Scope---Appellate proceedings are continuation of original proceedings, because the proceedings under National Accountability Ordinance, 1999, do not come to an end with passing of conviction order---If any of the rival parties files an appeal, the proceedings are kept alive, as it is the continuation of original proceedings---Legal pursuit of a remedy through filing an appeal before first and second appellate authorities are steps in a series of proceedings all concerned by an intrinsic unity, are to be regarded as one legal proceeding---Appeal is continuation of original proceedings before higher forum for testing soundness of decision of lower court---Remedy of revision is discretionary and revisional court has to proceed under certain limitations---Although there is no definition of appeal in the National Accountability Ordinance, 1999, yet any application by' a party to an Appellate Court, asking it to set aside or revise the decision of subordinate court, is an appeal within the ordinary acceptance of the terms.

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

----S. 33-E---Penal Code (XLV of 1860), S. 70---Recovery of fine---Limitation---In case of appeal before Supreme Court, limitation for recovery of fine begins after passing of order by Supreme Court, confirming conviction and sentence---Recovery proceedings, initiated before expiry of six years front the date of order of Supreme Court would be within limitation.

(e) Interpretation of statutes---

----Special and general law---Applicability---In absence of express provision, an adjective law cannot control the provisions of substantive law.

Kamran Murtaza and Tahir Ali Baloch for Appellant

Amir Zaman Jogezai, Spl: Prosecutor NAB for the State.

Date of hearing: 13th October, 2011.

P L D 2012 Balochistan 113

Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ

IMDAD.HOSPITAL AND MANNAZ LAPROSCOPIC CENTRE, QUETTA through Managing Director and 2 others---Appellants

Versus

SARDAR MUHAMMAD---Respondent

Regular First Appeal No.63 of 2002, decided on 13th October, 2011.

(a) Medical jurisprudence----

---C.T. Scanning---Importance stated.

Foreign bodies are extraordinarily difficult to diagnose by plane films but C.T. scanning offers an excellent method of their location. The density discrimination of C.T. is so sensitive that foreign bodies that are not typically radiopaque can be seen.

Computed Tomography and Magnetic Resonance Image of whole Body 3rd Edn Vol 2 by John R. Hagga, M.D., Charles F. Lanzieri, M.D., David J. Sartoris, M.D and Elias A. Zerhouni M.D ref

(b) Medical jurisprudence---

----Post-operative complications following appendicectomy i.e. intra abdominal abscess" and "ileus "---Connotation

Short Practice of Surgery, 23rd Edn By R.C.G. Russell, Norman, S. Williams and Christopher J.K. Bull Strode ref.

(c) Suit for damages---

----Negligent act---Proof---Act complained must be direct and immediate result of omission---Burden in such case would primarily lie on plaintiff to prove that he suffered on account of negligence on part of defendant.

Alia Tareen v Amanullah Khan PLD 2005 SC 99 rel Shakeel Ahmed and Zahid Muqeem Ansari for Appellants

Syed Ayaz Zahoor for Respondents

Date of hearing: 27th September, 2011.

P L D 2012 Balochistan 122

Before Muhammad Hashim Khan.Kakar and Muhammad Noor Meskanzai, JJ

MUHAMMAD RASOOL and another---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.202 and 207 of 2009, decided on 30th November, 2011.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 19(8B)---Juvenile offender---Jurisdiction of Anti-Terrorism Court---Scope---Appreciation of evidence---Sentence, reduction in---Police prosecution witnesses through their straightforward and confidence inspiring evidence had connected the accused with the crime---Police Officials having no ill-will against the accused were competent witnesses and their evidence could not be discarded only due to their being connected with the Police department-Non-production of independent witnesses from the locality was immaterial on account of the present trend of the society of avoiding poking their nose in such like affairs---Accused had been arrested red handed while preparing a bomb and a large quantity of explosive substance was recovered from their possession, which was to be used in bomb blasts for which they were making preparations---Case of accused fell within the jurisdiction of Anti-Terrorism Court---Age of an accused had no relevance to the question of such jurisdiction---Under Anti-Terrorism Act, 1997, court would acquire jurisdiction if the offence was triable by it, whereas under the Juvenile Justice System Ordinance, 2000, court would acquire jurisdiction if offenders were juvenile, irrespective of the nature of the offence committed by them---Acquittal of four co-accusedin the case was of no help to accused, as the nature of evidence in respect of acquitted co-accused was quite different than the nature of evidence against the present accused---Required sanction for prosecution, if not received within 30 days of submission of challan in the court, the same would be deemed to have been accorded within the meaning of S.19(8B) of the Anti-Terrorism Act, 1997---Trial Court, thus, could proceed with the trial of the case---Accused did not deserve any leniency---Conviction of accused was consequently maintained---Sentence of two accused was also maintained, but the sentence of third accused who was minor at the time of occurrence was reduced from 14 years' R.I. to 8 years' R.I., as he might have been involved under the influence of his elder brother---Appeals were disposed of accordingly.

Yaqoob Shah V. The State PLD 1976 SC 53 ref.

Constitutional Petition No.156 of 2004 distinguished.

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

----Ss. 12(1), 6, Third Sched., Cl.(iii)---Jurisdiction of Anti-Terrorism Court---Attempt to commit or aid, or abetment of or any conspiracy to commit any of the offences stated in S.6 of Anti-Terrorism Act, 1997, to be a Scheduled offence, exclusively triable by Anti-Terrorism Court under S.12(1) of the said Act.

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

----S. 12 & Preamble---Jurisdiction, determination of---Essentials---While determining jurisdiction it would be necessary to examine that the ingredients of the alleged occurrence have nexus with the object of the Anti-Terrorism Act, 1997, for determining whether a particular act is an act of terrorism or not, the motivation, object, design or purpose behind the same has to be seen---In case of any doubt with regard to the meaning of any particular provision, the Preamble of the Act may be considered to arrive at the proper conclusion---Preamble of Anti Terrorism Act, 1997, clearly manifests that the same has been promulgated to control the acts of terrorism, sectarian violence and other heinous offences as defined in S.6 of the said Act.

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

----Preamble & S.32---Juvenile Justice System Ordinance (XXII of 2000), Preamble & S.14---Distinguishing features of the two enactments---Under. Anti-Terrorism Act, 1997, courts acquire jurisdiction if the offence is triable by them, whereas under Juvenile Justice System Ordinance, 2000, courts acquire jurisdiction if offenders are juvenile, irrespective of the nature of offence committed by them--Provisions of Anti-Terrorism Act, 1997, under its S.32 have the overriding effect over all other laws including the Juvenile Justice System Ordinance, 2000, whereas under S.14 of said Ordinance its provisions shall be in addition to and not in derogation of any other law for the time being in force.

(e) Interpretation of statutes---

---Removal of doubt---In case of any doubt with regard to the meaning of any particular provision, the Preamble may be considered to arrive at the proper conclusion.

Kamran Mullah Khail and Munir Ahmed Lango for Appellants (in Crl.As.Nos.202 and 207 of 2009).

Haji Liaquat Ali for the State (in Crl.As.Nos.202 and 207 of 2009) .

Date of hearing: 23rd November, 2011.

JUJDGMENT

MUHAMMAD HASHIM KHAN KAKAR, J.--- Appellants Muhammad Rasool, Asmatullah and Rohullah have filed these appeals against the judgment dated 24th June 2009, passed by the Special Judge, Anti-Terrorism Court-1, Quetta, whereby they have been found guilty under Sections 4 and 5 of the Explosive Substances Act, 1908 read with section 6(b)(2)(ee), punishable under Section 7(b)(ff) and 21-I of the Anti-Terrorism Act, 1997 to suffer fourteen (14) years' RI each, with confiscation of their movable and immovable properties in favour of the State. The benefit of section 382-B of the Cr.P.C. was extended in favour of the appellants. Since common question of law and facts is involved in the aforesaid matters and that the same are outcome of one and same incident, therefore, we propose to decide the same by means of this common judgment.

1. Briefly stated facts of the case, as disclosed in the F.I.R. (Exh.P/7-A), are that on 21st July 2008, at about 3-00 a.m., complainant SIP Abid Hussain Bukhari lodged a report vide Crime No.178 of 2008, under sections 4 and 5 of the Explosive Substances Act, 1908 read with section 7(a) of the Anti-Terrorism Act, 1997, at Police Station Sariab, Quetta, to the effect that the high-ups received secret information about presence of some terrorists in Quetta, who had come from Afghanistan via different routes to Pakistan for the purposes of terrorism and were staying in the house of Muhammad Rasool situated at Killi Kashmir Abad. They were, reportedly, planning to effect an act of terrorism. On the instructions of high-ups, the complainant, along with other police officials, under the supervision, of Pir Muhammad Mengal, DSP/SDPO­Sariab, raided the aforesaid guestroom of the house of Ghulam Rasool, two persons, preparing bomb, were found present, who were overpowered and they disclosed their names as Asmatullah and Rohullah. On the spot, one bomb, which was prepared, was defused by the Bomb Disposal Squad, consisting of 10 explosive packets, one detonator connected with wires and a mobile phone. From the spot, 11 detonators, 10 packets of explosive, yellow colour wire, 8 mobile phones, which were kept for preparing bombs, were secured. From another residential room, accused Muhammad Rasool, Muhammad Usman and Mehmood Dawood were arrested. It was further alleged that accused Asmatullah and Rohullah disclosed that at the exist door of annexy, one vehicle bearing registration No.AAC-637, Quetta, in silver colour, is parked, in which bomb has been planted. Subsequently, from the four doors, engine and trunk of the vehicle, 28 packets of explosive material, connected with detonator and one mobile phone, weighing 8 kilo and 700 grams were recovered, which were taken into possession. Thus, the aforesaid case was registered.

2. After completion of the investigation, the appellants were sent up to face the trial. On 7th November 2008, charge under sections 4 and 5 of the Explosive Substances Act, 1908 (the Act of 1908) read with section 6(b)(2)(ee), punishable under Section 7(b)(ff) and 21-I of the Anti-Terrorism Act, 1997 (the Act of 1997) was framed against the appellants, to which they pleaded not guilty and claimed trial.

3. At the trial, the prosecution, in order to prove its case, produced and examined seven witnesses. P.W.1 Abid Hussain Bukhari, S:I., is 'complainant of the case, who exhibited his murasila Exh.P/1-A, on the basis whereof F.I.R. Exh.P/7-A was registered. P.W.2 Abdul Khaliq, IP, accompanied the raiding party and is witnessed to the recovery memos Exh.P/2-A, Exh.P/2-B, Exh.P/2-C and Exh.P/2-D regarding explosive material, detonators, wires, mobile phones, cash amount, documents of vehicle etc. P.W.3 Mehmood Muhammad, SI, is witness to the disclosure memo Exh.P/3-B of accused Muhammad Rasool, in consequence whereof explosive material was recovered on his pointation from a shop, adjacent to his house situated at Killi Kashmir Abad, Quetta, which was taken into possession through recovery memo Exh.P/3-A. P.W.4 is Manzoor Ahmed, S.I., in whose presence IP Wazir Khan, made personal search of arrested accused Nanai alias Amir Jan and recovered mobile phone and one ID card vide recovery memo Exh.P/4-A as well as seized pickup vehicle vide recovery memo. Exh.P/4-B. P.W.5 is Ibrar Hussain, IP, in whose presence IP Wazir Khan took into possession three Photostat pages of the confessional statement of accused Asmatullah from Ghulam Farid, SI, vide recovery memo Exh.P/5-A. P.W.6 Munir Ahmed Meerani, SI, is witness to the disclosure memos Exh.P/6-A and Exh.P/6-B of accused Asmatullah and. Muhammad Usman as well as recovery memo Exh.P/6-C of vehicle bearing registration No.AAA-425 and recovery memo Exh.P/6-D of two Photostat pages of incoming and outgoing calls of mobile phone No.0303-3376292 and P.W.7 Wazir Hussain Khan, IP, is the investigating officer of the case. Then the prosecution closed its side.

4. In their examinations under section 342 of the Cr.P.C. and statements on oath under section 340(2) of the Cr.P.C. the appellants denied and controverted each and every allegation of facts levelled against them by the prosecution and professed their innocence, however, they did not produce any witness in their defence.

5. On conclusion of the trial, the trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, they were convicted and sentenced, as mentioned and detailed above.

6. We have heard M/s Kamran Mulla Khail and Munir Ahmed Lango, learned counsel for the appellants, Haji Liaquat Ali, Advocate, appearing on behalf of Prosecutor General, Balochistan and have perused the record with their valuable assistance.

7. Mr. Kamran Mulla Khail, learned counsel for appellants Asmatullah and Rohullah, at the very outset, contended that in view of the record, appellant Rohullah was less than eighteen years of age on the day of occurrence and, thus, could only be tried under the provisions of Juvenile Justice System Ordinance, 2000, enforced on 1st July 2000. He further argued that the trial of the appellants was illegal for want of prosecution sanction. The offence; so committed does not fall within the provisions of the Act of 1997, as mere possession of explosive substance is not included in the definition of Section 6 thereof. According to his version, the provisions of Section 6(2)(ee) of the Act of 1997 would only attract, if it involves use of explosive by any device. He further submitted that even if the prosecution allegations., as setout in the F.I.R., are accepted, the offence, allegedly, committed by the appellants, does not fall within the definition of terrorism as stipulated in Section 6 of the Act of 1997, rather it is merely a case, at the best, for the prosecution and, at the worst, for the appellants of possession of explosive substance, punishable under Section 5 of the Act of 1908 and it does not attract provisions of section 6 of the Act of 1997. He also contended with vehemence that, on the same set of evidence, the other four accused Muhammad Usman, Mehmood, Dawood, Nanai alias Amir Jan and Mukhtiar Ali have been acquitted of the charge, thus, the appellants could not be convicted and sentenced on that evidence, which has already been rejected by the trial Court. However, in the last limb of his arguments, he prayed for moderate reduction in the quantum of sentence.

8. Mr. Munir Ahmed Lango, learned counsel for appellant Muhammad Rasool, has supported the arguments of Mr. Kamran Mulla Khail, Advocate.

9. Haji Liaquat Ali, Advocate, representing the State, on the other hand, maintained that the prosecution has brought sufficient evidence on record to connect the appellants with the commission of the offence and, as such, impugned judgment is unexceptional and warrants no interference.

10. After hearing learned counsel for the parties and having gone through the record, we have arrived at a confident conclusion that the prosecution had, indeed, succeeded in proving its case against the appellants beyond reasonable doubt. The connection of the appellants with the crime in question is sought to be established by the evidence of P.W. 1 Abid Hussain Bukhari, P. W .2 Abdul Khaliq and P. W . 3 Mehmood Ahmed although all the aforesaid witnesses are police officials, yet they have given a straightforward and confidence inspiring account of the occurrence. The police officials, who have no ill-will against accused, would be competent witnesses and their evidence cannot be discarded only for the reason that they are police officials. They have supported the prosecution case and there is nothing on record to show that they are deposing against the appellants maliciously or out of animus. Despite lengthy cross-examination, the defence failed to create any dent in their veracity, except a few discrepancies, which are of inconsequential in nature and it cannot reasonably be considered as good ground for disbelieving a straightforward and confidence inspiring ocular account, furnished by them. Their evidence is not suffering from any material contradiction, discrepancy or inherent infirmity and is consistent with the probabilities, materially fitting in with the other evidence, more particularly by the recovery of huge quantity of explosive substance.

11. Undoubtedly, no independent and disinterested witness has been examined from the locality in spite of prior information, but we are of the opinion that, keeping in view the peculiar circumstances of the case, where the arrest of the terrorist was of paramount significance' and need of the hour. Furthermore, the social condition, prevalent in our society, where people avoid poking their nose in such tike affairs, the non-production of independent witnesses from the locality would not be material. In this context, a reference can be made to a case of "Yaqoob Shah v. the State" reported in PLD 1976 SC 53.

12. Much emphasis has been laid on the point that case did not fall within the ambit of Section 6 of the Act of 1997, as there was no allegation of use of threat of action as provided there under. In support of his contention, learned counsel for the appellants referred the judgment of this Court, passed by a Divisional Bench in Constitutional Petition, No.156 of 2004, wherein it was held:

"In view of above discussion, we are of the considered view that simpliciter possession of arms and ammunition or explosive substance has no nexus with the offences covered under section 6 of the Anti-Terrorism Act, 1997 and the cognizance taken by the learned Anti-Terrorism Court No-1 on the assumption that the recovered arms and ammunition/explosive substance perhaps were intended to be used for the purpose of terrorism, in absence of any evidence to that effect, was illegal and without jurisdiction, therefore, we are inclined to allow this petition and direct that the case file be transferred to the Additional Sessions Judge-I, Quetta for trial, who is directed to proceed with the trial of offence, as if he had taken cognizance of the offence as provided under Section 23 of Anti-Terrorism Act, 1997.

1. In order to better understand the controversy, it would be appropriate to reproduce section 6 of the Act of 1997, which defines "terrorism" and the Third Schedule of ibid which speaks as under:

2. Terrorism.-(1) In this Act, "terrorism means the use or threat of action where:

(a) the action falls within the meaning of subsection (2), and

(h) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or

(c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause or intimidating and terrorizing the public, social sectors; business community and preparing or attacking the civilians, government officials installations, security forces or law enforcement agencies.

(2) An "action" shall fall within the meaning of subsection (1), if it:

(a) involves the doing of anything that causes death:

(b) involves grievous violence against a person or grievous bodily injury or harm to a person;

(c) involves grievous damage to property, including government premises, official installations schools, hospitals, offices or any other public property;

(d) involves the doing of anything that is likely to cause death or endangers a person's life;

(e) involves kidnapping for ransom, hostage-taking or hijacking;

(ee) involves use of explosives by any device including bomb blast;

(f) incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance;

(g) involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, government officials and institutions, including Law Enforcement Agencies beyond the purview of the law of the land;

(h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship;

(i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civil life;

(j) involves the burning of vehicles or any other serious form of arson;

(k) involves extortion of money ("bhatta ") or property:

(l) is designed to seriously interfere with or seriously disrupt a communications system or public utility service;

(m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties;

or

(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant;

(o) involves in acts as part of armed resistance by groups or individuals against law enforcement agencies;

(p) involves in dissemination, preaching ideas, teachings and beliefs as per own interpretation on FM stations without explicit approval of government or its concerned departments.

(3) The use or threat of use of any action falling within subsection (2), which involves the use of firearms, explosives or any other weapon, is terrorism, whether or not subsection 1(c) is satisfied.

(4) In this section "action" includes an act or a series of acts, In this Act, terrorism includes any action done for the benefit of a proscribed organization.

(5) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.

(6) In this Act, a "terrorist" means:

(7) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism:

(a) a person who is or has been, whether before or after the coming into force of this Act. concerned in the commission, preparation or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above.

THE THIRD SCHEDULE

(Scheduled Offences)

I. Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of section 34 of this Act.

1. Any other offence punishable under this Act.

2. Any attempt to commit, or any aid or abetment of or any conspiracy to commit, any of the aforesaid offences.

3. Without prejudice to the generality of the above paragraphs. the Anti-Terrorism Court to the exclusion of any other Court shall try the offences relating to the following namely:.

(i) Abduction or kidnapping for ransom:

(ii) use of firearms or explosives by any device, including bomb blast in a mosque imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby: or

(iii) firing or use of explosives by any device, including bomb blast in the court premises. "

A bare perusal of above quoted clause (iii) of the Third Schedule of the Act of 1997 clearly manifest that an attempt to commit or aid, or abetment or any conspiracy to commit any of the offences stated inSection 6 of the Act of 1997 to be a Scheduled offence exclusively triable by the Anti-Terrorism Court under section 12. subsection (1) of the Act of 1997, which speaks as under:

1. Jurisdiction of Anti-terrorism Court.---(I) Notwithstanding anything contained in the Code or in any other law, a scheduled offence committed in an area in a Province or the Islamabad Capital Territory shall be triable only by [the Anti-terrorism Court] exercising territorial. jurisdiction in relation to such area."

2. .The judgment passed by a Divisional Bench of this Court inConstitutional Petition No.156 of 2004 is distinguishable on two counts; firstly the implication of clause (iii) of the Third Schedule has not been considered or pointed out to the Court at the time of arguments and; secondly, in the said case, there was no evidence or allegation that the alleged recovered arms and ammunitions were aimed to be used for terrorism purpose. On the contrary in the instant case, the appellants were arrested/red-handed while preparing a bomb and a huge quantity of explosive substance was recovered from their possession, which was to be used in bomb blasting. From the perusal of F.I.R., statements of witnesses, disclosure memos of the appellants falling within the purview of Article 40 of the Qanun-e-Shahadat Order, 1984 and confession of the appellants before P.Ws. wherein they clearly confessed their guilt and mentioned regarding different blasts made by them in Quetta City, it can safely be inferred that they were involved in bomb blast in Quetta and were apprehended by the police, when they were preparing bomb and making fitting explosive in the vehicle for the purpose of further blasts.

3. While deciding the question of jurisdiction, it would be necessary to examine that the ingredients of the alleged occurrence have nexus with the object of the Act of 1997. For determining whether a particular act is an act of "terrorism" or not, the motivation, object, design or purpose behind the same has to be seen. It would also suffice to add here that in case of any doubt with regard to the meaning of any particular provision, the preamble may be considered to arrive at the proper conclusion. The preamble of the Act of 1997 clearly manifest that the same has been promulgated to control the acts of terrorism, sectarian violence and other heinous offences as defined in section 6 of the Act of 1997 and their speedy trial. Thus, while analyzing the case of the appellants on the aforementioned touchstone criterion, we are of the opinion that the same squarely falls within the jurisdiction of Anti- 1 terrorism Court and the judgment impugned herein cannot be taken exception to. Even otherwise, an IED (Improvised Explosive Device) or a bomb is neither a toy, nor can it be taken as a decoration piece. Malicious intention on the part of a person having the possession of such substances can safely be assumed. It is a reached conclusion that there cannot be two opinions about the usage of such substances.

4. Learned counsel for the appellants contended that the trial Court had no jurisdiction to try appellant Rohullah, being a minor. The contention of the counsel has no legs to stand on, as the provisions of section 21-G of the Act of 1997 furnish a complete answer to the said contention, which postulate that an offence, of terrorism can be tried onlyby an Anti-terrorism Court, constituted under the Act of 1997 and the age of the offender has no relevance to the question of such jurisdiction. Difference between the Act of 1997 and the Juvenile Justice System Ordinance 2000, was that in the former statute, Courts acquired jurisdiction, if the offence was triable by them, whereas in later statute, Courts acquired jurisdiction if offenders were juvenile, irrespective of the nature of offence committed by them. Under section 32, the provisions of Anti-Terrorism Act, 1997 have the overriding effect (overall other laws including the Juvenile Justice System Ordinance 2000, whereas under section 14 of the Ordinance 2000, the provisions of the Ordinance 2000, shall be in addition to and not in derogation of any other law for the time being enforce.

5. It was next contended by learned counsel for the appellants that four co-accused, viz. Muhammad Usman, Mehmood Dawood, Nanai alias Amir Jan and Mukhtiar Ali Yousafzai have been acquitted on the basis of same evidence and since the evidence was not found reliable in respect of the four co- accused persons, therefore, it would not be reliable in the case of the appellants and, as such, they could not be convicted and sentenced on the basis of said evidence. We are of the opinion that nothing could be farther from the reality than this argument. The nature of the evidence in respect of the appellants is quite different than the nature of evidence against the acquitted co-accused persons. Evidence against co-accused Usman and Mehmood Dawood is only that on the fateful night, they were arrested from the house of appellant Muhammad Rasool and nothing incriminating was recovered from-their possession, while the case of prosecution in respect of acquitted co-accused Nanai alias Amir Jan and Mukhtiar Yousafzai solely rest upon their alleged confession of guilt before police officials, which is, otherwise, not an admissible piece of evidence in view of the provisions of Articles 38 and 39 of the Qanun-e-Shahadat Order, 1984. There is, thus, no question of prosecution evidence, having not been believed 'in the case of acquitted co-accused persons and yet believed in the case of the appellants.

6. Similarly the contention of learned counsel regarding the prosecution sanction has also no force, as under section 19(8B) of the Act of 1997, if the required sanction is not received within thirty (30)days of the submission of challan in the Court, the same shall be deemed to have been given or accorded and the Court shall proceed with the trial of the case.

7. Reverting to the last limb of arguments of learned counsel regarding the prayer for moderate reduction in the quantum of sentence, we hold that no reasons exist, which could justify a sympathetic, lenient or concessional treatment for appellants Muhammad Rasool and .1 Asmatullah. However, so far as the case of appellant Rohullah is concerned, admittedly, he was minor at the time of alleged occurrence, as is evident from the record, which could be treated as a mitigating circumstance in the matter of imposition of the lesser penalty. We are conscious of the fact that, at no stage of the trial, he pleaded minority, but, being a Court of Appeal, we can take cognizance of the said fact, the possibility of the appellant, being involved in such kind of notorious activities, under the influence of his elder brother, cannot be ruled out, as such, while treating him as juvenile, reduce his sentence from fourteen (14) years' R.I. to that of eight (8) years' R.I., with the benefit of section 382-B of the Cr.P.C.

P L D 2012 Balochistan 133

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD ISHAQ and another---Petitioners

Versus

Mst. ANIQA BATOOL---Respondent

Civil Revision No.105 of 2005, decided on 28th December, 2011.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched & S.20---Muslim Family Laws Ordinance (VIII of 1961), S.5---Civil Procedure Code (V of 1908), S. 9---Suit for declaration, cancellation of alleged marriage deed and permanent injunction---Deed and its affidavit bearing signatures of plaintiff regarding performance of her marriage with defendant were alleged by her to have been got executed by him fraudulently on pretext of publishing same in a Urdu Magzine while she was being tutored by him; and that defendant later on with ulterior motive converted such documents into a marriage deed in order to claim her to be his legally wedded wife---Defendant's objection was that jurisdiction to cancel such documents and grant declaration as prayed for vested only in Family Court and not civil court--Validity---Existence of marriage between Muslim spouses could be established only by "Nikahnama" showing performance of "Nikah" between them---Provision of S. 5 of Muslim Family Laws Ordinance, 1961 required registration of "Nikahnama"---Documents in question were in respect of an agreement for performance of marriage and had no bearing on fact of existence of a valid marriage between the parties, thus, same would not be deemed to be a "Nikahnama"---Only civil court had jurisdiction to entertain such suit and grant decree prayed for---Objection of defendant was overruled in circumstances.

Messrs Burewala Textile Mills Ltd. v. Messrs Abdullah Industries 1987 MLD 19; Mst Bibi Feroz v. Abdul Malik and another 2005 YLR 976; Muhammad Iqbal v. Mst. Siani and another 2004 PCr.LJ 193; Rasool Bibi v. Waryam 1992 SCMR 1520; Rao Muhammad Akhtar Ali v. Faiz Ahmed 1980 SCMR 568; Dr. A.L.M. Abdullah v. Rokeya Khatoon PLD 1969 Dacca 47; Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95; Shah Din v. The State PLD 1984 Lah. 137; Abdus Sattar v. The State 1968 PCr.LJ 290; Farmanullah v. Qadeem Khan 2001 SCMR 1474 and Muhammad Gul v. Anwar Gul 2005 SCMR 1914 ref.

Nemo for Petitioners.

Ch. Mumtaz Yousaf for Respondent.

Date of hearing. 5th October, 2011.

P L D 2012 Balochistan 140

Before Naeem Akhtar Afghan and Jamal Khan Mandokhail, JJ

MUHAMMAD JAMIL and another---Petitioners

versus

THE STATE through Provincial Drug Inspector, Quetta---Respondent

Criminal Quashment Petition No.3 of 2008, decided on 15th November, 2011.

(a) Drugs Act (XXXI of 1976)---

----Ss. 19, 22(2), 23(i)(a)(iv)(v) & 27(4)(6)---Drugs (Federal Inspectors, Federal Drugs Laboratory, Federal Government Analysts) Rules, 1976, R.16---Criminal Procedure Code (V of 1898), Ss.561-A, 249-A & 265-K---Manufacturing and supplying misbranded and substandard medicines---Quashing of complaint/proceedings, petition for---Drug Laboratory after test and analysis declared that medicine produced in the company was misbranded and substandard; and subsequently the Board granted sanction for prosecution against the company---Without prosecuting the company, two employees of the company i.e. Quality Control Incharge and Warrantor had been prosecuted---Application filed by the petitioners under Ss.249-A & 265-K, Cr.P.C. for acquittal, having been dismissed, petitioners had filed petition under S.561-A, Cr.P.C. for quashing of proceedings---Validity---Without prosecuting the company, the employees of the company could not be held liable for any offence under the Drugs Act, 1976---According to S.22(3) of the Drugs Act, 1976 the Government Analyst, would submit the report, after test and analysis within sixty days of the receipt of the sample of the drug---In the present case, said report had been submitted after nine months and four days in violation of S.22(2) of the Drugs Act, 1976 and no reason had been communicated to the Drugs Inspector in writing by the Analyst, nor any such reason had been endorsed to the Provincial Quality Control Board---"Communi observantia non est recedendum" i.e. "where a thing was provided to be done in a particular manner, it had to be done in that manner and, if not so done, same would not be lawful"---Mandatory provision of law i.e. S.22(2) of the Drugs Act, 1976 having been violated and on the basis of such delayed test report no conviction could be awarded---Certificate of test/analysis issued by the Central Drug Laboratory, did not show protocol of the test applied, it was a mandatory requirement, that the report of Analyst should be conclusive and must disclose the tests applied under R.16 of the Drugs (Federal Inspectors, Federal Drugs Laboratory, Federal Government Analysts) Rules, 1976---Drug Court at the time of passing the order impugned was not properly constituted---Under S.31(2) of the Drugs Act, 1976, a Drug Court would consist of a Chairman and two Members---In the present case, impugned order had been passed/singed by the Chairman and not by any other Member of the Drug Court, meaning thereby that the quorum was not complete and the Chairman Drug Court had singly passed the order without any lawful authority due to lack of the quorum---Impugned order was non-speaking order and grounds agitated by the petitioners/accused in their application under Ss.249-A and 265-K, Cr.P.C. had not been attended/discussed; nor the Chairman of the Drug Court had considered the said provision of the Drugs Act, 1976 and the Rules framed thereunder---If trial was proceeded further and evidence was recorded, even then, there was no probability of the conviction of the petitioners---Impugned order was set aside and the proceedings pending before the Drug Court against accused/petitioners were quashed and they were acquitted, in circumstances.

Qassim Shah v. The State PLD 1991 SC 893; W. Woodwards (Pakistan) Ltd. v. State 1985 PCr.LJ 2064; Faqih Alam v. State 1998 Kar. 268 and Nawab Sons Laboratories (Pvt.) Ltd. v. Government of Punjab PLD 2003 Lah. 115 rel.

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

----Ss. 249-A, 265-K & 561-A---Powers of the courts to acquit accused---Provisions of Ss.249-A and 265-K, Cr.P.C. were co-extensive with similar powers of High Court under S.561-A, Cr.P.C.; and nothing was deemed to prevent a court from acquitting an accused at any stage of the case, after hearing the prosecutor and accused; and for that reason to be recorded, it considered that there was no probability of accused being convicted of any offence.

Munir Ahmed Bhatti and Nadeem Ahmed Khan for Petitioners.

Atiq Ahmed Khan, Addl. P.G. for the State.

Date of hearing: 11th October, 2011.

P L D 2012 Balochistan 146

Before Mrs. Syeda Tahira Safdar, J

Haji NIZAM UDDIN and 7 others---Petitioners

versus

Haji PAYO DIN and another---Respondents

Civil Revision No.70 of 2011, decided on 2nd January, 2012.

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

----S.42---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Preamble & S.2(c)---Suit for declaration of title of ownership----Res judicata, principle of---Applicability---Suit of plaintiff was rejected by courts below, inter alia, on the grounds that issue of title of ownership of suit shop had already been decided by the Rent Controller on an ejectment application filed by the defendants and that the plaintiff failed to bring on record any document of ownership---Validity---Perusal of impugned orders revealed that the courts below recorded findings without the framing of issues, and decided the matter while relying on the documents, which were yet to be established by the parties after the production of their respective evidence---Issue was whether the property in question was a joint-property, and owned by the parties---Such factual controversy could only be resolved on the basis of oral and documentary evidence produced by the parties---Proceedings before the Rent Controller had no restraining effect on the proceedings pending before a court of general jurisdiction for the determination of title of ownership---Proceedings under the West Pakistan Rent Restriction Ordinance, 1959 were restricted between the persons litigating under the titles of landlord and tenant in respect of rented premises---Term "landlord" in the said Ordinance was used in a wider sense and may include the owner of the premises, and was also extended to ,and included, any person who was entitled to receive the rent---Landlord may not be the owner of the property but he only derived the title of landlord being authorized to act on behalf of the owner---Rent Controller had restricted jurisdiction and could declare the title of the parties, only to the extent of the existence of title of landlord and tenant and no declaration as to the extent of the existence of the title of ownership of property could be made in rent proceedings---Such declaration could only be made by a court of general jurisdiction in a suit filed under provisions of the Specific Relief Act, 1877 as was done by the plaintiff---Courts below had made an error while holding that the ownership of the defendant had been decided by the Rent Controller in an ejectment application filed by the defendant and on holding that the case was hit by the principle of res judicata---Orders of the courts below were set aside and the case was remanded to Trial Court with the direction to frame issues and record evidence---Revision was accepted, accordingly.

Raja Sher Ahmed v. Muhammad Abdullah and others 1991 SCMR 277/273; Gul Sharbat Khan v. Zareef Khan 2009 MLD 1246 and Messrs Young Men's Christian Association (YMCA) through President v. Government of Sindh through Secretary Social Welfare and Women Development Department Karachi and 3 others 2009 CLC 986 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 2(c)---"Landlord", definition of---Interpretation---Term "landlord" was used in a wider sense and may include the owner of the premises, and was also extended to, and included, any person who was entitled to receive the rent---Landlord may not be the owner of the property but he only derived the title of landlord being authorized to act on behalf of the owner.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Preamble & S.2(c)---Specific Relief Act (I of 1877) S. 42---Rent Controller, jurisdiction of---Scope---Rent Controller had restricted jurisdiction and could declare the title of the parties, only to the extent of the existence of title of landlord and tenant---No declaration as to the extent of existence of the title of ownership of property could be made in rent proceedings---Such declaration could only be made by a court of general jurisdiction in a suit filed under provisions of the Specific Relief Act, 1877.

Shamsuddin for Petitioners.

Liaquat Ali Tareen for Respondent No.1.

Amanullah Tareen, Addl. A.G. along with Fazal Muhammad representative for Respondent No.2.

Date of hearing: 15th June, 2011.

P L D 2012 Balochistan 151

Before Mrs. Syeda Tahira Safdar, J

Syed SAEED REHMAN---Appellant

versus

MUHAMMAD AZHAR JAMAL and 2 others---Respondents

Civil Miscellaneous Appeal No.26 of 2010, decided on 11th January, 2012.

Civil Procedure Code (V of 1908)---

----S. 145 & O.XXXVII, R. 2---Suit for recovery of money---Enforcement of liability for surety---Scope---On plaintiff's application for execution of decree, the defendant provided surety bonds, and two persons had stood as surety for the production of the defendant before the court---Defendant failed to appear before executing court and before High Court on the hearing of his appeal against order of Trial Court---Plaintiff submitted that the sureties be fortified and the decretal amount be recovered from the said persons who stood sureties for the defendant---Validity---Decree or order became executable against a person who stood surety for the judgment-debtor but only in cases described in S.145 of the C.P.C. and decree could be executed against such a person only to the extent for which such person rendered himself personally liable---Terms of the surety submitted, in circumstances, will be most relevant in determining the liability of such surety---Liabilities for a person who submitted sureties for the judgment-debtor would be within the limits of the surety submitted by them---Terms of such bond submitted as sureties would be important---Perusal of said sureties submitted on behalf of the defendant revealed that the said persons who stood surety for the defendant only undertook to produce the defendant in person before the court till the time of decision , and in case of failure, they should be liable for payment---Terms of said sureties, did not speak of any undertaking given by them for payment of the decretal amount---Request of the plaintiff to render the said persons, who stood surety for the defendant, liable for payment of decretal amount could not be acceded to---High Court dismissed appeal of defendant for non-prosecution.

Nemo for Appellant.

Muhammad Azhar Jamal, Respondent (in person).

Date of hearing: 19th December, 2011.

P L D 2012 Balochistan 154

Before Naeem Akhtar Afghan and Jamal Khan Mandokhail, JJ

Haji ABDUL MATEEN AKHUNDZADA and another---Petitioners

versus

DISTRICT COORDINATION OFFICER/ DEPUTY COMMISSIONER, QUETTA and 5 others---Respondents

Constitutional Petition No.340 of 2010, decided on 2nd February, 2012.

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

----Ss. 42, 55 & 56(d)---Balochistan Ground Water Rights Administration Ordinance (IX of 1978), Ss. 3(6)(d), 4 & 5---Civil Procedure Code (V of 1908), O. VII, R. 11 & O. XXXIX, Rr. 1, 2---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for declaration and mandatory injunction---Excavation of tube-well by plaintiff in unsettled/Baroon-uz-Line land without obtaining NOC from District Water Committee---Order of Collector directing stoppage of boring of tube-well challenged by plaintiff through such suit---Private defendant's application under O. VII, Rule 11, C.P.C. for rejection of plaint---Interim order of Trial Court suspending operation of such order of Collector---Revision petition by plaintiff challenging order of Trial Court impleading private defendant as party in the suit---Interim order of Revisional Court directing parties to maintain status quo---Validity---Plaintiff instead of challenging such order of the Collector before Commissioner in appeal had tried to flout and frustrate same by filing the suit, which Trial Court had wrongly entertained and issued injunction order in favour of plaintiff in utter disregard to S.56(d) of Specific Relief Act, 1877---Suit for declaration to challenge an order passed by an official in discharge of his public duty would not be maintainable as such official could not be restrained nor an injunctive order could be issued to interfere with public duties of any department particularly in case of availability of remedies of appeal or revision thereagainst under the relevant law---Plaintiff had no lawful right or entitlement to carry out boring work without permission of such Committee on suit land, which was not recorded in plaintiff's name in revenue record---High Court accepted constitutional petition and rejected plaint in suit pending before Trial Court and set aside all orders passed by Trial Court and Revisional Court and referred matter to such Committee for its decision in accordance with law after hearing parties while directing plaintiff not to start any boring work till such decision.

(b) Administration of justice---

----Judge, duty of --- Scope stated.

A Judge is under duty to decide the matter justly and by applying correct law. The Courts while dispensing justice are duty bound to apply the provisions of law in its true prospective and application of the same cannot be avoided simply on the ground that the said provisions of law were not brought to their knowledge by the parties as a Judge is supposed to wear all laws of the country on the sleeves of his robe.

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

----O. VII, R. 11, Ss.96, 100 & 115---Rejection of plaint by Trial Court, Appellate Court and Revisional Court without application by defendant---Scope.

Under Order VII, Rule 11, C.P.C., as soon as the cause appears for rejection, the plaint should be rejected straightaway and such a suit should be taken off the file at its very inception to relieve a defendant of vexatious litigation. A plaint can be rejected at ay stage and even by the Appellate Court or a Revisional Court and even without any application being made by the defendant.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction was meant to correct error of law resulting from excess or lack of jurisdiction---Such jurisdiction for being supervisory, discretionary and equitable would be exercised to aid and sub-serve cause of justice, but not to defeat same.

(e) Administration of justice---

----Duty of courts.

Powers of courts to administer justice undisputedly is a sacred trust and they are obliged by compulsion of law to carefully examine and analyze the material placed before them before arriving at any decision or passing any order.

Syed Mumtaz Hussain Baqri for Petitioners.

Shabbir Rajput for Respondent No.5

Tariq Ali Tahir, Addl. A.G.

P L D 2012 Balochistan 164

Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ

FAIZ MUHAMMAD JAFFAR and others---Appellants

versus

THE STATE through NAB, Quetta and others---Respondents

Criminal Estasab Appeals Nos.50, 53, 54 of 2001, decided on 22nd March, 2012.

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

----Ss. 9(a) (iv) (vi) & 14 (a)---Corruption and corrupt practices---Appreciation of evidence---Paying of commission---Presumption of guilt---Shifting of onus, principle of---Applicability---Prosecution alleged that accused persons received commission and released payments to contractors without supply of goods by them---Accused were convicted by Trial Court and were sentenced to imprisonment for various terms---Plea raised by accused persons was that prosecution witnesses had paid commission which itself was illegal thus they were accomplices---Validity---Prosecution witnesses were cross-examined at length, yet nothing was brought on record which could shake intrinsic value of their depositions---Even no ill-will or malice was alleged against witnesses to falsely implicate accused in commission of offence---Merely because witnesses had paid commissions, which was illegal, was not sufficient to disbelieve their straightforward and confidence inspiring evidence---All witnesses had deposed that on refusal of payment of commission, accused persons withheld cheques, as such, they were forced to pay commission to accused thus such witnesses could not be termed as accomplice in commission of offence being consenting parties---After specific allegation regarding payment of commission/bribe to accused, onus under S.14 of National Accountability Ordinance, 1999, shifted to them to prove that they accepted or obtained gratification not as a motive or reward other than legal remuneration---Accused failed to discharge their onus and only denied to have received any such commission, which assertion on their part could not be believed in the light of overwhelming evidence in shape of statements of prosecution witnesses, as the same were straightforward and confidence inspiring and fit in probabilities of the case---Prosecution had successfully brought the guilt home against accused persons and they were rightly found guilty by the Trial Court---High Court maintained conviction and fine awarded by Trial Court but reduced sentences of imprisonment to that already undergone by the accused prior to their release on bail---Appeal was dismissed accordingly.

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

----S. 18(g)---Reference, filing of---Pre-conditions---Reference is not supposed to be an encyclopedia of prosecution case---Two conditions are to be satisfied under S.18(g) of National Accountability Ordinance, 1999; firstly that there is sufficient material to justify filing of Reference and secondly, the Chairman NAB decides that it would be proper and just to file Reference, then the matter can be referred to Accountability Court.

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

----Ss. 18(g) & 24(b)---Cognizance by Accountability Court---Accused persons---Cognizance by Accountability Court is taken on Reference made by Chairman NAB under Ss.18(g) and 24(b) of National Accountability Ordinance, 1999---Such offenders can be tried whom the Chairman NAB finds liable to be tried and, therefore, names them in the Reference.

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

----S. 33-E---Fine, recovery of---Death of accused---Effect---Criminal liability ends with death of convict but civil liability of accused/offender remains there and death of offender regarding payment of fine, does not operate as discharge or satisfaction of the order for payment of fine---Legal heirs of deceased convict cannot take advantage of death of their predecessor-in-interest i.e. the convict---Fine amount can be recovered from the assets/properties of deceased.

Muhammad Yousaf v. Syed Ghayyur Hussain Shah 1993 SCMR 1185 rel.

Muhammad Aslam Chishti, Syed Ayaz Zahoor, Saleem Lashari and Munir Ahmed for Appellants.

Syed Manzoor Shah and Amir Zaman Jogezai, Special Prosecutor NAB for the State.

P L D 2012 Balochistan 179

Before Muhammad Hashim Khan Kakar, J

KHADIM HUSSAIN and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application (Bail) No.143 of 2012, decided on 24th April, 2012.

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

----Ss. 497 & 345(2)---Penal Code (XLV of 1860), Ss. 302, 34, 311 & 338-E---Qatl-e-amd, common intention---Bail, refusal of---Murder on the pretext of 'siyahkari'---Waiver or compounding of offence---Scope---Compromise effected outside the court---Scope---Contentions of the accused persons were that parties had compounded the offence and forgiven each other in the name of Allah, and that compromise had been effected, and as such court below was not justified in refusing bail to the accused persons---Validity---No one could be granted the licence to take the law in his own hands and start executing culprits instead of taking them to the courts of law---Killing of women on the pretext of 'siyahkari', was un-Islamic, illegal, unconstitutional and an offence against the State and the society---Murder based on honour (ghairat) did not furnish a valid ground for grant of bail---Offences committed in the name or on the pretext of 'siyahkari' and similar other customs or practices may be waived or compounded subject to such conditions as the court deemed fit to impose with the consent of the parties having regard to the facts and circumstances of the case---Such offences were within the circumference of waiver or composition---Compromise effected outside the court was of no value unless sanctioned by a court as envisaged in column No.3 of S.345(2) Cr.P.C, and such sanction was to be based on sound and reasonable discretion and was not to be accorded as a matter of routine---Court had to decide, after taking into consideration all the attending circumstances of the case, whether in the given situation it should or should not grant permission for compounding the offence---Courts were obliged to decide, whether the case fell within the provisions of S.311, P.P.C and whether the offender despite the compromise, deserved to be punished by way of ta'zir---Accused persons were involved in the commission of the murder of two innocent persons on the pretext of 'siyahkari', while taking the law in their own hands, therefore, they did not qualify for the grant of bail---Offence could not be compounded automatically by the legal heirs, but it was always through the court, which could decline permission to compromise the offence by the legal heirs of the victim(s), keeping in view the circumstances of the case---Accused persons had been charged in a promptly lodged F.I.R. for effecting firing and causing death of two persons, and remained absconders for a sufficient period of time---Bail was refused to accused persons, in circumstances.

Holy Qur'an in Sura XXIV (NUUR) Verses 4 and Hadith 837 Book 48 (Sahih Bukhari) ref.

Muhammad Akram Khan v. The State PLD 2001 SC 96 rel.

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

----S. 302---Constitution of Pakistan, Arts. 8(1) & 9---Honour killing---Violative of Fundamental Rights---Nobody had any right nor could anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat"---Neither the law nor the religion permitted the so­called honour killing which amounted to "Qatl-e-amd" simpliciter---Such iniquitous and vile act was violative of the Fundamental Rights as enshrined in Art.9 of the Constitution which provided that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect was void under Art.8(1) of the Constitution.

Muhammad Akram Khan v. The State PLD 2001 SC 96 rel.

Muhammad Qahir Shah for Applicant.

Musleh-ud-Din for the State.

Date of hearing: 18th April, 2012.

P L D 2012 Balochistan 186

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

Sardar MUHAMMAD ANWAR JAFFAR and another---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources, Islamabad and 2 others---Respondents

Constitutional Petition No.281 of 2009, decided on 15th May, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Petitioners contended that they were owners of the land on which their forefathers had lived for four/five hundred years, and contended that the Government could not carry out surveys for oil and gas exploration on the said land---Validity---Petitioners had not attached any impugned order or notification with the petition and had failed to attend the specific query of the court---Grievance of the petitioners was addressed to a private company wherein the objection was not against carrying out alleged exploration activities but instead they sought to negotiate with the said company---Petitioners were not aggrieved persons and if at all they were aggrieved, they had other adequate remedies provided under law to establish their title over the property and thereafter to protest against any ingress on the same or illegal encroachment thereof---Constitutional petition, on its face, involved disputed questions of facts which could not be resolved by the High Court in its constitutional jurisdiction---Constitutional petition was dismissed.

Date of hearing: 15th May, 2012.

P L D 2012 Balochistan 189

Before Muhammad Hashim Khan Kakar, J

ABDUL QAHIR alias SADIQ and 3 others---Petitioners

Versus

BIBI AISHA and 2 others---Respondents

Criminal Revision No.73 of 2012, decided on 8th June, 2012.

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

----Ss. 2(c), 2(d), 3, 4 & 7---"Lawful possession"---Proof---Scope---"Owner"---Proof---Scope--- Property was recorded in the name of the deceased-husband of the complainant---Whether complaint under the Illegal Dispossession Act, 2005, was maintainable under such circumstances---Watchman residing in the property on behalf of the complainant---Whether such possession of watchman qualified as possession by the complainant---Lodging of F.I.R. not a bar to availing remedy under the Illegal Dispossession Act, 2005 and vice versa---Trial Court had allowed the application of the complainant under S.7 of the Illegal Dispossession Act, 2005--- Contentions of the accused persons (petitioners) were that documents referred to and relied upon by the complainant were fake and fabricated; that the complainant was neither occupier nor recorded owner of the property in question, and the complainant not being in possession of the property had no legal status to maintain the direct complaint under the Illegal Dispossession Act, 2005---Validity---For the purpose of proving lawful possession, it was incumbent upon the person claiming such possession to produce certain documents or evidence to prove his possession as lawful possession over the property---Complainant had produced ownership documents of the property, while the accused persons did not produce any evidence or documents to show that they were either lawful owners or occupiers of the property---Although complainant was not the recorded owner of the property, which stood recorded in the name of her deceased-husband but a Muslim's estate vested immediately in his or her heirs after his/her death and the devolution of property took place immediately through inheritance without any intervention---Although complainant was not in actual and physical possession of the property at the time of the alleged dispossession but her watchmen was residing therein along with his family members, who were forcibly dispossessed by the accused persons---Possession of the complainant could not be denied in such circumstances---Complainant being the owner and occupier of the property had the legal status to maintain the direct complaint---Lodging of F.I.R. by the wife of the watchman would not act as a bar to avail remedy under the Illegal Dispossession Act, 2005, nor availing of remedy under the said Act would act as a bar from initiating proceedings under any other law---Trial Court had given valid and lawful reasons while exercising its jurisdiction in the matter---Revision petition was dismissed, in circumstances.

Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Black's Law Dictionary 6th Edn. P.1163 and Surrah Baqarah, Verse No.220 ref.

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

----S. 7---"Possession"---Connotation---Possession would cover both constructive and physical possession---Word "possession" had to be given the widest possible meaning and it should not be confined to actual or constructive possession, but must be extended to every sort of possession known to law---Word "possession" within the meaning of S.7 of the Illegal Dispossession Act, 2005, must be interpreted in its broadest sense, and apart from physical possession, it must also mean the ownership of, control over the immovable property concerned.

(c) Words and phrases---

----"Possession"---Meaning.

Black's Law Dictionary 6th Edn. P.1163 ref.

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

----Ss. 3, 4 & 7---"Constructive possession"---Scope---Person who is not in actual possession over a thing, but knowingly has both the power and the intention at a given time to exercise dominion or control over it, either directly or through another person or persons, is in constructive possession of it.

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

----S. 403--- Illegal Dispossession Act (XI of 2005), Ss. 3 & 4---Double jeopardy---Scope---Complaint under the Illegal Dispossession Act, 2005---Lodging of F.I.R./filing of complaint concerning the same property---"Double jeopardy" rule of---Applicability---Scope---Concept of double jeopardy was attracted where the accused had been tried for the offence charged with by a competent court and there was a judgment or order of conviction or acquittal---Punishment provided in S.3(2) of the Illegal Dispossession Act, 2005, appeared to be in addition to the one that a person might entail under any other law---Mere lodging of F.I.R. and filing of complaint under the Illegal Dispossession Act, 2005, would not attract the rule of double jeopardy.

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

----Ss. 3 & 4---Constitution of Pakistan, Art.24---Protection of property rights of widows and orphans---Scope---Primary duty of the State and the courts to protect the rights of widows and orphans and they should not be let alone at the mercy of the land grabbers.

Kamran Murtaza, Amanullah Batezai and Rizwan Ejaz for Petitioners.

Muhammad Hassan Mutawakil for the Complainant.

Abdul Karim Malghani for the State.

Date of hearing: 4th June, 2012.

P L D 2012 Balochistan 197

Before Qazi Faez Isa, C.J. and Syeda Tahira Safdar, J

Syed SHAMSUDDIN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Home and Tribal Affairs and 7 others---Respondents

Constitutional Petition No.109 of 2011, decided on 2nd May, 2012.

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

----S. 86-A---Penal Code (XLV of 1860), Ss. 34, 419 & 420---Constitution of Pakistan Arts.199 & 247(7)---Constitutional petition---Removal of petitioner's custody from Pishin (Balochistan) to Kohat Tribal Area at the request of Assistant Political Agent (APA), Frontier Region, Kohat (Khyber Pakhtunkhwa)---Complaint against petitioner's brother under Ss.419, 420 read with S.34, P.P.C. and Frontier Crimes Regulation pending before APA for recovery of loan given to him abroad by complainant---Constitutional petition by petitioner after his release on bail by APA challenging act of officials of Balochistan Government handing over his custody to APA without complying with provisions of S.86-A, Cr.P.C.---Validity---Neither alleged in complaint that petitioner had borrowed any money from complainant nor did complaint make out commission of any criminal offence by petitioner---Alleged cause of action against petitioner's brother had accrued to complainant abroad and not within limits of Kohat Tribal Area and/or in Pakistan---Such complaint could not be construed to be in relation to a Tribal Area, thus, High Court had jurisdiction to decide such matter---Assistant Political Agent and Commissioner, Kohat Division had misused their powers by seeking arrest and removal of petitioner from Pishin to Kohat---Official respondents of Balochistan had violated mandatory provision of S.86-A, Cr.P.C. by not producing petitioner before Magistrate at Pishin, wherefrom he was abducted and taken to Kohat---Complainant had exploited entire machinery of State for private purposes and officers of two Provincial Governments had acted as his handmaidens---Impugned action of official respondents was patently unlawful and illegal---High Court while accepting constitutional petition directed the Federal Government to instruct Assistant Political Agent, Commissioner, Kohat Division and Home Secretary of Khyber Pakhtunkhwa Province not to take any action against the petitioner pursuant to such complaint---High Court further directed Government of Pakistan, Government of Balochistan and complainant to pay Rs.10,000 each to the petitioner as costs.

Muhammad Siddiq v. Government of Pakistan 1981 SCMR 1022; Nabi Bakhsh v. The State PLD 1991 Pesh. 10; Dawood Ahmed's case 1994 PCr.LJ 1984; Zareef Khan v. Sessions Judge, Peshawar PLD 1995 Pesh. 118; Muhammad Sharif Khan v. S.D.M. 1997 MLD 152; Fazal Subhan v. State PLD 2006 Pesh. 1; Ihsanullah v. Commissioner, F.C.R, Peshawar, 1968 SCMR 974; Said Jamal v. Asstt. Political Agent (F.R.), 1992 MLD 2043; Muhammad Ashfaq v. State PLD 1973 SC 368; Khudai Dad v. State PLD 1997 Quetta 69; Shaukat Khan v. Asstt. Political Agent PLD 2002 SC 526 Qaum Bangash v. Qaum Turi 1991 SCMR 2400; Muhammad Raziq v. Najeeb Ullah, 2000 YLR 590 and Saeed-ur-Rehman v. Amanullah 2010 MLD 1294 ref.

Muhammad Shafique v. Political Agency, Khyber Agency 1998 PCr.LJ 1347; Noor Jamal v. The State PLD 2001 Presh. 154; Ghulam Qasim v. State- PLD 1992 Pesh. 83; Muhammad Sharif Khan v. S.D.M 1997 MLD 152; Daweed Ahmed v. Government of Sindh 1994 PCr.LJ 1984; Khalid Pervez v. Federation of Islamic Republic PLD 1987 Lah. 323 rel.

(b) Jurisdiction---

----Exclusion of jurisdiction clauses would be construed very strictly.

Nabi Bakhsh v. The State PLD 1991 Pesh. 10; Muhammad Sharif Khan v. S.D.M. 1997 MLD 152 and Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 rel.

Noorullah Kakar for Petitioner.

Malik Sikandar Khan, Deputy Attorney General on Court Notice.

Tariq Ali Tahir, Addl. Advocate General and Arbab Tahir for Respondent No.8.

Dates of hearing 5th May, 2011 and 12th March, 2012.

P L D 2012 Balochistan 208

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

ABDUL MALIK---Petitioner

Versus

METROPOLITAN CORPORATION, QUETTA, through Administrator and another---Respondents

Constitutional Petition No.79 of 2010, decided on 21st May, 2012.

Balochistan Local Government Act (V of 2010)---

----S.25---Constitution of Pakistan, Art. 199---Constitutional petition---Metropolitan Corporation---Petitioner, a government contractor, contended that contract for collection of parking fees had been continuously and illegally awarded to the respondent by the Metropolitan Corporation without inviting tenders and that the respondent was a chronic defaulter in dues payable to the Corporation---Respondent contended that it had a valid agreement with the Metropolitan Corporation and the Chief Minister had waived certain amount payable to the Corporation that had accrued before the execution of the agreement---Validity---Before granting collection rights for parking to the respondent, public bids were not invited, and the Metropolitan Corporation should have, after publication in prominent local newspapers, awarded the contract to the highest bidder---No legal provision was shown under which the Chief Minister could waive public dues---Public monies could not be waived without a law permitting it---Money of the Metropolitan Corporation was to be spent for the public and should have been jealously guarded---Metropolitan Corporation was statutory body governed by its own laws and rules and no powers had been bestowed upon the Chief Minister to waive the amount due to the Corporation---High Court directed the Corporation to immediately invite bids for the auction of the parking fee collection rights and award the same to the highest bidder---Constitutional petition, was allowed in circumstances.

S. Tahir Ali Baloch for Petitioner.

Muhammad Ali Mobeen and Rauf Ahmad Hashmi for Respondents.

Date of hearing: 21st May, 2012.

P L D 2012 Balochistan 214

Before Qazi Faez Esa, C.J. and Naeem Akhtar Afghan, J

Begum NASREEN KHETRAN---Petitioner

versus

GOVERNMENT OF BALOCHISTAN, EDUCATION DEPARTMENT, QUETTA through Secretary and another---Respondents

Constitutional Petition No. 385 of 2009, decided on 28th August, 2012.

(a) Constitution of Pakistan--

----Arts. 29(3) & 199---Constitutional petition---Annual report on observance and implementation of Principles of Policy---Duty. of President in relation to affairs of the Federation and of Governor in relations to affairs of Province to place such report before Parliament and Provincial Assembly respectively for discussion of people's elected representatives---Scope---President or Governor had no discretion to choose to submit such reports, rather such duty was mandatory---Submission of such reports would serve as valuable performance indicator of Federal as well as Provincial Governments---Working of Federal or Provincial Government could not be monitored and improved in absence of information in public domain regarding its performance---Non-submission of such reports by President and Governors in past and present for being violation . of constitutional mandate deprecated by High Court---High Court could direct the President and Governor to prepare and place such reports before Parliament and Provincial Assembly respectively---Principles.

(b) Constitution of Pakistan--

----Arts. 29 to 40 & 199--Action or law not in conformity with Principles of Policy---Constitutional jurisdiction of High 'Court to question validity of such action or law---Scope---Validity of such action or law could not be challenged unlike as action taken or law made in contravention of fundamental rights.

Tahir Ali for Petitioner.

Tariq Ali Tahir, Addl. A.-G. for Respondents.

Date of hearing: 28th August, 2012.

P L D 2012 Balochistan 221

Before Mrs. Syeda Tahira Safdar, J

THE STATE through Additional Prosecutor-General and others---Petitioners

Versus

Nawabzada SHAH ZAIN BUGTI and others---Respondents

Criminal Revisions Nos.93, 108 to 138 and 143 of 2012, decided on 6th September, 2012.

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

----Ss. 353/109/186---Anti-Terrorism Act (XXVII of 1997), S.7---West Pakistan Arms Ordinance tXX of 1965), Ss.13(d)/16/20---Criminal Procedure Code (V of 1898), S. 103---Assault or criminal force to deter public servant from discharge of his duty, abetment, obstructing public servant in discharge of public functions., acts of terrorism, possession of illegal weapon, knowingly purchasing arms, etc., from unlicensed .persons--Permission for production of recovered articles---Frontier Corps and police acting co jointly allegedly recovered huge quantity of arms and ammunition from accused persons (respondents)---Trial Court did not allow prosecution to produce recovered arms, ammunition and vehicles on the grounds that record did not disclose the facts whether said articles were taken into custody by the police authorities; whether any seizure memo was prepared on the site; whether recovered articles were declared as case property, and whether requirements of S.103, Cr.P.0 had been complied with-Legality--F.I.R. disclosed that Frontier Corps and police had acted co-jointly; that Frontier Corps took physical possession of the recovered articles but since they were large in number, only a list of the said articles was handed over to the police, which showed that Frontier Corps had retained physical custody of the recovered articles---Such circumstances made it immaterial whether physical possession of the recovered arms, ammunitions and vehicles was either with the Frontier Corps or with the police---Said articles were required to be produced before the court being part of the evidence and material collected during course of investigation and additionally production of said articles was essential for just decision of the case---F. I.R. clearly disclosed preparation of seizure memo at the relevant time--Legal effect of compliance or non-compliance with provisions of S.103, Cr.P.0 was not to be considered by the High Court at stage of revision, rather same was to be considered by the Trial Court---Trial Court had declined request of prosecution for production of articles in question on mere technicalities---Impugned order of Trial Court was set aside and prosecution was allowed to produce the .recovered arms, ammunition and vehicles as per seizure memo before the Trial Court--- Revision petitions were disposed of accordingly.

Dildar v. The State PLD 2001 SC 384 and Painda Gul v. State 1987 SCMR 886 ref.

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

----S. 103--- Recovery of articles-Association of private witnesses---Exceptions--- Provisions of S.103, Cr.P.0 were not applicable in instances where recovery was made at the site during course of incident; where recovery was made from a running vehicle or train or at a public thoroughfare, and where circumstances of the case made it impossible to procure private persons from the public to become witnesses.

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

---Ss. 103 & 439---Compliance/non-compliance with provisions of 5.103, Cr.P.C.---Consideration by High Court in its revisional jurisdiction---Scope---Legal effect of compliance or non-compliance with provisions of 5.103, Cr.P.0 was not to be considered by the High Court at stage of revision, rather same was to be considered by the Trial Court.

Muhammad Wassay Tareen, Prosecutor General and Ms. Sarwat Hina, Additional Prosecutor-General for Petitioners.

W.N. Kohli, Sohail Rajput and Jameel Ramzan for Respondents.

Date of hearing: 3rd August, 2012.

P L D 2012 Supreme Court 1

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Ghulam Rabbani, JJ

ALL PAKISTAN NEWSPAPERS SOCIETY and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos.987 to 989 of 2011, decided on 19th October, 2011.

(On appeal from the judgment of High Court of Sindh at Karachi dated 31-5-2011 passed in Constitutional Petitions Nos.D-1391 of 2004, D-1151 of 2007 and D-494 of 2008).

(a) Wage Board award---

----History of the laws on the subject traced.

(b) Working Journalists (Conditions of Service) Ordinance (XVI of 1960)---

----Preamble---Newspaper Employees (Conditions of Service) Act (LVIII of 1973), Preamble---Distinction between both the enactments stated.

(c) Working Journalists (Conditions of Service) Ordinance (XVI of 1960)---

----Preamble---Background/history/circumstances, which persuaded the legislature to make amendments in the Ordinance discussed.

(d) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 2(d)---Constitution of Pakistan, Art.25---Equality of citizens---Vires of S.2(d) of the Newspaper Employees (Conditions of Service) Act, 1973---Article 25 of the Constitution confers a right upon the citizens that they should be treated equally and whosoever challenges any provision of law, it becomes his responsibility to prove the same and in absence thereof S.2(d) of the Newspaper Employees (Conditions of Service) Act, 1973 was not violative of Art.25 of the Constitution.

(e) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 2(d)---Constitution of Pakistan, Art.25---Newspaper employees---Working Journalists and non-working Journalists---Equal protection of law---Reasonable classification---Intelligible differentia---Nexus in the performance of the duties by different categories of both types of persons with cooperation and collaboration with each other---Object and purpose of both the categories being common and to achieve the same, there was a necessity of classification---Such classification called for equal protection of law to the working journalists and non-working journalists because they were equally placed, as such deserved to be treated alike both in privileges and liabilities---Principles.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 ref.

(f) Legislature---

----Scope and prerogative---Legislation of law is the domain and prerogative of the legislature, which has wisdom to promulgate a law to achieve a particular object and purpose presumably promulgating such laws legally, validly and constitutionally on the basis of its competence.

(g) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Preamble---Constitution of Pakistan, Art.25---Equal protection of law---Vires of Newspaper Employees (Conditions of Service) Act, 1973---Newspaper industry is distinct and different from all other industries (electronic media i.e. radio and television) and for such reason alone Newspaper Employees (Conditions of Service) Act, 1973 is not ultra vires the Constitution---Contention that discrimination had been caused by phenomena of pick and choose has no substance.

(h) Constitution of Pakistan---

----Art. 8---Laws inconsistent with or in derogation of Fundamental Rights---Supreme Court, under Art.8 of the Constitution is empowered to declare void any law or any custom or usage having the force of law if the same is inconsistent with, or is in derogation of any of the Fundamental Rights.

(i) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 9---Constitution of Pakistan, Art.10-A---Due process of law---Contention was that S.9 of the Newspaper Employees (Conditions of Service) Act, 1973 was violative of the due process of law as provided under Art.10-A of the Constitution as no right of appeal was provided against the Wage Board Award---Held, to determine the question of declaring the Act as unconstitutional on the ground of non-provision of right of appeal against the decision of the Board, it was necessary for the court to bear in mind whether there was any dispute between two parties in an adversarial litigation against each other, which required to be decided by the Board, and as to whether the claim of entitlement of one of the parties was against the State or any State agency, which required determination by the Board or the Board was performing a legislative act where there was no existing right or dispute to be decided between the parties.

(j) Constitution of Pakistan---

----Arts. 3 & 9---Security of person---Elimination of exploitation---Word "Life"---Interpretation and scope---Right person is required to be engaged in the right job and there should not be any exploitation whatsoever.

The word 'life' is very significant as it covers all facets of human existence. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. Further, the right to life also includes the right to livelihood. Under Article 3 of the Constitution, the State is bound to ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability to each according to his work; therefore, a right person is required to be engaged in the right job and there should not be any exploitation whatsoever.

Shehla Zia v. WAPDA PLD 1994 SC 693; Arshad Mehmood v. Government of Punjab PLD 2005 SC 193; Moulvi Iqbal Haider v. Federation of Pakistan PLD 2006 SC 394; Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109 and In Re: Suo Motu Case No.13 of 2009 PLD 2011 SC 619 ref.

(k) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Preamble---Object and purpose of the Act.

(l) Adversarial litigation---

----Scope---When there is adversarial nature of litigation between the parties, it is only the judicial forum which decides the same like the property cases etc.

(m) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 9---Performance of Wage Board---Nature---Wage Board does not perform judicial or quasi judicial function, rather performs only a delegated executive function of the legislature, be it Federal or the Provincial of fixing the wages of newspaper employees.

(n) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 9---Constitution of Pakistan, Arts.10-A, 184(3) & 199---Due process of law---Appeal, right of---Nature and scope---Contention was that Newspaper Employees (Conditions of Service) Act, 1973 was void and liable to be struck down for having failed to provide even a single right of appeal from any adjudicatory or directory orders or actions, interim or final made thereunder---Held, proceedings of the Board were akin to rules of conduct, which could be challenged in appropriate proceedings, either under Art.199 or Art.184(3) of the Constitution, if it was shown that the Board had acted in a perverse manner---Such would be different kind of challenge, which was available against a legislative activity and the right of appeal would come in where individual right was determined---Principles.

The Wage Board is given the power to determine wages. There is no existing dispute or right to be determined by it. The proceedings of the Board are neither judicial nor quasi-judicial, which is accepted around the world - whether it is price of essential commodities, or anything else. In such a case, rules are laid down for general applicability, may be for a particular industry, class, etc., which are to have prospective effect. They are akin to rules of conduct, which can be challenged in appropriate proceedings, either under Article 199 or Article 184(3) of the Constitution, if it is shown that the Board has acted in a perverse manner. That would be a different kind of challenge, which is available against a legislative activity and the right of appeal would come in where individual right is determined one way or the other.

It is true that denial of right of appeal is violative of the due process of law in matters where judicial powers are being exercised by a functionary discharging judicial or quasi-judicial functions, if the same are being exercised by the executive or the administration. And as per injunctions of Islam, denial of right of appeal in adversarial proceedings, both civil and criminal, is considered against the due process of law and norms of justice, but in exercise of legislative powers or legislative activities, no right of appeal can be extended before the forums, higher in status, within the legislative body which had passed the order or entered into any legislative activity. However, power of judicial review would be available to the superior courts under Article 199 or Article 184(3) of the Constitution for the purpose of examining the constitutionality of the legislation or sub-legislation.

As far as appeal is concerned, it is continuation of the original proceedings and it provides a mechanism for the scrutiny of the findings/determination already recorded by a subordinate forum whereas the wage determination, which is done with a view to regularize its payment to the newspaper employees, being a legislative activity is open to judicial review before the superior courts if violation of any provision of the Constitution is made out.

Pakistan v. General Public PLD 1989 SC 6; AIR 1962 SC 12; Arshad Mehmood v. Government of Punjab PLD 2005 SC 183; Mubeen us Salam v. Federation of Pakistan PLD 2006 SC 602; Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Sindh High Court Bar Association v Federation of Pakistan PLD 2009 SC 879; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Independent News Corporation and others v. Chairman 4th Wage Board and Implementation 1993 SCMR 1533; Pakistan Herald Publications v. Federation of Pakistan 1998 CLC 65; Shamas Textile Mills Ltd. v. Province of Punjab 1999 SCMR 1477; Nabi Bux Khoso v. Pakistan Television Corporation PLD 1982 Kar. 725; Tika Ramji v. State of U.P. [1956 SC 676 (S) AIR V. 43 C. 112 Oct.]; Express Newspapers Ltd. v. Union of India AIR 1958 SC 578; The P.T.I. v. Union of India AIR 1974 SC 1044; U.C. Bank v. Their Workmen AIR 1951 SC 230; Expess Newspapers v. Somayajulu AIR 1964 SC 279; S.R. Corpn. v. Industrial Tribunal AIR 1968 SC 529; Hochticf Gammon v. Industrial Tribunal AIR 1964 SC 1746 and B. Coleman & Co. v. P.P. Das Gupta AIR 1970 SC 426 ref.

(o) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 9 & 10---Wage fixation is legislative function, and not a judicial or quasi-judicial act or an administrative act---Exercise of legislative powers---scope---"Legislative act" and "Judicial act"---Distinction and principles illustrated.

On general principles, those inquiries, deliberations, orders, and decrees, which are peculiar to such a department, must in their nature be judicial acts. Nor can they be both judicial and legislative; because a marked difference exists between the employment of judicial and legislative tribunals. The former decide upon the legality of claims and conduct, and the latter make rules upon which, in connection with the Constitution, those decisions should be founded. It is the province of Judges to determine what is the law upon existing cases. In fine, the law is applied by one, and made by the other. To do the first, therefore, is to compare, the claims of parties with the law of the land before established - is in its nature judicial act. But to do the last - to pass new rules for the regulation of new controversies - is in its nature a legislative act; and if these rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law as "a rule of civil conduct", because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated. ... It is the province of judicial power, also to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the State. Nor does the passage of private statutes, when lawful, are enacted on petition, or by the consent of all concerned; or else they forbear to interfere with past transactions and vested rights.

One of the great difficulties of properly classifying a particular function of an administrative agency is that frequently - and, indeed; typically - a single function has three aspects. It is partly legislative, partly judicial and partly administrative. Consider, for example, the function of rate-making. It has sometimes been characterised as legislative, sometimes as judicial. In some aspects, actually, it involves merely executive or administrative powers. For example, where the Interstate Commerce Commission fixes a tariff of charges for any railroad, its function is viewed as legislative. But where the question for decision is whether a shipment of a mixture of coffee and chicory should be charged the rate established for coffee or the lower rate established for chicory, the question is more nearly judicial. On the other hand, where the problem is merely the calculation of the total freight charges due for a particular shipment, the determination can fairly be described as an administrative act.

An example of a subordinate body of this type is a Wage Council, which is not an administrative tribunal but a subordinate legislative authority.

Both arbitration tribunals and courts of inquiry share - with one important difference - the tripartite structure of statutory wage councils; they are composed of equal numbers of representatives of employers and of workers under an independent Chairman, in some cases, together with additional independent members. The essential difference between their structure and that of statutory wage authorities is that the representative members of the latter are chosen from within the industry concerned, whereas employers and workers on arbitration tribunals come from outside the industry whose disputes they have to resolve; if in any case technical knowledge of a particular industry is required, this is normally supplied by the help of assessors who take no part in the final Award. This difference between the constitution of wage boards and that of arbitration tribunals clearly implies a corresponding distinction between the legislative function of the former and the judicial function of the latter. The wage board drafts law for its own industry, whereas the arbitration court gives judgment on matters submitted by others. The choice of industrial arbitrators unconnected with the industries the merits of whose claims they must pledge, is evidently intended as a guarantee that they, like other judges, will be free from bias arising from personal interest.

If a particular function is termed "legislative" or "rulemaking" rather than "judicial" or "adjudication", it may have substantial effects upon the parties concerned. If the function is treated as legislative in nature, there is no right to notice and hearing, unless a statute expressly requires them. If a hearing is held in accordance with a statutory requirement, it normally need not be a formal one ... .... The characterization of an administrative act as legislative instead of judicial is thus of great significance. ... ... ... ... The key factor is time: a rule prescribes future patterns of conduct; a decision determines liabilities upon the basis of present or past facts.

A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some parts of those who are subject to its power. The establishment of a rate is the making of a rule for the future, and therefore, is an act legislative not judicial in kind. That question depends not upon the character of the body, but upon the character of the proceedings. The nature of the final act determines the nature of the previous enquiry.

Mere declaration by the legislature that a particular kind of property or business is affected with a public interest is not conclusive upon the question of the validity of the regulation and invalidity of the wage-fixing provision of the compulsory arbitration statute as applied to a meat packing establishment. The power of a legislature, under any circumstances, to fix prices or wages in the business of preparing and selling food was seriously doubted, but the court concluded that, even if the legislature could do so in a public emergency, no such emergency appeared, and, in any event, the power would not extend to giving compulsory continuity to the business by compulsory arbitration. The matter is one which is always open to judicial inquiry.

The wage fixation is a legislative function, and not a judicial or quasi- judicial act or an administrative function.

Wage Board is neither judicial nor quasi-judicial body as it exercises executive/administrative function. Keeping in view the nature of the task assigned to a Wage Board of fixation of wages is neither judicial/quasi-judicial nor executive/administrative function, but partakes of legislative activity and the Chairman being the delegatee of the Federal Government, with the advice and consultation of the members of the newspaper establishments and newspaper employees, gives its decision fixing the wages of different categories of the newspaper employees including working and non-working journalists. As far as the process of performing a legislative activity is concerned, it is to be done following the guidelines provided in section 10 of the Newspaper Employees (Condition of Service) Act, 1973.

All such bodies and functionaries who have been assigned the task, being a body exercising sub-legislative powers, get involved themselves in performing legislative activity.

Express Newspaper Ltd. v. Union of India AIR 1958 SC 578; Shri Sitaram Sugar Company v. Union of India AIR 1990 SC 1277; Union of India v. Cynamide India Ltd. AIR 1987 SC 1802; G.K. Krishna v. State of Tamil Nadu AIR 1975 SC 583; S.I. Syndicate Ltd. v. Union of India AIR 1976 SC 460; R.K. Gorg v. Union of India (1981) 4 SCC 675)]; Pallavi Refractories v. Sigareni Collieeries Co. Ltd. [(2005) 2 SCC 277]; Williamson v. Lee Optical, Inc. [348 U.S 483(1955)]; Adkins Et. Al v. Children's Hospital [261 U.S. 525 (1923)]; Narottamdas Harjiwandas v. State of MP AIR 1964 MP 45; Prentis v. Atlantic Coastline [211 U.S. 210 (1908)]; Australian Boot Trade Employees Federation v. Whybrow & Co. [10 C.L.R. 266 (1910)]; Cooley's Constitutional Limitations, 8th Edn., Vol. I, at p. 185; Cases and other materials on Administrative Tribunals; Robson's Justice and Administrative Law, 3rd Edn., p.608; Social Foundations of Wage Policy: Modern Methods of Wage Determination, p.88; Prentis v. Atlantic Coast Line Co. Ltd., [211 US 210 (1908); Hammer v. Dagenhart [247 U.S. 251 (1918); Adkins v. Children's Hospital [261 U.S.525 (1923); A.L.A. Schechter Poultry Corp. v. United States [295 U.S.495 (1935); Merehead v. New York [298 U.S. 587 (1936); West Coast Hotel v. Parrish [300 U.S.379 (1937)]; Wolff Co. v. Industrial Court [262 U.S.522]; Williamson v. Lee Optical, Inc. [348 U.S.483 (1955)]; Union of India v. Cynamide Indua Ltd. (1987) 2 SCC 720]; Union of India v. Cynamide India Ltd. AIR 1987 SC 1802; Saraswati Industrial Syndicate Ltd. v. Union of India AIR 1975 SC 460; Praq Ice & Oil Mills v. Union of India [(1978) 3 SCC 459] and Norottamdas Harijwandas v. State of Madhy Pradesh AIR 1964 MP 45 ref.

(p) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Preamble---Constitution of Pakistan, Arts. 3 & 18---Freedom of trade, business or profession---Elimination of exploitation---Award of the Wage Board---Newspaper Employees (Conditions of Service) Act, 1973 is not ultra vires the Constitution being contrary to its Art.18 as well as Art. 3 as the wages of the newspaper employees are fixed following the object and purpose of the legislation.

(q) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 9---Award by Wage Board---Direction to pay the wages determined under the Award from the date of constitution of Board does not make the award a retrospective activity.

(r) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 9---Constitution of Pakistan, Arts. 4 & 203---Access to justice to all---Scope---Award by Wage Board---Nature---Wage Board determines the wages of newspaper employees, therefore, it is not possible to stress that process of access to justice while discharging legislative activities by the Board, has been denied---Principles.

The right of "access to justice to all" is a Fundamental Right, which cannot be exercised in absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals, which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution. On the touchstone of the above, it cannot be argued that departure has taken place from the process of access to justice. The Wage Board determines the wages of the newspapers employees like a Pay Commission, therefore, hardly it is possible to stress that process of access to justice while discharging legislative activities has been denied. When the individual rights are being determined/decided by a forum exercising judicial function, aggrieved person is entitled to right of appeal, but if powers are exercised other than judicial or administrative as a delegatee on behalf of the Federal Government empowered to give Award as per supporting legislation, like framing of the rules, which is not carried out by the legislature but by the authority in the concerned statute.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and Iftikhar Ahmed v. President, National Bank of Pakistan PLD 1998 SC 53 ref.

(s) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 12-A & 13---Constitution of Pakistan, Arts. 4 & 9---Powers of Implementation Tribunal for Newspaper employees are of administrative nature, meant for the purpose of implementation of the decision of the Board---Principles.

(t) Bias in a judge---

----Kinds of such bias enumerated.

Bias is said to be of three different kinds:--

(a) A Judge may have a bias in the subject-matter which means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest.

A 'legal interest' means that the Judge is 'in such a position that a bias must be assumed'.

(b) Pecuniary interest in the cause, however, slight, will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges the decision is vitiated.

(c) A Judge may have a personal bias towards a party owing to relationship and the like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is - "Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?" The test is whether there is a 'real likelihood of prejudice', but it does not require certainty.' 'Real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or 'capricious persons'.

Asif Ali Zardari v. The State PLD 2001 SC 568 ref.

R v. Bow Street Metropolitan Stipendiary Magistrate [(1999) 1 All ER 577 and R v. Gough [(1993) 2 All ER 724] distinguished.

(u) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S. 9---Chairman of Wage Board---Functions---Nature---Chairman performs a function, which is a legislative activity and not a judicial or quasi judicial act---Chairman is not a Judge even though he be or may have been a Judge.

(v) Bias---

----Legislature---Mala fides cannot be attributed to legislature---Bias, or the preception of bias has to be established.

(w) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 9 & 10---Constitution of Pakistan, Art.184(3)---Contention was that legislature had completely abdicated its powers, as it had made excessive delegation of powers to the Wage Board without any guidelines---Petitioners had not pointed out during the proceedings or thereafter as to how Chairman of the Board had exceeded his authority/jurisdiction which was conferred upon the Board in terms of S.10 of the Act---Contention of the petitioner was repelled, having not been made with reference to any particular item in the award.

Muhammad Ismail & Co. v. Chief Cotton Inspector PLD 1966 SC 388; Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854; Zaibtun Textile Mills v. Central Board of Revenue PLD 1983 SC 358 and Abdur Rahim v. Federation of Pakistan PLD 1988 SC 670 ref.

(x) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 9 & 10---Wage Board---Objection was raised that as there was no industrial dispute, therefore, Government, suo motu, could not appoint the Wage Board for fixation of wages of the newspaper employees---Held, under S.9(1) of the Act, it was prerogative of the Federal Government to constitute whenever it so considered necessary by notification in the official Gazette the Wage Board for fixing the wages of the newspaper employees---Principles.

Express Newspapers Ltd. v. Union of India AIR 1958 SC 578 ref.

(y) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 2(h), 9 & 10---"Wage"---Scope---'Wages' means the 'wages' as defined in the Payment of Wages Act, 1936 and includes any gratuity or any other payment declared as wages by the Board---Chairman of the Board has control/powers as envisaged by S.10 of the Act to give directions relating to granting of grades etc. to the newspapers in view of the ground realities based on evidence collected by the Board.

Pakistan Herald Publications Ltd. v. Federation of Pakistan 1998 CLC 65 ref.

(z) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Preamble---Scheme of the Act shows that comprehensive procedure-cum-substantive code has been provided to the newspaper employees by the legislature in view of the nature of their duties which they have to perform necessarily other than the workers or workmen as defined in relevant labour laws---No redundancy or superfluity therefore, could be attributed to the Newspaper Employees (Conditions of Service) Act, 1973 and the same is not ultra vires of the Constitution---Legislature is not debarred from promulgating such laws as general or special laws, vis-a-vis general civil laws, special rights, procedures, etc.-Principles.

The scheme of the Newspaper Employees (Conditions of Service), Act, 1973 makes it abundantly clear that a comprehensive procedural-cum-substantive code has been provided to the newspaper employees by the legislature in view of the nature of their duties which they have to perform necessarily other than the workers or workmen as defined in the Factories Act or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, therefore, by means of the Act, their rights and obligations have been protected. This is not the only statute of its nature where Payment of Wages Act, etc., have been applied by following the process of adoption of laws, which is well settled approach in modern jurisprudence. If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the latter Act, you have no occasion to refer to the former Act at all. Similarly, a statute may adopt all or only a part of another statute by express reference or by re-enactment of the former in verbatim or in substantially the same language. Therefore, no redundancy or superfluity can be attributed to the Act on this score. The Legislature is not debarred from promulgating such laws as general or special laws, vis-à-vis general civil laws, special rights, procedures, etc., therefore, the Newspaper Employees (Conditions of Service) Act, 1973 is not superfluous and cannot be declared ultra vires the Constitution.

(aa) Interpretation of statutes---

----Adoption of laws---Effect---If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the latter Act, you have no occasion to refer to the former Act at all---Statute may adopt all or only a part of another statute by express reference or by re-enactment of the former in verbatim or in substantially the same language.

(bb) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 11 & 12-A---Publication of decision of the Board---Period of time---Principles.

Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

(cc) Interpretation of statutes---

----Deeming clause in a statute---Scope---Deeming clause in a statute is to be read to the extent of its application and not beyond that.

(dd) Interpretation of statutes-

----Import of deeming clause in a statute---Purpose and nature---Purpose of importing a deeming clause is to place an artificial construction upon a word/phrase that would not otherwise prevail and sometimes it is to make the construction certain---Deeming clause is a fiction, which cannot be extended beyond the language of the section by which it is created or by importing another fiction.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Afzal Siddiqui, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record assisted by Hameed Ahmad, Mustafa Aftab Sherpao and Bilal Akbar Tarar, Advocates for Petitioners/Employers.

Maulvi Anwar-ul-Haq, Attorney General for Pakistan assisted by Salman Faisal, Syed Ali Mustafa Gillani and Mrs. Shafaq Mohsin, Advocates (On Court Notice).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for PFUJ (Dastoor Group).

Mehr Khan Malik, Advocate-on-Record for Respondent No.2C(i)(ii)(iii) & (v) (in C.P.No.987/2011 and for Respondent No.4 (in C.P.No.989 of 2011).

Salman Akram Raja, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record, assisted by Umar Akram Chaudhry, Smeer Khosa, Malik Ghulam Sabir, Yasir Latif Hamdani, Faiz Ghanghro, Ms. Aneesa Agha and Ms. Sahr Bandial, Advocates for Respondent No.3 (in C.P. No.987 of 2011 and for Respondent No.4 (in C.P.No.988 of 2011) and For Respondent No.6 (in C.P. No.989 of 2011).

Shaukat Aziz Siddiqui, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.3 (in C.P.No.988 of 2011).

Nemo (despite service of notice) for Respondent No.1 (in C.P.No.987 of 2011).

Nemo (despite service of notice) for Respondent No.1-3 (in C.P.No.988 of 2011).

Nemo (despite service of notice) for Respondent No.1-2: (in C.P.No.989 of 2011).

Dates of hearing: 20th, 21st, 28th and 29th September, 2011.

P L D 2012 Supreme Court 66

Present: Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja and Mian Saqib Nisar, JJ

Major MUHAMMAD KHALID KARIM---Appellant

Versus

Mst. SAADIA YAQUB and others---Respondents

Civil Appeal No.576-L of 2009, decided on 7th October, 2011.

(On appeal from the judgment dated 29-5-2009 passed by Lahore High Court, Lahore in W.P. No.3249 of 2008).

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

----S. 7(2), second proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Guardians and Wards Act (VIII of 1890), S.9(1)---Constitution of Pakistan, Art. 185(3)---Custody of minor---Leave to appeal was granted by Supreme Court to consider whether second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, had overriding effect on S.9(1) of Guardians and Wards Act, 1890; whether in the matters of custody of minors where question of territorial jurisdiction was involved, which of the said two provisions of law either second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, or S.9(1) of Guardians and Wards Act, 1890, would be applicable; whether in view of second proviso to S.7(2) of West Pakistan Family Courts Act, 1964, filing of suit for dissolution of marriage was sine qua non for including claims relating to dowry, maintenance, dower, personal properties and belongings of a wife, custody of children etc. in one plaint or independent suits to claim that relief could be filed notwithstanding filing of suit for dissolution of marriage.

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

----S. 5---Jurisdiction of Family Court---Scope---Family Court has exclusive jurisdiction under S.5 of West Pakistan Family Courts Act, 1964, to entertain, hear and adjudicate all matters which fall within the First Schedule to West Pakistan Family Courts Act, 1964, and the same includes custody and guardianship matters.

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

----S. 25---Guardians and Wards Act (VIII of 1890), S. 25---Custody of minor---Territorial jurisdiction---Determination---For the purposes of determining "territorial jurisdiction" of Family Court, it is the West Pakistan Family Courts Act, 1964, and rules framed thereunder, which are taken into account and not the provision of S.25 of Guardians and Wards Act, 1890.

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

----S. 7(2)---West Pakistan Family Courts Rules, 1965, R. 6(a) & (b)--- Family matters---Territorial jurisdiction---Determining factors---According to R.6(a) of West Pakistan Family Courts Rules, 1965, there are three factual eventualities which are relevant for the purposes of determination of "territorial jurisdiction" of Family Court; first, where the cause of action wholly or in part has arisen, meaning thereby, in the custody or guardianship disputes if minors are with the mother and they have been illegally and improperly removed and taken away from the place where they were living with her (or vice versa for father as well) the cause of action is said to have arisen at such place, otherwise the cause of action is deemed to have arisen where the minors are residing; second, under R.6(b) West Pakistan Family Courts Rules, 1965, where the parties reside or last resided: third, as per proviso to R.6 of West Pakistan Family Courts Rules, 1965, in a suit for dissolution of marriage or dower where the wife ordinarily resided---In view of the addition of proviso to S.7(2) of West Pakistan Family Courts Act, 1964, if in a suit for dissolution of marriage join other causes of action mentioned in that proviso, such suit also falls in the third category, otherwise not.

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

----Ss. 5 & 7(2), second proviso [as added by Family Courts (Amendment) Ordinance (LV of 2002)]---Guardians and Wards Act (VIII of 1890), Ss. 9(1), 12 & 25---Custody of minor---Territorial jurisdiction---Determination---Minors were permanently residing with their father at place "M" and their mother filed application for their custody before Guardian Judge at place "L"---Guardian Judge as well as Lower Appellate Court held that the courts at place "M" had territorial jurisdiction over the matter but High Court declared that proceedings initiated by mother of minors, at place "L" were maintainable---Validity---Minors were residing with their father at place "M", where they were admitted to school---Mother had failed to prove that she had brought them to place "L" and was deprived of their custody from there, on account of which the cause of action could arise in her favour at place "L"---Was not established, if before parting, the parties hereto were residing at place "L" so as to attract R.6(b) of West Pakistan Family Courts Rules, 1965---High Court had fallen in error while declaring the suit maintainable at place "L"---Supreme Court set aside the judgment passed by High Court and those of Guardian Judge and Lower Appellate Court were restored---Appeal was allowed.

Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal PLD 2005 SC 22 and Anne Zahra v. Tahir Ali Khilji 2001 SCMR 2000 distinguished.

Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109; Muhammad Bakhsh Masood v. Mst. Aysha Mai and others 2009 CLC 905; Asif Mowjee v. Mst. Fatema A Mowjee and another PLD 1987 Kar. 239; Mst. Zaibun Nisa v. Muhammad Mozammil PLD 1972 Kar. 401; Noor Zaman v. Mst. Saidano PLD 1967 Pesh. 343; Alifdin v. Shaukat Ali PLD 1969 Pesh. 62; Muhammad Amin v. Mst. Surraya Begum and others PLD 1969 Lah. 512 and Adanan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 ref.

Khawja Saeed-uz-Zafar, Advocate Supreme Court for Appellant.

Nazir Ahmed Kamboh, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Khawaja Haris Ahmed, A.G. Punjab and Jawwad Hassan, Addl. A.G. Punjab (On Court's notice).

Date of hearing: 8th February, 2011.

P L D 2012 Supreme Court 80

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Amir Hani Muslim, JJ

ABDUL MAJEED KHAN---Petitioner

Versus

TAWSEEN ABDUL HALEEM and others---Respondents

Civil Petition No.463 of 2011, decided on 19th September, 2011.

(On appeal against the judgment dated 9-2-2011 passed by the Lahore High Court, Lahore in RFA No.312 of 2010)

Per Amir Hani Muslim, J, Iftikhar Muhammad Chaudhry, C.J. and Khilji Arif Hussain, agreeing--

(a) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Suit for recovery of damages---Exercise of official authority---Mala fide acts---Rule of thumb---Applicability---Plaintiff was civil servant who suffered on account of official orders passed by defendant which were based on mala fide---Trial Court and High Court dismissed the suit filed by plaintiff---Validity---Orders passed by defendant were reversed by competent authority and those were found to be passed unauthorizedly---Plaintiff had brought on record a number of official documents through custodian of the record, which documents were neither objected to nor their contents were challenged by defendants before Trial Court at evidence stage---Plaintiff though had failed to quantify the damages claimed by him as required under the law, as such the same did not mean that plaintiff was not entitled to grant of general damages under the rule of thumb on the face of material brought on record by him during trial---Plaintiff was entitled to grant of general damages for mental agony which he had suffered on account of the conduct of defendant---Plaintiff pleaded specific instances to establish personal vengeance against defendant on account of which he claimed to have suffered losses and mental agony---Pleadings and evidence brought in support of claim of damages by plaintiff were sufficient to award general damages to plaintiff against defendant---Supreme Court set aside the judgments and decrees passed by Trial Court and High Court and partly decreed the suit in favour of plaintiff---Plaintiff was entitled for damages to the tune of Rs.100,000 with mark up at the rate of 10% till the date of recovery of the amount---Appeal was allowed.

Per Iftikhar Muhammad Chaudhry, C.J. agreeing with Amir Hani Muslim, J-

(b) Damages---

----'General damages' and 'special damages'---Distinction---Term 'general damages' refers to special character, condition or circumstances which accrue from immediate, direct and approximate result of wrong complained of---Similarly term 'special damages' is defined as actual but not necessary result of injury complained of---Special damages follow as a natural and approximate consequence in a particular case by reason of special circumstances or condition---In an action for personal injuries, general damages are governed by the rule of thumb whereas special damages are required to be specifically pleaded and proved---Special damages consist of out-of-pocket expenses and loss of earning incurred down to the date of trial and is generally capable of substantially exact calculation---General damages are those which law implies even if not specially pleaded, which includes compensation for pain and suffering and the like and if injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in future---Basic principle, so far as loss of earnings and out-of-pocket expenses are concerned, is that injured person should be placed in the same financial position, so far as can be done by an award of money he would have, had the accident not happened.

British Transport Commission v. Gourley [(1956) AC 185]; Qazi Dost Muhammad v. Malik Dost Muhammad 1997 CLC 546; Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991; Azziullah Sheikh v. Standard Chartered Bank Ltd. 2009 SCMR 276; Mrs.Alia Tareen v. Amanullah Khan PLD 2005 SC 99; C.K. Subramonia Iyar v. T. Kunhikuttan Nair AIR 1970 SC 376; Waldon v. War Office [(1956) 1 WLR 51] and The Mediana (1900 AC 113 and Cooper v. Firth Brown Ltd. [(1963) 2 All ER 31=[(1963) I WLR 418 rel.

(c) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Suit for damages---Special or general damages---Determination---Exercise of official authority---Mala fide acts---Plaintiff was civil servant who suffered on account of official orders passed by the defendant which were based on mala fide---Trial Court and High Court dismissed the suit filed by plaintiff---Validity---Plaintiff while appearing as his own witness did not try to explain the causes of damages except stating that due to acts of defendant, he had remained jobless for four years; suffered loss of lacs of Rupees; his father died due to mental torture; and he spent lacs of Rupees on litigation as well as on medical treatment of his wife; it was therefore, necessary to determine in the light of evidence available on record the expenses which plaintiff had actually and reasonably incurred for medical treatment and litigation---Plaintiff could recover as special damages under such head only the amounts so determined---Defendant objected to the manner in which damages were claimed by plaintiff, which were round sum on each head---Apparently damages were not based on any account; neither any breakup had been given nor any explanation was offered in that behalf---Plaintiff had failed to quantify special damages as such he was not entitled for the same---Plaintiff had suffered mentally due to illegal acts of defendant, which were ultimately set aside by competent forum---Plaintiff was entitled for general damages under the rule of thumb---Supreme Court partly decreed the suit in favour of plaintiff.

Per Khilji Arif Hussain, J. agreeing with Amir Hani Muslim, J--

(d) Damages--

----Classification---'General damages' are such, as the law presumes to be natural and probable consequences of defendant's act---'Special damages' are such as the law does infer from wrongful act but those must, therefore, be specially claimed in pleadings and proved through evidence thereof at the trial---Besides broad classifications as general and special, damages may also be contemptuous damages; nominal damages; punitive or exemplary; compensatory; and prospective damages.

(e) Damages---

----General damages---Determining factors---General damages must be such which would compensate the injured---Loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses may not be accurately calculated in terms of coins but for such reasons alone, courts do not decline to grant compensation and formulate certain parameters and devise principles for evaluation or assessment of such general damages---Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to victim---No yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation---Court in its discretion may on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person who has suffered such damage---General damages are those, which law implies in very violation of legal rights---Such damages need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown---Vital canon followed by judicial mind in such cases is that conscience of court should be satisfied that damages awarded would, if not completely, satisfactorily compensate the aggrieved party---Adequate care should be taken in such regard while dilating on quantum of awards and court should be vigilant to see that claim is not fanciful or remote, the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony, but court should give the aggrieved party what it considers in all circumstances a fair and reasonable compensation for his loss.

C.B. Singh v. Agra Cantonment AIR 1974 All. 147; West Pakistan Industrial Development Corporation Karachi (WPIDC) v. Aziz Qureshi 1973 SCMR 555 and Muhammad Hanif v. Muhammad Bashir 2004 YLR 173 rel.

(f) Tort--

----Law of torts---Applicability---Principles---Law of torts or civil wrongs in Pakistan is almost wholly the English Law, which is administered as rules of justice, equity and good conscience---Before applying any rule of English Law, court has to see whether it suits to the society and circumstances.

(g) Tort--

----Malicious prosecution---Remedy---Where a claimant has been subjected to a criminal prosecution, as a consequence of which he loses or risks losing his liberty and/or his reputation, a remedy in the court of tort of malicious prosecution lies---Institution of a civil action should exceptionally result in liability under tort, when claimant loses the suit, the defendant's reputation is restored and he recovers his cost spent on defending the action---For malicious proceedings in bankruptcy and winding up, which may wreck claimant's business, destroy confidence in his competence and integrity and in his company's goodwill, a remedy in tort lies.

(h) Malicious prosecution---

----Claim---Determining factors---To ground a claim for malicious prosecution plaintiff must prove that the law was set in motion against him on a criminal charge; that the prosecution was determined in his favour; that it was without reasonable and proper cause; and that it was malicious.

Gregory v. Portsmouth Council (2001) 1 All.ER 560; Cavaley v. Chief Constable (1989) All.ER 1025; Muhammad Amin v. Jogendra Kumar AIR 1947 PC 108; Imran Raza Zaidi v. Government of Punjab 1996 PLC (C.S.) 691; Muhammad Shafi v. Hamidan Bibi 1990 MLD 597; Abdul Rauf v. Abdul Hamid Khan PLD 1965 SC 671; Lucknow Development Authority v. M.K. Gupta AIR 1994 SC 787 and Yaqoob Shah v. XEN, PESCO (WAPDA) PLD 2002 SC 667 rel.

(i) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Damages---Protection---Principle---Act of mala fide---Effect---Protection provided under S.23-A of Civil Servants Act, 1973, to an officer is only for the acts done 'bonafidely' but not for an act which is not bona fide---Malicious acts are not protected under said provision of law---Any order passed malafidey in colourable exercise of power cannot be termed as an act done in exercise of power conferred by Act or Rules but in fact it is an act of abuse of power to which no protection can be extended.

(j) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Damages---Misuse of authority---Imposing markup/ interest on damages---Various orders passed by defendant against plaintiff were result of personal vendetta and without any basis, just to humiliate and torture him---Plaintiff claimed for general damages aggrieved on account of mental torture, damage to service career and legal expenses incurred by him---Supreme Court found the plaintiff entitled to damages with markup/interest---In absence of any statutory provisions, custom and usage, the defendant could not be burdened with the interest/markup from the date of filing of the suit.

Messrs A.Z. Company v. Messrs S. Maula Bakhsh Muhammad Bashir PLD 1965 SC 505; Pakistan v. Waliullah Sufyan PLD 1965 SC 310; Messrs Ralli Brothers Ltd. V. Firm Messrs Bhagwan Das Parmeshri Dass AIR 1945 Lah. 35; Jaggo Bai v. Hari Har Prasad AIR 1947 Privy Council 173 and A. Ismailjee and Sons Ltd. v. Pakistan PLD 1986 SC 499 rel.

Petitioner in person.

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 and 3.

Nemo for Respondent No.2.

Date of hearing: 15th July, 2011.

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Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Tassaduq Hussain Jillani, Nasir-ul-Mulk, Muhammad Sair Ali, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Tariq Parvez, Mian Saqib Nisar, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Amir Hani Muslim, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ

FEDERATION OF PAKISTAN through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad---Petitioner

Versus

Dr. MUBASHIR HASSAN and others---Respondents

C.M.A. No.5144 of 2011 and Civil Review Petition No.129 of 2010 in Constitutional Petitions Nos.76 to 80 of 2007, 59 of 2009 and C.M.A. No.1427 of 2011 etc.

(Against the judgment dated 16-12-2009 passed in Constitution Petitions Nos.76 to 80 of 2007).

(a) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review of Supreme Court judgment---Scope---Review petition, in the present case, neither disclosed discovery of a new important matter nor evidence of which the petitioner was not aware of at the time of hearing of the main petition to bring it to the notice of Supreme Court---Examination of impugned paragraphs of the judgment sought to be reviewed, did not reflect any error or mistake within the meaning of the constitutional and statutory provisions or Supreme Court Rules, 1980 to warrant exercise of review jurisdiction.

The power of review has been conferred upon the Supreme Court in terms of Article 188 of the Constitution and the Court is to exercise the said jurisdiction strictly within its parameters because the Constitution mandates that, no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

In terms of Art.188, this power is subject to any Act of the Parliament or Rules framed by Supreme Court. The Parliament has not enacted any law in this regard but Supreme Court has framed Rules and Order XXVI, Rule 1, relates to the Supreme Court's power to review.

Rule 1, O. XXVI of Supreme Court Rules, 1980 provides that Supreme Court may review its judgment in a civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of C.P.C. and in a criminal proceeding if there is an "error apparent on the face of record". To comprehend the nature of grounds in a civil proceeding which may warrant review, Rule 1 of Order XLVII, C.P.C. has to be kept in view.

An analysis of the contentions raised in the petition and submissions made by petitioner's counsel, in the present case, would indicate that they neither disclose discovery of a new important matter nor evidence of which the petitioner was not aware of at the time of hearing of the main petition to bring it to the notice of Supreme Court.

Supreme Court, on a careful examination of impugned paragraphs of the judgment sought to be reviewed found that said paras. did not reflect any error or mistake within the meaning of the Constitutional and statutory provisions or the Rules framed by Supreme Court to warrant exercise of review jurisdiction.

(b) Constitution of Pakistan---

----Art. 89---Power of the President to promulgate Ordinance---Scope---President, in terms of Art.89 of the Constitution may promulgate an Ordinance and it shall have the same effect as an Act of the Parliament, however, Art.89 inter alia provides that it shall stand repealed if not extended by the National Assembly within the period stipulated in the said Article.

(c) Constitution of Pakistan---

----Art.264---Effect of repeal of laws---Scope---Article 264 of the Constitution which governs the implications of repeal of law would not be attracted to the laws which are declared to be void on ground of their being violative of the fundamental rights enshrined in the Constitution---Court seized of such matters is to provide the solutions to the implications---Expression "ceased to have effect" is not synonymous with "repeal" as is envisaged by Art.264 of the Constitution.

Muhammad Arif v. The State 1993 SCMR 1589; Government of Punjab v. Zia Ullah Khan 1992 SCMR 602; Jannat-ul-Haq v. Abbas Khan 2001 SCMR 1073 and Muhammad Iqbal v.Ghaunsullah Khan 2002 CLC 1533 ref.

(d) Constitution of Pakistan---

----Art.188---Supreme Court Rules, 1980, O.XXVI, R.6---National Reconciliation Ordinance (LX of 2007), Preamble---Review of Supreme Court judgment---Scope---Review petition by Federation of Pakistan by the counsel who admittedly did not appear for the Federation in the main case---Maintainability---Neither the Parliament had approved the Ordinance in question as an Act nor defended the law rather did not oppose revival of criminal cases under the said Ordinance, yet the petition for review of the judgment of Supreme Court was filed on behalf of the Federation---Counsel for the petitioner/Federation did not elaborate as to how, in circumstances, the Federation was an "aggrieved person" or disclose any other "sufficient cause" to fall within the parameters of the law regulating the review jurisdiction---Supreme Court, in the interest of justice, held a detailed hearing and even allowed the counsel for review petitioner to argue the matter so that if it was found by the Court that a case for review was made application seeking the permission to argue will be allowed, which could only have been argued under the Supreme Court Rules, 1980 by the counsel who appeared for the Federation in the main case---Application seeking permission to argue the review petition by the counsel who admittedly did not appear for the Federation in the main case was violative of O.XXVI, R.6 of the Supreme Court Rules, 1980 and therefore, not tenable---Review petition was dismissed by the Supreme Court.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 843 reiterated.

Babar Awan, Advocate Supreme Court, Mahmood A. Sheikh, Advocate-on-Record, Masood Chishti, Secretary, Ministry of Law and Justice for Applicant/Petitioner (in C.M.A.5144/11 and CRP No.129/10).

Maulvi Anwar-ul-Haq, Attorney General for Pakistan (On Court notice).

Salman Akram Raja, Advocate Supreme Court and Mehr Khan Mali, Advocate-on-Record for Respondent No.1 (in CRP No.129 of 2010).

Date of hearing: 25th November, 2011.

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Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Khilji Arif Hussain, JJ

MUHAMMAD YASIN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and others---Respondents

Constitutional Petition No.42 of 2011, decided on 4th October, 2011.

(Constitutional Petition under Article 184(3) of Constitution of Islamic Republic of Pakistan)

(a) Constitution of Pakistan--

----Art. 184(3)---Constitutional jurisdiction under Art.184(3) of the Constitution---Scope---Exercise of jurisdiction by Supreme Court is not dependent on the existence of a petitioner---Supreme Court can exercise jurisdiction under Art.184(3) of the Constitution even where a legal proceeding in respect of the same matter was pending or hand been finally decided by High Court.

Suo Motu Case No.10 of 2009 (2010 SCMR 8845)ref.

(b) Constitution of Pakistan---

----Part II, Chap. I [Arts. 8 to 28]---Fundamental rights---Scope---People of Pakistan have fundamental rights that they be governed by a State which provides effective safeguards for their economic well-being; a State which protects, inter alia, the belongings and assets of the State and its citizens from waste and malversation---Constitution is not silent on issues which affect economic life of nation and its citizens---Constitution contains a whole range of Articles which have a direct nexus with good economic governance and fundamental rights.

Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407 rel.

(c) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 3---Constitution of Pakistan, Arts. 3, 4, 5(2), 9, 14, 18, 23, 24 & 184(3)---Suo motu powers of Supreme Court---Scope---Fundamental rights---Appointment of Chairman of Oil and Gas Regulatory Authority---Eligibility---Rights of citizens would be adversely affected if Chairman or other Members of Oil and Gas Regulatory Authority are appointed though they are not eligible---Any increase in consumer prices, which results from lack of competence or integrity or because of inefficient regulation would result in depriving citizens of their fundamental rights guaranteed by Arts.9, 14, 18, 23 and 24 of the Constitution because scales would impermissibly stand tilted against citizens and in favour of those engaged in regulated activities---If taxes or fees are spent in violation of law, it would amount to breach of Arts.3, 4 and 5(2) of Constitution and would also constitute denial of citizen's fundamental rights guaranteed by Arts 9, 14, 18, 23 and 24 of the Constitution---Oil and Gas regulatory Authority is the institution which is mandated to regulate oil and gas trade and to determine tariffs and fix prices for consumers and its effective functioning has a direct nexus with securing fundamental rights of the people of Pakistan.

(d) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 3 & Preamble---Oil and Gas Authority---Autonomy, maintenance of---Principle---Autonomy of Oil and Gas Regulatory Authority (OGRA) is only possible when appointments to key positions in these regulators are made in a demonstrably transparent manner; that is, by ensuring implementation of the checks which Oil and Gas Regulatory Authority Ordinance, 2002, lays down for such appointments.

(e) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 3---Constitution of Pakistan, Art.184(3)---Constitutional petition under Art.184(3) of the Constitution---Scope---Appointment of Chairman of Oil and Gas Regulatory Authority---Mala fides---Proof---Simply because petitioner might have been a contender for the office of Chairman OGRA, the same did not per se translate into mala fides.

(f) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 3---Constitution of Pakistan, Art.184(3)---Under Art.184(3) of the Constitution---Maintainability---Petitioner filed direct petition before Supreme Court assailing appointment of respondent as Chairman of Oil and Gas Regulatory Authority (OGRA), being illegal and unlawful---Respondent raised the plea that direct petition before Supreme Court was not maintainable---Validity---Number of Articles of the Constitution made it clear that Constitution was not silent about economic life of the nation and concomitant fundamental rights of its citizens; there was ever-greater nexus between proper and independent functioning of regulatory bodies and economic life of the nation and its citizens and such nexus was fully recognized by the Legislature in its use of language employed by Oil and gas Regulatory Authority Ordinance, 2002---Regulatory bodies function competently and independently only once their autonomy was ensured through enforcement of legal checks upon appointments to important positions therein---Validity of the process of appointment of the Chairman OGRA was a matter of public importance which had a direct linkage with fundamental rights of the people of Pakistan and warranted exercise of jurisdiction by Supreme Court under Art.184(3) of the Constitution---In order to enforce fundamental rights of the people of Pakistan, it was essential that good governance in OGRA was ensured---To achieve such objectives it was crucial that "highly qualified" persons of "known competence and integrity" were appointed as Chairman and Members of OGRA---Such could only happen if the highest and the most exacting standards of diligence, transparency and probity were employed in selection of such persons---Same having not been done, the selection process seriously and irretrievably undermined the merit---Such action potentially resulted in direct harm to the people of Pakistan and also contributed towards heart-burn and disillusionment amongst genuine and competent aspirants for public office---Direct impact of ignoring merit and eligibility criteria prescribed by Oil and Gas Regulatory Authority Ordinance, 2002, also had the potential of causing harshly adverse consequences including unjustified inflation in retail prices for consumers, thus depriving the people of Pakistan of their incomes, assets, quality of life and dignity---Selection process of authorities, was inherently unsuited for identifying and coming up with a suitable person for appointment as Chairman OGRA---Supreme Court directed the authorities that the appointment of respondent was void ab inito; that as a consequence, the notification of appointment of respondent was set aside and the position of Chairman, OGRA was declared to be vacant; that the position would be filled after adhering to credible rigorous and transparent selection process undertaken with due diligence along the lines indicated by Supreme Court or along such lines as the Executive might delineate ensuring obedience to the legislative command given in Oil and Gas Regulatory Authority Ordinance, 2002; that the salary and value of perquisites and benefits availed by respondent from the date of his appointment till the date of judgment passed by Supreme Court would be recovered from him at the earliest; that the National Accountability Bureau would probe into and prepare a report on the matters of the serious allegations enumerated in the constitutional petition including those enumerated in the judgment; the conduct of State functionaries who were engaged in the process of selection of respondent as Chairman, OGRA and their possible culpability for malfeasance, non-feasance and other wrong doing; and the misuse of public office and involvement of holders of public office in corruption or corrupt practices in terms of National Accountability Ordinance, 1999; that the Chairman NAB would proceed in the matter with promptness and diligence required in the matter; that the report of NAB would be submitted in the Supreme Court within 45 days from the date of judgment and that the matter be placed before Supreme Court after 45 days for such further orders as would be considered appropriate.

Suo Motu Case No.10 of 2009 2010 SCMR 885; Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Moulvi Iqbal Haider v. Capital Development Authority and others 2006 SC 394; Dattaraj Nathuji Thaware v. State of Maharashtra and others [(2005) 1 SCC Cases 590]; Corruption of Hajj Arrangement's case (Suo Motu Case No.24 of 2010); Tariq Aziz-ud-Din's case 2010 SCMR 1301; Qaboos Namah; Nizamul Mulk Toosi's Siyasat Namah and Centre for PIL and another v. Union of India and another 2011 INDLAW SC 141 rel.

(g) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S.3---Constitution of Pakistan, Art. 184 (3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of Chairman of Oil and Gas Regulatory Authority---Judicial review---Scope---Constitution is organized essentially on the principle of separation of powers between the Executive, the Legislature and the Judicature; in such scheme, to each is assigned its domain and sphere of operation---Power to make appointments in bodies such as Oil and Gas Regulatory Authority is by and large, the province of the Executive---Ordinarily, Courts do not go into a detailed scrutiny of such matter and defer to the Executive's discretion in exercise of such power, if the commands of the Legislature have been complied with---Court's deference, to the Executive authority lasts for only as long as the Executive makes a manifest and demonstrable effort to comply with and remain within legal limits which circumscribe its power---Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner and exercise of such powers can be judicially reviewed---Provisions of Oil and Gas Regulatory Authority Ordinance, 2002, do not state that Federal Government may "in its absolute and unfettered discretion" appoint a Chairman---Quite to the contrary, the Legislature has specified measurable objective criteria which must be adhered to in making such appointment---If the criteria prescribed by law are not met, any appointment made would be violative of the law and would, therefore, necessarily be subject to judicial review.

Corruption of Hajj Arrangement's case (Suo Motu Case No.24 of 2010) and Tariq Aziz-ud-Din's case 2010 SCMR 1301rel.

(h) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S.3---Appointment of Chairman of Oil and Gas Regulatory Authority---Validity---To test the validity of appointment process, it would be useful to adopt a test based on the considerations that as to whether an objective selection procedure was prescribed; that if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise i.e. selection of the sort of candidate envisaged in S.3 of Oil and Gas Regulatory Authority Ordinance, 2002; and that if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigour, objectivity, transparency and due diligence to ensure obedience to the law.

(i) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 3(4)---Appointment of Chairman of Oil and Gas Regulatory Authority---Selection criteria---Legislature, by providing such merit based criteria had made its intention abundantly clear as to the sort of person who should occupy the position of Chairman---Considerations based on nepotism, favouritism or personal whims and fancies have been eliminated by the Oil and Gas Regulatory Authority Ordinance, 2002, in categorical terms and has circumscribed the Executive's discretion in appointment of Chairman---Executive must abide by and obey the command of the Legislature and if it fails to do so, the court may be obliged to step in and ensure such obedience.

Mian Abdur Raoof, Advocate Supreme Court for the Petitioner.

Dil Muhammad Khan Alizai, DAG, M.S. Khattak, Advocate-on-Record and Ejaz Mehdi, Dy. Secretary, Cabinet for Federation 2 & 4.

Nemo for the Respondents Nos.1 & 3:

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for the Respondent No.5.

Dates of hearing: 3rd October, 2010 and 4th October.2011

P L D 2012 Supreme Court 179

Present: Tassaduq Hussain Jillani, Muhammad Sair Ali and Sarmad Jalal Osmany, JJ

SHER MUHAMMAD UNAR and others---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.267 of 2011, decided on 18th October, 2011.

(Against the judgment of the High Court of Sindh Karachi dated 1-6-2011 passed in Criminal Revision Application No.152 of 2010).

Criminal Procedure Code (V of 1898)---

----Ss. 193, 403 & 173---Constitution of Pakistan, Art. 13---Double jeopardy, principle of---Applicability---Innocence during investigation--Accused persons were declared innocent during investigation but Trial Court summoned them to face the trial---Plea raised by accused persons was that summoning them by Trial Court to face trial had attracted principle of double jeopardy---Validity---Finding of guilt or innocence by police at investigation stage was not a finding in trial culminating in conviction or acquittal and principle of double jeopardy could not be invoked by accused---Even if when an accused was discharged by Magistrate/Trial Court, the consequence was that he was discharged from his bond at a stage when his custody was no longer required by investigating agency---Such order was only an executive order passed at investigating stage when the case had yet to go for trial--- Court could still try the accused, if some fresh material was brought before it---Accused were not discharged by Trial Court and order of their discharge was based on police report and the same could not be equated with acquittal---Trial Court was not bound by such finding of innocence reflected in final report submitted under S.173, Cr.P.C. and it could still summon the accused---Trial Court having assessed the evidence, came to prima facie conclusion that a case was made out against accused persons and summoned them, which order was upheld by High Court---Prima facie concurrent assessment of evidence (which was preliminary in nature) led by complainant was neither arbitrary nor against the record to warrant interference---Trial Court was to assess evidence which was finally recorded in presence of all accused and consider defence plea, strictly in the light of principles laid down by Supreme Court for safe administration of justice--- Supreme Court declined to interfere in the orders passed by Trial Court as well by High Court---Appeal was dismissed.

Nasrullah v. the State 1997 MLD 1430; Arshad Ali Shah v. Saeed Ahmed Ashraf 1996 PCr.LJ 1673; Ghulam Hussain v. State 2001 YLR 387; Alamdar Hussain Shah v. Abdul Baseer Qureshi PLD 1978 SC 121 and Abdul Malik v. The State PLD 2006 SC 365 ref

Falak Sher v The State PLD 1967 SC 425 and Muhammad Akbar v The State 1972 SCMR 335 rel

Abdul Hafiz Pirzada, Senior Advocate Supreme Court, Mian Gul Hassan Aurangzeb, Advocate Supreme Court, Memood A. Sheikh, Advocate-on-Record along with Petitioner No.1 in person.

Zafar Ahmed Khan, Addl. P.G. for the State

In person Complainant

Date of hearing: 18th October, 2011.

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Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Tariq Parvez, JJ

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources---Appellants

Versus

DEWAN PETROLEUM (PVT) LTD. Through M.D./Chief Executive and another---Respondents

Civil Appeal No.75 of 2011, decided on 19th October, 2011.

(On appeal from judgment of Lahore High Court Rawalpindi Bench Rawalpindi dated 14-7-2010 passed in W.P. No.3708 of 2009).

(a) Constitution of Pakistan---

----Art. 100(3)---Rules of Business (1973) R.14---Legal opinion of Attorney General for Pakistan---Scope---Even a legally recorded opinion of Attorney General for Pakistan in terms of Art. 100(3) of the Constitution read with R.14 of Rules of Business, 1973, can only be termed as an advice to Federal Government, which may or may not be approved, regarded or honoured by concerned quarters.

(b) Constitution of Pakistan---

----Art. 100(3)---Rules of Business, (1973) R.14---Legal opinion of Attorney General for Pakistan---Scope---Contractual obligation---Amicable settlement---Fixation of well-head price of natural gas---High Court, in exercise of constitutional jurisdiction directed the authorities to fix gas price as per interpretation of agreement in question by Attorney General for Pakistan---Validity---Obtaining opinion of Attorney General for Pakistan at the instance of Ministry of Justice, Law and Parliamentary Affairs was an internal arrangement within the government functionaries for the purpose of their collaborated working---Such opinion did not have any binding effect thereof in favour of a third party unless so chosen by Federal Government or concerned Ministry---Concerned Ministry of Federal Government did not give its consent for referring the matter for opinion of Attorney General for Pakistan as a mode of amicable settlement on the understanding of giving it a binding effect---Steps taken by respondent company in undertaking whole exercise, which culminated in opinion of Attorney General for Pakistan could not be regarded as an exercise within the meaning of "amicable settlement" envisaged under the agreement in question---At no point of time, before or after recording of opinion in question, Federal Government ever acceded to or showed its willingness to accept the same as an "amicable settlement" between the parties for resolution of such dispute, rather it strongly resisted such move---Exercise of jurisdiction by High Court, to the extent of issuing direction to Federal Government to do the needful at the earliest would have been just, equitable and lawful but without bracketing it with the opinion of Attorney General for Pakistan or making it binding, thereby causing serious prejudice to the interest of Federal Government---Supreme Court directed the authorities that without being prejudiced or influenced and, independent to the opinion of Attorney General for Pakistan, the parties would immediately either have recourse to "amicable settlement" of their dispute in terms of the agreement in question and to finalize it within thirty days or they would have recourse to arbitration strictly in terms thereof, without any further loss of time---Supreme Court set aside the judgment passed by High Court---Appeal was allowed.

(c) Amicable settlement---

----Scope---Combined reading of two words "amicable" and "settlement" incorporated in agreement in question showed that recourse to amicable settlement of any dispute between the parties to agreement was only possible through a mode mutually agreed by them and not at the instance of one party alone, forcing and pressurizing other one through different modes to agree, consent and to give it a binding effect.

(d) Constitution of Pakistan---

----Art. 185(3)---Law Reforms Ordinance (XII of 1972), S. 3---Petition for leave to appeal---Maintainability---Non-availing of remedy of intra-court appeal---Validity-In peculiar facts and circumstances of the case, Supreme Court entertained appeal as an exception to general rule of first availing remedy of intra-court appeal against judgment of Judge of High Court.

Shohrat Bano v. Ismail Dada Adam Soomar 1968 SCMR 574; Commissioner of Income Tax v. Media Network PLD 2006 SC 787 and Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir PLD 2011 SC 132 ref.

Abid Hasan Minto, Senior Advocate Supreme Court and Salim Salam Ansari, Advocate Supreme Court for Appellants.

Maulvi Anwar-ul-Haq, Attorney-General assisted by (i) Salaman Faisal, Syed Ali Mustafa Giliani, Ms. Shafaq Mohsin, Advocates and Bismillah Rai, Diretor (Law), M/o Petroleum and Natural Resources On Court notice.

Wasim Sajjad, Senior Advocate Supreme Court and Qamar Afzal, Advocate Supreme Court for Respondent No.1.

Tariq Aziz, Advocate Supreme Court for Respondent No.2.

Dates of hearing: 24th, 25th and 26th May, 2011.

P L D 2012 Supreme Court 211

Present: Muhammad Sair Ali and Mian Saqib Nisar, JJ

Ch. MUHAMMAD SIDDIQUE and another---Appellants

Versus

Mst. FAIZ MAI and others---Respondents

Civil Appeals Nos. 570 and 571 of 2006, decided on 11th October, 2011.

(On Appeal from the judgment dated 21-2-2001 passed by Lahore High Court, Bahawalpur Bench in R.S.A. Nos. 12 & 13 of 1987).

(a) Punjab Pre-emption Act (I of 1913)---

----Ss. 5 & 7---Constitution of Pakistan, Art.185(3)---Pre-emption suit in respect of urban immovable property---Admission of counsel for parties about existence of custom of pre-emption in the area of suit property---Suit decreed on basis of such admission upheld by first and second appellate courts---Validity---Leave to appeal was granted by Supreme Court to examine if the right of pre-emption vesting in a pre-emptor was subject to proof of existence of custom in the vicinity in terms of S.7 of Punjab Pre-emption Act, 1913, onus whereof lying on him, but he neither pleaded custom nor had proved the same, thus what would be effect thereof.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss. 5 & 7---Civil Procedure Code (V of 1908), O. VII, R.1(e) & O.XII, R.1---Qanun-e-Shahadat (10 of 1984), Art.30---Pre-emption suit in respect of urban immovable property---Existence of custom of pre-emption in the vicinity of suit property neither pleaded nor proved---Admission of counsel for parties about existence of such custom---Suit decreed on the basis of such admission upheld by first and second appellate courts---Validity---Proof of custom in the area was sine qua non for claiming right of pre-emption under S.7 of Punjab Pre-emption Act, 1913---Neither plaintiff could ask for exercise of such right or enforce the same nor could any decree be validly passed in his favour without specifically making out a case in the plaint in terms of S.7 of Punjab Pre-emption Act, 1913 and proving same through his evidence---Plaintiff in plaint had claimed superior right of pre-emption without pleading existence of any custom in the area---Mere non-denial of a fact in written statement, which was not pleaded in the plaint, could not be legally construed to be an "admission" and defendant could not be punished for such non-denial---Defendant in written statement had denied right of pre-emption claimed in the plaint, thus, same was sufficient denial of custom---Defendant by filing affidavit with first appeal had asserted that admission of his counsel regarding existence of such custom recorded in judgment of Trial Court was not correct---Trial court had not framed issue regarding such custom due to absence of its plea in plaint nor was there a occasion for defendant to deny the same in the written statement---Supreme Court set aside impugned judgments and dismissed the suit, in circumstances.

Dr. Iqbal Ahmad Chaudhry v. Muhammad Inayat through legal heirs and another 1993 SCMR 1477; Nizam-ud-Din v. Ghulam Muhammad 1992 SCMR 404; Karim Ahmad v. Rahmat Elahi and others AIR 1946 Lah. 432 and Muhammad Yunas Khan v. Barkatullah AIR 1946 Pesh. 5 rel.

Mst. Hayat Begum v. Faiz Ahmad and another PLD 1966 Lah. 581distinguished.

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

----O. VII, R. 1(e)---Plaint, contents of---Scope---Plaint must disclose a cause of action i.e. contain statement of material facts necessary for plaintiff to allege and prove in order to succeed in his cause.

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

----O. VII, R.1(e), O.VIII, Rr. 3, 5 & O.XII, R.6---Qanun-e-Shahadat (10 of 1984), Art.30---Fact not specifically pleaded in plaint nor denied by defendant in written statement---Effect---Such non-denial could not be legally construed to be an "admission"---Defendant could not be punished for non-denial of a fact not pleaded in the plaint, which plaintiff was bound to allege in order to constitute a cause of action and then prove the same for passing a decree in his favour.

Muhammad Ozair Chaudhry, Advocate Supreme Court for Appellants (in both appeals).

Nemo for Respondents (1-3) (in both Appeals)

Tariq Mehmood, Senion Advocate Supreme Court for Respondents (2, 4-8) (in both Appeals).

Date of hearing: 11th October, 2011.

P L D 2012 Supreme Court 217

Present: Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

Mst. SARWAR JAN and others---Appellants

Versus

MUKHTAR AHMAD and others---Respondents

Civil Appeal No.1497 of 2005, decided on 7th October, 2011.

(Against the judgment dated 28-7-2003 of the Lahore High Court, Rawalpindi Bench Rawalpindi, passed in Civil Revision No.57/D of 1996).

(a) Islamic Law---

----Succession, opening of---Scope.

The succession to the estate of a Muslim under the Muhammedan Law shall open the moment a person departs from this world. It is his legal heirs, as per the Shariah, who are alive at that time, shall be entitled to inherit his estate.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4---Succession---Inheritance in estate of grandfather claimed by children of his pre-deceased son---Validity---Succession to an estate of a Muslim under Muhammedan Law would open at the time of his death and his legal heirs alive at such time would be entitled to inherit his estate---Section 4 of Muslim Family Laws Ordinance, 1961 was prospective in nature and could not be given retrospective effect to undo or reopen inheritance already concluded under Muhammedan Law prior to promulgation of Muslim Family Laws Ordinance, 1961---Deceased grandfather had died in year 1956, while his son had died in year 1955---Legal heirs of pre-deceased son, thus, would not be entitled to inherit estate of their grandfather under Muhammedan Law---Suit filed by legal heirs of pre-deceased son was dismissed in circumstances.

Muhammad Yaqub and others v. Muhammad Ibrahim and others 2002 CLC 819 and

Muhammad Murad and 12 others v. Allah Bakhsh and 34 others 2006 MLD 286 ref.

Sardar v. Mst. Nehmat Bi and 8 others 1992 SCMR 82 distinguished.

(c) Interpretation of statutes---

----Prospective and retrospective applicability of a statute or a provision thereof---Scope---Statute or a provision thereof forming part of substantive law, if created or extinguished or affected rights of person, would ordinarily have a prospective effect except where same was made applicable by clear command of law.

Muhammad Munir Peracha, Advocate Supreme Court for Appellants.

Muhammad Younas Bhatti, Advocate Supreme Court for Respondents.

Date of hearing: 7th October, 2011.

P L D 2012 Supreme Court 222

Present: Asif Saeed Khan Khosa and Gulzar Ahmed, JJ

QAMAR alias MITHO---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.703-L of 2011, decided on 19th December, 2011.

(Against the order dated 21-7-2011 passed by the Lahore High Court, Lahore in Criminal

Miscellaneous No.7677 of 2011)

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/109/34--Qatl-e-amd, abetment---Bail, grant of---Further inquiry---Accused having not been named in the F.I.R., his name surfaced in the case for the first time after more than one month of the alleged occurrence when two persons nominated him as 'unknown culprit'---Said two persons were not mentioned in the F.I.R. as eye-witnesses of the alleged incident---Test identification parade had not been held for eye-witnesses to identify accused (unknown culprit mentioned in the F.I.R.)---No specific or particular inquiry to any person had been attributed to the unknown culprit (accused)---Accused had no connection with the motive set up in the F.I.R.---Culprits specifically nominated in F.I.R. to whom firing had been attributed had already been admitted to post-arrest bail---Case against accused called for further inquiry into his guilt---Accused's petition for leave to appeal was converted into appeal and allowing the same he was admitted to bail by Supreme Court.

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

----S. 497(2)---Bail---Scope---Further inquiry---Right of bail could not be refused to accused merely on account of his alleged abscondance which is a factor relevant only to propriety.

Ibrahim v. Hayat Gul and others 1985 SCMR 382 and Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 ref

Syed Iqbal Hussain Shah, Advocate Supreme Court and Tasneem Amin, Advocate-on-Record for Petitioner

Mazhar Sher Awan, Additional Prosecutor-General, Punjab along with Abdul Manaaf, S.I., P.S. Ferozwala

Date of hearing: 19th December, 2011.

P L D 2012 Supreme Court 224

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

FIAQAT HUSSAIN and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Planning and Development Division, Islamabad and others---Respondents

Constitutional Petitions Nos.50 and 69 of 2011, decided on 25th November, 2011.

(a) Constitution of Pakistan---

----Art. 25-A---Right to education---Education plays an important role in the successful life of an individual---Generally, education is considered to be the foundation of society which brings economic wealth, social prosperity, political stability and maintaining healthy population---Further progress of society is stopped in case of deficit of educated people---Educated people enjoy respect among their colleagues and can effectively contribute to the development of their country and society by inventing new devices and discoveries---Islam is a scientific religion emphasizing on the need of scientific inquiry---Need, purpose and kinds of education and as under the mandate of Quran and Ahadith, elucidated.

(b) Constitution of Pakistan---

----Arts. 270AA(8), (9), 25-A, 29, 7, 37(a) & 184(3)---Constitutional petition---Right to education---Duty of State---"State"---Definition---By virtue of Art.270AA(8)(9) of the Constitution [as substituted by Constitutional (Eighteenth Amendment) Act, 2010] the Concurrent Legislative List was omitted in pursuance whereof projects being run by the Federal Government in the Provinces, including Basic Education Community Schools were decided to be wound up---While assailing the proposal of such winding up prayer of the petitioners (fathers of students and employees of the Projects) was that the proposed action on the part the authorities of closing down "Establishment and Operation of Basic Education Community Schools" be declared to be without lawful authority and of no legal effect and be also declared to be in violation of Art.25-A of the Constitution and the proposed act of winding up of the National Commission of Human Resources may be held to be entirely unconstitutional and of no legal effect so as to allow the Commission to continue to perform the positive duty of providing basic human rights to the citizens of Pakistan, under Art.7 of the Constitution, and that the State including the Federal and the Provincial Governments, therefore, under Art.25-A of the Constitution, the Parliament, in view of the definition of the 'State' had not absolved the Federal Government from conferring the Fundamental Rights upon the children---State, in terms of Art.37(a) of the Constitution, shall form such policies on the basis of which State shall promote, with special care, the educational and economic interest of backward classes or areas---Held, under Art.29 read with Art.25-A of the Constitution the Fundamental Rights were required to be enforced by the State---Especially in view of Art.25-A of the Constitution, it had been made mandatory upon the State to provide the education to the children of the age of 5 to 16 years.

Sura Baqara 2:31-32; Sura Taha 20:114 and Sura Baqara 2:197; Sahih Muslim; Sunan Ibn Majah; The Bible, The Quran and Science; Kelly 1970, 1; Jamia Karachi v. Registrar of Trade Unions, Sindh 1981 PLC 403; Ghulam Mustafa v. Province of Sindh 2010 CLC 1383; Brown v. Board of Education [873 US 483 (1954)]; University of Delhi v. Ram Nath AIR 1963 SC 1873; Sura Alaq 96:1-5; Prof. G.A. Miana and others v. Federation of Pakistan (Constitution Petitions Nos.33 and 34 of 2011; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Mohini Jain v. State of Karnatka AIR 1992 SC 1858; Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Shehla Zia v. WAPDA PLD 1994 SC 693; Ahmad Abdullah v. Government of the Punjab PLD 2003 Lah. 752; Imdad Hussain v. Province of Sindh PLD 2007 Kar. 116 and Suo Motu, Case No.13 of 2009, PLD 2011 SC 619 ref.

(c) National Education Foundation Ordinance (XX of 2002)---

----Preamble---National Commission for Human Development Ordinance (XXIX of 2002), Preamble---Constitution of Pakistan, Arts.270AA, 25-A, 29, 7 & 184(3)---Constitutional petitions---Right to education---Principles of policy---Winding up of Basic Education Community Schools established under National Education Foundation Ordinance, 2001 and the Commission under Human Development Ordinance, 2002 and the Commission---Validity---National Education Foundation Ordinance, 2002 and National Commission for Human Development Ordinance, 2002, having been promulgated much prior to the introduction of Constitution (Eighteenth Amendment) Act, 2010, whereby Art.270AA was substituted in the Constitution in pursuance whereof the Concurrent Legislative List containing entries relating to education were abolished, were protected---Education was Fundamental Right of an individual, therefore, the Directive Principles of State Policy being subsidiary to the Fundamental Rights guaranteed under the Constitution were required to be protected under the law, which were holding the field---In presence of said two laws, and for the reasons that the Basic Education Community Schools were functioning under the control of Government agencies and by the NGOs, despite repealing of Concurrent Legislative List, the Government of Pakistan through Prime Minister had created a Division known as Professional and Technical Training Division, which had been authorized to deal with all the matters relating to NCHD and NEF---Provision, which had brought protection to both the Ordinances, could only be repealed by the repealing statute and merely by issuing any letter or the order as in the present case to close down the Project of Establishment and Operation of Basic Education Community Schools, was contrary to law.

(d) National Education Foundation Ordinance (XX of 2002)---

----Preamble---National Commission for Human Development Ordinance (XXIX of 2002), Preamble---Constitution of Pakistan, Arts.270AA, 25-A, 29, 7, 70 read with Federal Legislative List Part I, Entry 16 & 184(3)---Constitutional petitions---Right to education---Principles of Policy---Winding up of Basic Education Community Schools established under National Education Foundation Ordinance, 2002 and the Commission under Human Development Ordinance, 2002---Question for consideration was whether or not after abolishing the Concurrent Legislative List, the Federation was empowered to make legislation relating to the matters directly, indirectly or ancillary to the subject of education, particularly by introducing informal education, as presently was being imparted through Basic Education Community Schools in the country established under National Education Foundation Ordinance, 2002 and National Commission for Human Development Ordinance, 2002---Under Article 70 read with Entry 16 of Part I of the Federal Legislative List of the Constitution and the Constitutional Amendments, both the Ordinances were fully protected and shall remain operative unless repealed in accordance with the Constitution and so long both the Ordinances were holding the field, the Basic Education Community Schools providing informal education to the backward classes or the areas shall continue to function---Proposed action on the part of authorities of closing down establishment and Operation of Basic Education Community Schools was without lawful authority and of no legal effect and was in violation of Article 25-A of the Constitution---Proposed act of winding up of the Commission was unconstitutional and of no legal effect and the Commission was allowed to continue to perform the positive duty of providing basic human rights to the citizens of Pakistan---Order accordingly.

Agha Muhammad Ali Khan, Advocate Supreme Court, Ejaz Muhammad Khan, Advocate-on-Record for Petitioner (in Const. P.No.50 of 2011).

Syed Ali Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record (in Const. P. No.69 of 2011)

Makhdoom Ali Khan, Senior Advocate Supreme Court as Amicus Curiae.

Maulvi Anwar-ul-Haq, Attorney General for Pakistan, Dil Muhammad Alizai, Dy. A.G., Sulman Siddique, Chairman, FBR and Waqar Masood, Secy. Finance (On Court Notice).

Ch. Muhammad Azam, Secretary P&D, Muhammad Asif Sheikh (Advisor), Saif-ur-Rehman (Asstt Chief) and Manzoor Ahmad Lucky, SO for Respondent No.1

Nemo for Respondent No.2

Khalid Mehmood, S.O. for Respondents Nos. 3-4.

Nemo for Respondent No.5

Jawad Hassan, Addl. A.G. Pb. for Respondent No.6

Muhammad Qasim Jat, Advocate Supreme Court along with Muhammad Sajan, Director, Non-Formal, Eduction (On behalf of A.G. Sindh) for Respondent No.7.

Amanullah Kanrani, A.G. Balochistan for Respondent No.8.

Naveed Akhtar, Addl. A.G. KPK, Hadayatullah Khan, Dy. Secy., Amanatullah, S.O. and Saadia Atta Ghuman, Director, NEF for Respondent No 9.

Kamal Azfar, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on- Record for Respondent No.10.

Dates of hearing: 20th and 21st October, 2011.

P L D 2012 Supreme Court 247

Present: Nasir-ul-Mulk, Muhammad Sair Ali and Mian Saqib Nisar, JJ

Haji ABDUL KARIM and others---Petitioners

Versus

Messrs FLORIDA BUILDERS (PVT) LIMITED---Respondent

Civil Petition No.2052 of 2009, decided on 30th September, 2011.

(Against the judgment dated 3-11-2009 passed by High Court of Sindh, Karachi in H.C.A. No.D-279/2008).

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

----Ss. 15, 19 & Art. 113---Specific Relief Act (I of 1877), S.12---Contract Act (IX of 1872), S.62---First & Second Parts of Art.113, Limitation Act, 1908---Scope---Cases squarely falling within ambit of First Part of Art. 113 of Limitation Act, 1908 could not be adjudged or considered on touchstone of its Second Part for both being independent meant to cater two different types of suits of specific performance in relation to limitation attracted thereto---Limitation in suit for specific performance of agreement having a fixed date of its performance would run forthwith from such date irrespective of and notwithstanding there being a default, lapse or inability on part of either party thereto to perform his part of obligation in relation thereto---In cases falling in Second Part of Art. 113, wherein date of performance was not fixed or certain, date of refusal of performance would be only basis for computing limitation period---Exemption or exclusion from or enlargement of period of limitation in cases falling in First Part of Art.113 of Limitation Act, 1908 would be permissible only if there was a change in date fixed or same was dispensed with by parties vide any subsequent express agreement in writing made within original period of limitation by resorting to novation of original agreement or acknowledgment within purview of S.19 thereof---Party claiming such exemption etc., if same was provided and available under law, would be bound to plead grounds thereof in the plaint---General principle to the effect that "time is not the essence of contract" for not being an enunciation of any statutory instrument would have nothing to do with proposition of limitation of cases of specific performance---Limitation was a command of law prescribing statutory period within which a right had to be exercised or enforced---Courts would have no lawful authority to ignore date/period stipulated in contract meant to regulate period of limitation in terms of First Part of Art. 113 of Limitation Act, 1908---No exemption qua period of limitation in law could be claimed by plaintiff on account of pendency of litigation simpliciter in absence of an order of competent court preventing him to file suit---Principles.

Siraj Din and others v. Ms. Khurshid Begum and others 2007 SCMR 1792; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 and Narayan Jivangouda Patil and another v. Puttabai and others AIR 1945 PC 5 rel.

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

----S. 12---Limitation Act (IX of 1908), Ss. 15, 19 & Art. 113---Contract Act (IX of 1872), S. 62---Civil Procedure Code (V of 1908), O.VII, Rr. 6 & 11(d)---Qanun-e-Shahadat (10 of 1984), Art. 129---Suit for specific performance of sale agreement---Limitation---Date fixed in agreement for its completion being 31-12-1997, while plaintiff filed suit on 7-1-2003 alleging incompletion of agreement within stipulated period due to failure and inabilities of defendant to perform his part of agreement, interactions between parties and pendency of other litigation about suit property---Application under O. VII, R. 11, C.P.C., by defendant seeking rejection of plaint for suit being barred by time---Validity---Plaintiff had not alleged in the plaint that date fixed in original agreement had been changed or dispensed with by parties vide any subsequent express agreement in writing made within original period of limitation by resorting to novation of contract or acknowledgement in terms of S. 19 of Limitation Act, 1908---Purpose of using words "on or before 31-12-1997" in agreement was to enable parties to have sale completed prior to 31-12-1997---Such words would not take out date 31-12-1997 out of realm of "date fixed" as used in First Part of Art. 113 of Limitation Act, 1908---Such date being a definite date with reference to calendar clearly and unequivocally mentioned in agreement connoted ultimate, absolute, final and "date" terminal intended and meant by both parties for completion of sale---Present suit was not covered by Second Part of Art. 113 of Limitation Act, 1908, rather First Part thereof would attract thereto and limitation period would run forthwith from such date 31-12-1997 fixed by parties notwithstanding alleged failure and inabilities of defendant to perform his part of agreement for not having any relevance in context of limitation in suits covered by First Part thereof---Such pleas raised by defendant might have relevance about question as to whether contract should be enforced by court or not, and that time was essence of contract or otherwise, but same would have nothing with proposition of limitation---Plaintiff had neither alleged in plaint nor produced any order of competent court to show passing of any order restraining parties to complete suit sale and/or file suit---No exemption qua period of limitation in law could be claimed by plaintiff on account of pendency of litigation simpliciter in absence of any order of court preventing him to file suit---Present plaint from its statements appeared to be barred by limitation---Suit was dismissed in circumstances.

Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952; Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114; Fatima Moeen v. Additional District Judge, Sheikhupura and 22 others 1992 SCMR 1199; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Muhammad Tufail and 3 others v. Ghulam Farid and 4 others 2000 SCMR 1037 and Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 ref.

Jewan and 7 others v. Federation of Pakistan 1994 SCMR 826; Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459; Anees Haider and others v. S. Amir Haider and others 2008 SCMR 236; Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650; Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289; Muhammad Saleemullah and others v. Additional District Judge, Gujranwala PLD 2006 SC 511; S.M. Shafi Ahmed Zaidi v. Malik Hasan Ali Khan 2002 SCMR 338; Pakistan Agricultural Storage and Services Corporation Limited v. Mian Abdul Lateef and others PLD 2008 SC 371; Salamat Ali v. Khairuddin 2007 YLR 2453; Arif Majeed Malik and others v. Board of Governors Karachi Grammar School 2004 CLC 1029; Halima Tahir and 5 others v. Naheed and others 2004 MLD 227; Ghulam Dastagir and others. v. Mariyum and others 1993 MLD 1005; 1981 CLC 1009; 2006 CLC 919; 2006 CLC 303; 1981 CLC 533; PLD 1981 Kar. 604; PLD 1978 Kar 267 and Narayan Jivangouda Patil and another v. Puttabai and others AIR 1945 PC 5 rel

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

----O. VII, R. 11---Rejection of plaint---Powers of court---Scope---Word "shall" as used in O. VII, R. 11, C.P.C., made mandatory on court to reject plaint in case of finding one or more of its four clauses applicable thereto.

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

----O. VII, R. 11(d)---Word "shall" as used in opening para of O.VII, R.11, C.P.C., and word "appear" as used in clause (d) thereof---Effect---Court would be bound to reject plaint forthwith, if same appeared from statements made therein to be barred by any law---Provisions of O. VII, R. 11, C.P.C., did not provide that plaint must be deemed to contain whole truth---Court before taking a decision would give primacy to contents of plaint, but would not be obliged to accept each and every averment made therein as being true, rather would analyse such contents by exercising its normal judicial power and discretion available under law---Court while determining correctness of averments of plaint would not be required to examine contents of written statement and put same in juxtaposition with plaint as denials contained in written statement would not be relevant---Principles.

Clause (d) of O.VII, R.11 has three constituent elements. The First Part uses the important word "appear", the Second Part relates to statements made in the plaint (i.e. there is no reference to the written statement), and the Third Part states the inference to be drawn if a suit "appears" from the statement in the "plaint" to be "barred" by any law. This read in conjunction with the opening words of Rule 11 make it mandatory on the court to reject the plaint.

The court is bound by the use of the mandatory word "shall" to reject a plaint if it "appears" from the statements in the plaint to be barred by law. What is the significance of the word "appear". It may be noted that the legislative draftsman has gone out of his way not to use the more common phraseology. For Example, in the normal course, one would have expected that the language used would have been "where it is established from the statements in the plaint that the suit is barred by any law" or alternatively "where it is proved from the statement in the plaint that the suit is barred by any law". Neither of these alternatives was selected by the legislative draftsman and it must be assumed that this was a deliberate and conscious decision. An important inference can therefore be drawn from the fact that the word used is "appear". This word of course, imports a certain degree of uncertainty and judicial discretion in contradistinction to the more precise words "proved" or "established". In other words the legislative intent seems to have been that if prima facie the court considered that it "appears" from the statements in the plaint that the suit was barred, then it should be terminated forthwith. The great advantage of this would be twofold: on the one hand the defendant would be saved from the harassment of being subjected to a prolonged and costly trial including the leading of evidence which could be extended over a considerable period of time; secondly a great deal of valuable court time would also be saved from being wasted. This second consideration is of special importance considering the extent to which the courts are at present clogged with an enormous amount of arrears. Thus, the idea, in brief, would be to bury the suit at its inception. This, therefore, appears to be the rationale for the use of word "appear" as against the more strong words "established" or "proved". A further reason why the latter words have not been used is, of course, that normally they would be used if evidence had been recorded. That would then be a definitive finding by the court based on evidence and after examination of the law in the light thereof.

Firstly, there can be no little doubt that primacy (but not necessarily exclusively) is to be given to the contents of the plaint. However, this idea does not mean that the court is obliged to accept each and every averment contained therein as being true. Indeed the language of Order VII, Rule 11 contains no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the powers of the court, which is inherent in every court of justice and equity to decide whether or not a suit is barred by any law for the time being in force completely intact. The only requirement is that the court must examine the statements in the plaint prior to taking a decision.

Secondly, it is also equally clear, by necessary inference, that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint are correct or incorrect. In other words, the court is not to decide whether the plaint is right or the written statement is right. That is an exercise which can only be carried out if a suit is to proceed in the normal course and after the recording of evidence. In Order VII, Rule 11, C.P.C. cases the question is not the credibility of the plaintiff versus the defendant. It is something completely different, namely, does the plaint appear to be barred by law.

Thirdly, and it is important to stress this point in carrying out an analysis of the averments contained in the plaint the court is not denuded of its normal judicial power. It is not obliged to accept as correct any manifestly self contradictory or wholly absurd statements. The court has been given wide powers under the relevant provisions of the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129, which enables it to presume the existence of certain facts. It follows from the above, therefore, that if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint or the admitted documents or the position which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement, which are not relevant, but in exercise of the judicial power of appraisal of the plaint.

Jewan and 7 others v. Federation of Pakistan 1994 SCMR 826; Haji Allah Bukhsh v. Abdul Rehman and others 1995 SCMR 459; Anees Haider and others v. S. Amir Haider and others 2008 SCMR 236; Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650; Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289; Muhammad Saleemullah and others v. Additional District Judge, Gujranwala PLD 2006 SC 511; S.M. Shafi Ahmed Zaidi v. Malik Hasan Ali Khan 2002 SCMR 338; Pakistan Agricultural Storage and Services Corporation Limited v. Mian Abdul Lateef and others PLD 2008 SC 371; Salamat Ali v. Khairuddin 2007 YLR 2453; Arif Majeed Malik and others v. Board of Governors Karachi Grammar School 2004 CLC 1029; Halima Tahir and 5 others v. Naheed and others 2004 MLD 227; Ghulam Dastagir and others. v. Mariyum and others 1993 MLD 1005; 1981 CLC 1009; 2006 CLC 919; 2006 CLC 303; 1981 CLC 533; PLD 1981 Kar. 604, PLD 1978 Kar 267 rel

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

----Ss. 2(2)(9), 11, O. VII, Rr. 11 & 13---Rejection of plaint and dismissal of suit---Distinction highlighted.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners

Khalid Anwar, Senior Advocate Supreme Court for Respondents.

Date of hearing: 30th September, 2011.

P L D 2012 Supreme Court 268

Present: Muhammad Sair Ali and Mian Saqib Nisar, JJ

APOLLO TEXTILE MILLS LTD. and others---Petitioners

Versus

SONERI BANK LTD.---Respondent

Civil Petition No.1183 of 2011, decided on 12th October, 2011.

(On appeal against the judgment dated 20-6-2011 passed by High Court of Sindh, Karachi in Appeal No.40 of 2010).

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

----Ss. 9 & 10---Petition for leave to defend suit---Procedure of Banking Court---Provisions of Ss.9 & 10, Financial Institutions (Recovery of Finances) Ordinance, 2001 oblige the parties to the suit to identically plead/state the same nature of accounts or the heads of accounts.

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

----Ss. 9(3) & 10(3)(4)---Petition for leave to defend suit---Procedure of Banking Court---Plaintiff institution and the defending 'customer' have identical responsibility respectively under Ss.9(3) and 10(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 to plead and state clearly and particularly the finances availed by defendant, repayments made by him, the dates thereof and the amounts of finances repayable by such defendant who has also been saddled with the additional responsibility to also specify the amounts disputed by him---Defending customer is thus obliged to put in a definite response to the Banks' accounting and has under S.10(3) and (4) to compulsorily plead in answer in the leave petition his accounts as well as the facts and amounts disputed by him as repayable to the plaintiff.

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

----Preamble & S.9---Banking suit---Procedure---Financial Institutions (Recovery of Finances) Ordinance, 2001, has rationale of schematic discipline---Banking suit is normally a suit on Accounts which are duly ledgered and maintained compulsorily in the books of Accounts under the prescribed principles/standards of Accounting in terms of the laws, rules and Banking practices---Instead of leaving it to the option of the parties to make general assertions on accounts, the Ordinance binds both the sides to be absolutely specific on accounts---Parties to a suit have been obligated equally to definitively plead and to specifically state their respective accounts---Scope of the suit thus becomes well defined---Controversies are confined to the claimed and/or the disputed numbers, facts and reasons thereof---Unnecessary controversial details, the evidence thereto and the time of the trial, are curtailed---Trial would remain within the laid out parametrical scope of the claimed and the disputed accounts.

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

----Ss. 10(1)(3)(4)(6)(11) & 9(3)---Petition for leave to defend suit---Procedure of Banking Court---Non impleadment under Ss.10(3)(4) and 9(3) of the Ordinance of accounts in terms of said provisions, entails legal consequences under S.10(1)(6) and (11) of the Ordinance.

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

----Ss. 4 & 10---Petition for leave to defend suit---Financial Institutions (Recovery of Finances) Ordinance, 2001 is a special law and provides a special procedure for banking suits---Provisions of the Ordinance under S.4 thereof override all other laws and require strict consequences of rejection of leave petition along with decree etc.

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

----Ss. 9 & 10---Provisions of Ss.9 & 10 of the Financial Institution (Recovery of Finances) Ordinance, 2001 are mandatory.

Niaz Muhammad v. Fazal Raqib PLD 1974 SC 134 ref

(g) Interpretation of statutes-

----Construction of statute as to whether mandatory enactment shall be considered directory only or obligatory, with an implied nullification for disobedience---Principles.

It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the Courts to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule however, a statute is understood to be directory when it contains matter merely of direction but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision.

Niaz Muhammad v. Fazal Raqib PLD 1974 SC 134 ref

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

----S. 10(3)(4)(5)(6) & (11)---Petition for leave to defend suit---Requirements---Application of defendants, in the present case, was not in conformity with mandatory provisions of S.10(3) & (5)) did not fulfil the mandates of S.10(3)(4)(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001 and failed to plead the required accounts without showing any cause or reason for inability to comply with said requirements---Petitioners, attracted the prescribed legal consequences, in circumstances---Principles.

In the present case, the application for leave to defend the suit filed by the petitioners did not fulfil the requirement of section 10(3), (4) and (5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. It was admittedly not in conformity with the said mandatory provisions. No cause or the reasons for inability to comply with said requirements were shown. Instead it was expressly admitted by the petitioners before the High Court and also before the Supreme Court that the petitioners failed to fulfil the mandates of the said provisions and did not plead the required accounts. The petitioners/defendants thus attracted the prescribed legal consequences of:--

(i) rejection of their leave petition under section 10(6);

(ii) non-entitlement under section 10(1) to defend the suit for not obtaining leave to defend the suit in terms provided for in section 10;

(iii) the allegations of fact in the plaint were deemed under section 10(1) to have been admitted by them; and

(iv) a judgment and decree against them and in favour of the plaintiff bank under sections 10(1) and (11).

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

----Ss. 9(2) & 10---Bankers' Books Evidence Act (XVII of 1891), S.4---Procedure of Banking Court---Provision of S.9(2), Financial Institutions (Recovery of Finances) Ordinance, 2001 is mandatory and without strict compliance wherewith, the plaint is incomplete and cannot become basis of a suit under the Ordinance---Principles.

Subsection (2) of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 makes it mandatory for a Banking institution to support its plaint in a suit against the customer by a statement of account duly certified under the Bankers' Books Evidence Act, 1891 and also by all other relevant documents relating to grant of finance. Without such a 'Statement of Account' filed along with the plaint, a customer will obviously remain totally unaware of the amount advanced, mark up charged and the basis, break up, premise mode of calculation of account nature of default and the actual amount of Bank's claim against the defendant-customer. He will thus be unable to frame his defence within the limited period prescribed by law, to show reasonable, serious and plausible grounds of contest to be able to seek and obtain leave to defend the suit. Absence of filing the requisite statements of account along with the plaint, will essentially amount to absence of providing adequate, proper and reasonable opportunity of defence to the defending customer. Being thus unable to file a proper leave petition within thirty days under section 10(2) or within twenty one days under section 10(12) of the Ordinance, such a customer may or may not later be able to amend his leave petition. His defence shall thus be rendered illusory, hence denied. Upon the compliance a Banking Company with the provisions of section 9(2) of the Ordinance, depends the right of defence of a defendant in the summary suits as visualized under the Ordinance, wherefor, the filing of duly certified statements of account by a Banking company along with its plaint, cannot be taken to be a mere formality or a technicality. This provision can only be held to be mandatory. Without strict compliance wherewith, the plaint is incomplete and cannot become basis of a suit under this law

The similarity of the provisions legislated in sections 9 and 10 of the Ordinance leads to identical consequences in the absence of the demanded accounts and the documents. Suit of the plaintiff institution will be rejectable while defendants' leave petition will be exposed to rejection etc. A plaintiff institution may be rendered unable or deficient in appropriately setting up its answers to the accounts, disputed amounts and facts of the defendant in reply to the leave application as per section 10(8) of the Ordinance. And that in the absence of the requisite account and the facts etc. in defence filed by a defendant in the leave petition, a plaintiff will remain unaware of the admitted or denied or disputed accounts and facts of the defendants, to adequately, seriously and reasonably pursue the suit and its trial. This will obviously defeat the intent and the object of the provided provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

In the absence of the support of statements of accounts and finance documents, Bank's plaint was liable to be rejected. Consequent upon the rejection of the leave petition, the defendants were deemed to have admitted the contents of the plaint. The defendants remained bound thereto. The court of course was not so bound. It was not expected to proceed blindfolded. The court therefore in performance of its duty, itself examine the plaint along with documents to decide as to whether the suit complied with the mandatory provisions of Section 9 or not and as to the nature of the order, judgment or decree to be passed by the Court.

Bankers Equity Limited and 5 others v. Messrs Bentonite Pakistan Limited through Chief Executive and 7 others 2010 CLD 651 ref.

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

----S. 10---Petition for leave to defend---Petitioners had not shown the prejudice caused to them purportedly by alleged incomplete statements of accounts, which in fact were complete on considering the effect of rollovers---Separate statement of accounts was filed by the plaintiff Bank in each separate/independent account which commenced without a debit from its respective date of commencement---Petitioners had failed to distinguish the particulars of one account from the other, lending non-credibility of their objection as raised---In the absence of denial of availing of the finance facilities, execution of the charge/security documents and admission of the outstanding liability or the statement of accounts, there existed no substantial question of law or fact requiring evidence.

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

----S. 15---Pledging of goods with Bank as security for the advance, does not absolve the defendant (customer) from his liability to clear his dues---Bank only acquires a lien over such pledged goods for the recovery of his dues and had a right, after notice to the debtor, to sell those goods to reimburse itself---Debtor can claim an adjustment of the sale proceeds of the goods against the amount claimed by the Bank only where such a sale is actually held.

Messrs Muhammad Siddiq Muhammad Umar v The Australasia Bank Ltd. PLD 1966 SC 684 ref

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

----O. XLI, R.1 & S.96---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.22---Special High Court appeal---Provision regarding production of certified copy of the decree sheet along with memo of appeal to be mandatory and the appeal unaccompanid with the certified copy of the decree sheet not to be properly constituted and thus incompetent.

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

----S. 22---Civil Procedure Code (V of 1908), S.96 & O.XLI, R.1---Appeal---Comparative analysis of the 'appeal' provisions in Civil Procedure Code, 1908 and Financial Institutions (Recovery of Finances) Ordinance, 2001.

The linguistic construction, phraseology, terms, words and the schematic design/layout of the appeal under S.22, Financial Institutions (Recovery of Finances) Ordinance, 2001 provision is distinguishably different than in section 96 of the C.P.C. Under section 22 an appeal has been provided against "any judgment, decree, sentence, or final order passed by a Banking Court, within 30 days of such judgment, decree, sentence or final order". Was intention of the legislature to provide a scheme of appeal(s) under section 22 to be different from that in section 96, C.P.C.

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

----S. 22---Civil Procedure Code (V of 1908), S.109---Supreme Court Rules, 1980, O.XII, R.4---Constitution of Pakistan, Art.185---Appeal to Supreme Court---Limitation---Scope---Where appeal was allowed against the judgment or decree or a final order, filing of appeal within limitation was mandatory from the delivery of judgment and waiting for the grant of certified copy of the decree would not enlarge the limitation and in such a case non-filing of the decree would not be fatal to the appeal.

Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462 and Nakuleswar Sikdar v. Barun Chandra Chakravorty and another 1971 SCMR 54ref.

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

----S. 10---Constitution of Pakistan, Art.185(3)---Application for leave to defend suit---Decree in the defendant's suit was passed by a single Judge of the High Court in the exercise of Banking jurisdiction, on the grounds of default of the petitioners' under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as well as on merits---Special High Court Appeal was also dismissed principally on the said grounds---Judgments and decrees had been validly passed and petition for leave to appeal was not sustainable---Supreme Court in circumstances, declined to go into the question of maintainability or competence of the appeal which was left to be decided in an appropriate case and because none of the counsel had addressed on such aspect of the case particularly in view of the propositions recorded by the court.

Dr. M. Farogh Naseem, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners

Arshad Tayyab Ali, Advocate Supreme Court for Respondent.

Date of hearing: 12th October, 2011.

P L D 2012 Supreme Court 292

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Tassaduq Hussain Jillani, Jawwad S. Khawaja, Tariq Parvez, Mian Saqib Nisar, Ejaz Afzal Khan, Ijaz Ahmd Chaudhry and Muhammad Athar Saeed, JJ

WATAN PARTY and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petitions Nos. 77 to 85 and 89 and C.M.A. No.5505 in C.P.No.79 of 2011, decided on 30th December, 2011.

(Constitution Petition under Article 184(3) of the Constitution regarding alleged Memorandum to Admiral Mike Mullen by Mr. Hussain Haqqani, former Ambassador of Pakistan to the United States of America) Per Iftikhar Muhammad Chaudhry, C J

(a) Constitution of Pakistan---

----Arts. 9, 14, 19, 187 & 184(3)---Supreme Court Rules, 1980, O.XXXII, Rr.1 & 2 read with O.XXXVI---Civil Procedure Code (V of 1908), Preamble---Constitutional petitions invoking original jurisdiction of Supreme Court, questioning therein the contents of a Memo. published in a newspaper "Financial Times" London, written by respondent on stated allegations and that question of public importance involving petitioners' fundamental rights under the Constitution had been made out as according to the version of respondent, Memo. was prepared/drafted for the purpose of delivering the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security Advisor---Maintainability---Held, petitioners had succeeded in establishing that the issues involved were justiciable and question of public importance with regard to enforcement of fundamental rights, prima facie, under Articles 9, 14 and 19A of the Constitution, had been made out, thus, the petitions under Article 184(3) of the Constitution were maintainable---To delineate measures with a view to ensure enforcement of the said fundamental rights a probe was called for to ascertain the origin, authenticity and purpose of creating/drafting of Memo. for delivering it to Chairman of the U.S. Joint Chief of Staff through former U.S. National Security Advisor thus, in exercise of powers conferred upon the Supreme Court under Article 187 of the Constitution, Order XXXII, Rules 1 and 2 read with Order XXXVI of the Supreme Court Rules, 1980 coupled with the principles of Civil Procedure Code, a Commission was appointed, as the due process of law was the entitlement of all the stakeholders, therefore, to ensure probe into the matter in a transparent manner the Commission shall be comprising of (i) Mr. Justice Qazi Faez Isa, Chief Justice of Balochistan High Court (Chairman); Mr. Justice Iqbal Hameed-ur-Rehman, Chief Justice, Islamabad High Court (Member) and (iii) Mr. Justice Mushir Alam, Chief Justice, High Court of Sindh (Member) and Raja Jawwad Abbas Hassan, District & Sessions Judge, Islamabad, was appointed as Secretary to the Commission---Commission shall hold its meetings in the building of Islamabad High Court and shall be exercising all the powers of Judicial Officers for the purpose of carrying out the object mentioned hereinabove and it shall be free to avail services of advocates, experts of forensic science and cyber crimes---All the Federal Secretaries, including Interior Secretary, Secretary Cabinet, Secretary Foreign Affairs; Chief Secretaries of all the Provinces; DG, FIA; Inspector Generals of Police of all the Provinces and Ambassadors of Pakistan in USA and UK, shall provide necessary assistance to the Commission---Government of Pakistan, through Secretary Cabinet Division shall provide logistic support to the Commission, subject to its demands through the Secretary of the Commission---Commission shall be authorized to collect evidence within and outside Pakistan according to prevailing laws on the subject and shall provide full opportunity of hearing to all the parties---Commission was required to complete the task within a period of four weeks after receipt hereof---Reply submitted before the Court by the respondent, inter alia, comprised of certain documents including exchange of e-mails and other communications using the "BlackBerry Messaging Service" commonly known as "BBM" between respondent and the then Ambassador of Pakistan in U.S., who were in constant touch either through BBM, e-mails or voice calling w.e.f. 9th to 12th May, 2011---Said communications formed the most important piece of evidence regarding purported contacts between the two for the purposes of drafting the alleged Memo.---Respondent also claimed that he had electronic/telephonic interactions with the then Ambassador in U.S. on October, 28 and November, 1 2011, therefore, in the interest of justice, it was appropriate to get the confirmation about the veracity and authenticity of said communications from the original company based in Canada being the sole and exclusive custodian of such information---Supreme Court directed the Attorney General for Pakistan, to contact the said Company through Secretary, Ministry of Foreign Affairs for getting confirmation about the authenticity of the said electronic communications exchanged between the two---Such confirmation may be obtained at the earliest and in order to save and protect the forensic evidence and to scrutinize the same it should be produced before the Commission---Forensic evidence was likely to be collected from the company based in Canada, therefore, the High Commission of Pakistan in Canada was also directed to cooperate and assist the Commission as well.

(b) Constitution of Pakistan---

----Art. 184(3)---Exercise of jurisdiction under Art.184(3) of the Constitution by Supreme Court---Principles---Held, Supreme Court should not enter into disputed questions of fact involving appreciation of voluminous evidence, however, to decide the question brought before the Court relating to public importance and enforcement of fundamental rights, there was no prohibition to consider facts, which did not require consideration of voluminous evidence---Settled practice of the Supreme Court was that proceedings are not undertaken for academic purposes but on the basis of admitted or proven facts to resolve the controversy.

Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and Al-Jehad Trust v. Lahore High Court 2011 SCMR 1688 ref.

(c) Civil service---

----Ambassador, status of---Ambassador of Pakistan, including the one who is on contract appointment, is deemed to be holding the post in connection with the affairs of the Federation and is to be governed by the Rules applicable to the general body of civil servants.

Abida Hussain v. Tribunal for N.A.59 PLD 1994 SC 60 ref.

(d) Constitution of Pakistan---

----Art. 184(3)---Exercise of jurisdiction by Supreme Court under Art.184(3) of the Constitution---Scope---Public importance is one of the components to attract the said jurisdiction of Supreme Court coupled with the facts that three elements i.e. question of public importance; question of enforcement of fundamental rights and fundamental rights sought to be enforced as conferred by Chap. I, Part II of the Constitution are required to be satisfied---Public importance---Meaning.

(e) Public importance---

----Definition---Scope.

The term "public importance" according to dictionary meaning, could be defined that the question, which affects and has its repercussions on the public at large and it also includes a purpose and aim, in which the general interest of the community, particularly interest of individuals is directly or vitally concerned.

A case in which a court is proceeding without jurisdiction of person or subject matter involves a matter of 'great public importance' within rule providing that relief in nature of prohibition will not be granted by Supreme Court except in matters of great public importance.

The word 'public importance' can only be defined by a process of judicial inclusion or exclusion because the expression public importance is not capable of any precise definition and has not a rigid meaning, therefore, each case has to be judged in the circumstances of that case as to whether the question of public importance is involved. But it is settled that public importance must include a purpose or aim in which the general interest of the community as opposed to the particular interest of the individuals is directly and vitally concerned.

In order to acquire public importance the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities or the public or the community at large, even though the individual, who is the subject matter of the case, may be of no particular consequence.

As to the question of what is of great public importance, sole determination in all cases, according to the peculiar features of each, is within the province of the court. In some cases there may be an adequate remedy at law, but not speedy. In some instances, it is apparent on the face of the pleadings and record.

The expression "public importance" is tagged with the enforcement of the Fundamental Rights as a precondition of the exercise of the power. This should not be understood in a limited sense, but in the gamut of the constitutional rights of freedoms and liberties, their protection and invasion of such freedoms in a manner which raises a serious question regarding their enforcement. Such matters can be viewed as of public importance, whether they arise from an individual's case touching his honour, liberty and freedom, or of a class or a group of persons as they would also be legitimately covered by this expression.

Words and phrases Vol 18, Great Public Importance; Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Maqbool Ahmad v. Pakistan Agricultural 2006 SCMR 470; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC 632; State of Jammu and Kashmir v. Bakshi Ghulam Mohammad AIR 1967 SC 122; Sohail Butt v. Deputy Inspector General of Police 2011 SCMR 698; Munir Hussain Bhatti Advocate v. Federation of Pakistan and others PLD 2011 SC 407; Keliner v. District Court [256 P.2d 887 (1953) 127 Colo 320]; Queen on the Application of Compton v. Wiltshire Primary Care Trust [(2008) EWCA E@WCA Civ 749] and Jamat-e-Islami v. Federation of Pakistan PLD 2009 SC 549 ref.

(f) Constitution of Pakistan---

----Art. 184(3)---Exercise of jurisdiction under Art.184(3) of the Constitution by the Supreme Court---Principles.

Following principles are highlighted to exercise jurisdiction under Article 184(3) of the Constitution:--

(1) It is not necessary that who has approached the Court for the enforcement of fundamental rights as an information has to be laid before the Court, may be by an individual or more than one person.

(2) The case must involve decision on an issue in which the public-at-large is interested.

(3) The case also relates to the enforcement/violation of any of the fundamental rights mentioned in Chapter I, Part-II of the Constitution, namely, Articles 8 to 28.

(4) If it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint, then why not a person, who were to act bona fide to activise a court for the enforcement of the Fundamental Rights of a group or a class of persons who are unable to seek relief.

(5) Under Article 184(3), it is not a traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim.

(6) The Court while dealing with a case under Article 184(3) of the Constitution 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.

(7) The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of Supreme Court on its own terminology.

(8) In a given case where a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid or a strait-jacket formula prescribed for enforcement of the Rights would be self-defeating.

(9) In order to ascertain the violation of a fundamental right, the Court has to consider the direct and inevitable consequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced.

It is also significant to note that the Court seized with the inquisitorial kind of proceedings is bound to be careful while examining the matter placed before it, lest it should cause injustice or prejudice to any of them and shall make reference of the material/documents or circumstances, which are not disputed between them. When in a case reference has only been made to the documents in respect whereof the parties before the Court have no controversial attitude against each other and despite it, final determination about the civil liability and criminal culpability has to be made by the forum empowered to determine the extent of the involvement subject to following the due process as defined in Articles 4 and 10A of the Constitution.

(g) 'Inquisitorial proceedings'---

----'Adversarial proceedings'---Distinction.

Watan Party's case PLD 2011 SC 997 ref.

(h) Constitution of Pakistan---

----Art. 184(3)---Interpretation of Art.184(3)---Principles/Judicial consensus---While interpreting Art.184(3) of the Constitution, the interpretative approach should not be ceremonious observance of the rules or usages of the interpretation but regard should be had to the object and purpose for which the Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution including the Objectives Resolution (Article 2-A), the fundamental rights and the Directive Principles of State Policy so as to achieve democracy, tolerance, equity and social justice according to Islam.

(i) Constitution of Pakistan---

----Arts. 2A , 9 & 14---Objectives Resolution---Scope---Words of Objectives Resolution comprehensively define the stature of an independent Pakistan where the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world---Article 2A, undoubtedly has overwhelming nexus with the fundamental rights of Citizens of Pakistan (people) specifically guaranteed under Arts.9 & 14 of Chap. 1, Part II of the Constitution.

(j) Constitution of Pakistan---

----Art. 9---Security of person---"Life" as used in Art.9 of the Constitution---Scope---Word "Life" used in Art.9 of the Constitution is very significant as it covers all facets 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---Principles.

(k) Constitution of Pakistan---

----Arts. 9 & 2A---Security of person---"Life with dignity"---Citizen who is constitutionally under the obligation to be loyal to State, the Constitution and the law, whatever his status may be, also remains under the command of the Constitution to have an honoured place amongst the nations of the world---Attempt/act of threatening to the dignity of the people, collectively or individually, concerning the independence, sovereignty and security of their country, prima facie, raises a serious question tagged/linked with their fundamental rights.

(l) Constitution of Pakistan---

----Art. 184(3)---Constitutional petitions under Art.184(3) of the Constitution---Inquisitorial proceedings---No one specifically amongst the respondents, had been sought by the petitioners, to be held liable to take brunt of the civil liability or criminal culpability, except praying to probe into the matter and to identify those who were responsible in issuance of the derogatory Memo. though they had alleged threat to life, security, dignity as well as denial of fundamental right to have complete information about the issue wherein allegedly independence, sovereignty and security of the country was likely to be compromised---Seeking no relief against any of the respondents suggested that in accordance with the provisions of Art.184(3) of the Constitution, Supreme Court was empowered to make a declaratory order to enforce any of the fundamental rights conferred by Chap. 1, Part II of the Constitution---Such kind of litigation fell within the category of 'inquisitorial proceedings' and not 'adversarial', which was generally undertaken by the litigants against each other for determination of their respective rights in the common law countries.

(m) Constitution of Pakistan---

----Art. 4---Due process, right of---Scope---Right of due process, inter alia, envisages the right to have a fair and proper trial and right to have impartial court or tribunal---"Right of access to justice" and "due process" are referable to the basic judicial function, which necessarily are known to judicial minded persons and for the safe administration of justice said principles can only be adhered to strictly by the forums manned by the persons responsible to deliver judicial findings subject to following of principles of natural justice.

Aftab Shban Mirani v. President of Pakistan 1998 SCMR 1863 and Muhammad Nadeem Arif v. Inspector-General of Police, Punjab, Lahore 2011 SCMR 408 mentioned.

(n) Constitution of Pakistan---

----Art. 184(3)---Exercise of jurisdiction under Art.184(3) of the Constitution---Scope---Supreme Court enjoys jurisdiction to proceed in all those matters which are justiciable; however, if there is an issue, which is alleged to be non-justiciable it would be the duty of the Court to examine each case in view of its facts and circumstances, and then to come to the conclusion whether it is non-justifiable or otherwise.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473; Baker v. Carr [369 U.S. 186 (1962); Powell v. McCormack [395 U.S. 486 (1969); Corpus Juris Secundum Vol.16; Ballentines Law Dictionary and Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 526 ref.

(o) Constitution of Pakistan---

----Arts. 9, 14, 19A, 187, 190 & 184(3)---Supreme Court Rules, 1980, O.XXXII, Rr.1 & 2 read with O. XXXIII, R.1---Civil Procedure Code (V of 1908), O.XXVI, R.10---Constitutional petitions questioning therein the contents of a Memo. published in a newspaper "Financial Times" London, written by respondent on stated allegations and according to the version of respondent, Memo. in question was prepared/drafted for the purpose of delivery of the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security Advisor---Ascertainment of origin, authenticity and the purpose of the drafting/creating the Memo. was a matter of public importance and, prime facie, called for enforcement of fundamental rights of the petitioners provided under Arts. 9, 14, & 19A of the Constitution---Arguments raised before the Supreme Court posed two questions firstly, to conduct probe to ascertain the origin, authenticity and effect of the Memo. for the purpose of Fundamental Rights; and secondly consequential effect of such probe, which would determine civil and criminal liability against the person(s), who were responsible for it---Such questions, in exercise of power of judicial review, were justiciable by Supreme Court treating same to be proceedings of criminal nature, as in exercise of Art.184(3) of the Constitution, Supreme Court was seized with the case which fell in the category of inquisitorial nature---To initiate proceedings in the cases with the object of enforcement of fundamental rights guaranteed under Chap. 1, Part II of the Constitution, relating to a matter of public importance, Supreme Court enjoys ample powers to constitute Commission---Issue of probe to ascertain the origin, authenticity and purpose of creating/drafting Memo. was required to be determined by holding a judicial probe---Supreme Court, in exercise of judicial powers conferred upon it under Arts.187 and 190 of the Constitution, O.XXXII, Rr.1 & 2 read with O.XXXIII, R.1, Supreme Court Rules, 1980 coupled with the principles of C.P.C. including its O.XXVI, R.10 constituted a high powered Commission---Issue of probe through experienced Judicial Officers who were Chief Justices of three High Courts itself was sufficient to attach importance with the case from two angles that the matter relating to sovereignty, independence and security of Pakistan and during course of probe procuring of evidence shall be helpful to determine civil liability as well as criminal culpability based an forensic evidence and other material, which was likely to be produced before the Commission---Senior Judicial Office holders in view of their experience would conduct through probe into the matter in order to ascertain the correct facts.

Vineet Narain v. Union of India AIR 1998 SC 889; Rubabbuddin Sheikh v. State of Gujarat and others [(2010)2 SCC 200]; Zahira Habibullah Sheikh (5) v. State of Gujarat [(2006) SCC 374]; Common Cause, Registered Society v. Union of India (AIR 1999 SC 2979; Pervaiz Elahi v. Province of Punjab PLD 1993 Lahore 595; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265; in Re: Construction of Fast Food Chain in F.9 Park PLD 2010 SC 759; Bank of Punjab v. Haris Steel Industries PLD 2010 SC 1109; In Re: Suo Motu Case No.18 of 2010 PLD 2011 SC 997; In Re: Corruption in Hajj Arrangements PLD 2011 SC 963; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407; Suo Motu Case No.16 of 2011 and Tirupati Balji Developers Pvt. Ltd. v. State of Bihar AIR 2004 SC 2351 ref.

(p) Mala fides---

----Bona fides are to be presumed unless the party challenging the action is able to substantiate that the action was mala fide or without any grounds whatsoever.

Civil Petition No.42 of 2011; Ms. Benazir Bhutto's case PLD 1988 SC 416; Ltd. Col. Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Federation of Pakistan v. Saeed Khan PLD 1974 SC 151; Tabassum Shahzad v. I.S.I. and others 2011 SCMR 1886 and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.

Per Jawwad S. Khawaja, J, agreeing with Iftikhar Muhammad Chaudhry, C.J.--

(q) Constitution of Pakistan---

----Art. 19A & 184(3)---Right to information---Article 184(3) read in conjunction with Art.19-A of the Constitution has empowered the citizens of Pakistan by making access to information a justiciable right of the people rather than being largesse bestowed by the State at its whim---Article 19-A of the Constitution has thus, enabled every citizen to become independent of power centres which heretofore, were have been in control of information on matters of public importance---Principles.

(r) Constitution of Pakistan---

----Art. 19A---Right to information---Citizens of Pakistan, through Art.19A of the Constitution have been freed from the caprice of a sorry fate and have become independent of whistle-bowlers in foreign lands or the magnanimity of the likes of WikiLeaks or biographies of political actors, to get to the information they are now entitled to as of right under the Constitution, which provides for and makes good a crucial missing element of responsible State governance in the scheme of the Constitution.

(s) Constitution of Pakistan---

----Arts. 19A & 184(3)---Right to information---Constitutional petitions questioning therein the contents of a Memo. published in a newspaper "Financial Times" London written by respondent on stated allegations and according to the version of respondent, Memo. in question was prepared/drafted for the purpose of delivering the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security advisor---Maintainability---Memo. and the events surrounding it were "matters of public importance" was not contentious between the parties arrayed before the Court---Parties were also agreed that said events should be probed---Petition under Art.184(3) of the Constitution to enforce the Fundamental Right granted by Art.19A of the Constitution therefore, was maintainable.

(t) Constitution of Pakistan---

----Arts. 19A & 184(3)---Right to information---Constitutional petitions questioning therein the contents of a Memo. published in a newspaper "Financial Times" London, written by respondent on stated allegations and according to the version of respondent, Memo. in question was prepared/drafted for the purpose of delivering the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security Advisor---Contention was that the petitions raised a political question and the Supreme Court, should, therefore, avoid deciding the same---Held, conduct of a government's foreign policy was indeed, by and large, a political question, but the fact was that the present petitions did not require the court to devise the country's foreign policy or to direct the government in that regard---Present petitions had only sought to enforce the people's right to know the truth about what their government and its functionaries, were up to, and that was by no means, a political question and was fully justiciable fundamental right enumerated in Chap. II, of the Constitution no less.

(u) Constitution of Pakistan---

----Arts. 19A & 184(3)---Freedom of Information Ordinance (XCVI of 2002), S.3---Right to information/access to information not denied---Scope---Interpretation of Art.19A of the Constitution and S.3 of the Freedom of Information Ordinance, 2002---Held, it was clear from reading of Art.19A of the Constitution and S.3(1) of the Freedom of Information Ordinance, 2002 that the constitutional right was much broader and more assertive than the statutory right which by its own terms was restricted to disclosure of official record only---Principle of law was that the fundamental right under Art.19A of the Constitution was grant of the Constitution, and, therefore could not be altered or abridged by a law enacted by the Parliament.

(v) Interpretation of Constitution---

----Fundamental right granted by the Constitution could not be altered or abridged by a law enacted by the Parliament.

(w) Constitution of Pakistan---

----Arts. 19A & 184(3)---Right to information---Constitutional petitions questioning therein the contents of a Memo. published in a newspaper "Financial Times" London written by respondent on stated allegations and according to the version of respondent, Memo. in question was prepared/drafted for the purpose of delivering the same to the Chairman of U.S. Joint Chief of Staff through former U.S. National Security Advisor---Held, when the question was for the truth under Art.19A of the Constitution, and nothing but the truth the court could not foresee the result of the probe which was ordered---Contention was that the court to adjust its opinion according to some anticipated consequences of such inquiry---Held further that Court being an objective enforcer of fundamental rights could not do that---Whether the petitioners or the respondents stood to benefit from the order of the Court or which institution or functionary of the State ends up being indicted by the Truth, Court was not called upon the say; in fact such was the very point of the inquiry; the only calculus Supreme Court was entitled to engage in was the calculus of true information and its availability to the citizens of Pakistan---Truth will indeed be critical if the nation is to achieve the goal---Constitution, in its preamble, had set for all organs of the State viz. the preservation of democracy achieved by the unremitting struggle of the people against opinion and tyranny---Supreme Court, therefore, could not deny to the citizens their guaranteed fundamental right under Art.19A by limiting or trivializing the scope of such right through an elitist construction whereby information remained the preserve of those who exercised State power.

Per Ejaz Afzal Khan, J, agreeing with Iftikhar Muhammad Chaudhry, C.J.

(x) Constitution of Pakistan---

----Part I, Chap. I [Arts. 8 to 28]---Fundamental Rights---Nexus between security of person and State; dignity of person and State and between a right and its different implications and manifestations illustrated.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Benazir Bhutto v. Federation of Pakistan PLD 1998 SC 388 ref.

Barrister Zafarullah Khan, Advocate Supreme Court in person, Tariq Asad, Advocate Supreme Court in person, Rashid A. Rizvi, Senior Advocate Supreme Court, Senator Muhammad Ishaq Dar and Khawaja Muhammad Asif, MNA in person, Muhammad Rafiq Rajwana, Advocate Supreme Court, Attique Shah, Advocate Supreme Court, Dr. M. Salahuddin Mengal, Advocate Supreme Court, Sardar Asmatullah Khan, Advocate Supreme Court, Syed Ghous Ali Shah, Advocate Supreme Court, Dr. M. Shamim Rana, Advocate Supreme Court, Naseer Ahmad Bhutta, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Nemo for President of Pakistan.

Nemo for Prime Minister of Pakistan.

Maulvi Anwar-ul-Haq, Attorney General for Pakistan and Dil Muhammad Alizai, D.A.G. for Chief of Army Staff, D.G. ISI & M/O Cabinet, Defence, Foreign Affairs, Interior and Law.

Ms. Asma Jahangir, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record assisted by Messrs Idrees Ashraf and Asad Jamal, Advocates for Hussain Haqqani.

Nemo for Mansoor Ijaz.

Dates of hearing: 19th to 23rd and 27th to 30th December, 2011.

O R D E R

IFTIKHAR MUHAMMAD CHAUDHRY, CJ.--We have upheld the maintainability of the listed petitions vide following order dated 30-12-2011:--

"The Objectives Resolution, which has been made substantive part of the Constitution by means of Article 2A of the Constitution of Islamic Republic of Pakistan commands that:

"And whereas it is the will of the people of Pakistan to establish an order;

Wherein integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;

So that people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity."

1. This short order shall be followed by detailed reasons, to be recorded later. The above petitions have been instituted under Article 184(3) of the Constitution of Islamic Republic of Pakistan.

2. For the purpose of understanding the issues involved in these petitions precisely the facts noted from the pleadings of the parties are that on 10th October, 2011, the respondent Mansoor Ijaz wrote an Article in Financial Times, London. The contents of the said Memo have already been reproduced in the order dated 1st December, 2011, however, same are repeated herein below:--

"CONFIDENTIAL MEMORANDUM

BRIEFING FOR ADM. MIKE MULLEN, CHAIRMAN, JOINT CHIEFS OF STAFF

During the past 72 hours since a meeting was held between the President, the Prime Minister and the Chief of Army Staff, there has seen a significant deterioration in Pakistan's political atmosphere. Increasingly desperate efforts by the various agencies and factions within the government to find a home - ISI and/or Army, or the civilian government - for assigning blame over the UBL raid now dominate the tug of war between military and civilian sectors. Subsequent tit-for-tat reactions, including outing of the CIA station chief's name in Islamabad by ISI officials, demonstrates a dangerous devolution of the ground situation in Islamabad where no central control appears to be in place.

Civilians cannot withstand much more of the hard pressure being delivered from the Army to succumb to wholesale changes. If civilians are forced from power, Pakistan becomes a sanctuary for UBL's legacy and potentially the platform for far more rapid spread of al Qaeda's brand of fanaticism and terror. A unique window of opportunity exists for the civilians to gain the upper hand over army and intelligence directorates due to their complicity in the UBL matter.

Request your direct intervention in conveying a strong, urgent and direct message to Gen Kayani that delivers Washington's demand for him and Gen Pasha to end their brinkmanship aimed at bringing down the civilian apparatus - that this is a 1971 moment in Pakistan's history. Should you be willing to do so, Washington's political/military backing would result in a revamp of the civilian government that, while weak at the top echelon in terms of strategic direction and implementation (even though mandated by domestic political forces), in a wholesale manner replaces the national security adviser and other national security officials with trusted advisers that include ex-military and civilian leaders favorably viewed by Washington, each of whom have long and historical ties to the US military, political and intelligence communities. Names will be provided to you in a face-to- face meeting with the person delivering this message.

In the event Washington's direct intervention behind the scenes can be secured through your personal communication with Kayani (he will likely listen only to you at this moment) to stand down the Pakistani military-intelligence establishment, the new national security team is prepared, with full backing of the civilian apparatus, to do the following:

1. President of Pakistan will order an independent inquiry into the allegations that Pakistan harbored and offered assistance to UBL and other senior Qaeda operatives. The White House can suggest names of independent investigators to populate the panel, along the lines of the bipartisan 9-11 Commission, for example.

2. The inquiry will be accountable and independent, and result in findings of tangible value to the US government and the American people that identify with exacting detail those elements responsible for harboring and aiding UBL inside and close to the inner ring of influence in Pakistan's Government (civilian, intelligence directorates and military). It is certain that the UBL Commission will result in immediate termination of active service officers in the appropriate government offices and agencies found responsible for complicity in assisting UBL.

3. The new national security team will implement a policy of either handing over those left in the leadership of Al Qaeda or other affiliated terrorist groups who are still on Pakistani soil, including Ayman Al Zawahiri, Mullah Omar and Sirajuddin Haqqani, or giving US military forces a "green light" to conduct the necessary operations to capture or kill them on Pakistani soil. This "carte blanche" guarantee is not without political risks, but should demonstrate the new group's commitment to rooting out bad elements on our soil. This commitment has the backing of the top echelon on the civilian side of our house, and we will insure necessary collateral support.

4. One of the great fears of the military-intelligence establishment is that with your stealth capabilities to enter and exit Pakistani airspace at will, Pakistan's nuclear assets are now legitimate targets. The new national security team is prepared, with full backing of the Pakistani government - initially civilian but eventually all three power centers - to develop an acceptable framework of discipline for the nuclear program. This effort was begun under the previous military regime, with acceptable results. We are prepared to reactivate those ideas and build on them in a way that brings Pakistan's nuclear assets under a more verifiable, transparent regime.

5. The new national security team will eliminate Section S of the ISI charged with maintaining relations to the Taliban, Haqqani network, etc. This will dramatically improve relations with Afghanistan.

6. We are prepared to cooperate fully under the new national security team's guidance with the Indian government on bringing all perpetrators of Pakistani origin to account for the 2008 Mumbai attacks, whether outside government or inside any part of the government, including its intelligence agencies. This includes handing over those against whom sufficient evidence exists of guilt to the Indian security services.

Pakistan faces a decision point of unprecedented importance. We, who believe in democratic governance and building a much better structural relationship in the region with India AND Afghanistan, seek US assistance to help us pigeon-hole the forces lined up against your interests and ours, including containment of certain elements inside our country that require appropriate re-sets and re-tasking in terms of direction and extent of responsibility after the UBL affair.

We submit this Memorandum for your consideration collectively as the members of the new national security team who will be inducted by the President of Pakistan with your support in this undertaking."

1. Petitioners invoked original jurisdiction of this Court by means of Constitution Petitions, questioning therein the contents of above Memo on stated allegations that question of public importance involving their fundamental rights under the Constitution has been made out as according to the version of Mansoor Ijaz-respondent, Memo was prepared/drafted for the purpose of delivering the same to Chairman of the US Joint Chiefs of Staff Admiral Mike Mullen through Gen. (Retd.) James Logan Jones, former US National Security Advisor.

2. All the petitions were taken up for hearing on 1st December, 2011 when after hearing the petitioners, either through counsel or in person, notices were issued to the respondents for filing of their replies and to conduct a probe regarding the Memo, Mr. Tariq Khosa, former Secretary Narcotics/DG, FIA, subject to his consent, was directed to act as a Commission. On the same day, by means of press-conference held in PID office by Dr.Babar Awan, Sr. ASC along with two Ministers and others, the order of the Court was criticized contemptuously. Inasmuch as, brother of Mr. Tariq Khosa, namely, Mr. Justice Asif Saeed Khan Khosa, a learned Judge of this Court, who although was not member of the Bench, was referred in terms which prima facie are contemptuous, therefore, for such reasons, Mr. Tariq Khosa recused to act as a Commission. In this context, reaction of the Chief Executive/Prime Minister of Pakistan had been obtained and appropriate directions shall be passed in the later part of the order.

3. Parties, including the Chief of Army Staff, DG, ISI, Mansoor Ijaz as well as Mr. Husain Haqqani and the Federation of Pakistan through Secretary Interior, Foreign Secretary represented by learned Attorney General for Pakistan, filed their replies. No separate reply has been filed by the President of Pakistan.

4. With a view to narrow down the controversy between the parties, directions were issued to them to file counter affidavits/re-joinders to the replies of each others vide order dated 19-12-2011. A perusal of the pleadings suggests:--

(i) After the publication of above Article along with Memo in Financial Times, London on 10th of October, 2011, DG, ISI (Mr. Shujah Pasha) established his contact with Mansoor Ijaz in London and on his return to Pakistan shared his views with the Chief of Army Staff, General Ashfaq Parvez Kayani, thus, both of them in their replies to the petitions as well as affidavits have maintained that Memo dated 10th May, 2011 exists.

(ii) On 16th November, 2011 Mr. Husain Haqqani addressed a letter to the President of Pakistan wherein after mentioning certain facts, he desired to tender his resignation from the post of Ambassador of Pakistan in United States and expressed to probe into the matter.

(iii) About 3 to 4 meetings were held between the Prime Minister and Chief of Army Staff, the President and Chief of Army Staff and joint meeting between the President, Prime Minister, Chief of Army Staff, DG ISI and Mr. Husain Haqqani, whereafter, Mr. Husain Haqqani on account of their persuasion tendered his resignation on 22-11-2011, which was accepted vide notification dated 23-11-2011.

(iv) Former Ambassador, Mr. Husain Huqqani has denied categorically about his role in preparation of the Memo who at the same time has relied upon an affidavit tendered by James Jones, to establish that Mansoor Ijaz has concocted this story that such Memo was sent by him for delivering to Admiral Mike Mullen before 9th May, 2011.

(v) In the meanwhile, vide letter dated 28-11-2011, issued under the signatures of Mr. Khushnood Akhter Lashari, Principal Secretary to the Prime Minister referred the matter to the Parliamentary Committee to conduct probe on the subject issue. The proposed terms of the reference are as under:-

(a) To probe into the memo purportedly written and sent by Mr. Mansoor Ijaz.

(b) To give consequential recommendations.

(vi) Federation of Pakistan through Secretary Interior had not denied the existence of the Memo in their counter affidavits except raising technical flaws in respect of undertaking journey by DG, ISI to London to conduct a meeting with Mansoor Ijaz without permission of the Prime Minister.

(vii) Mansoor Ijaz in his reply and in counter affidavit has contradicted the stand taken by Mr. Husain Haqqani, former Ambassador and he has offered to provide further evidence to substantiate his plea that allegedly on persuasion of Mr. Husain Haqqani, Memo dated 10th may, 2011 was drafted to be delivered to Mike Mullen through James Jones.

1. On 1st of December, 2011 the Court itself raised the question about the maintainability of the petitions and at the same time it was observed that it would be appreciated if the outcome of the proposed inquiry by the Parliamentary Committee on National Security is shared with the Court, if possible.

2. After having heard the parties and having taken into consideration the relevant provisions of the Constitution and the law, judgments cited on behalf of both the sides and the pleadings of the parties carefully, we hold as under:--

(a) In exercise of powers of Judicial Review, we hold that in these petitions, petitioners have succeeded in establishing that the issues involved are justiciable and question of public importance with regard to enforcement of fundamental rights, prima facie, under Articles 9, 14 and 19A of the Constitution has been made out. Thus, the petitions under Article 184(3) of the Constitution are maintainable.

(b) To delineate measures with a view to ensure enforcement of the fundamental rights noted in para ibid, a probe is called for to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering it to Chairman of the US Joint Chiefs of Staff Admiral Mike Mullen through Gen. (Retd.) James Logan Jones, former US National Security Advisor. Thus, in exercise of powers conferred upon this Court under Article 187 of the Constitution, Order XXXII, Rules 1 and 2 read with Order XXXVI of the Supreme Court Rules, 1980 coupled with the principle of Civil Procedure Code, a Commission is appointed. As the due process of law is the entitlement of all the stakholders, therefore, to ensure probe into the matter in an transparent manner the Commission shall be comprising of:

(i) Mr. Justice Qazi Faez Isa, (Chairman)

Chief Justice of Balochistan High Court

(ii) Mr. Justice Iqbal Hameed-ur-Rehman (Member)

Chief Justice, Islamabad High Court

(iii) Mr. Justice Mushir Alam (Member)

Chief Justice, High Court of Sindh

Raja Jawwad Abbas Hassan, District & Sessions Judge, Islamabad is appointed as Secretary to the Commission.

(c) The Commission shall hold its meetings in the building of Islamabad High Court. The Commission shall be exercising all the powers of Judicial Officers for the purpose of carrying out the object mentioned hereinabove and it shall be free to avail services of advocates, experts of forensic science and cyber crimes. All the Federal Secretaries, including Interior Secretary, Secretary Cabinet, Secretary Foreign Affairs; Chief Secretaries of all the provinces; DG, FIA; Inspector Generals of Police of all the provinces and Ambassadors of Pakistan in USA and UK, shall provide necessary assistance to the Commission.

(d) Government of Pakistan through Secretary Cabinet Division shall provide logistic support to the Commission, subject to its demands through the Secretary of the Commission.

(e) The Commission shall be authorized to collect evidence within and outside Pakistan according to prevailing laws on the subject.

(f) The Commission shall provide full opportunity of hearing to all the parties.

(g) The Commission is required to complete this task within a period of four weeks after receipt hereof.

1. It is to be noted that the reply submitted before the Court by Mr. Mansoor Ijaz, inter alia, comprises of certain documents including exchange of e-mails and other communications using the BlackBerry Messaging service commonly known as BBM between them i.e. Mansoor Ijaz and Mr. Husain Haqqani were in constant touch either through BBM, e-mails or voice calling w.e.f. 9th to 12th May, 2011. In fact during relevant days, as many as 85 BBMs, voice calls and e-mails were exchanged between the two. Prima facie these communications form the most important piece of evidence regarding purported contacts between the two for the purposes of drafting the alleged Memo. In addition to these dates, Mansoor Ijaz also claims that he had electronic/telephonic interactions with Mr. Husain Haqqani on October, 28 and November, 1 2011. Therefore, in the interest of justice, it is appropriate to get the confirmation about the veracity and authenticity of these communications from the original company known as Research in Motion (RIM) based in Canada being the sole and exclusive custodian of such information. Therefore, the learned Attorney General is directed to contact the said Company RIM through Secretary, Ministry of Foreign Affairs for getting confirmation about the authenticity of the above mentioned electronic communications exchanged between Mansoor Ijaz and Mr. Husain Haqqani. This confirmation may be obtained at the earliest and in order to save and protect the forensic evidence and to scrutinize the same it should be produced before the Commission. As forensic evidence is likely to be collected from the company Research in Motion (RIM) based in Canada, therefore, the High Commission of Pakistan in Canada is directed to cooperate and assist the Commission as well.

2. Vide order dated 1st December, 2011, Mr. Husain Haqqani was directed not to leave the country without the permission of the Court. This order is kept intact.

3. Office is directed to put a separate note in the Chambers of Chief Justice of Pakistan along with the transcription of the press- conference dated 1st December, 2011 of Mr. Babar Awan, Sr. ASC along with replies/reactions of the Prime Minister of Pakistan dated 23rd December and 26th December, 2011 for passing appropriate orders.

4. The petitions are adjourned for a date to be fixed by the office after receipt of the report from the Commission."

5. Detailed marshaling of the facts of instant case are not called for because of the settled principle of law with regard to exercise of jurisdiction under Article 184(3) of the Constitution that the Court should not enter into disputed questions of fact involving appreciation of voluminous evidence. However, to decide the question brought before the Court relating to the public importance and enforcement of fundamental rights, there is no prohibition to consider facts, which do not require consideration of voluminous evidence. Reference may be made to the cases of Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642), Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), Dr. Mubashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) and Al-Jehad Trust v. Lahore High Court (2011 SCMR 1688). It is also settled practice of the Court that proceedings are not undertaken for academic purposes but on the basis of admitted or proven facts to resolve the controversy [Dr. Mubashir Hassan's case (supra)].

6. According to the contentions of Mr. Tariq Asad, ASC in respect of Memo dated 10th May, 2011 originated/drafted by Mansoor Ijaz in the circumstances, which have already been noted hereinabove information whereof was communicated by the media. Therefore, he instituted petition No.78/2011 on 21st of November, 2011 wherein inter alia it was prayed to constitute high level Commission to investigate into the matter of Memo written to US Government and to fix the responsibilities for damaging the sovereignty of the country. Prior to filing of this petition, another petition was filed by Wattan Party through Barrister Zafarullah Khan, ASC on 19th November, 2011 wherein inter alia it is stated that text of the Memo, which contains six points, are regarding the concessions, which will be given to America so that all the desired demands of American Army are met and Pakistan will change its security team and new national security team will make arrangements, provided the pressure of Pakistan Army on civilian governments is released or control by the Army on civilian government is removed through America's interference, etc. It was prayed that issue of secret Memo, issued after the approval of government and President be determined whether it is treasonous document or fabrication imputed to the government of day/President and Judicial Commission be appointed for its investigation. Similarly, Mian Muhammad Nawaz Sharif and others submitted petitions on 23-11-2011 wherein other important facts were disclosed that copy of the transcript of the said conversation released by said Mansoor Ijaz as published in the issue of 18th November, 2011 of the Daily "the News" was available which was appended as annexure P/II. However, it was mentioned that in the meantime frightfully disturbing comments also came from the spokesman of Admiral Mike Mullen to the effect that:--

"Admn. Mullen had no recollection of the Memo and no relationship with Mr. Ijaz. After the original Article appeared on Foreign Policy's website, he felt it incumbent upon himself to cheque his memory. He reached out to others who he believed might have had knowledge of such a Memo, and one of them was able to produce a copy of it".

It was prayed that the ones responsible and/or involved in initiating the process leading to the said memorandum; authoring the same; providing any assistance whatsoever in the process and the ones blessing or approving the said act, may graciously be identified.

1. Undisputedly, an Article has been published in Financial Times, London on 10th October, 2011, reference of which has been made in the short order, reproduced hereinabove. Subsequently, on 22nd October, 2011, DG ISI (Lieutenant General Ahmad Shuja Pasha) contacted the author of Article (Mansoor Ijaz, respondent) in London. The Federation, through Secretary Interior in counter affidavit, has not denied this fact except raising the objection that the DG ISI had gone to London without permission of Chief Executive/Prime Minister. It has also not been disputed by the Federation that on 13th November, 2011 the Chief of Army Staff advised the Prime Minister that details of the Memo were gradually coming to light and that contents of the Memo, so far leaked, were highly sensitive in nature, therefore, position would have to be taken on the veracity or otherwise of the said issue. It was, therefore, important that complete details be collected as early as possible. He strongly recommended to the Prime Minister that Ambassador of Pakistan in the United States, who was best suited and informed on the matter, be called to brief the Country's leadership, as the time was of essence and that earlier they knew the truth, the better it would be to address the negative fallout for the country. On 15th November, 2011, the President asked him for a meeting. He met him at the Presidency at 1400 hours on the same day. The Prime Minister had already informed the President about his recommendations. The President told him that he had already decided to call Mr. Husain Haqqani for a briefing. On 16th November, 2011, another meeting was held between Chief of Army Staff, President and Prime Minister, wherein, it was decided that Mr. Husain Haqqani should come to Islamabad as early as possible. On 22nd November, 2011 at 1500 hours, a meeting was held in the Prime Minister House, which was attended by President, Prime Minister, Chief of Army Staff and DG, ISI, whereby, Mr. Husain Haqqani was called in to brief. Thereafter, the Prime Minister took the decision to ask for Mr.Husain Haqqani's resignation and also ordered for investigation.

2. Likewise, a copy of the letter dated 16th November, 2011 addressed to Mr. Asif Ali Zardari, President of Pakistan has been filed in Court by respondent Mr. Husain Haqqani through his learned counsel Ms. Asma Jahangir, ASC. The letter, which has been relied upon by the respondent himself, needs to be reproduced hereinbelow as it discloses important aspects of the case:--

"EMBASSY OF PAKISTAN 3517 International Court, N. W.

Washington, D.C. 20008

November 16, 2011

Dear Mr. President, Since my appointment as Ambassador of Pakistan to the United States in 2008, I have strived to serve the country and represent it forcefully in the country of my accreditation. I have faithfully followed the directions of the Prime Minister and the government in executing my duties and dealt with many crises that have bedeviled US-Pakistan ties.

It is unfortunate that I have been consistently vilified by those who oppose the democratically elected government as well as the opponents of good relations between the United States and Pakistan. This vilification has often included the baseless charge that somehow I undermine or defame the armed forces of Pakistan even though many members of my family have faithfully served the country as military officers. Like many Pakistanis, I have consistently opposed military intervention in politics but I have never connived, conspired or sought to undermine our armed forces or their leadership.

Most recently allegations have been made that I wrote a letter or memo on your behalf to the US Chairman Joint Chiefs, Admiral Michael Mullen, soon after the May 2 raid in Abbottabad that resulted in the killing of Al-Qaeda leader Osama Bin Laden. The alleged memo/letter proposed US support for civilian rule in return for changes in Pakistan's military leadership. I want to categorically state that at no point was I asked by you, or anyone else, in the government of Pakistan to write such a letter or memo and that I did not draft or deliver such a letter or memo nor did I ask anyone to do so on my behalf or that of the government or President of Pakistan.

I may add that as ambassador it is my official duty to communicate with US officials at all levels and I am perfectly capable of drafting and delivering all official communications myself.

It has been my privilege to serve Pakistan as its ambassador in the US but I cannot do so effectively under the shadow of suspicion and vilification. I, therefore, request that an inquiry be set up to ascertain the veracity of any specific allegations against me. Pending ascertainment of facts I propose to resign to your will in the national interest.

I am a Pakistani patriot who serves as ambassador at the pleasure of the Prime Minister and yourself. I do not wish to be a distraction from the more important challenges faced by our country and its government. As instructed, I am preparing to travel to Islamabad for consultation.

With highest consideration and regards.

Yours sincerely, (Sd.)

Mr. Husain Haqqani Ambassador

His Excellency Asif A. Zardari

President of Pakistan

Islambad"

Two things are very prominent from the recitation of the above letter; (i) he had taken upon himself to make the reference of the letter/memo with reservation that he had not associated himself to originate/draft it on behalf of the President of Pakistan; (ii) he had made the reference to the incident, which took place on 2nd May, 2011, which resulted in killing of Al-Qaeda leader, Osama Bin Laden. Said incident generated the public interest in the length and breath of the country as a whole and the nation vociferously condemned the incident publically, as a consequence whereof a joint session of Parliament was held on 13th and 14th May, 2011 to consider the situation in depth and as a result of discussion including presentation made on the relevant issues, a unanimous resolution was passed, which called upon the government to appoint an independent Commission of Inquiry for the said purpose. Accordingly, on 31st May, 2011 vide notification No.NIL/2011, Government of Pakistan, Ministry of Law, Justice and Parliamentary Affairs, a Commission was constituted under sections 3 and 5(1) of the Pakistan Commissions of Inquiry Act, 1956 headed by Mr. Justice Javed Iqbal, senior most Judge of the Supreme Court as President with four other members. The notification was followed by another notification dated 21st June, 2011 in supersession of earlier notification as the former notification was issued for the appointment of a learned Judge as President/Chairman of the Commission, without approval of the Chief Justice of Pakistan and such action apparently seemed to be contrary to the principle of independence of the judiciary, hence rectified. The Commission so constituted, in respect of incident of Abbottabad, continues its probe, which has not so far been concluded.

1. It might not be out of context to mention that the Memorandum does not disclose the name of any of the persons, who allegedly got it originated. However, subject to all just exceptions and without causing prejudice to the case of any of the parties, the letter of Mr. Husain Haqqani reproduced hereinabove, relied upon by the respondent's counsel herself discloses that Mr. Husain Haqqani was being involved on having written a letter or Memo on behalf of the President of Pakistan to Chairman US Joint Chiefs of Staff Admiral Mike Mullen soon after the 2nd May, 2011 raid in Abbottabad that resulted in the killing of Al-Qaeda leader Osama Bin Laden. It is also not disputed that in the meeting between high-ups i.e. President, Prime Minister, Chief of Army Staff and DG ISI, resignation was tendered by Mr. Husain Haqqani, addressed to the Prime Minister at Islamabad on 22nd November, 2011, contents whereof read as under:-

"Islamabad, November 22, 2011

Resignation

Having served as Ambassador of Pakistan to the United States since 2008, I have faithfully fulfilled my obligations under your direction and guidance.

1. I serve at your pleasure and pursuant to your instructions and under the terms of the contract of my appointment, I hereby tender resignation from the position entrusted to me by you.

(Sd.)

Mr. Husain Haqqani

The Honorable Prime Minister"

1. As far as an Ambassador of Pakistan is concerned, including the one who is on contract appointment is deemed to be holding the post in connection with the affairs of the Federation and is to be governed by the rules applicable to the general body of civil servants, such as the Government Servants (Efficiency and Discipline) Rules, Government Servants Conduct Rules and the Civil Services (Classification, Control and Appeal) Rules. Reference may be made to the case of Abida Hussain v. Tribunal for N.A. 69 (PLD 1994 SC 60).

2. A perusal of resignation of Mr. Husain Haqqani reveals that pursuant to the instructions of the Prime Minister and under the terms of contract of his appointment, he tendered resignation, which was accepted on 23rd November, 2011 vide notification No.Estt(I)-10/177/2008 w.e.f. 22nd November, 2011. It is equally significant to note that in the letter dated 16th November, 2011, Mr. Husain Haqqani also requested to the President Asif Ali Zardari that an inquiry be set up to ascertain the veracity of any specific allegations against him. Further, pending ascertainment of facts, he proposed to resign in the national interest.

3. It may not be out of context to infer from the facts and circumstances of the case that existence of the Memo has been accepted because otherwise there was no necessity for holding four consecutive meetings between the Constitutional figures i.e. President, Prime Minister and the Chief of Army Staff as well as DG ISI and Mr. Husain Haqqani, and as a consequence of these meetings, resignation was tendered by the latter and order was also passed by Prime Minister for initiating probe in the matter.

4. Barrister Zafarullah Khan, ASC appearing in Constitution Petition No.77 of 2011, has contended that as a matter of right being a citizen, he has right to have access to information in respect of the Memo. He contended that Articles 5, 9 and 14 of the Constitution, deal with security of person; if there is no security, there is no liberty of individuals. The action of originating/drafting Memo in relation to the affairs of Pakistan, as has been mentioned therein, is tantamount to compromising security and sovereignty of Pakistan and if such effort had succeeded, Americans would have been allowed to control our security, the independent character of the government of the country would be totally lost. Thus, the security of life and dignity of citizens and of persons, which are fundamental right guaranteed under the Constitution, shall have seriously been violated. He placed reliance upon the cases of Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), Wattan Party v. Federation of Pakistan (PLD 2006 SC 697) and in Re: Corruption in Hajj Arrangements (PLD 2011 SC 963).

5. Mr. Tariq Asad, learned ASC appearing in C.P. No.78 of 2011 has stated that when citizens know that their rulers were conspiring against people, Army, Intelligence Agencies, etc., it is against the dignity of man. Further, Articles 14 and 19A of the Constitution have to be read together to ascertain as to whether fundamental rights of citizens guaranteed under both these Articles have been violated or not. He further contended that Federation while denying the existence of the Memo, is not coming forward with the truth about the circumstances which led to issuance of Memo dated 10th May, 2011. Though the article published in the Financial Times suggests that the Memo was prepared on 10th May, 2011 outside the country, but it shows concern about the security inside Pakistan and security agencies of Pakistan. He further emphasized that seeking intervention, as is evident from the contents of the Memo, is against the dignity of the people and he being a citizen has no source to collect the information about genuineness or otherwise of the Memo, therefore, he has impleaded in his petition the COAS, DG ISI and others. He referred Sura Al-Mumtahanah wherein it has been ordained as under:--

"O you who have believed, do not take My enemies and your enemies as allies, extending to them affection while they have disbelieved in what came to you of the truth, having driven out the Prophet and yourselves [only] because you believe in Allah, your Lord. If you have come out for jihad in My cause and seeking means to My approval, [take them not as friends]. You confide to them affection, but I am most knowing of what you have concealed and what you have declared. And whoever does it among you has certainly strayed from the soundness of the way." [60:1]

In Sura Al-Mā'idah it has been said that:--

"But the Jews and the Christians say, "We are the children of Allah and His beloved." Say, "Then why does He punish you for your sins?" Rather, you are human beings from among those He has created. He forgives whom He wills, and He punishes whom He wills. And to Allah belongs the dominion of the heavens and the earth and whatever is between them, and to Him is the [final] destination." [5:18]

1. Mr. Rashid A. Razvi, learned Sr. ASC contended that the fact noted in the petitions as well as replies on behalf of the respondents in CMAs, touches the question of security, independence and sovereignty of this country; therefore, apparently, Articles 9 and 14 of the Constitution have been violated. There are so many cases, which indicate that this Court is bound to enforce the fundamental rights. Reliance was placed in the cases of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642), Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632), and Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) and in Re: Corruption in Hajj Arrangements in 2010 (PLD 2011 SC 963). As in the instant case fundamental rights have been violated, therefore, this Court is bound to enforce the same because an important question of public importance has been raised before this Court and Court has no discretion to decline the relief as it is possible under Article 199 of the Constitution. And principle of judicial restraint cannot be applied to deprive the citizens as their security/integrity of the entire country is involved.

2. He further stated that objection raised by the learned counsel for Mr. Husain Haqqani that issue presented before the Court falls within the definition of sensitive political question, therefore, the Court may not go into the same, has no relevance as there is absolutely no political question and the matter relates to civil liability as well as criminal responsibility subject to establishing that Memo was originated and executed to compromise the integrity/security of this Country. He has referred the case of Mehmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) in support of his arguments.

3. Senator Muhammad Ishaq Dar, appeared in person in Constitution Petition No. 80 of 2011 and contended that overall perspective is linked with violation of fundamental rights. None of the respondents has disputed the contents of the Memo, however, without disclosing the name, what was the object and motivation of its dissemination. He further stated that probe of the Memo has been conceded by all of them except raising the dispute in respect of forum. He stated that he had written a letter to Parliamentary Committee on National Security for the purpose of taking up the issue, but on having seen that no progress was made out, he approached this Court for redressal of his grievance. He further has contended that the Committee [of which he himself is a member] was originally comprised of 17-members but presently strength of the Committee has reduced to 14-members. He was also of the opinion that in view of the rules framed by the Committee and considering the past history of the Committee, it would not be able to achieve the progress beyond a threshold. He explained that this Committee was notified on 11th November, 2008, whereas, the Memo Issue cropped up on 10th May, 2011 and was brought to the lime light after publication of Article written by Mansoor Ijaz on 10th October, 2011 in the Financial Times, London. Therefore, the Committee would not be authorized to look into this matter. Without prejudice to the arguments, he added that not a single report so far has been received from the Committee and like other Committees it has failed to deliver, therefore, suggestions made by the respondent in his reply that let the matter be probed into by the Parliamentary Committee on National Security, is not in accordance with its mandate.

4. Mr. Attique Shah Advocate Supreme Court and Mr. Muhammad Rafiq Rajwana, Advocate Supreme Court learned counsel in Petition No. 81 of 2011 framed following two questions:--

(i) Whether it is a case in which question of infringement of fundamental rights arises?

(ii) Whether the present lis involves controversy relating to judicially discoverable and manageable standards?

They have referred to the case of Powell v. McCormack [395 US 486(1969)] to substantiate their plea that the issue presented before the Court is justiciable and is to be resolved by the Judicial Forum. They have also relied upon the cases of Mehmood Khan Achakzai (supra), Darshan Masih v. the State (PLD 1990 SC 513) and Muhammad Yasin v. Federation of Pakistan (Civil Petition No.42 of 2011).

16.Mr. Attique Shah learned ASC also made a categorical statement that in the past few years, the people of Malakand Division have suffered atrocities and miseries, and have sacrificed life and honour. In the operation of Swat, etc., apart from other damages and destruction suffered by the people of Malakand, two million people became IDPs and had lived in camps, only for the sovereignty and integrity of this country. Out of them, 4000 were members of the legal fraternity. The Memo contains concessions on the one hand, and the destruction on the other. This court is to appreciate that right from 1979 till date, only Peshawar is having the burden of 3 million Afghan migrants. We have lost dignity, profession and finances for the sake of integrity and sovereignty of this nation. At present on western borders spreading over 500 km, due to the activities of the troops, 21000 civilian casualties have occurred for the honour, integrity and sovereignty of the country, but through the Memo the concessions are being given. This is the result of serious active connivance amongst the responsible persons. There are drone attacks and activities of militants. Thus it is a case of serious violation of Fundamental Rights.

1. Dr. Salahuddin Mengal, ASC stated that by means of Article 2A, which is now the substantive part of the Constitution, adequate provision to safeguard the interests of judiciary have been provided including the sovereignty, security and dignity of this country; that the crux of the Memo is admitted by Mansoor Ijaz; DG ISI travelled to UK, inspected BBM and other computer material, submitted report to the President; a meeting was convened in the President House; Paras 1, 2, 3 of the Memo speak of the new National Security Team, etc.; this falls within the definition of violation of fundamental right of the people of this country. Previously, Amal Kansi was handed over to Americans, which was very unfortunate and it also needs to be probed. The Memo has shaken the entire nation. He has stated that he is representing the elected members of the National Assembly who belong to Balochistan. His emphasis was mainly on the violation of Article 9 of the Constitution.

2. Sardar Asmatullah Khan, ASC has appeared in Constitution Petition No. 83 of 2011 and argued that the petitioners are former President and Speaker of Azad Jummu & Kashmir and are also citizen of Pakistan. It is a matter of violation of Articles 9 and 19A of the Constitution. He also referred to the case of Shehla Zia v. WAPDA (PLD 1994 SC 693).

3. Syed Ghous Ali Shah, ASC has appeared in Constitution Petition No. 84 of 2011 and adopted the arguments of other counsel for the petitioners, however, has added two things; firstly, it is absolutely incorrect that if the matter is decided by this Court, supremacy of the Parliament will be affected, because except the Court or a Tribunal constituted by it, no other forum would be in a position to conduct a thorough probe; secondly, the issue of Memo has affected every citizen of Pakistan and not just merely one or two institutions of the State. Thus, it is a matter of public importance with reference to enforcement of fundamental right.

4. Rana M. Shamim, ASC has appeared in Constitution Petition No.84 of 2011 and adopted the arguments of other learned counsel while relying upon the judgments cited by them. He, however, added that COAS has filed affidavit in this Court requesting for a probe into the matter, as sovereignty and integrity of the country is involved.

5. Mr. Naseer Ahmad Bhutta, ASC has appeared in Constitution Petition No.85 of 2011. He has adopted the arguments of other learned counsel for the petitioners.

22.Maulvi Anwar-ul-Haq, learned Attorney General for Pakistan appeared on behalf of the Federation and contended that as the Court has observed that respondents, COAS and DG ISI also fall within the definition of Federation, therefore, he is appearing on behalf of all of them. It is a matter of record that replies dated 14th December, 2011 on behalf of respondents Chief of Army Staff and DG ISI were duly filed under covering letter No.1(3)/2011-AGP dated 15th December, 2011 before this Court through the learned Attorney General for Pakistan. Similarly, affidavits of Chief of Army Staff and DG ISI dated 21st December, 2011, which were delivered by the M/o Defence vide letter No.1/603/Dir (Legal)/11 to the office of Attorney General for Pakistan, were filed in Court vide C.M.As Nos.5625/2011 and 5691/2011 respectively.

He further contended that there is no existence of Memo because a person, whose name is Mansoor Ijaz, is sitting outside the country who is an American National. And he on his own, originated/drafted a Memo allegedly to involve Ambassador of Pakistan in US, for which no cogent and tangible reasons exist. He contended that the Federal Government as well as the Presidency has already denied the contents of the said Article published on 10th October, 2011 and having taken notice of the same, proper steps have already been initiated by the competent authority, on the executive side as well as at Parliamentary Forum, for the purpose of conducting probe in the issue. The Parliamentary Committee is fully empowered not only to probe into the matter but also to ensure production of such evidence as it deems necessary. He stated that the former Ambassador of Pakistan to US has put in his resignation on the call of Chief Executive and its acceptance has been notified.

1. Mr. Mansoor Ijaz has sent his reply through e-mail along with attached documents to substantiate the plea that Memo dated 10th May, 2011 originated at the behest of respondent No.4, Mr. Husain Haqqani.

2. Ms. Asma Jahangir, learned counsel appearing on behalf of Mr.Husain Haqqani has vehemently contested the petition for want of infraction, violation and breach of any of the fundamental rights of the petitioners, as according to her, absence of such elements is sufficient to render the petitions liable to be dismissed being not maintainable. She has contended that question of public importance and enforcement of fundamental rights should have direct link with each other, enabling this Court to exercise jurisdiction under Article 184(3) of the Constitution. There must be bona fides of the petitioners to approach this Court for a relief under Article 184(3). This Court has to safeguard the fundamental rights on the basis of cogent evidence, as merely on the basis of assumptions and presumptions, jurisdiction cannot be exercised as the same is likely to create chaos, if ultimately it is found that the declaration is not enforceable. Exercise of jurisdiction must not be vague and based on hypothesis. The remedy sought should strengthen and enforce the fundamental rights. Jurisdiction under Article 184(3) is remedial in character and exercise of the jurisdiction under this provision is conditioned by following three pre-requisites; namely, there is a question of public importance; such question involves enforcement of the fundamental rights; and fundamental rights to be enforced are conferred by Chapter 1, Part II of the Constitution. When there is a question of fact, which is disputed, copious or too intricate, then restraint has to be exercised while exercising jurisdiction under Article 184(3). Actions or inactions of the State, which result in actual breach of fundamental rights, would warrant exercise of jurisdiction. The fundamental rights have to be established in tangible terms for establishing bona fides. Safeguard provided under the Constitutional jurisdiction for the due process of law has to be adhered to strictly, as now through Article 10A of the Constitution, it has become a fundamental right of the citizens. No infraction, breach or violation of Articles 9, 14, and 19A, as is alleged, has been involved in the instant case. Therefore, petitions deserve to be dismissed with special costs. She has relied upon the judgments in the cases of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642), Corruption in Hajj Arrangements, 2010: (PLD 2011 SC 963), Mrs. Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632), Syed Zulfiqar Mehdi v. Pakistan International Airlines Corporation through M.D. (1998 SCMR 793), K.B. Threads (Pvt.) Limited v. Zila Nazim, Lahore (PLD 2004 Lahore 376), Jamat-e-Islami v. Federation of Pakistan (PLD 2008 SC 30), Ch. Muhammad Siddique v. Government of Pakistan (PLD 2005 SC 1), Haji Muhammad Saifullah Khan v. The Federation of Pakistan (1989 SCMR 22), Grp. Capt. (Retd.) Cecil Sohail Chowdhry v. Federation of Pakistan (1989 SCMR 523), Al-Jehad Trust v. The President of Pakistan (PLD 2000 SC 84), Mian Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), Al-Jehad Trust v. Lahore High Court (2011 SCMR 1688), In Re: Suo Motu Case No.10 of 2007 (PLD 2008 SC 673), Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), State Life Insurance Employees Federation v. Federal Government of Pakistan (1994 SCMR 1341) and Ashok Kumar Pandey v. The State of West Bengal (AIR 2004 SC 280) = [(2004) 3 SCC 349].

3. Learned counsel for the parties have no serious reservations about the question of public importance in this matter to be one of the components to attract the jurisdiction of this Court under Article 184(3) of the Constitution coupled with the fact that three elements i.e. question of public importance, question of enforcement of fundamental right and fundamental rights sought to be enforced as conferred by Chapter 1, Part II of the Constitution, are required to be satisfied.

4. Learned Attorney General, however, conceded that petitions relate to matter of public importance.

5. According to the dictionary meaning, the term "public importance" could be defined that the question, which affects and has its repercussions on the public at large and it also includes a purpose and aim, in which the general interest of the community, particularly interest of individuals is directly or vitally concerned. In Words and Phrases Vol. 18-A, 'Great Public Importance' has been defined as under:--

"A case in which a court is proceeding without jurisdiction of person or subject matter involves a matter of 'great public importance' within rule providing that relief in nature of prohibition will not be granted by Supreme Court except in matters of great public importance."

1. This Court had undertaken exercise to define this phrase in the cases of Manzoor Elahi v. Federation of Pakistan (PLD 1975 SC 66), Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Maqbool Ahmad v. Pakistan Agricultural (2006 SCMR 470), Mian Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583) and Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632). In the case of State of Jammu and Kashmir v. Bakshi Ghulam Mohammad (AIR 1967 SC 122) some of the actions of Bakshi Ghulam Mohammad (the then Chief Minister) were challenged before the High Court and the High Court expressed the view that such acts would have been acts of public importance if he was in office but they ceased to be so, as he was out of office, when the notification was issued. The Supreme Court reversed the finding while observing that this was a misreading by the High Court and held that what is to be inquired into in any case are necessarily past acts and it is because they have already affected the public well-being or their effect might do so, that they became matters of public importance. It was further held that it is of public importance that public men failing in their duty should be called upon to face the consequences. It is certainly a matter of importance to the public that lapses on the part of the Ministers should be exposed. In the case of Sohail Butt v. Deputy Inspector General of Police (2011 SCMR 698) it was held that the word 'public importance' can only be defined by a process of judicial inclusion or exclusion because the expression public importance is not capable of any precise definition and has not a rigid meaning, therefore, each case has to be judged in the circumstances of that case as to whether the question of public importance is involved. But it is settled that public importance must include a purpose or aim in which the general interest of the community as opposed to the particular interest of the individuals is directly and vitally concerned.

2. This Court in Manzoor Elahi's case (supra) has observed that in order to acquire public importance the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities or the public or the community at large, even though the individual, who is the subject matter of the case, may be of no particular consequence. In the case of Munir Hussain Bhatti advocate v. Federation of Pakistan and others (PLD 2011 SC 407) it has been held that a wealth of jurisprudence is available on this subject. The issue, therefore, which has to be addressed while deciding the respondent's preliminary objection is whether or not these petitions raise issues of public importance. Furthermore, in making this determination, 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 this Court. It is important to keep these precedents in view because, as noted in an earlier judgment, it is through the use of precedent that the contours of the law are constantly defined. In the case of Muhammad Shahbaz Sharif (PLD 2004 SC 583) it has been held that in order to acquire public importance the case must obviously raise a question, which is of interest to, or affects the whole body of people or an entire community. What is essential is that the question so raised must relate to the interest of whole body of the people or an entire community. To put it in other words, the case must be such, which raises a question affecting the legal rights or liabilities of the public or the community at large, irrespective of the fact that who raised such question. In the case of Kellner v. District Court [256 P.2d 887 (1953) 127 Colo 320], the Supreme Court of Colorado has laid down that as to the question of what is of great public importance, sole determination in all cases, according to the peculiar features of each, is within the province of the court. In some cases there may be an adequate remedy at law, but not speedy. In some instances, and we believe applicable here it is apparent on the face of the pleadings and record before us. The Supreme Court of Judicature, UK in the case of the Queen on the Application of Compton v. Wiltshire Primary Care Trust [(2008) EWCA Civ 749] has held that the first governing principle requires the judge to evaluate the importance of the issues raised and to make a judgment as to whether they are of general public importance. In the case of Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), the dual office of General Pervez Musharraf as Chief Executive and the Chief of Army Staff was challenged. Although the petitions were dismissed being not maintainable, however, in the majority view, it was held that the condition precedent for following the precedent must be question of public importance. The learned Judge, who authored the majority judgment, accepted the principle that jurisdiction under Article 184(3) of the Constitution cannot be exercised unless the matter is of public importance involving the fundamental rights conferred by Part-II Chapter 1 of the Constitution. In the case of Muhammad Yasin v. Federation of Pakistan (Civil Petition No.42 of 2011) it has been held as under:--

"It is clear from the text of this Article that the Court's powers and jurisdiction are broad in scope. We have elaborated the contours of our jurisdiction in a recent judgment wherein it has been held that "Article 184(3) ibid empowers this 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 made by this Court itself keeping the facts of the case in mind". The exercise of jurisdiction by the Supreme Court, thus is not dependent on the existence of a petitioner. We have also before us precedent where this Court has exercised jurisdiction under Article 184(3) even where a legal proceeding in respect of the same matter was pending or had been finally decided by a High Court. Reference in this behalf can be made to Suo Motu Case No.10 of 2009, (2010 SCMR 885)."

1. As noted above, existence of Memo dated 10th May, 2011 has not been denied by the Federation, otherwise there was no necessity for holding four meetings between the Constitutional and other senior figures i.e. President, Prime Minister, the Chief of Army Staff and DG ISI as well as Mr. Husain Haqqani and as a consequence of these meetings tendering of resignation by Mr. Husain Haqqani and initiation of probe by the Prime Minister. What was the nature of discussion between all of them is not available as only the Chief of Army Staff and DG ISI have submitted their replies as well as counter affidavits whereas the Federation through the Secretary Interior has also not disputed this fact but without sharing information with the Court on account of which two important decisions referred to hereinabove were taken. The persons who represent the masses, are bound by the Constitution but when any decision is taken, it also creates curiosity amongst masses to know the reality about the events, which persuaded the Constitutional figures to take prima facie extreme steps like obtaining resignation from respondent No.4 (Mr. Husain Haqqani) and directing the probe. We may mention here that this angle of the case has been examined in view of the admitted facts as it has been pointed out hereinabove. The body of the people, who are the citizens of this country, are always interested in well being and security of their beloved country. There are not only many people who are interested to know the reality but the media, both electronic and print, had highlighted the issue extensively. Rightly so, because as a living nation, they have every right to know about the affairs of their country.

2. In view of above principle/observations and after considering the nature of the issue it is observed that the expression "public importance" is tagged with the enforcement of the Fundamental Rights as a precondition of the exercise of the power. This should not be understood in a limited sense, but in the gamut of the constitutional rights of freedoms and liberties, their protection and invasion of such freedoms in a manner which raises a serious question regarding their enforcement. Such matters can be viewed as of public importance, whether they arise from an individual's case touching his honour, liberty and freedom, or of a class or a group of persons as they would also be legitimately covered by this expression. Thus, it is held that "to delineate measures with a view to ensure enforcement of fundamental rights, a probe is called for to ascertain the ORIGIN, AUTHENTICITY and PURPOSE of creating/drafting for delivering it to Admiral Mike Mullen through James Jones", thus, a question squarely fallen within the definition of term 'public importance'.

3. Now next question for examination is as to whether the matter involves the enforcement of any of the fundamental rights conferred by Chapter 1, Part-II of the Constitution of Pakistan.

4. Ms. Asma Jahangir, learned ASC has vehemently contended that the petitioners have failed to show the infringement of any of their fundamental rights as they have prayed for conducting inquiry/probe into the matter, and such prayer does not confer any fundamental right as per Constitution.

5. On the other hand, learned counsel for the petitioners in rebuttal have stated that in the petitions they have categorically stated that the matter involves the sovereignty and integrity of the country, therefore, their right to life is involved. Further, they contended that this Court has jurisdiction in case of any threat to the fundamental rights of the petitioners, to conduct probe to enforce fundamental rights envisaged by the Constitution.

6. On having gone through facts of the case and the judgments cited by the learned counsel for the parties, following principles are highlighted to exercise jurisdiction under Article 184(3) of the Constitution:--

(1) It is not necessary that who has approached the Court for the enforcement of fundamental rights as an information has to be laid before the Court, may be by an individual or more than one person.

(2) The case must involve decision on an issue in which the public-at-large is interested.

(3) The case also relates to the enforcement/violation of any of the fundamental rights mentioned in Chapter I, Part-II of the Constitution, namely, Articles 8 to 28.

(4) If it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint, then why not a person, who were to act bona fide to activise a Court for the enforcement of the Fundamental Rights of a group or a class of persons who are unable to seek relief.

(5) Under Article 184(3), it is not a traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim.

(6) The Court while dealing with a case under Article 184(3) of the Constitution 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.

(7) The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of this Court on its own terminology.

(8) In a given case where a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid or a strait-jacket formula prescribed for enforcement of the Rights would be self-defeating.

(9) In order to ascertain the violation of a fundamental right, the Court has to consider the direct and inevitable consequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced.

1. It is also significant to note that the Court seized with the inquisitorial kind of proceedings is bound to be careful while examining the matter placed before it, lest it should cause injustice or prejudice to any of them and shall make reference of the material/documents or circumstances, which are not disputed between them. As in the instant case reference has only been made to the documents in respect whereof the parties before the Court have no controversial attitude against each other and despite it, final determination about the civil liability and criminal culpability has to be made by the forum empowered to determine the extent of the involvement subject to following the due process as defined in Articles 4 and 10A of the Constitution. In short order dated 30-12-2011 except appointing a Commission to probe into the matter for the purpose of delineating measures with a view to ensure enforcement of fundamental rights i.e. Articles 9, 14 and 19A to ascertain the origin, authenticity and purpose of creating/drafting of Memo for delivering it to Chairman of Joint Chiefs of Staff, Admiral Mike Mullen through General (R), James Logon Jones, Former US National Security Advisor. No reference concerning involvement of any of the respondents has been made. Inasmuch as in the earlier order dated 1st December, 2011 after having observed that no sooner the issue of Memo came to limelight, former Ambassador of Pakistan tendered his resignation. We do not want to attribute to him anything adverse on account of his involvement as he is entitled to due respect but we desires that he should fully cooperate with the Commission and during pendency of the cases before this Court he would not be leaving the country without prior permission of this Court. As far as later portion of leaving the country without permission of this Court is concerned, it shall be dealt with later separately, in the light of arguments of Ms. Asma Jahangir, ASC. However, in view of the fact that instant proceedings are inquisitorial in nature, the expression in contradiction to adversarial proceedings has been defined in following paras in Watan Party's case (PLD 2011 SC 997):--

"42.Adversarial proceedings are defined as proceedings relating to, or characteristic of an adversary or adversary procedures. The term "adversarial" has been defined in the Concise Oxford English Dictionary, Eleventh Edition, Revised, as under:-.

"1. Involving or characterized by conflict or opposition. 2. Law (of legal proceedings) in which the parties involved have the responsibilities for finding and presenting evidence."

In "Advanced Law Lexicon" the term "Adversarial Process" has been defined as under: -

"A process in which each party to a dispute puts forward its case to the other and before a neutral judge, soliciting to prove the fairness of their cases."

In the American Heritage Dictionary of the English Language, Fourth Edition: Published by Houghton Mifflin Company, the term is defined as under:-

"Relating to or characteristic of an adversary; involving antagonistic elements: "the chasm between management and labor in this country, an often needlessly adversarial .....atmosphere" (Steve Lohr)."

In Collins English Dictionary - Complete and Unabridged, it is defined as under:

"1. Pertaining to or characterized by antagonism and conflict

1. (Law) Brit having or involving opposing parties or interests in a legal contest US term adversary"

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 inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case.

1. 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.

2. As against the above, the term "inquisitorial" is defined in "Concise Oxford English Dictionary, Eleventh Edition, Revised as under: --

"1. Of or like an inquisitor.

1. Law (of performing an examining role)"

In "Advanced Law Lexicon" 3rd Edition, 2005, it is defined in the following words:

"The system of criminal justice in most civil law nations, where judges serve as prosecutors and have broad powers of discovery."

Webster's New World College Dictionary Copyright 2010, by Wiley Publishing, Inc., Cleveland,. Ohio defines it as under--

"1. of or like an inquisitor or inquisition

1. inquisitive; prying"

Collins World English Dictionary defines it as under:-

"1. of or pertaining to an inquisitor or inquisition.

1. exercising the office of an inquisitor.

2. law.

a. pertaining to a trial with one person or group inquiring into the facts and acting as both prosecutor and judge.

b. pertaining to secret criminal prosecutions.

1. resembling an inquisitor in harshness or intrusiveness.

2. inquisitive; prying.

3. The Free Dictionary describes it in part, as "a method of legal practice in which the judge endeavours to discover facts whilst simultaneously representing the interests of the State in a trial". Under the inquisitorial model, the obligations of a Judge are far greater and he is no longer a passive arbiter of proceedings but an active member of the fact finding process.

4. 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 defense. 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".

5. 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.

6. Thus, following the principle/judicial consensus that while interpreting Article 184(3) of the Constitution, the interpretative approach should not be ceremonious observance of the rules or usages of the interpretation but regard should be had to the object and purpose for which this Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution including the Objectives Resolution (Article 2-A), the fundamental rights and the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam. The term as defined in Articles 9, 14 and 19A of the Constitution is interpreted hereinbelow with reference to matter under discussion.

7. It is observed that the preamble which is now the substantive part of the Constitution by means of Article 2A, commands that it is the will of the people of Pakistan to establish an order wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded; so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and made their full contribution towards international peace and progress and happiness of humanity. These words of the Constitution comprehensively define the stature of an independent Pakistan where the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world. Undoubtedly, this provision of Constitution has overwhelming nexus with the fundamental rights of the citizens of Pakistan (people) specifically guaranteed under Articles 9 and 14 of Chapter 1, Part-II of the Constitution.

8. The expression 'life' implied in Article 9 of the Constitution, is also used in the corresponding Article 21 of the Indian Constitution. Article 9 of the Constitution of Pakistan prescribes that "no person shall be deprived of life or liberty save in accordance with law". Whereas in the Indian Constitution it reads that "no person shall be deprived of his life or personal liberty except according to procedure established by law". Fourteenth Amendment of the American Constitution provides, "no State shall deprive any person of life, liberty, or property without due process of law". In Shehla Zia's case (ibid), it is held that the word "Life" used in Article 9 of the Constitution is very significant as it covers all facets of human existence. The 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. In the case of Munn v. Illinois (100 U.S. 1) Field, J., in his dissenting opinion has held that by the term "life," as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world. The deprivation not only of life, but of whatever God has given to everyone with life for its growth and enjoyment, is prohibited by the provision in question if its efficacy be not frittered away by judicial decision. The Indian Supreme Court in Francis Coralie Mullin v. The Administrator (AIR 1981 SC 746) has held that any act which damages or injures or interferes with the use of any limb or faculty of a person either permanently or even temporarily, would be within the inhibition of Article 21. Fundamental right to life which is most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and validity endure for years to come and hence the dignity of individual and the worth of human person. It was further observed as under:--

"It is the fundamental right of everyone in this country ... to live with human dignity free from exploitation. This right to live with human dignity enshrined in A. 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of A. 39, A. 41 and A. 42 and at least, therefore it must include protection of the health and strength of the workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State has the right to take any action which will deprive a person of the enjoyment of these basic essentials." [emphasis supplied]

In this case, the term ""life" has been defined with an expansive spirit, according to which every limb or faculty, with which life is enjoyed is protected by Article 21 and a fortiori, which would include the faculties of making and feeling. The expression ""life" in this Article does not connote mere animal existence or continuing drudgery through life. It means something much more than just physical survival. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the work place and leisure. It would be advantageous to reproduce relevant extracts from the case of Bandhua Murti Morcha v. Union of India [ 1984 (3) SCC 161]:--

"It is the fundamental right of everyone in this Country, assured under the interpretation given to Art. 21 by this court in Farancis Mullin's case (1981) 1 SCC 608 to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Art.21 derives its life breath from the Directive principles of State Policy and Particularly cls. (e) and (f) of Art. 39 and Arts. 41 and 42 and at the least, therefore, it must include protection of the health and strength of the workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just as human conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the central Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials." [emphasis supplied]

Similarly, in the case of Sunil Batra v. Delhi Administration (AIR 1978 SC 1675) the word "life" has been defined as "every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands test of other fundamental rights". In the case of Bira Kishore Naik v. Coal India Ltd. (AIR 1986 SC 2123) it has been held that Article 21 of the Constitution guarantees right to life, which right would be meaningless unless the citizen has a right to live with dignity. In the case of Common Cause v. Union of India (AIR 1999 SC 2979) it has been held that the rights also include the right to live with human dignity and all that goes along with. Same view was taken in the cases of Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802) = [(1984)2 SCR 67] and N. P. S. NPC Teachers' Association v. Union of India (AIR 1993 SC 369).

1. In the case of Shehla Zia (ibid) citizen having apprehension against construction of a grid station in residential area sent a letter to the Supreme Court for consideration as human rights case raising two questions; namely, whether any Government agency has a right to endanger the life of citizens by its actions without the latter's consent; and secondly, whether zoning laws vest rights in citizens which cannot be withdrawn or altered without the citizen's consent. The Court declared the petition to be maintainable on the ground that if there are threats of serious damage, effective measures should be taken to control it and it should not be postponed merely on the ground that scientific research and studies are uncertain and not conclusive. The word 'life' constitutionally is so wide that the danger and encroachment complaint would impinge fundamental right of a citizen. In the case of Bank of Punjab v. Haris Steel Industries (PLD 2010 SC 1109), the matter was related to one of the gravest financial scams in the banking history of Pakistan as a result of which the Bank stood cheated of an enormous amount of around eleven billion rupees which amount of money in fact belonged to around one million innocent depositors including depositors of small amounts of money whose life savings and property had come under serious threat, therefore, it was held that the facts cast an obligation on the Supreme Court to move in to protect and defend the right of property of such a large section of the population i.e. about one million depositors and customers of the Bank which right of property stood guaranteed to them by Art.24 and Art.9 of the Constitution and it was in view of the facts and circumstances that the Bank had felt compelled to approach Supreme Court under Art. 184(3) of the Constitution read with O.XXXIII, R. 6 of the Supreme Court Rules, 1980 through Constitutional petition. It was further held that Supreme Court was possessed of power to make any order of the nature mentioned in Art.199 of the Constitution, if in its opinion, a question of public importance relating to the enforcement of any of the Fundamental Rights was involved in the matter. In the case of D. A. V. College, Bhatinda v. The State of Punjab [AIR 1971 SC 1731] the Indian Supreme Court has held that whether or not ultimately any fundamental right in fact is threatened or violated so long as a prima facie case of such a threat or violation is made out a petition under Art. 32 must be entertained. So long as the petitioner makes out a prima facie case that his fundamental rights are affected or threatened he cannot be prevented from challenging that the law complained of, which affects or invades those rights, is invalid because of want of legislative competence. In the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (AIR 1958 SC 538) it has been held that quite conceivably the conduct of an individual person or company or a group of individual persons or companies may assume such a dangerous proportion and may so prejudicially affect or threaten to affect the public well-being as to make such conduct a definite matter of public importance urgently calling for a full inquiry.

2. The term 'life with dignity', defined by the Superior Courts, pointed out hereinabove, prima facie, suggests that a citizen who is constitutionally under the obligation to be loyal to State, the Constitution and the law, whatever his status may be, also remains under the command of the Constitution to have an honoured place amongst the nations of the world. The attempt/act of threatening to the dignity of the people, collectively or individually, concerning the independence, sovereignty and security of their country, prima facie, raises a serious question tagged/linked with their fundamental rights. The existence of Memo dated 10th May, 2011 may have effects of not only compromising national sovereignty but also its dignity. The loyal citizens have shown great concern, to live in the comity of nations with dignity and honour, as according to expanded meanings of 'life', the citizen have a right to ask the State to provide safety to their lives from internal as well as external threats. Undoubtedly this nation had achieved independence at the cost of great sacrifices. Inasmuch as, at present security forces are fighting against the unscrupulous persons involved in terrorism, not in a particular part but throughout the country, without any distinction.

3. Learned counsel for respondent No.4 emphasized that there must be a serious question involving enforcement of the fundamental rights. Prima facie, what could be more threat to the life of citizens who are loyal to this country and the Constitution where on the basis of activities, which resulted in originating Memo dated 10th May, 2011. Its existence, as discussed above, has been established. Inasmuch as, the Federation itself, is of the opinion that the matter requires to be probed into and the initiative apparently has been taken in view of the letter dated 16th November, 2011, copy of which has been produced by learned counsel for respondent No.4, in which besides mentioning other facts he himself has offered for a probe into the issue of the Memo, therefore, in such like cases when cogent, concurrent and undisputed facts have come on record about the existence of the Memo dated 10th May, 2011 and contents whereof have threatened the independence, sovereignty and security of the country, the loyal citizens are, prima facie, justified to raise a voice about the denial of their fundamental rights under Articles 9, 14 and 19A of the Constitution, which are tagged with the question of public importance, thus, call for their enforcement. Learned counsel, however, stated that for enforcement of the "Fundamental rights to have access to information, under Article 19A of the Constitution", alternate remedy is available under the Freedom of Information Ordinance, 2002 (Promulgated on 26th October, 2002). On having gone through the scheme of the Ordinance, we are not inclined to agree with her, as in the instant case, enforcement of fundamental rights in terms of Article 184(3) of the Constitution has been prayed for.

4. Subject to all just exceptions, Mansoor Ijaz has shared with DG ISI evidence to prove that he had written Memo, which the latter brought into the notice of Chief of Army Staff, so on and so forth. But surprisingly, in the reply submitted by Mr. Hussain Haqqani, he has not mentioned about the briefing given to the President in the presence of Chief of Army Staff and D.G. ISI on 22nd November, 2011 in Prime Minister House, nor has he stated about the resignation. As far as D.G. ISI is concerned, he has furnished complete detail/description of his meeting held by him in London with respondent Mansoor Ijaz. On receipt of reply from Chief of Army Staff and D.G., ISI, copies of the same were handed over to all the parties for re-joinders, if any, by means of order dated 15-12-2011. No reply contradicting statement of both the respondents was filed, except vide C.M.A. 5539 of 2011 Ms.Asma Jahangir filed affidavit, received from James Logan Jones, which he has not sent through Embassy of US nor the Government or to the Registrar of this Court. This affidavit, however, has been contradicted by Mansoor Ijaz, copies of which have also been supplied to all concerned. Interestingly, the Federation despite knowing all these facts had not taken position in respect of events which have been pointed in the concise statement of the Chief of Army Staff and D.G. ISI. For sake of arguments and to be on safe side at the moment without discussing or taking into consideration the statement of Mansoor Ijaz (respondent No.4) and James Jones, prima facie it is established that a Memo was drafted and prepared, which was sent to Mike Mullen, who initially denied its existence but later he admitted that he received such a Memo. Reference to the statement has been made in Constitution Petition No.79 of 2011 (Muhammad Nawaz Sharif v. Federation of Pakistan). These assertions are important to, prima facie, draw an inference that the memo episode has an impact on national security. The contents of memo, if believed to be true, prima facie, are tantamount to compromising the security, sovereignty and independence of the country. It is not desirable to discuss its contents, lest it should cause prejudice to either parties.

5. In all these petitions specifically amongst the respondents, no one has been sought to be held liable to take brunt of the civil liability or criminal culpability, except praying to probe into the matter and to identify those who are responsible in issuance of the derogatory Memo, though they have alleged threat to life, security, dignity as well as denial of fundamental right to have complete information about the issue wherein allegedly independence, sovereignty and security of the country is likely to be compromised. Seeking no relief against any of the respondents suggests that in accordance with the provisions of Article 184(3) of the Constitution, this Court is empowered to make a declaratory order to enforce any of the fundamental rights conferred by Chapter-I, Part II. Such kind of litigation falls within the category of inquisitorial proceedings and not adversarial, which is generally undertaken by the litigants against each other for determination of their respective rights in the common law countries.

6. Ms. Asma Jahangir, learned ASC also has not resisted the question of probe into the issue of Memo dated 10th May, 2011 and she made a categorical statement that as it is not a fundamental right of the petitioners to insist for inquiry according to their own choice, thus, subject to following the principle of due process of law, a probe, whether conducted by a Commission appointed by the Federal Government under Commissions of Inquiry Act, 1956 or by the Parliamentary Committee to whom the job is assigned by the Prime Minister of Pakistan, or by means of the departmental inquiry against Mr. Husain Haqqani can be held. However, she opposed the probe by a body or the Commission constituted by this Court.

7. Learned Attorney General stated that the Parliamentary Committee on the National Security on the request of one of the petitioners, namely, Senator Ishaq Dar vide letter dated 21st November, 2011 addressed to the Chairman of the Committee constituted under a Joint Resolution of both the Houses has already commenced probe into the matter and its first meeting has been held on 25th November, 2011, therefore, let the Committee accomplish its assignment. As such, all the petitions being pre-mature, may be dismissed. As far as this aspect of the case is concerned, on the first day of hearing i.e. 1st December, 2011, the learned Attorney General for Pakistan had advanced the same arguments and without any reservation we had observed:-

"We are told that the Prime Minister of Pakistan has also announced that the Parliamentary Committee on National Security will probe into the matter. We do not know the mandate of the Committee. However, we have been informed that as far as this Committee is concerned, it has no constitutional backing, i.e. it has not been constituted under any provision of the Constitution. Be that as it may, if any incriminating evidence is collected by the Committee both for civil and criminal actions by probing into the matter, we would welcome the same. During the pendency of the proceedings, we would appreciate if the outcome of the proposed inquiry by the Committee is shared with us, if possible."

As in the instant case in view of the facts noted hereinabove, contained in the letter dated 16th November, 2011 addressed by the former Ambassador Husain Haqqani to the President of Pakistan, the letter dated 28th November, 2011 and the request made in Constitution Petitions Nos.77 and 78 of 2011 as well as by other petitioners during course of the arguments including the learned Attorney General as well as the counsel for respondent No.4 Mr. Husain Haqqani all are one on the point that probe should be conducted in the matter. This fact itself indicates the importance of the issue, otherwise respondent No.4 and the Prime Minister in the letter dated 28th November, 2011 would have not referred the matter for probe by the Parliamentary Committee on National Security.

1. The mandate of the Parliamentary Committee as conferred

by the Consensus Resolution passed at the conclusion of the Joint Sitting of Parliament (8th to 22nd October, 2008) is given below:--

"This in-camera joint session of Parliament has noted with great concern that extremism, militancy and terrorism in all forms and manifestations pose a grave danger to the stability and integrity of the nation-state. It was recalled that in the past the dictatorial regimes pursued policies aimed at perpetuating their own power at the cost of national interest. This House, having considered the issue thoroughly and at great length is of the view that in terms of framing laws, building institutions; protecting our citizens from violence, eradication of terror at its roots, re-building our economy and developing opportunities for the disadvantaged, we all commit to the following:-

1. That we need an urgent review of our national security strategy and revisit the methodology of combating terrorism in order to restore peace and stability to Pakistan and the region through an independent foreign policy.

2. The challenge of militancy and extremism must be met through developing a consensus and dialogue with all genuine stakeholders.

3. The nation stands united to combat this growing menace, with a strong public message condemning all forms and manifestations of terrorism, including the spread of sectarian hatred and violence, with a firm resolve to combat it and to address its root causes.

4. That Pakistan's sovereignty and territorial integrity shall be safeguarded. The nation stands united against any incursions and invasions of the homeland, and calls upon the government to deal with it effectively.

5. That Pakistan's territory shall not be used for any kind of attacks on other countries and all foreign fighters, if found, shall be expelled from our soil.

6. That dialogue must now be the highest priority, as a principal instrument of conflict management and resolution. Dialogue will be encouraged with all those elements willing to abide by the Constitution of Pakistan and rule of law.

7. That the development of troubled zones, particularly the tribal areas, and NWFP (Pukhtunkhwa), must also be pursued through all possible ways and legitimate means to create genuine stakeholders in peace. New economic opportunities shall be created in order to bring the less privileged areas at par with the rest of Pakistan.

8. That a political dialogue with the people of Balochistan, the redressal of grievances and redistribution of resources shall be enhanced and accelerated.

9. That the State shall maintain the rule of law, and that when it has to intervene to protect the lives of its citizens, caution must be exercised to avoid casualties of non-combatants in conflict zones.

10. That the federation must be strengthened through the process of democratic pluralism, social justice, religious values and tolerance, and equitable resource sharing between the provinces as enshrined in the Constitution of 1973.

11. That the State shall establish its writ in the troubled zones, and confidence building mechanisms by using customary and local communities (jirga) and that the military will be replaced as early as possible by civilian law enforcement agencies with enhanced capacity and a sustainable political system achieved through a consultative process.

12. That Pakistan's strategic interests be protected by developing stakes in regional peace and trade, both on the western and eastern borders.

13. That mechanisms for internal security be institutionalized by; paying compensation for victims of violence; and rehabilitate those displaced from their homes as soon as possible; that spill-over effects of terrorism be contained throughout the country and that public consensus be built against terrorism through media and religious participation.

14. That a Special Committee of Parliament be constituted to periodically review, provide guidelines and monitor the implementation of the principles framed and roadmap given in this Resolution. This House authorizes the Speaker to constitute the said Committee in consultation with the parliamentary leaders of both Houses. The Committee will frame its own rules upon meeting."

15. Senator Ishaq Dar explained that despite filing of application before the Parliamentary Committee no action was initiated, therefore, he had to file a petition before this Court on 23-11-2011 as according to his contention the first meeting of the Committee was convened after issuance of letter dated 28th November, 2011, the Principal Secretary to Prime Minister, whereby the matter was referred to Parliamentary Committee on National Security for probe. Reference to this letter has already been made in the short order dated 30-12-2011. He however, further stated that in pursuance of consensus resolution passed at the conclusion of in- camera Joint Sitting of Parliament (8th to 22nd October, 2008) a Committee was constituted. As per contents of the resolution, the joint session of Parliament noted with great concern that extremism, militancy and terrorism in all forms and manifestations posed a grave danger to the stability and integrity of the nation/State. It may be recalled that in the past, the dictatorial regimes pursued policies aimed at perpetuating their own rule at the cost of national interest, therefore, the Committee would not be empowered for conducting probe in this matter.

16. Following the above consensus resolution dated 22nd October, 2008 the rules of procedure for the Parliamentary Committee on National Security were framed on 17th November, 2008. Its preface categorically stated that the Parliamentary Committee on National Security was constituted with specific terms of reference to periodically review, provide guidelines and monitor the implementation of the principles framed and roadmap given in the Resolution. Essentially, these rules and resolution are self explanatory, which calls for no interpretation by this Court with reference to undertaking a probe into the issue of Memo dated 10th May, 2011. Despite serious issues raised qua its jurisdiction to probe into the origin of Memo dated 10th May, 2011, in the order dated 1st December, 2011 and 30th December, 2011, it was observed that if evidence was collected, it may be shared with this Court, if possible, and we again reiterate the same in the interest of country and the nation.

17. Apprehension of the learned counsel about non-observance of the principle of due process by the commission set up by the Court, as it has been argued by her, is unfounded. Instant proceedings are inquisitorial in its nature and the Commission to whom job of probing into the matter is entrusted, shall be bound to discharge its function to draw its proceedings following the judicial norms, i.e. fair opportunity of hearing, right to participate in the proceedings with a view to assist the Commission for reaching at a correct conclusion. Learned counsel in support of her contention relied upon the judgment in the case of Aftab Shaban Mirani v. President of Pakistan (1998 SCMR 1863), relevant para wherefrom is reproduced hereinbelow:-

18. .….It may be observed that by now it is a well settled proposition that a person cannot be condemned without providing him a fair opportunity to meet the allegation. In this regard reference may be made to the case of Government of Balochistan through Additional Chief Secretary v Azizullah Memmon and 16 others (PLD 1993 SC 341), wherein after referring certain case-law the following conclusion was recorded by this Court as to the right of access to Courts and justice:--

"12. Another aspect…….. This aspect of the case was considered in Sharaf Faridi v Islamic Republic of Pakistan (PLD 1989 Karachi 404) when after referring to Syed Abul A'la Maudoodi's case (PLD 1964 SC 673 at 710) and Ms. Benazir Bhutto's case (PLD 1989 SC 416) observed as follows:--

'The right of 'access to justice to all' is a well-recognised inviolable right enshrined in Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds support from the observation of Willoughby in Constitution of United States, Second Edition, Vol. II at page 1709 where the term 'due process of law' has been summarised as follows:--

(1) He shall have due notice of proceedings which affect his rights.

(2) He shall be given reasonable opportunity to defend.

(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and

(4) That it is a Court of competent jurisdiction. "

1. The above extract indicates what are the basic requirements of the doctrine "due process of law", which is enshrined inter alia in Article 4 of our Constitution. It is intrinsically linked with the right to have access to justice, which this Court has held inter alia in the above report as a fundamental right. This right inter alia includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him. In the instant case the Returning Officer was seized of the question, whether respondent No.1 was qualified to be a candidate for the office of the President. His decision that respondent No.1 was not qualified to be elected as a member of the Parliament would have entailed his non-seating as a member of the Senate, which was a question of the nature, which could not have been adjudicated upon in a summary inquiry under Rule 5(3)(a) of the rules, particularly when the correctness of the contents of the interview was not admitted by respondent No.1.

She also relied upon the case of Muhammad Nadeem Arif v. Inspector-General of Police, Punjab, Lahore (2011 SCMR 408), wherein it has been observed that the right of "access to justice to all" is a well recognized inviolable right enshrined in Article 9 of the Constitution and is equally found in the doctrine of "due process of law". It includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal.

1. The crux of the above judgments persuades us to hold that right of due process, inter alia, envisages the right to have a fair and proper trial and right to have impartial court or tribunal. The phrase/expression in the principle highlighted therefrom are referable to the basic judicial function, which necessarily are known to judicial minded persons. For the safe administration of justice we may observe that the principle discussed in both the judgments can only be adhered to strictly by the forums manned by the persons responsible to deliver judicial findings subject to following principle of natural justice.

2. It was strenuously argued by Ms. Asma Jahangir that the question of probe into origin, authenticity and purpose of creating/drafting of Memo is a political question, therefore, Parliamentary Committee on the National Security is a competent forum to look into this issue. This aspect of the case has also engaged our attention during the hearing. In this context, Mr. Rashid A. Razvi, learned Sr. ASC contended that issue of probe into the Memo is a question, which is justiciable only by the Judicial forums, being a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter 1, Part-II of the Constitution, as it has been highlighted hereinabove.

3. Arguments so raised in this behalf give rise to the proposition namely, as to whether question of ascertainment of the origin, authenticity and the purpose of creating/drafting the Memo dated 10th May, 2011 is justiciable or non-justiciable by the Court in exercise of its power of judicial review, and if jurisdiction is not vested in the judicial forum then essentially the matter has to be decided by a forum other than it.

4. Thus, so far as the question of justiciability or non-justiciability of the issue is concerned, it would provide a test for the purpose of exercising the jurisdiction or otherwise?

5. The history of the judiciary in our country indicates that in the past, the court had been approached from time to time for granting relief in which political issues are involved, either to express its opinion under Article 186 or to exercise jurisdiction or under Article 184(1) or 184(3) of the Constitution. Reference in this behalf may be made to the cases of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) and Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), where dissolution of the Assemblies were challenged before the Court notwithstanding the fact that such issues may give rise to a political question. Similarly, at times, references have been made for the purpose of getting permission to make expenditure out of consolidated fund in absence of Parliament. Inasmuch as, a Reference was sent to this Court to adjudicate upon purely political matter regarding formal recognition of Bangladesh. The Court considered the issue and expressed its opinion that there was no legal bar in considering or adopting such resolution. Similarly, in the case of Benazir Bhutto's case (PLD 1988 SC 416), the amendments in the Political Parties Act, 1962 regarding compulsory registration of political parties were challenged. The Court declared certain provisions of the law to be void being inconsistent with the fundamental rights.

6. At this juncture, reference may be made to the case of Baker v. Carr [369 U.S. 186 (1962)], wherein the complainant sought a declaration that Tennessee Apportionment Act, 1901 was unconstitutional followed by the relief of injunction restraining the defendants from conducting any further election under the Act. It was their case that Act violated the Fourteenth Amendment in its disregard of the slander, thereby affecting a gross disproportion of the population to vote and place the complainant in a position constitutionally unjustifiable in equity. The District Court, presided over by three Judges, dismissed the action on the ground that it lacked jurisdiction of the subject matter and the complainant failed to state that the claim was justiciable and the relief could be granted. On appeal, the Supreme Court reversed the judgment of the District Court and remanded the case. Brennan J., expressing the view of six members of the Court, held that the District Court possessed jurisdiction over the subject matter; that a justiciable cause of action was stated upon which plaintiff would be entitled to appropriate relief and that the plaintiff had standing to challenge the Tennessee Apportionment Act. Two Hon'ble Judges Douglas and Clark concurred with the Brennan, J. in separate opinion stating that in their view a case for relief was established if the allegations in the complaint could be sustained. Stewart, J. also concurred in separate opinion and made it clear that in his view the merits of the case were not before the Supreme Court. However, Frankfurter J., with the concurrence of Harlan, J. dissented on the ground that case involved the class of political controversy, which by the nature of its subject is unfit for federal judicial action, whereas Whittaker J. did not participate. This case in fact went down in history as one of the most important decisions ever. The matter involved a delineation of the extent of the judicial review, while dealing with whether 'equal protection of law' was violated by the borders of a district not being redrawn appropriately to adjust for population movement. The issue placed before the Court was whether it could, in fact, investigate and adjudicate on such issues, giving the existence of a strict separation of powers between the legislation and the judiciary. Mr. Rafiq Rajwana also cited the case of Powell v. McCormack [395 US 486 (1969)], which has in fact proceeded as the principle laid down in Baker's case.

7. It is to be noted that precisely question raised in the said petition before the Supreme Court was whether appellants' allegations of impairment of their votes by the 1901 Apportionment Statute will ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment did produce a legally cognizable injury, they would be among those who had sustained it. They were asserting "a plain, direct and adequate interest in maintaining the effectiveness of their votes," not merely a claim of "the right, possessed by every citizen, to require that the Government be administered according to law...". The Supreme Court, after having taken into consideration the principles which were highlighted by the learned counsel granted relief to the appellant, inter alia, observing that the challenge to an apportionment presented no non-justiciable "political question". It was further held that:

(1) The claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore, not foreclosed by our decisions of cases involving that clause. The District Court misinterpreted Cole-grove v Green and other decisions of this Court on which it relied. Appellants' claim that they are being denied equal protection is justiciable and if discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.

(2) That to show why reject the argument based on the Guaranty Clause, we must examine the authorities under it. But because there appears to be some uncertainty as to why those cases did presently political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the "political question" doctrine.

(2A) That re-view reveals that in the Guaranty Clause cases and in the other "political question" cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the "political question."

(3) In determination whether a question falls within[the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations."

(4) Non-justiciability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the "political question" label to obscure the need for case by case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.

(5) To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine.

In the Corpus Juris Secundum Volume 16, it has been stated that:--

"It is not easy to define the phrase 'political question', nor to determine what matters fall within its scope. It is frequently used to designate all questions that lie outside the scope of the judicial power. More' properly, however, it means those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or to regard to which full discretionary authority has been delegated to the legislative or executive branch of the Government. A political question encompasses more than a question about politics, but the mere fact that litigation seeks protection of a political rights, might have political consequences does not mean it presents a political question."

It was further observed :

"The doctrine is based on Constitutional provisions relating to the distribution of powers among the branches of Government, and it is as a function of the separation of powers that political questions are, not determinable by the judiciary, thus, the limitations on judicial review imposed by the political question doctrine apply only when the Court is M faced with a challenge to action by a coordinate branch of the Government, and not where the issue involved falls within the traditional role accorded to Courts to interpret the law or the Constitution. "

In Ballentines Law Dictionary "political question" means:-

"A question, the determination of which is a prerogative of the legislative or executive branch of the Government, so as not to be appropriate for judicial inquiry or adjudication."

1. This Court has always emphasized that it has no concern with powers of other organs of the State. In the case of Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473) Shafi-ur-Rahman J. observed that it was not easy to draw a line of demarcation between a political and a non-political question. This has to be determined by the Court on the facts of each case. The Courts' function is to enforce, preserve, protect and defend the Constitution. Any action taken, act done or policy framed, which followed the provisions of the Constitution are not permissible under the Constitution or law. The Court irrespective of the fact that it is a political question must exercise power of judicial review. Abuse, excess or non-observance of the provisions of the Constitution has to be checked by the Court unless its jurisdiction is barred by the Constitution or law. In the case of Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 526) a larger Bench held that a political question is one, which, because of its political sensitivity, is not fit for adjudication by the Court or the Constitution requires it to be determined finally by any other organ of the State. This 'political question doctrine' is based on the respect for the Constitutional provisions relating to separation of powers among the organs of the State. But where in a case the Court has jurisdiction to exercise power of judicial review, the fact that it involves political question, cannot compel the Court to refuse its determination.

2. In view of the above discussion it is held that this Court enjoys jurisdiction to proceed in all those matters which are justiciable. However, if there is an issue, which is alleged to be non-justiciable it would be the duty of the Court to examine each case in view of its facts and circumstances, and then to come to the conclusion whether it is non-justiciable or otherwise.

3. The arguments raised before this Court pose two questions; firstly, to conduct probe to ascertain the origin, authenticity and effect of Memo, for the purpose of enforcement of Fundamental Rights; and secondly, consequential effect of such probe, which would determine civil and criminal liability against the person(s), who were responsible for it. In view of the test laid down hereinabove, such questions, in exercise of power of judicial review are justiciable by this Court treating it to be proceedings of criminal nature as in exercise of Article 184(3) of the Constitution, Court is seized with the case which falls in category of inquisitorial nature.

4. Learned counsel also suggested for probe through a Commission to be constituted under the Pakistan Commission of Inquiry Act, 1956. It is to be noted that the Federal Government is empowered to constitute an Inquiry Commission but the same has not been done because the matter has been referred to Parliamentary Committee, reference of which has been made hereinabove. She also pointed out that the petitioner who is in service of Pakistan can be subjected to disciplinary proceedings as he has tendered resignation pursuant to the directions of the Prime Minister, therefore, it would be for the department to initiate any proceeding if permissible under the law, which so far have not been commenced, as such, this argument has no substance to be considered at this stage. Therefore, the points so raised need no elaborate discussion. In these circumstances, for the foregoing reasons, we are of the considered opinion that issue of probe to ascertain the origin, authenticity and purpose of creating/drafting of the Memo is justiciable.

5. As far as jurisdiction of the Supreme Court to initiate proceedings in the cases with the object of enforcement of fundamental rights guaranteed under Chapter 1 Part II of the Constitution, relating to a matter of public importance is concerned, the Court enjoys ample powers to constitute Commission. Same is the position in the neighbouring country.

6. The Supreme Court of India, under Articles 32 and 131 of the Indian Constitution, exercises invariably such powers, whereas, under Article 184(3), more power/jurisdiction is conferred upon the Supreme Court of Pakistan as compared to Indian Constitution for enforcement of fundamental rights, relating to the question of public importance. Before citing any judgment from our own jurisdiction, reference to the case of Vineet Narain v. Union of India (AIR 1998 SC 889) may be made, which is commonly known as 'Jan Havala case'. In this case, jurisdiction of the Supreme Court was invoked under Article 32 of the Constitution in the public interest for the enforcement of rule of law. In the said case, an alleged terrorist was arrested in Delhi. During the raids conducted by the Central Bureau of Investigation (CBI), Indian and foreign currency as well as two diaries and two note books were seized, containing the details of accounts of vast payments made to some persons, allegedly high ranking politicians in power and out of power, and of high ranking bureaucrats. The writ petitions were filed in the public interest under Article 32 of the Constitution of the India, as nothing was being done in the matter of investigation. The gist of the allegations in the writ petitions was that Government agencies like the CBI and the revenue authorities had failed to perform their duties and legal obligations inasmuch as they had failed to investigate matters arising out of the seizure of the "Jan diaries"; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through 'havala' transactions; that this had also disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful consideration; that the CBI and other Government agencies had failed to investigate the matter, take it to its logical conclusion and prosecute all persons who were found to have committed the offence; that this was done with a view to protect the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high levels in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the political hierarchy. The Court observed that:--

"8. The sum and substance of these orders is that the CBI and other Governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would and the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive. This was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of "continuing mandamus"."

64.Above judgment was followed in so many other cases by the Indian Supreme Court including Rubabbuddin Sheikh v. State of Gujarat and others [(2010)2 SCC 200], Zahira Habibullah Sheikh (5) v. State of Gujarat [(2006) SCC 374] and Common Cause, Registered Society v. Union of India (AIR 1999 SC 2979).

1. Similarly, superior courts in Pakistan in the case of Pervaiz Elahi v. Province of Punjab (PLD 1993 Lahore 595), Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), Dr. Mubashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), in Re: Construction of Fast Food Chain in F.9 Park (PLD 2010 SC 759), Bank of Punjab v. Haris Steel Industries (PLD 2010 SC 1109), In Re: Suo Moto Case No.18 of 2010 (PLD 2011 SC 997), In Re: Corruption in Hajj Arrangements (PLD 2011 SC 963) and Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407) have exercised jurisdiction with reference to enforcement of fundamental rights.

Our consensus remain that following the trichotomy of powers, all the three organs of the State i.e. Legislature, Executive and the Judiciary have to exercise their powers within their respective spheres. Most importantly, the Judiciary could not remain oblivious from its duties nor can compromise the mandate of the Constitution i.e. 2A, because it is the will of the people of Pakistan to establish an order wherein independence of judiciary shall be fully secured. However, in view of its distinction and difference, a separate character has been bestowed upon it under Article 175(3) of the Constitution. This aspect of the case has been highlighted in the case of Government of Balochistan v. Azizullah (PLD 1993 SC 341).

1. In the case of In Re: Corruption in Hajj Arrangements (PLD 2011 SC 963) the power of judicial review of the Supreme Court discussed in detail. Relevant paragraphs from the said judgment are mentioned hereinbelow:-

"27. The power of judicial review which was exercised in the case of Sindh High Court Bar Association (supra) has been accepted by the Government as it has not supported the actions of 3rd November, 2007. As far as Parliament is concerned, we have also admired it as a body, which for the first time in the history of the country did not validate the actions taken on 3rd November, 2007, whereas in the past the situation had been different. A number of judgments can be cited for assuming jurisdiction and exercise of power of judicial review available to this Court under the Constitution, to which we need not make reference here, but going through the same one can well understand that this Court has always been enjoying the jurisdiction of judicial review against administrative actions of the executive which is a settled law by now. If any reference is required, right from Madison up to the case of Sindh High Court Bar Association, there are chain of authorities where the Supreme Court has assumed jurisdiction of judicial review, which even otherwise is the final arbiter of disputes in order to maintain check and balance. For these reasons, the independence of the 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. The judiciary cannot compromise at any cost its independence as guaranteed under the Constitution, as such compromises would lead us to the situation of the last, so many years. It is for the first time the judiciary asserted its authority and as a result thereof the democratic system is prospering in the country. In the case of Dr. Mubashir Hasan v. Federation of Pakistan (PLD 2010 SC 265) whereby NRO was declared to be illegal, unconstitutional and void ab initio, this Court has exercised its constitutional jurisdiction of judicial review.

1. At times, present case was fixed for the purpose of seeking implementation of the order, but we postponed in order to ensure that the democratic system under the Constitution must prevail and avoid chaos. However, when the cases of massive corruption, not only one, but so many came for hearing, therefore, this Court in the exercise of its constitutional jurisdiction had enforced fundamental rights of the citizens under Articles 4, 9, 14 and 25 of the Constitution. It is quite heartening to observe that even the worthy Parliamentarians had also approached this Court, like in the case of Rental Power Projects where one of the sitting Ministers namely, Makhdoom Syed Faisal Saleh Hayat had approached the Court. Likewise, Ms. Marvi Memon, MNA, approached this Court in the matter of Breach of embankments of rivers in floods causing damages. Similarly, Khawaja Muhammad Asif MNA brought the case of OGDCL, all of them acknowledge power of judicial review of this Court. In matters of the steal Mills, LPG case, National Police Foundation, NICL, Hajj arrangements and RPPs are under consideration including the Bank of Punjab case where, in exercise of the power of judicial review for the enforcement of fundamental rights millions of rupees have been recovered which were being looted by government officials and others. Undoubtedly, whenever the Court will notice that there is corruption or corrupt practices, it would be very difficult to compromise or digest it because the public money of the country cannot be allowed to be looted by any one whatsoever status he may have.

2. The jurisdiction of this Court is always exercised judiciously and with judicial restraint. All those cases which are quoted hereinabove clearly indicate that in the matter of exercise of power of judicial review in Pakistan we have not travelled so far as is the position in the neighboring' country. By now, 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 matters the Court would be justified in interfering with the same. [Commissioner of Income Tax v. Mahindra (AIR 1984 SC 1182)]. The exercise of constitutional powers by the High Court and the Supreme Court is categorised 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 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 scrutinised on the touchstone of the Constitutional mandates. [Common Cause, A Regd. Society v. Union of India (AIR 1999 SC 2979)]. In the case of Union Carbide Corporation v. Union of India [AIR 1992 SC 248 = 1991 SCR (1) Supl. 251], the Court while taking up the issues of healthcare and compensation to the victims, supervised the distribution of the money among the victims of Bhopal gas tragedy and monitored the hospitals set up to treat the victims. In Vishaka v. State of Rajasthan [AIR 1997 SC 3011] = [(1997) 6 SCC 241], the Court laid down guidelines to make the workplace safer for women making a grievance redressal mechanism in all private and public offices mandatory. In the case of Vineet Narain v. Union of India (AIR 1998 SC 889), commonly known as Hawala case, the Supreme Court of India had taken over the charge of CBI to ensure transparent investigation into corruption and corrupt practices under its own supervision. In the case of Zahira Habibullah Sheikh v. State of Gujarat [(2006) 3 SCC 374], the Court reopened several cases and set up a special investigation team where the police deliberately botched up the probe to help perpetrators of the post Godhra mob violence against Muslims in 2002, including overseas investigations into the Sohrabuddin fake encounter case of 2005 whereby several senior police officers and key politicians were put in the dock. In the Case of Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200] petitioner wrote a letter to the Chief Justice of India complaining about the killing of his brother in a fake encounter and disappearance of his sister-in-law at the hands of the Anti-Terrorist Squad (ATS) Police (Gujarat) and Rajasthan Special Task Force (STF). Taking notice of this letter, the Court forwarded it to the Director General of Police, Gujarat to take further action. The CID (Crime) conducted an enquiry and the statements of a number of witnesses, including the petitioner, were recorded. The learned Attorney General for India submitted that in view of the serious nature of the offence in which some highly placed police officials of the State of Gujarat were alleged to be involved, orders may be immediately passed directing the CBI to take charge of the investigation and report to this Court. The CBI Authorities were directed to investigate all aspects of the case relating to the killing of the deceased including the alleged possibility of a larger conspiracy. The report of the CBI Authorities was directed to be filed in the Court when the Court would pass further necessary orders in accordance with the said report, if necessary. Ultimately, it was held that accusations were directed against the local police personnel in which high police officials of the State were involved. Therefore, it was directed that if investigation was allowed to be carried out by the local police authorities, all concerned including the relatives of the deceased may feel that investigation was not proper and in the circumstances it would be fit and proper that the petitioner and the relatives of the deceased should be assured that an independent agency should look into the matter and that would lend the final outcome of the investigation credibility. In the case of Center for Pil v. Union of India [Appeal arising out of SLP (C) No. 24873 of 2010 decided on 16-12-2010], the Court ordered probe into a mega crore scam against the sitting Telecom Minister. In the case of Center for Pil v. Union of India [Writ Petition (C ) No. 348 of 2010, decided on 3-3-2011], the Court quashed the illegal appointment of P J Thomas as Central Vigilance Commissioner because of a charge-sheet pending against him in Kerala. The Court also laid down guidelines for future appointments to this post. In the case of Radhy Shyam v. State of UP (Civil Appeal No.3261 of 2011, decided on 15-4- 2011), the Supreme Court quashed Government's notification to acquire land for the planned industrial development in District Gautam Budh Nagar through Greater Noida Industrial Development Authority, which appeared to be a device to grab the land of the poor farmers. In the case of Nandini Sundar v. State of Chattisgarh [Writ Petition (Civil) No. 250 of 2007 decided on 5-7-2011], the Court disbanded and disarmed Special Police Officers involved in anti-Naxal operations in many States. Thus, the Supreme Court of India has been monitoring public distribution system, treatment at hospitals and conservation of forests for more than two decades. It also set up a judicial commission to examine the public distribution system and directed the Government to provide more facilities in the poorer districts.

3. In the Bank of Punjab's case (PLD 2010 SC 1109), this Court observed that not only a colossal amount of money/property belonging to a large section of the public but the very existence of the Bank of Punjab was at stake, thus not only the right of the Court but in fact its onerous obligation was to intervene to forestall the assault on the said fundamental right to life and property of the public.

4. In the recent past, a decision has been given by the Supreme Court in Suo Motu Case No.16 of 2011, in respect of non-adherence to the Constitutional provision and providing guarantee to life and security in target killing in Karachi. The said judgment has been welcomed by all and sundry. The effect of the proceedings and the judgment passed in the said case have brought calm and peace in Karachi and the jurisdiction, exercised by this Court in the said case was also under Article 184(3) of the Constitution. Inter alia such jurisdiction is exercised to ensure effectiveness of the orders passed by the Court under Article 190 of the Constitution, which commands that all the executive and judicial authorities throughout Pakistan to act in aid of Supreme Court. In the case of Tirupati Balji Developers Pvt. Ltd. v. State of Bihar (AIR 2004 SC 2351), while interpreting Article 144 of the Indian Constitution, which is corresponding Article of the Constitution of Pakistan, the Supreme Court observed that under Article 144 all the authorities, civil and judicial, in the territory of India- and that would include High Court as well- shall act in aid of the Supreme Court.

5. The issue of probe through experienced judicial officers who are Chief Justices of three High Courts itself is sufficient to attach importance with the case from two angles (i) that the matter relates to sovereignty, independence and security of Pakistan and during course of probe procuring of evidence shall be helpful to determine civil liability as well as criminal culpability based on forensic evidence and other material, which is likely to be produced before the Commission. Thus, senior judicial office holders in view of their experience would conduct thorough probe into the matter in order to ascertain the correct facts.

6. Thus, for the foregoing reasons, we are of the opinion that issue of probe to ascertain the origin, authenticity and purpose of creating/drafting Memo is required to be determined by holding a Judicial Probe. Therefore, in exercise of judicial powers conferred upon this Court under Articles 187 and 190 of the Constitution, Order XXXII, Rules 1 & 2 read with Order XXXIII, Rule I of the Supreme Court Rules, 1980 (in short order inadvertently typed as Order XXXVI) coupled with the principles of Civil Procedure Code including Order XXVI, Rule 10 and following the principles/observations discussed hereinabove, a High Powered Commission has been constituted.

7. Learned counsel for respondent No.4 contended that the petitions submitted on behalf of the petitioners are benami petitions as the pleas taken by the respondents Chief of Army Staff and DG, ISI seem to be the case of the petitioners and the petitions have been filed with a mala fide intention. We failed to appreciate the argument of the learned counsel except observing that the defence functionaries under the Constitution are bound to discharge their functions strictly in accordance with the Constitution. The affidavits/counter affidavits filed by both the high-ups of the Pakistan Army the events, which took place after 10th October, 2011, details whereof have been mentioned, and such events have not been denied by the Federation through learned Attorney General. As certain facts have been placed before the Court, it does not mean that they are supporters of the petitioners. In addition to it, ascertainment of origin, authenticity and the purpose of the drafting/creating the Memo is a matter of public importance and prima facie calls for enforcement of their Fundamental Rights provided under Articles 9, 14 and 19A of the Constitution, hence, whosoever has laid information before the Court, calls for due consideration as the object is to see what he is speaking, and not who is speaking the same. In this behalf we cannot do better than to reproduce a para from the judgment in Civil Petition No.42 of 2011 composed by Mr. Justice Jawwad S. Khawaja:--

8. Before concluding our discussion on the issue of maintainability of this petition we need to address the respondent's submission that the petition has been filed mala fide. We have found no lawful basis for this submission. Simply because the petitioner may have been a contender for the office of Chairman, OGRA, does not per se translate into mala fides. The petitioner can genuinely consider himself to be a suitable candidate for the position while simultaneously holding the view that the respondent does not meet the eligibility criteria set out in section 3 (4) of the Ordinance. Furthermore, we have already held in the case titled Moulvi Iqbal Haider v. Capital Development Authority and others (2006 SC 394 at 413) that the contents of a petition under Article 184 (3) ibid will override concerns arising on account of the conduct or antecedents of a petitioner. This approach is reflective of the sagacity of wise men such as Maulana Jalaluddin Rumi who have emphasized the importance of the message rather than the messenger. Learned counsel for the respondent then cited the Indian case titled Dattaraj Nathuji Thaware v. State of Maharashtra and others [(2005) 1 Supreme Court Cases 590] to support his plea that the petition had been filed mala fide and should, therefore, be dismissed. We have gone through the cited judgment and find the same to be wholly irrelevant. In that case it was determined by the Indian Supreme Court that the petitioner therein "had resorted to blackmailing the respondents . . . and was caught red-handed accepting 'blackmailing money". No such circumstances arise, or were even suggested in this case. In view of this discussion, we are satisfied that this petition is not liable to dismissal on the ground of mala fides of the petitioner.

Thus, objection being unfounded is accordingly repelled.

1. Learned counsel for respondent No.4 vehemently contended that instant petitions lack bona fides. She relied upon news clippings filed by her with C.M.A. No. 5440 of 2011 as under:

Haqqani detain. (Dawn Thursday, May 6, 1999)

\ Haqqani remanded in FIA custody for 4 days. (Dawn Tuesday, May 18, 1999.)

\ Haqqani's medical record 'goes missing'. (Dawn Wednesday, May 19, 1999)

\ Ehtesab Bureau decision in Haqqani case embarrasses FIA" (Dawn May 21, 1999)

Reliance is placed on the case of Ms. Benazir Bhutto (PLD 1988 SC 416). On the other hand, Mr. Rashid A Razvi, learned counsel vehemently denied the allegations and contended that the mala fides are required to be proved through cogent evidence. He has relied upon the cases of Lt. Col. Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98), Federation of Pakistan v. Saeed Khan (PLD 1974 SC 151) and Tabassum Shahzad v. I.S.I. and others (2011 SCMR 1886).

It is to be noted that allegation of mala fides has been raised in Constitution Petitions Nos.79 & 80 of 2011, whereas, there are other petitions bearing Constitution Petitions Nos.77-78 of 2011, etc., reference of which has been made hereinabove, wherein no such allegation is levelled. This Court in the case of Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) has held that bona fides are to be presumed unless the party challenging the action is able to substantiate that the action was mala fide or without any grounds whatsoever. The petitioner in Constitution Petition No.79 of 2011 cannot be attributed mala fides because he has not claimed any relief against respondent No.4. In addition to it, except filing news clippings, no other cogent evidence has been produced. Moreover, there are other petitioners as well who have also joined respondent No.4 as party. Thus, objection being without substance, is repelled.

1. Learned counsel vociferously stated that respondent No.4 is a law abiding citizen and his liberty has been curtailed by placing his name on the ECL. She has relied upon the judgments in the cases of Munir Ahmad Bhatti v. Government of Pakistan, Ministry of Interior through Secretary (2010 CLD 1829), Govt. of Pakistan v. Dada Amir Haidar Khan (PLD 1987 SC 504) and Satwant Singh Sawhney v. D. Ramarathnam, Assistant (AIR 1967 SC 1836).

2. There is no cavil with the above propositions of law, but in the instant case no restraint has been placed on his movement vide order dated 1st December, 2011 except that he has been asked not to leave the country without prior permission of this Court as to ascertain origin, authenticity and affect of memorandum is under probe before a Commission.

3. Thus, instant petitions have raised serious question of public importance, which, prima facie is linked with the enforcement of fundamental rights under Articles 9, 14 and 19A of the Constitution based on cogent material available on record. Therefore, petitions being maintainable, empowered this Court to make declaration for the enforcement of fundamental rights based on the report of probe through the Commission, which has already been constituted to ascertain the origin, authenticity and purpose of creating/drafting Memo dated 10th May, 2011.

Above are the reasons for the short order dated 30-12-2011.

(Sd.)

Iftikhar Muhammad Chaudhry, CJ

(Sd.) (Sd.)

Mian Shakirullah Jan, J. Tassaduq Husain Jillani, J.

(Sd.) (Sd.)

Jawwad S. Khawaja, J. Tariq Parvez, J.

(Sd.) (Sd.)

Mian Saqib Nisar, J. Ejaz afzal khan, j.

(Sd.) (Sd.)

Ijaz Ahmed Chaudhry, J Muhammad Ather Saeed, J.

JAWWAD S. KHAWAJA, J.--- "And ye shall know the Truth, and the Truth shall set you free" (John 8:32). Thus spake Hazrat Isa, the Messiah and champion of the oppressed. In the same vein, the Persian savant Hakeem Sinai Ghaznavi said: "embrace the truth and become free of grief and torment". It is these Biblical and sage sentiments and other similar sensibilities which appear to have inspired an important change in the Constitution - the recent incorporation of Article 19A in the Chapter on fundamental rights. The said Article stipulates that "every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law". Most petitioners and respondents, and their learned counsel seem to have ignored or glossed over the significance of this major constitutional change. While the circumstances in which these cases arise have been elaborated in fair detail in the reasoning of Hon'ble the Chief Justice, I only reiterate this salient aspect of the case.

1. It is an unfortunate facet of our history that during the 64 years since Pakistan's independence in 1947, the people of Pakistan have been, at times, disserved by a non-inclusive governance paradigm where information critical to them has been withheld from them. Pakistan has faced many crises of public importance. This, in itself, is not unexpected in the life of a State. What has, however, been aggravating for the People is that numerous inquiries and probes have been undertaken by Governments which have spent substantial amounts of public time, money and effort, but the citizens of Pakistan, the most direct affectees, have remained clueless and uninformed as to the causes or the progenitors of the multiple crises in our history.

2. Major events in our history in the past six decades since 1947 have included the dismemberment of the country in 1971 and the murder of one incumbent and one former Prime Minister of Pakistan. We have witnessed the extraordinary case of those in the seats of governance in December 1971 informing us that all was going well in East Pakistan even after the surrender of forces in Dhaka. The results of probes into such events have almost invariably been withheld from the people of Pakistan or, at times, selectively disclosed. The people in quest of the truth have mostly been left with conjectures, rumours and half truths. Concealment of information has, in turn led to a distorted history of the country and to a destabilizing division in the polity.

3. This paradigm has shifted through the recent incorporation of Article 19A in the Constitution. By virtue of the said Article the right of a citizen to have information "in all matters of public importance" is made a fundamental right which is guaranteed by the Constitution. Article 184(3) of the Constitution stipulates, inter alia, that this Court shall have jurisdiction to pass an order in a case "if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II [of the Constitution] is involved" Article 184 (3) read in conjunction with Article 19A has empowered the citizens of Pakistan by making access to information a justiceable right of the People rather than being largesse bestowed by the State at its whim. Article 19A has thus, enabled every citizen to become independent of power centres which, heretofore, have been in control of information on matters of public importance.

4. Many of the arguments that came up during the hearing of these petitions are premised on a lack of appreciation not just for this aspect of our constitutional law, but also for the intrinsic worth of Truth as a value in itself. What, it may be asked, is the intrinsic worth of information as a stand-alone fundamental right? The answer to this is simple. The very essence of a democratic dispensation is informed choice. It is through such choice that the political sovereign, the People of Pakistan acquire the ability to reward or punish their elected representatives or aspirants to elected office, when it is time for the People to exercise their choice. If information on matters of public importance is not made available to citizens, it is obvious they will not have the ability to evaluate available choices. Information on matters of public importance thus, is a foundational bedrock of representative democracy and the accountability of chosen representatives of the people. It is in this context, both historical and conceptual, that the fundamental right to information has to be seen. Through Article 19A in the Constitution, the citizens of Pakistan have also been freed from the caprice of a sorry fate and have become independent of whistle-blowers in foreign lands or the magnanimity of the likes of WikiLeaks or biographies of political actors, to get to the information they are now entitled to as of right under the Constitution. This provides for and makes good a crucial missing element of responsible State governance in our Constitutional scheme.

5. At this point it is necessary to highlight an important aspect of our Constitution which is often over-looked. The Constitution of 1973 has not been bestowed as a matter of grace on the People of Pakistan by a monarch or a foreign Parliament as, for instance, is the case with Canada, Australia and a number of other countries. Our Constitutional Order has been established by "the will of the people of Pakistan". All State functionaries have to understand that in a very real sense, they are employed in the service of the People of Pakistan and are paid for by them. The loyalty, therefore, of these State functionaries has to be to the Constitutional Order established by the People. Once this context is understood, the issue in these petitions stands greatly simplified. There is no contention between the parties arrayed before us that the Memo and the events surrounding it are "matters of public importance". The parties are also agreed that these events should be probed. It is, therefore, clear that a petition under Article 184(3) to enforce the fundamental right granted by Article 19A is maintainable.

6. We are cognizant that there may be situations where the Government may want to justify non-disclosure of information on a matter of public importance. That plea, however, does not arise and nor has it been taken in these cases. It is, therefore, not necessary to comment on the same as a mere speculative exercise. Learned ASC for Mr. Haqqani contended that these petitions raise a political question and the Court should, therefore, avoid deciding the same. This argument has been adequately discussed in the reasoning of Hon'ble the Chief Justice. I would only add that the conduct of a government's foreign policy is indeed, by and large, a political question. But the fact is that the present petitions do not require us to devise the country's foreign policy or to direct the government in that regard. These petitions only seek to enforce the People's right to know the truth about what their government, and its functionaries, are up to. And that is by no means, a political question. It is a fully jusiticiable fundamental right enumerated in Chapter II, of the Constitution no less. We need not look any further than Article 19A, for this conclusion.

7. This brings me to a consideration of the Freedom of Information Ordinance, 2002 ("FIO, 2002") and to see if there is anything therein which can support the contention advanced on behalf of Mr. Haqqani, that the information sought by the petitioners should be denied to them in these proceedings or that the FIO 2002 is an adequate and complete alternate to Article 19A. Section 3 (1) of the FIO 2002 specifies the substantive right provided for thereunder. It is couched in restrictive language and reads as under:--

"3. Access to information not to be denied--(1) Notwithstanding anything contained in any other law for the time being in force, and subject to the provisions of this Ordinance, no requester shall be denied access to any official record other than exemptions as provided in section 15."

In stark contrast Article 19A in affirmative and expansive language avows as under:

"19A. Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law."

1. It is clear from a reading of Article 19A and section 3 (1) ibid, that the Constitutional right is much broader and more assertive than the statutory right which by its own terms is restricted to disclosure of official record only. Furthermore, the principle of law is that the fundamental right under Article 19A is a grant of the Constitution and, therefore, cannot be altered or abridged by a law enacted by Parliament. The submissions of learned ASC for Mr. Haqqani, based on the FIO 2002 are, therefore, misconceived and have no merit.

2. At this point it may also be added that when the quest is for the truth under Article 19A, and nothing but the truth, the Court cannot foresee the result of the probe which has been ordered. The arguments on behalf of Mr. Haqqani amount to asking the Court to adjust its opinion according to some anticipated consequences of such inquiry. As an objective enforcer of fundamental rights we cannot do that. Whether the petitioners or the respondents stand to benefit from our order or which institution or functionary of the State ends up being indicted by the Truth, we are not called upon to say. In fact, that is the very point of the inquiry; the only calculus this Court is entitled to engage in is the calculus of true information and its availability to the citizens of Pakistan.

3. The Truth will indeed be critical if the nation is to achieve the goal the Constitution, in its Preamble, sets for all organs of the state: viz. "the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny." It, therefore, will not do for this Court to deny to the citizens their guaranteed fundamental right under Article 19A by limiting or trivializing the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power.

(Sd.)

(Jawwad S. Khawaja)

Judge

EJAZ AFZAL KHAN, J.---I have gone through the judgment authored by my lord the Chief Justice. It is complete and comprehensive in all respects. Reasons recorded and the case-law referred are so persuasive and powerful that one cannot have any other choice but to agree therewith. I respectfully agree with the judgment thus authored. However, I would like to add a few words to illustrate nexus between security of person and State and dignity of person and State and also nexus between a right and its different implications and manifestations.

1. The right to vote, for instance, is not a right confined to casting a ballot. It is a wider and more comprehensive term. If it, on the one hand, aims at choosing the representative, it on the other includes the right to participate in the electoral process, political activity consisting in forming a political party, projecting a programme through a manifesto and propagating it and thereby persuading the people to accept it. In the case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) and many other cases cited in the main judgment this Court has interpreted the expression fundamental right as of much greater amplitude and of much wider ring and connotation. It has been extended to include all the possible implications and manifestations of such right. Apparently registration of a political party has no nexus with a fundamental right. The more so when the vires of a statute making its registration compulsory is challenged in a Court of law. But since it is one of the manifestations and one of the consequential effects of such right, it was extended to cover the same.

2. Security of person is one of the most important fundamental rights. It is inextricably linked with the security of the State. If and when a person performing functions in connection with the affairs of the Federation acts in a manner which imperils the very existence of the State a writ of prohibition or any other appropriate writ, according to the circumstances of the case could be issued against him. A petition filed by a citizen asking for the issuance of an appropriate writ cannot be declined simply because his fundamental right has not yet been infringed. A narrow and pedantic interpretation may lend support to the argument that security of person is not imperiled or infringed by a mere threat to the security of the State, but actually it is otherwise. Security of person in the absence of a strong, secure and stable State would be inconceivable. It would be as imaginary as drinking water from a mirage. Therefore, fundamental right of person would stand infringed the moment something tending to imperil the security of State is done.

3. Why is loyalty to the State the basic duty of every citizen? Why is obedience to the Constitution and law the inviolable obligation of citizens? Why are fundamental rights suspended when security of the State is at stake? Because the State is a fortress protecting such rights. Because the Constitution and the law are the fountains of such rights. So long as the fortress is intact fundamental rights shall remain protected. So long as the fountains are secure fundamental rights would continue flowing from it. It would thus be naive to say that threat to security of the State has nothing to do with fundamental rights of person. A threat to the fortress protecting such rights would, therefore, be a threat to the security of person. A citizen with seeing eyes and thinking mind would not sit relaxed and relieved till the fall of such fortress by seeking refuge in the belief that security of person is yet to be attacked or assaulted. Such belief seems have originated from no other state except that of self-deception. A person hacking a branch of a tree another is sitting on, does not harm the latter but when the branch is hacked, its fall would coincide with the fall of the person sitting thereon.

4. The Constitution of the Islamic Republic of Pakistan not only guarantees the security of person but also his right to live with dignity. The word "dignity" has various shades of meanings. It, according to Chambers 21st Century Dictionary means "stateliness, seriousness and formality of manner and appearance, goodness and ability of character, calmness, self-control and high rank and position." This right has various effects and implications ranging from individual life to the collective national life. Within the confines of his individuality he may be respectable but he cannot live with his head high within or outside his country, when the country does not command respect in the comity of nations. If the dignity of State which cannot be detached from the dignity of person, appears to have been compromised or made negotiable by express or implied terms he not only looses his moorings but also ceases to live with dignity and respect. His right thus stands infringed. In the case of Benazir Bhutto v. Federation of Pakistan (PLD 1998 SC 388) this Court while highlighting this aspect held in no uncertain terms that the right to live includes the right to live with respect, honour and dignity. Therefore, dignity of person being commingled with the dignity of State cannot be dealt with as something apart from the latter. Wherever an act or omission of a person who is at the helm of affairs in any department of life tends to compromise or even negotiate the dignity of the State that would be an affront to the fundamental right of the citizen guaranteeing his dignity, notwithstanding his person may not be subjected to any indignity. This is what has been portrayed in the preamble of the Constitution in the words as follows:--

"So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity;"

1. What is sovereignty and what does it mean? Sovereignty means supreme and independent power or authority. According to the preamble of the Constitution, authority over the entire universe belongs to Almighty Allah alone. This has been delegated to the people as a trust. It is to be exercised by them through their chosen representatives within the limits prescribed by Him. Principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam are the norms to be followed. Those who are chosen are not given carte blanche to rule according to their whim and caprice but according to the provisions of the Constitution and law. Any chosen representative who does not exercise this authority in accordance with the provisions of the Constitution shall betray the mandate given to him pursuant to the exercise of right to vote. Such a course though does not infringe a right at its primary level but it does so in its ultimate form and manifestation. Because the very condition for the exercise of such right is that those who are chosen shall exercise their authority in accordance with the provisions of the Constitution.

2. Consent to, connivance at or complicity in the infringement of security of person may not be so criminal, as an act, an omission or an attitude evincing the aforesaid attributes in the infringement of security of State. It is rather pedantic, perverse and preposterous to detach or disassociate security, solidarity and sovereignty of the State from fundamental rights. Security of person and security of State are integral part of each other. Existence of one cannot be conceived without existence of the other. All this is a part of an organic, integrated and indivisible whole. As an injury to a limb of one's body can't be considered in isolation, so can't be an injury to a vital organ like the brain or the heart when it tends to paralyze or benumb all the limbs. One cannot keep them in water tight compartments or away from or independent of each other. Security of the State is like a ship. One cannot have a safe and smooth sailing in the ship by permitting others to drive a hole into that. Such an approach or outlook, we are afraid, would be dangerous, devastating and even catastrophic for all those who live in the hard world of reality and, of course not in fool's paradise. Partial and piecemeal approach or outlook in such matters cannot be approved of. It, therefore, follows that the nexus between security of person and State and dignity of person and State cannot be lost sight of while hearing a lis for enforcement of fundamental rights. The probe ordered by us is a prelude thereto as it aims at uncovering the truth for taking remedial measures before the situation goes beyond repair.

(Sd.)

(Ejaz Afzal Khan) Judge

P L D 2012 Supreme Court 369

Present: Asif Saeed Khan Khosa, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

Mst. JAMEELA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.384 of 2009, decided on 3rd January, 2012.

(On appeal from the judgment dated 7-3-2007 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.27 of 2006).

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

----S. 9(c)--Pakistan Arms Ordinance (XX of 1965), S.13---Possession and trafficking of narcotics, possession of illegal weapons---Reappraisal of evidence---Benefit of doubt---Failure to establish conscious possession of narcotic---Trial court had convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997 and S.13 of Pakistan Arms Ordinance, 1965, and accused's appeal was dismissed by the High Court with some modifications in the sentence---Validity---Accused was not driving the vehicle in question at the relevant time and was sitting along with another lady on the rear seat of the vehicle at the time of its interception---No recovery had been made from the accused's physical possession and narcotic substance and weapons had been recovered from secret cavities and boot of the vehicle---Prosecution had not established conscious possession on the part of the accused---Accused's appeal was allowed and convictions and sentences recorded by courts below were set aside and accused was acquitted of the charge by extending her benefit of doubt.

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

----S. 9---Possession of narcotics, proof of---Conscious possession, requirement of---Mere presence of a passenger in a vehicle cannot be treated as sufficient to saddle with him the responsibility of possession of narcotic substance recovered from the vehicle unless the prosecution establishes through independent evidence that such passenger was conscious and aware of availability of narcotic substance in the vehicle.

Muhammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for Appellants.

Naveed Akhtar, Addl. Prosecutor-General, KPK for the State.

Date of hearing: 3rd January, 2012.

P L D 2012 Supreme Court 371

Present: Nasir-ul-Mulk and Amir Hani Muslim, JJ

WATER AND POWER DEVELOPMENT AUTHORIYT and others---Appellants

Versus

Messrs KAMAL FOOD (PVT.) LTD. OKARA and others---Respondents

Civil Appeals Nos. 1511, 1513, 1514, 1515 and 1519 of 2006, decided on 25th October, 2011.

(On appeal from the judgments of the Lahore High Court, Lahore, dated 6-5-2004, 31-5-2004, 12-6-2006 and 19-4-2004 passed in W.P. No.23088/1997, W.P. No.7929 of 2004, C.Rs. Nos.1012, 1016 of 2006 and W.P. No.16189 of 1996 respectively).

(a) Electricity Act (IX of 1910)---

----Ss. 26(6) & 26-A---Detection bill, issuance of---Theft of energy by consumer, charge of---Jurisdiction of Electric Inspector and Advisory Board---Scope---Electric Inspector for possessing special expertise in examining the working of metering equipment and other related apparatus had jurisdiction to entertain reference under S.26(6) of Electricity Act, 1910 only in case of dishonest consumption of energy by consumer through deliberate manipulation of or tampering with metering equipment or other similar apparatus---Electric Inspector would have no jurisdiction in matter of theft by means other than tampering or manipulation of metering equipment etc., falling exclusively under S. 26-A of Electricity Act, 1910---Principles.

Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 and Caltax Oil (Pakistan) Limited v. Collector, Central Excise and Sales Tax and others 2006 SCMR 1519 ref.

Colony Textile Mills Ltd. Multan v. Chief Executive, MEPCO 2004 SCMR 1679 and Multan Electric Power Company Ltd. v. Muhammad Ashiq PLD 2006 SC 328 rel.

(b) Electricity Act (IX of 1910)---

----Ss. 26(6) & 26-A---Civil Procedure Code (V of 1908), S.9---Detection bill, issuance of---Charge of theft of energy by consumer through metering equipment or relating to reading thereof---Jurisdiction of Electric Inspector---Scope---Civil Court had no jurisdiction in such matter, only Electric Inspector had powers to take cognizance thereof---Illustrations.

Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 and Caltax Oil (Pakistan) Limited v. Collector, Central Excises and Sales Tax and others 2006 SCMR 1519 ref.

Colony Textile Mills Ltd. Multan v. Chief Executive, MEPCO 2004 SCMR 1679 and Multan Electric Power Company Ltd. v. Muhammad Ashiq PLD 2006 SC 328 rel.

(c) Electricity Act (IX of 1910)---

----Ss. 26(6) & 26-A---Civil Procedure Code (V of 1908), S.9---Detection bill, issuance of---Charge of theft of energy through bypassing metering equipment---Jurisdiction of Electric Inspector---Scope---Such matter would not fall within S. 26(6) of Electricity Act, 1910 and ambit of powers of Electric Inspector---Consumer in such case could take recourse to any other legal remedy available to him under law---Illustration.

Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 and Caltax Oil (Pakistan) Limited v. Collector, Central Excise and Sales Tax and others 2006 SCMR 1519 ref.

Colony Textile Mills Ltd. Multan v. Chief Executive, MEPCO 2004 SCMR 1679 and Multan Electric Power Company Ltd. v. Muhammad Ashiq PLD 2006 SC 328 rel.

Aurangzeb Mirza, Advocate Supreme Court for Appellants (in C.A.No.1511 of 2006).

Razzaq A. Mirza, AAG for Respondents Nos. 2 and 3 (in C.A.No.1511 of 2006).

Aurangzeb Mirza, Advocate Supreme Court for Appellants (in C.A.No.1513 of 2006).

Razzaq A. Mirza, AAG for Respondent No.2 (in C.A.No.1513 of 2006)

Respondent No.1: Ex Parte (in C.A.No.1513 of 2006).

Ch. Naeem Masood, Advocate Supreme Court for Appellants (in C.As. Nos.1514 and 1515 of 2006).

Nemo for Respondent (in C.As. Nos.1514 and 1515 of 2006).

Malik Abdul Sattar Chughtai, Advocate Supreme Court for Appellants (in C.A. No.1519 of 2006).

Respondents: Ex Parete.

Date of hearing: 25th October, 2011.

P L D 2012 Supreme Court 380

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ

AMEER ZEB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.565 of 2009, decided on 18th January, 2012.

(On appeal from the judgment dated 30-6-2009 of the Islamabad High Court, Islamabad passed in Criminal Appeal No.293 of 2005).

(a) Sentence---

----Harder the sentence, stricter the standard of proof.

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

----S. 9---Recovery of narcotics---Sentence, quantum of---Principle---Sentences specified in Control of Narcotic Substances Act, 1997, depend upon quantity of recovered narcotic substance and not upon narcotic content of recovered substance---Quantity in such cases is determinative factor as far as the sentences are concerned---In all such cases, there should be no room for doubt as to the exact quantity of the substance recovered and also as to the entire recovered substances being narcotic substance---Accused person is at receiving end of long and stringent punishments and thus safeguards from his point of view should not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution.

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

----S. 9---Recovery of narcotics---Representative samples---Principle---Sample taken of a recovered substance must be a representative sample of the entire substance recovered---If no sample is taken from any particular packet/cake/slab or if different samples taken from different packets/cake/slab are not kept separately for their separate analysis by Chemical Examiner, then the sample would not be a representative sample and it would be unsafe to rely on mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance---At least in some situations Control of Narcotic Substances Act, 1997, stipulates disproportionately long and harsh sentences and, therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between prosecution and defence and to obviate chances of miscarriage of justice on account of exaggeration by investigating agency--- Such minimum standards of safety are even otherwise necessary for safeguarding Fundamental Rights of citizens regarding life and liberty which could not be left at the mercy of verbal assertions of police officers which assertions are not supported by independent evidence provided by Chemical Examiner---Where any narcotics substance is allegedly recovered while contained in different packets, wrappers or container of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotic substance is to be considered against accused person from which a sample was taken and tested with positive results.

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

----S. 9---Criminal Procedure Code (V of 1898), Ss. 221 & 342---Narcotic substance, recovery of---Proof---Sample, not taken ---Failure to object---Effect---If at the time of framing of charge against accused, he denied the allegation levelled against him by prosecution, he suggested to prosecution witnesses that nothing had been recovered from his possession or custody and in his statement recorded under S.342 Cr.P.C. he had controverted allegations regarding recovery of narcotic substance from his possession or custody, then mere failure to challenged during the trial that remaining untested recovered substance was not narcotic substance should nether weaken the case of defence nor strengthen the case of prosecution.

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

----S.29---Narcotic substance---Recovery---Proof of---Onus to prove---Scope---Initial onus on prosecution in such cases includes the onus to prove that entire substance allegedly recovered is in fact narcotic substance and such onus can be discharged by prosecution only if sample of recovered substance sent to Chemical Examiner for analysis are representative samples of entire quantity of recovered substance.

Kashif Amir v. The State PLD 2010 SC 1052 and Muhammad Noor and others v. The State 2010 SCMR 927 ref.

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

----S. 9(c)---Recovery of narcotic substance---Reappraisal of evidence---Narcotic in different packs---Chemical examination---Procedure---Charas in 80 cakes/slabs contained in 20 packets kept in 22 baskets was allegedly recovered from possession of accused but only a "small" and unspecific quantity was taken from every packet as a sample and then those samples were mixed up and made into one sample of 10 grams which was thereafter sent to Chemical Examiner for analysis---Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life which was maintained by High Court---Validity---If 80 cakes/slabs had statedly been recovered from possession of accused and total weight of entire quantity was 20 kilograms then, each cake/slab weighed about 250 grams---As only one sample of 10 grams had been sent to Chemical Examiner for analysis and report in that regard had been received in positive, therefore, for safe administration of justice, it could be concluded that accused was liable to be held responsible for having only one cake/slab of Charas weighing 250 grams in his possession which offence attracted provisions of S.9(b) of Control of Narcotic Substances Act, 1997---Supreme Court converted conviction of accused under S.9(b) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for one year and three months with a fine of Rs.9000---Appeal was allowed accordingly.

Nadir Khan and another v. The State 1988 SCMR 1899; Ali Muhammad and another v. The State 2003 SCMR 54; Gulshan Ara v. The State 2010 SCMR 1162; Muhammad Hashim v. The State PLD 2004 SC 856; Waris Khan and 2 others v. The State 2006 SCMR 1051; Muhammad Riaz and 2 others v. The State 2006 SCMR 1378; Amanat Ali and 2 others v. The State 2008 SCMR 991; Qaisarullah and others. v. The State 2009 SCMR 579; The State v. Amjad Ali PLD 2007 SC 85 and Muhammad Aslam (Amir Aslam) and others v. District Police Officer, Rawalpindi and others 2009 SCMR 141 ref.

Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 fol.

Aftab Ahmad Khan, Advocate Supreme Court for Appellant.

A.D. Nasim, Special Prosecutor, Anti-Narcotics Force with Ch. Zubair Ahmad Farooq, Additional Prosecutor-General, Punjab along with Ch. Akhtar Ali, Advocate-on-Record for the State.

Date of hearing: 5th January, 2012.

P L D 2012 Supreme Court 400

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and

Muhammad Athar Saeed, JJ

HAFEEZ AHMAD and others---Appellants

Versus

CIVIL JUDGE, LAHORE and others---Respondents

Civil Appeals Nos. 2650, 2753 of 2006, 269, 1136, 1867 to 1871, 1875 of 2008 83-P, 95-P, 96-P, 246 of 2010 and Civil Petitions No.473-P of 2007.

(On appeal from the judgments/orders passed in W.P. No.10025/2003 dated 15-7-2003 & C.R.No.403/2006 dated 21-11-2006 by Lahore High Court Lahore C.R.No.169/2006 dated 6-2-2007 by Peshawar High Court, Abbottabad Bench C.Rs. No.854/2007 dated 20-6-2008, 196/2008 dated 28-4-2008, 814/2007 dated 16-5-2008, 256 & 257/2008 dated 19-5-2008, 70/2004 dated 23-5-2008, 1531/2004 dated 15-9-2008 and 398, 400 & 441/1999 dated 13-10-2006 by Peshawar High Court, Peshawar, C.R.No.452/2006 dated 27-2-2007 Peshawar High Court, Abbottabad Bench, C.R.No.45/2003 dated 6-4-2006 by Peshawar High Court, D.I. Khan Bench, C.R.No.1000/2006 dated 25-6-2007 by Peshawar High Court, Peshawar).

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

----S. 115---Limitation Act (IX of 1908), Ss.5, 12(2) & 29(2)---Constitution of Pakistan, Art. 185(3)---Delay in filing revision petition---Condonation---Scope---Supreme Court granted leave to appeal to consider question as to whether delay could be condoned under S.5 of Limitation Act, 1908; whether time consumed in obtaining certified copies of judgment, decree or other documents could be excluded under S.12 read with S.29 of Limitation Act, 1908 and whether High Court had no power under S.115, C.P.C. to condone such delay.

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

----S. 115---Limitation Act (IX of 1908), Ss.4,9 to 18 & 22, Art.162-A [as inserted by Limitation (Amendment) Ordinance (XLIII of 1962) and omitted by Limitation (Amendment) Act (XI of 1965)]---Revision petition---Delay, condonation of---Exclusion of time consumed in obtaining certified copies of judgment/decree and other documents required to be filed along with revision petition---Scope---Civil Procedure Code, 1908, though being a general law for all legal and practical purpose, for having prescribed period of limitation for filing a revision petition would be considered a special law for purposes of Limitation Act, 1908---Had legislature intended to treat C.P.C. as a general law for purposes of Limitation Act, 1908, then same in its First Schedule would have prescribed a period of Limitation for filing revision petition---Provision of Ss.4, 9 to 18 & 22 of Limitation Act, 1908 would, thus, apply even to revision petition filed under S.115, C.P.C. however, S.5 of Limitation Act, 1908, for not finding mention in S.29 thereof shall, not be applicable to revision under S.115, C.P.C.---Any time consumed for obtaining certified copies of pleadings, documents order required in support of such petition would thus be excluded---Principles.

Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582; Banori v. Jilani PLD 2010 SC 1186 and Faizullah v. Rustam PLD 2003 Pesh. 217 ref.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; Tahirali v. Chief Judge, Karachi Small Causes Court Karachi PLD 1960 (W.P.) Kar. 795; Shujahat Hussain v. Muhammad Habib 2003 SCMR 176; City District Government, Lahore v. Muhammad Saeed Amin 2006 SCMR 676; Hukumdev Narain Yadav v. Lalit Narian Mishra AIR 1974 SC 480 and Kaushalya Rani v. Gopal Singh AIR 1964 SC 260 rel.

Abdul Waheed Khan v. Ruqia Bibi PLD 2006 Pesh. 156; Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat AIR 1970 SC 1; Koer Durag Pal Singh v. Th. Pancham Singh AIR 1939 All 403; Kandaswami Piillai v. Kannappa Chetty AIR 1952 Mad. 186; Putchalapalli Venkata Subbareddi v. Duvvuru Papireddi AIR 1957 Andra Perdesh 406 and Government of N.-W.F.P. through Secretary W&S Department v. Muhammad Iqbal khan and others PLD 2007 Pesh. 98 distinguished.

(c) Words and phrases---

----"Local law"---Meanings.

Blacks Law Dictionary ref.

(d) Words and phrases---

----"Special law"---Meanings.

Blacks Law Dictionary ref.

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

----S. 115---Limitation Act (IX of 1908), Ss.5, 12(2) & 29(2)---Suo motu exercise of jurisdiction by High Court or District Court under S.115,. C.P.C. in case of time barred revision petition---Scope---Proceedings before Revisional Court being proceedings between court and court for ensuring strict adherence to law and safe administration of justice---Exercise of revisional jurisdiction in any form being discretionary, which High Court or District Court could exercise if conditions sine qua non for its exercise were satisfied---Time barred revision petition could not deprive Revisional Court of its corrective and supervisory jurisdiction---Revisional Court, if seized of a revision petition either filed beyond prescribed period or suffering from procedural lapses but satisfying conditions for exercise of its suo motu jurisdiction, could treat such petition as an information to correct errors of jurisdiction committed by subordinate court---Proper place of procedure would be to provide stepping stones and not stumbling blocks in way of administration of justice---If such suo motu revisional jurisdiction was allowed to go into spiral of technicalities and fetters of limitation, then purpose behind conferring same on such courts would not only be defeated, but words providing therefor would be reduced to dead letters---Revisional court would fail in its duty if it dismissed revision petition on technical grounds despite finding an illegality or material irregularity in impugned judgment---Principles.

Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582; Banori v. Jilani PLD 2010 SC 1186; Union of India v. Pratap Chandra AIR 1964 Assam and Nagaland 141; Pakistan v. Q.M.R. Expert Consultants PLD 1990 SC 800; Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Mst. Gohar Taja v. Sajid and others 2003 YLR 1994 rel.

(f) Administration of justice---

----Proper place of procedure would be to provide stepping stones and not stumbling blocks in way of administration of justice.

S.M. Masud, Advocate Supreme Court for Appellants (in C.A. 2650 of 2006).

Ikram-ul-Haq (Attorney in Person) for Appellants (in C.A. 2753 of 2006)

Nemo for Appellants (in C.As. 269, 1136, 1869, 1870 and 1817 of 2008).

Lal Jan Khattak, Addl. A.G. for Appellants (in C.A. 1867 of 2008).

Mazullah Barkandi, Advocate Supreme Court for Appellants (in C.A. 1868 of 2008).

Lal Jan Khattak, Addl. A.G. for Appellant (in C.A. 1875 of 2008).

Nawaz Khan, Legal Assistant for Appellants (in C.As. 83-P to 85-P of 2010).

Roohul Amin Khan, Advocate Supreme Court for Appellants (in C.As. 95-P to 96-P of 2010).

Muhammad Munir Peracha, Advocate Supreme Court for Appellants (in C.A. 246 of 2010).

Jan Muhammad Khan, Advocate Supreme Court for Appellants (in C.A. 473-P of 2007).

Zafar Iqbal Ch. Advocate Supreme Court for Respondents (in C.A. 2650 of 2006).

Nemo for Respondents (in C.As. 2753 of 2006, 1869, 1870 of 2008 and 95-P of 2010).

M. Munir Paracha, Advocate Supreme Court for Respondents (in C.A. 269 of 2008).

Haji Muhammad Zahid Shah, Advocate Supreme Court for Respondents (in C.A. 1136 of 2008).

Said Tahir Khan, Advocate Supreme Court for Respondents (in C.A. 1867 of 2008).

Abdul Sattar Khan, Advocate Supreme Court for Respondents (in C.A. 1868 of 2008).

Muhammad Tariq Javed, Advocate Supreme Court for Respondents (in C.As. 1871 of 2008 and 83-P to 85-P of 2010).

Said Tahar Khan, Advocate Supreme Court for Respondents (in C.A. No.1875 of 2008).

Gul Zarin Kayani, Senior Advocate Supreme Court for Respondents Nos.1-6) (in C.A. 246 of 2010).

Maazullah Barkandi, Advocate Supreme Court for Respondents in C.A.473-P of 2007).

Date of hearing: 11th January, 2012 (reserved).

P L D 2012 Supreme Court 421

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ

Civil Appeal No.54-Q of 2009

Mst. GUL JAN and others---Appellants

Versus

NAIK MUHAMMAD and others---Respondents

(On appeal from the judgment dated 26-6-2006 of the High Court of Balochistan, Quetta passed in Civil Revision No.357 of 2002).

Civil Appeal No.693 of 2009 and Civil Miscellaneous Application No.2982 of 2011

Mst. INAYAT BEGUM and others---Appellants

Versus

MUHAMMAD ALI---Respondent

(On appeal from the judgment dated 3-11-2004 of the High Court of Lahore passed in R.S.A. No.13 of 1997).

Civil Petition No.717-L of 2009

KHADIM HUSSAIN and others---Petitioners

Versus

IFTIKHAR AHMAD---Respondent

(On appeal from the judgment dated 13-3-2009 of the Lahore High Court of Lahore passed in Civil Revision No.1813 of 2004).

Civil Petition No.795=L of 2009

MUHAMMAD BAKHSH---Petitioner

Versus

GHULAM MUHAMMAD---Respondent

(On appeal from the judgment dated 19-3-2009 of the Lahore High Court of Lahore passed in R.S.A. No.82 of 2008).

Civil Petition No.971-L of 2009

MUHAMMAD RAMZAN---Petitioner

Versus

ABDUL HAMEED and others---Respondents

(On appeal from the judgment dated 4-3-2009 of the Lahore High Court of Lahore passed in Civil Revision No.1840 of 2007).

Civil Petition No.1272-L of 2009

BASHIR AHMAD---Petitioner

Versus

SARDAR KHAN---Respondent

(On appeal from the judgment dated 7-5-2009 of the Lahore High Court of Lahore passed in Civil Revision No.1499 of 2003).

Civil Petition No.1574-L of 2009

MUHAMMAD AZAM---Petitioner

Versus

MUHAMMAD ABDULLAH (deceased) through L. RS. ---Respondent

(On appeal from the judgment dated 11-6-2009 of the Lahore High Court of Lahore passed in Civil Revision No.83-D of 1990).

Civil Petition No.1598-L of 2009

ASGHAR ALI---Petitioner

Versus

MUHAMMAD MANSHA---Respondent

(On appeal from the judgment dated 6-7-2009 of the Lahore High Court of Lahore passed in Civil Revision No.2071 of 2007).

Civil Petition No.1599-L of 2009

ASGHAR ALI---Petitioner

Versus

MUHAMMAD MANSHA---Respondent

(On appeal from the judgment dated 6-7-2009 of the Lahore High Court of Lahore passed in Civil Revision No.2072 of 2007).

Civil Petition No.1690-L of 2009

ABDUL GHAFOOR---Petitioner

Versus

MUHAMMAD SAJID BUTT and others---Respondents

(On appeal from the judgment dated 11-6-2009 of the Lahore High Court of Lahore passed in Civil Revision No.692 of 2006).

Civil Petition No.1698-L of 2009

Mst. SALIMAN BIBI and others---Petitioners

Versus

LIAQUAT BAIG and others---Respondents

(On appeal from the judgment dated 8-7-2009 of the Lahore High Court of Lahore passed in Civil Revision No.1695 of 2003).

Civil Petition No.1699-L of 2009

SAJID BAIG and others---Petitioners

Versus

LIAQUAT BAIG and others---Respondents

(On appeal from the judgment dated 8-7-2009 of the Lahore High Court of Lahore passed in Civil Revision No.1817 of 2005).

Civil Petition No.1766-L of 2009

SAJID BAIG and others---Petitioners

Versus

LIAQUAT BAIG and others---Respondents

(On appeal from the judgment dated 8-7-2009 of the Lahore High Court of Lahore passed in Civil Revision No.797 of 2005).

Civil Petition No. 1899-L of 2009

BARKAT ALI (deceased) represented through L.Rs, and others---Petitioners

Versus

IJAZ AHMAD KHAN---Respondent

(On appeal from the judgment dated 16-7=2009 of the Lahore High Court of Lahore passed in F.A.O. No.254 of 2004).

Civil Petition No.167-L of 2011

Malik MUZAFFAR AHMED---Petitioner

Versus

MAJLIS-E-ILMI SOCIETY---Respondent

(On appeal from the judgment dated 29-11-2010 of the Lahore High Court of Lahore passed in Civil Revision No.29 of 2008).

Civil Petition No.229-P of 2011

IBAD KHAN and others---Petitioners

Versus

SIRAJ-UD-DIN' and other's---Respondents

(On appeal from the judgment dated 24-3-2011 of the Peshawar High Court Peshawar passed in Civil Revision No.781 of 2010 along with C.M.No.2237 of 2010).

Civil Petition No.590-L of 2011

Mst. HUMAIRA BIBI---Petitioner

Versus

MUHAMMAD YOUNIS and others---Respondents

(On appeal from the judgment dated 28-2-2011 of the Lahore High Court Bahawalpur Bench, Bahawalpur passed in Civil Revision No.551 of 1996).

Civil Petition No.103-P of 2011

GOVERNMENT OF KPK through Chief Engineer Irrigation and others---Petitioners

Versus

MUHAMMAD MANSOOR---Respondent

(On appeal from the judgment dated 2-12-2010 of the Peshawar High Court Peshawar passed in Regular First Appeal No.32 of 2010).

Civil Appeals Nos.54-Q, 693-L of 2009 and Civil Petitions Nos.717-L, 795-L, 971-L, 1272-L, 1514-L, 1598-L, 1599-L, 1690-L, 1698-L, 1699-L, 1766-L, 1899-L, of 2009; 167-L, 229-P, 590-L, 103-P of 2011 and. Civil Miscellaneous Application No.2982 of 2011, decided on 17th February, 2012.

(a) Administration of justice---

----Raison d'etre or object of all laws is to regulate the affairs of a society in uniformity and through such uniformity to establish a just order---When in order to achieve and dispense justice in individual cases exceptions are contrived or laws are disregarded that promotes confusion and breeds anarchy which, at the end of the road, disturbs social harmony and contributes towards injustice.

(b) Constitution of Pakistan---

---Arts. 185(2) & 185(3) ---Scope of Arts.185 (2) & 185(3) of the Constitution.

Article 185(2) of the Constitution enlists the kind of cases in which an appeal can competently be filed before Supreme Court whereas Article 185(3) of the Constitution provides that in all cases wherein an appeal is not competent under Article 185(2) of the Constitution an appeal shall lie to Supreme Court only if the Supreme Court grants leave to appeal. There are also some statutes which provide for an appeal before Supreme Court.

(c) Constitution of Pakistan---

---Arts. 185`(3) & 185(2)---Supreme Court Rules, 1980, O. XIII, Rr.1 & 2; O.XXIII, R.1; O.XII, Rr.2 & 3 and O.XXII, R.1---Question referred to the Special Bench, in the present case, was as to whether in a case where an appeal lies to the Supreme Court and no such appeal has been filed can the Supreme Court entertain a petition seeking leave to appeal' under Art.185(3) of the Constitution---Petition for leave to appeal under Art.185(3) of the Constitution is competent and maintainable only where an appeal to the Supreme Court does not lie under Art.185(2) of the Constitution---As a matter of fact provisions of Art.185(3) of the Constitution come into play and become relevant only in those cases where an appeal before the Supreme Court as provided in Art.185(2) of the Constitution is not competent---Petition for leave to appeal under Art.185(3) and an appeal under Art.185a) of the Constitution or under any statute are not only mutually exclusive remedies but are also not interchangeable remedies suiting convenience of a party---Treating such distinct remedies as interchangeable may be offensive even to the scope of such remedies because by virtue of provisions of R.2 of O.XIII and R.1 of O.XXIII of the Supreme Court Rules, 1980, the scope of a petition for leave to appeal is restricted only to "points of law which arise for determination" whereas by virtue of R.3 of O.XII and R.I. of O.XXII of the Supreme Court Rules, 1980 an appeal lies against all "objections to the decision of High Court" and such objections may include inter cilia objections to factual determinations and appraisal of evidence which may be alien to the scope of a petition for leave to appeal---On account of mutual exclusivity in the matter of competence and distinct scopes of maintainability of said two remedies any consideration based upon the interests of justice for holding a petition for leave to appeal under Art.185(3) of the Constitution to be maintainable where an appeal is competent under Art.I85(2) of the Constitution or under some statute ought to be irrelevant to the question of competence or maintainability of such a petition---Remedy available to litigant under any other statute is to be governed by that statute and not by or under the provisions of Art.185(3) of the Constitution which has relevance only to the provisions of Art.185(2) of the Constitution and not to any other law or statute---No petition for leave to appeal is competent or maintainable before the Supreme Court under Art.185(3) of the Constitution if the remedy of appeal provided under the. relevant statute is not availed of by the concerned party and no such incompetent petition for leave to appeal filed under Art.185(3) of the Constitution can be converted into an appeal under the relevant statute---If an appeal competent before the Supreme Court has not been filed within the period of limitation prescribed for filing of the same then the only remedy available in that regard is to file a time barred appeal and seek extension of time or condonation of delay in filing of the same under R.2, O.XII or R.1 of O.XXII of Supreme Court Rules, 1980---No petition for leave to appeal filed under Art.185(3) of the Constitution can be entertained by the office of the Supreme Court in any case where an appeal is competent before the Supreme Court under Art.185(2) of the Constitution or under any statute and no such incompetent petition for leave to appeal filed even if erroneously entertained by the office of the court can be converted into or treated as an appeal except in case of an incompetent petition for leave to appeal filed within the period of limitation for filing a competent appeal---Appeals which were competent before the Supreme Court under Art.185(2) of the Constitution or under some statute but the matters had been brought to the Supreme Court in the shape of petitions for leave to appeal filed under Art.185(3) of the Constitution at a time when the remedy of appeal had become barred by time, were incompetent and not maintainable at the time of their institution---Supreme Court in this respect observed that the court was cognizant of the fact that legal position regarding maintainability of such petitions /lad remained unsettled in the past on account of some inconsistent judgments of the Supreme Court and thus it would be oppressive, if not unfair, to dismiss those petitions and appeals arising out of the same as incompetent and not maintainable at such a late stage---Petitioners/appellants in all such petitions/appeals may apply before Supreme Court for treating their petitions filed under Art.185(3) as appeals filed under Art.185(2) or the relevant statute and may also apply for extension of time or condonation of delay in filing of such appeals and it shall then be for the court to decide such applications keeping in view the peculiar circumstances of each case---Such concession is meant only for the set of petitions and appeals wherein the petitioners/appellants had been caught up in a confusion or uncertainty which was not of their making and all future institution of petitions for leave to appeal under Art.185(3) of the Constitution shall be governed by the legal position declared through the present judgment---Principles.

As expressly provided by Article 185(3) of the Constitution itself, a petition for leave to appeal under Article 185(3) of the Constitution is competent and maintainable only where an appeal to Supreme Court does not lie under Article 185(2) of the Constitution. As a matter of fact the provisions of Article 185(3) of the Constitution come into play and become relevant only in those cases where an appeal before Supreme Court as provided in Article 185(2) of the Constitution is not competent.

A petition for leave to appeal under Article 185(3) of the Constitution and an appeal under Article 185(2) of the Constitution or under any statute are not only mutually exclusive remedies but are also not interchangeable remedies suiting convenience of a party. Treating such distinct remedies as interchangeable may be offensive even to the scope of such remedies because, by virtue of the provisions of Rule 2 of Order XIII and Rule 1 of Order XXIII of the Supreme Court Rules, 1980, the scope of a petition for leave to appeal is restricted only to "points of law which arise for determination" whereas by virtue of Rule 3 of Order XII and Rule 1 of Order XXII of the Supreme Court Rules, 1980 an appeal lies against all "objections to the decision of the High Court" and such objections may include inter alia objections to factual determinations and appraisal of evidence which may be alien to the scope of a petition for leave to appeal. On account df mutual exclusivity in the matter of competence and distinct scopes of maintainability of these two remedies any consideration based upon the interests of justice for holding a petition for leave to appeal under Article 185(3) of the Constitution to be maintainable where an appeal is competent under Article 185(2) of the Constitution or under some statute ought to be irrelevant to the question of competence or maintainability of such a petition because under Article 175(2) of the Constitution "No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". No provision of the Constitution or any law confers any jurisdiction on the Supreme Court to hold a remedy to be maintainable in the interests of justice where it is actually not maintainable under the Constitution or the relevant law. It may also be pertinent to mention here that by virtue of Article 4(1) of the Constitution "To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and by virtue of Article 5(2) of the Constitution "Obedience to the Constitution and law is the inviolable obligation of every citizen ".

It goes without saying that an indolent, negligent or careless litigant failing to file an appeal before the Supreme Court where such appeal was competent cannot be allowed to achieve his object through an incompetent petition for leave to appeal and thereby to try to snatch away a vested right already accrued to the opposite party by efflux of time. It is trite that what cannot be done directly cannot be allowed to be achieved indirectly. In most of the cases petitions for leave to appeal had been allowed to be converted into appeals beyond the period of limitation prescribed for filing of an appeal without appreciating that the period of 30 days provided for filing an appeal under Rule 2 of Order XII of the Supreme Court Rules 1980 can be extended under the said rule only in a case where an appeal has actually been filed and the period of limitation of 60 days provided for filing a petition for leave to appeal under Rule 1 of Order XIII of the Supreme Court Rules, 1980 can be extended only where a petition for leave to appeal has actually been filed. It would be inapt to apply the provision regarding extension of time for filing of an appeal to something which has actually been filed before the court as a petition for leave to appeal. The appropriate course to be adopted in such a situation would be to dismiss the incompetent petition for leave to appeal as not maintainable leaving the relevant party to file a time-barred appeal and to seek extension of time in that regard under the appropriate rule. However, an exception to this would be a case where an appeal to the Supreme Court is competent but a petition for leave to appeal has mistakenly been filed but the same has been filed within the period of limitation prescribed for filing of an appeal and in such a case the question of extension of time may be irrelevant because such a petition for leave to appeal can be treated as an appeal filed within the requisite period of limitation. Such a case would be a case of misdescription only and the law is settled by now that mistakenly mentioning of a wrong provision of law does not denude a court of its jurisdiction where such jurisdiction exists.

As regards the cases under any other statute providing for an _ appeal to the Supreme Court the remedy available to a litigant under such statutes is to be governed by that statute and not by or under the provisions of Article 185(3) of the Constitution which has relevance only to the provisions of Article 185(2) of the Constitution and not to any other law or statute.

No petition for leave to appeal is competent or maintainable before the Supreme Court under Article 185(3) of the Constitution if the remedy of appeal provided under the relevant statute is not availed of by the concerned party and, no such incompetent petition for leave to appeal filed under Article 185(3) of the Constitution can be converted into an appeal under the relevant statute.

In some of the cases an incompetent petition for leave to appeal had been allowed to be converted into an appeal merely because the office of the Supreme Court had failed to object to maintainability of the petition for leave to appeal at the time of its presentation. Any failure on the part of the office of the Supreme Court to raise an objection to maintainability of a petition for leave to appeal cannot make such a petition competent or maintainable. Two wrongs, i.e. one on the part of the litigant or his counsel in filing an incompetent petition and second on the part of the office of the Supreme Court in failing to object to filing of such incompetent petition, do not make a right nor such two wrongs create any right in favour of a party where no such right exists under the Constitution or the law. There is no gainsaying that ignorance of law is no excuse, be it on the part of a litigant or his counsel or on the part of the court.

The practice of filing a petition for leave to appeal before the Supreme Court under Article 185(3) of the Constitution where an appeal is competent before the Supreme Court under Article 185(2) of the Constitution or under any statute but has become barred by time amounts to hoodwinking or deceiving the spirit as well as the express provisions of Article 185(3) of the Constitution and such practice must be brought to an end. If an appeal competent before the Supreme Court has not been filed within the period of limitation prescribed for filing of the same then the only remedy available in that regard is to file a time-barred appeal and seek extension of time or condonation of delay in filing of the same in terms of Rule 2 of Order XII or Rule 1 of Order XXII of the Supreme Court Rules, 1980. No petition for leave to appeal filed under Article 185(3) of the Constitution can be entertained by the office of the Supreme Couri in any case where an appeal is competent before the Supreme Court under Article 185(2) of the Constitution or under any statute and no such incompetent petition for leave to appeal, even if erroneously entertained by the office of the Supreme Court can be converted into or treated as an appeal except in the case of an incompetent petition for leave to appeal filed within the period of limitation for filing a competent appeal. In the present cases appeals were competent before the Supreme Court under Article 185(2) of the Constitution or under some statute but the matters had been brought to the Supreme Court in the shape of petitions for leave to appeal filed under Article 185(3) of the Constitution at a time when the remedy of appeal had become barred by time. All these petitions thus filed were, therefore, incompetent and not maintainable at the time of their institution. Supreme Court observed that court was cognizant of the fact that legal position regarding maintainability of such petitions had remained unsettled in the past on account of some inconsistent judgments of the Supreme Court and thus, it would be oppressive, if not unfair, to dismiss these petitions and appeals arising out of the same as incompetent and not maintainable at such a late stage. Supreme Court further observed that the petitioners/appellants in all the present petitions/appeals may apply before the Supreme Court for treating their petitions filed under Article 185(3) of the Constitution as appeals filed under Article 185(2) of the Constitution or the relevant statute and may also apply for extension of time or condonation of delay in filing of such appeals and it shall then be for the Supreme Court to decide such applications keeping in view the peculiar circumstances of each case. Such concession is meant only for the present set of petitions and appeals wherein the petitioners/appellants had been caught up in a confusion or uncertainty which was not of their making and that all future institution of petitions for leave to appeal under Article 185(3) of the Constitution shall be governed by the legal position declared through this judgment.

Water and Power Development Authority through Chief Engineer v. Saadullah Khan and others 1999 SCMR 319; Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371; Ghulam Muhammad and others v. Government of Balochistan and others 2007 SCMR 41; National Logistic Cell v. Rukhsana Parveen Nazeer and another 2008 SCMR 55; Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286; Qaiser Mushtaq Ahmad v.Controller of Examinations and others PLD 2011 SC 174; Mst. Kokab Benazir Fatima v. Muhammad Ashraf and others 2011 SCMR 1315 and Muhammad Ilyas v. Allied Bank Limited 2011 SCMR 1347 affirmed.

Haji Muhammad Nawaz v. Hussain shah 1990 SCMR 1621; Sardar Abdur Rauf Khan and others v The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; Sardar Abdur Rauf Khan and others v The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1992 SCMR 1181; Investment Corporation of Pakistan v. Syed Jammat Ali Shah and another 1992 SCMR 1195; Chairman, N.-W.F.P. Forest Development Corporation and others v. Khurshid Anwar Khan and others 1992 SCMR t202; Elahi Bakhsh and others v. Mst. Balqees Begum and others 1992 SCMR 2443; Hyderabad Development Authority through M.D. Civic Centre Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504 and Zulfiqar and others v. Shandat Khan PLD 2007 SC 582 dissented from.

(d) Constitution of Pakistan---

----Arts. 185(2) & 185(3)----Supreme Court Rules, 1980, O.XIII, R.2; O.XXIII; R.1 & O.XII,R.1---Appeal and petition for leave to appeal---Scope and difference---By virtue of the provisions of Rule 2 of Order XIII and Rule I of Order XXIII of the Supreme Court Rules, 1980, the scope of a petition for leave to appeal is restricted only to "points of law which arise for determination" whereas by virtue of Rule 3 of Order XII and Rule 1 of Order XXII of the Supreme Court Rules, 1980 an appeal lies against all "objections to the decision of the High Court" and such objections. may include inter alia objections to factual determinations and appraisal of evidence which may be alien to the scope of a petition for leave to appeal.

(e) Constitution of Pakistan---

----Arts. 185(2) & 185(3) ---Supreme Court Rules, 1,980, O... XII, R. 2 and O. XXII, R. 1---Filing of petition for leave to appeal or conversion of the same into appeal when competent appeal is time barred---Scope, remedy and exception---Supreme Court observed that practice of filing a petition for leave to appeal before the Supreme Court under Article 185(3) of the Constitution where an appeal is competent before the Supreme Court under Article 185(2) of the Constitution or under any statute but has become barred by time amounts to hoodwinking or deceiving the spirit as well as the express provisions of Article 185(3) of the Constitution and such practice must be brought to an end---If an appeal competent before the Supreme Court has not been filed within the period of limitation prescribed for filing of the same then the only remedy available in that regard is to file a time-barred appeal and seek extension of time or condonation of delay in filing of the same in terms of Rule 2 of Order XII or Rule 1 of Order XXII of the Supreme Court Rules, 1980---No petition for leave to. appeal filed under Article 185(3) of the Constitution can be entertained by the office of the Supreme Court in any case where an appeal is competent before the Supreme Court under Article 185(2) of the Constitution or under any statute and no such incompetent petition for leave to appeal, even if erroneously entertained by the office of the Supreme Court can be converted into or treated as an appeal except in the case of an incompetent petition for leave to appeal filed within the period of limitation for filing a competent appeal.

Nemo for Appellants (in Civil Appeal No.54-Q of 2009)

Nemo for Respondents (in Civil Appeal No.54-Q of 2009)

Gulzarin Kiyani, Advocate Supreme Court for Appellants (in Civil Appeal No.693-L of 2009 and Civil Misc. Application No.2982 of 2011)

Nemo for Respondent (in Civil Appeal No.693-L of 2009 and Civil Misc. Application No.2982 of 2011)

Nemo for Petitioners (in Civil Petition No.717-L of 2009)

Nemo for Respondent (in Civil Petition No.717-L of 2009)

Petitioner in person (in Civil Petition No.795-L of 2009)

Respondent not represented (in Civil Petition No.795-L of 2009).

Petitioner in person (in Civil Petition No.971-L of 2009)

Respondents not represented (in Civil Petition No.971-L of 2009).

Nisar Ahmad Baig, Advocate Supreme Court for Petitioner (in Civil Petition No.1272-L of 2009).

Ch_Muhammad Rafiq Warraich, Advocate Supreme Court for Respondent (in Civil Petition No.1272-L of 2009).

Nemo for Petitioner (in Civil Petition No.1514-L of 2009)

Nemo for Respondents (in Civil Petition No.1514-L of 2009)

Nemo for Petitioner (in Civil Petition No.1598-L of 2009)

Respondent not represented (in Civil Petition No.1598-L of 2009).

Nemo for Petitioner (in Civil Petition No.1599 of 2009)

Respondent not represented (in Civil Petition No.1599 of 2009)

Nemo for Petitioner (in Civil Petition No.1690-L of 2009)

Respondents not represented (in Civil Petition No.1590-L of 2009).

Nemo for Petitioners (in Civil Petition No.1698-L of 2009)

Respondents not represented (in Civil Petition No.1698-L of 2009).

Nemo for Petitioners (in Civil Petition No.1699-L of 2009)

Respondents not represented (in Civil Petition No.1699-L of 2009).

Nemo for Petitioners (in Civil Petition No.1766-L of 2009)

Respondents not represented (in Civil Petition No.1766-L of 2009)

Nemo for Petitioners (in Civil Petition No. 1899-L of 2009)

Respondent not represented - (in Civil Petition No.1899-L of 2009).

Kh. Saeed uz Zafar, Advocate Supreme Court for Petitioner (in Civil Petition No.167-L of 2011)

Main Shahid Iqbal, Advocate Supreme Court for Respondent (in Civil Petition No. 167-L of 2011)

Nemo for Petitioners (in Civil Petition No.229-P of 2011)

Respondents not represented (in Civil Petition No.229-P of 2011).

Nemo for Petitioner (in Civil Petition No.590-L of 2011)

Respondents not represented (in Civil Petition No.590-L of 2011).

Lal Jan Khattak, Additional Advocate-General, KPK for Petitioner (in Civil Petition No.103-P of 2011).

Respondent not represented (in Civil Petition No.103-P of 2011).

Date of hearing: 9th January, 2012.

P L D 2012 Supreme Court 466

Present: Iftikhar Muhammad Chaudhry, C J., Mian Shakirullah Jan, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Tariq Parvez, Mian Saqib Nisarand Amir Hani Muslim, JJ

Syed YOUSAF RAZA GILLANI, PRIME MINISTER OF PAKISTAN---Appellant

Versus

ASSISTANT REGISTRAR, SUPREME COURT OF PAKISTAN and another---Respondents

Intra Court Appeal No.1 of 2012, decided on 10th February, 2012.

[Against the order dated 2-2-2012 passed by this Court in Criminal Original No. 06/2012]

(a) Contempt of Court Ordinance (IV of 2003)---

----Ss. 17(3), 3 & 19---Intra court appeal---Disobedience of court directives---Framing of charge---Scope---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---Under S.3, Contempt of Court Ordinance, 2003 a person can be proceeded against for contempt of court if he disobeys or even disregards any Order of a Court, which he is legally bound to obey---Want of guilty intent and the wilfulness (or otherwise) of disobedience of court directives and other averments in the appeal raise questions of fact that warrant a detailed enquiry based on evidence---By virtue of being distinct elements of the defence set up by the appellant, both need to be assessed on the facts and on the basis of such evidence as is adduced before the competent forum, the trial Bench---Such factual defences have not and could not have been addressed and answered in a preliminary hearing and by not discussing and adjudicating upon such defences at preliminary juncture the trial Bench acted as per directives of law---Trial Bench may have prejudiced the outcome of the case by giving a conclusive verdict on the merits of the appellants' defences since such would have been issued without having evaluated the necessary evidence---Admitted position, in the present case, therefore, constitutes a sufficient basis for the 'prima facie' satisfaction expressed by the trial Bench, to proceed further in the matter by framing a charge; appellant will have the right to rely on his arguments and produce evidence in support thereof before the trial Bench.

Justice Hasnat Ahmad Khan v. Federation of Pakistan PLD 2011 SC 680 ref.

(b) Contempt of Court Ordinance (IV of 2003)---

----S. 17---Non-compliance of court directives---Preliminary hearing under S.17(1), Contempt of Court Ordinance, 2003---Nature---Framing of charge---Scope---Where non-compliance of a court directive is not disputed, the court is, prima facie, justified in the satisfaction that the matter should proceed to trial---Show cause notice under S.17 of the Ordinance can, of course, be discharged where the alleged contemnor shows that the court order has, in fact, already been complied with---Notice may, at the discretion of the court, also be discharged if the alleged contemnor agrees to comply with the court order even after the issuance of a show cause notice; however, where neither of these situations exist and a factual plea is raised requiring evidence, the proper course for the court is to frame a charge and allow the alleged contemnor to prove the pleas which he has raised in his defence, whether by way of complete exoneration from the charge or in mitigation of sentence if the charge is proved.

Justice Hasnat Ahmad Khan v. Federation of Pakistan PLD 2011 SC 680 ref.

(c) Interpretation of statutes---

----Neither in interpreting statutes nor precedents are Judges confined to the alternatives of blind, arbitrary choice, 'mechanical deduction' from rules with predetermined meaning.

British jurist, Prof. H.L.A. Hart quoted.

Imran Ullah v. The Crown 1954 FC 123 ref.

(d) Precedents---

----Interpretation of----Neither in interpreting statutes nor precedents are Judges confined to the alternatives of blind, arbitrary choice, 'mechanical deduction' from rules with predetermined meaning.

British jurist, Prof. H.L.A. Hart quoted.

Imran Ullah v. The Crown 1954 FC 123 ref.

(e) Contempt of Court Ordinance (IV of 2003)---

----Ss. 17 & 19---Constitution of Pakistan, Preamble, Arts.90(1), 204, 5 & 25---Contempt of court---Intra court appeal---Non-compliance of court directives---Framing of charge by trial Bench---Scope---Claim of special privilege---Scope---Contentions of appellant, the Prime Minister of Pakistan, was that court show greater restraint and forbearance with respect to a duly elected Prime Minister` when the very stability of the democratic system obtained by the people of Pakistan after so much sacrifice, may depend on the outcome of the case---Validity---Such averment, coming from the Chief Executive of the country appeared to be based, firstly on a claim to some special privilege that accords the appellant preferential treatment by sheltering him from receiving equal treatment in accordance with the law and the Constitution and thereby allowing him to disregard the orders of the court because of his office and, secondly, it called upon the court to formulate its opinion, not in accordance with the mandate of law as applicable on the facts of the appeal, but in fear and anticipation of a possible outcome that may flow out of a decision, which may be arrived at by the trial Bench on the basis of the law and the Constitution---Appellant urged that Supreme Court to resurrect and adopt a form of the doctrine of necessity, which in the past had blighted constitutional rule in Pakistan---Validity of such averment, and both arguments adduced in support of it, must be examined, like other questions of public law, in the light of the Constitution---Appellant's claim to a 'special privilege' on account of his executive office, which sought for him "greater restraint" amounting to an exception from contempt proceedings, did not find any basis in the Constitution---Preamble of the Constitution provided a number of principles upon which the Constitution was founded and in line with which it must, therefore, be interpreted; amongst these was mentioned the principle of "equality, as enunciated by Islam" which, the preamble ordained, "shall be fully observed"; a number of Articles of the Constitution were framed to give effect to the principle of equality enshrined thus in the Preamble amongst these was Article 5 which provided that "obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be"---Constitution mentioned no exemptions from the obligation it imposes---Exceptionalism therefore, which was being claimed by the appellant had no constitutional basis--Article 25(1) of the Constitution in the clearest terms provides that "all citizens are equal before law and are entitled to equal protection of law"--- Prime Minister has not relied upon the limited and functional immunity from court processes, which was offered to certain official acts under Art.248 of the Constitution---Law does not accord individual immunity to the appellant from complying with the law; therefore, even though appellant was a duly elected Prime Minister of the country and deserved respect, Supreme Court could not be expected to show any restraint and forbearance on account of his position---Such constitutional directive only echoes the perennial wisdom which underpins governance of the State in accordance with the mandate of the Constitution---Holy Prophet (p.b.u.h.) rejected such plea and, instead, issued a warning which all functionaries of the State would do well to pay heed to---In fact, the position which needed to be adopted, and which emerged from a close examination of the Constitution, was quite the opposite: the higher the constitutional office, the greater the onus of responsibility on the holder of such office---Holder of Constitutional office was under this higher responsibility because he, unlike ordinary citizens, makes an oath to discharge his duties "in accordance with the Constitution and the law"---Prime Minister's oath also required that he "will preserve, protect and defend the Constitution", therefore, more stringent legal standards apply to him as compared to others who have not taken a similar oath and the court had greater reason to be particularly concerned about the possibility of contempt having been committed by the appellant---Prima facie case that the obligation to obey the directions of Supreme Court may have been violated by the highest constitutional functionary of the executive branch of government, legal scrutiny was clearly warranted, therefore, the trial Bench had only done the needful by letting matters proceed to the stage of framing of charge---If the appellant apprehended instability as a consequence of the case, such apprehension could easily be allayed by ensuring that the Constitution was adhered to---Such was the exercise which was being undertaken by the trial Bench---Appellant may also draw comfort from the fact that institutions and systems provided in the Constitution ensure political stability; what happens to an individual can be of little consequence as long as State institutions continue functioning in accordance with the Constitution---Anachronistic notion of "après moi, le deluge" has no room in a constitutional order based on institutions rather than individuals--- Constitutional position dispel the appellant's claim to a special privilege as a matter of law, and a fear of anticipated consequences must not influence Court's decision.

(f) Constitution of Pakistan---

----Third Sched.---Responsibility of constitutional office holders---Scope---Higher the constitutional office, the greater the onus of responsibility on the holder of such office---Holder of Constitutional office was under such higher responsibility because he, unlike ordinary citizens, makes an oath to discharge his duties "in accordance with the Constitution and the law."

(g) Constitution of Pakistan---

----Art. 90 & Third Sched.---Prime Minister, responsibility of---Scope---Prime Minister's oath also required that he "will preserve, protect and defend the Constitution", therefore, more stringent legal standards apply to him as compared to others who have not taken a similar oath.

(h) Constitution of Pakistan---

----Preamble & Art.190---Action in aid of Supreme Court---Fudiciary duties of constitutional office holders---Nature---Deviation from the duties---Effect.

The functionaries of the State are fiduciaries of the people and ultimately responsible to the people who are also their pay masters. "Holders of public office have to remain conscious that in terms of the Constitution 'it is the will of the People of Pakistan' which has established the Constitutional Order under which they hold office. As such they are, first and foremost fiduciaries and trustees for the People of Pakistan. And, when performing the functions of their Office, they can have no interest other than the interests of the honourable People of Pakistan in whose name they hold office and from whose pockets they draw their salaries and perquisites".

The implications of a fiduciary relationship are well-defined in our jurisprudence. Amongst other things, it implies that constitutional functionaries, being fiduciaries, must scrupulously and with complete loyalty, ensure compliance with the will of the people of Pakistan who have, via the Constitution, placed them in office. And since this will finds expression in the form of the Constitution, which is stated to be its 'embodiment', the functionaries of the State must ensure adherence to the Constitution and the law. This jurisprudential background allows to fully appreciate why Article 190 of the Constitution requires that "all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court". In this context it will become evident that the Government and the Court share the common objective to serve the people strictly in accordance with their will, as expressed in the Constitutional Order established by them. This is also the essence of the Constitutional and democratic dispensation that is based on the rule of law. There is no conflict in the respective roles assigned to the Executive and the Judicature and nor is there any room for institutional or individual egos to create one. All that is required is the humility to recognize that these institutions and their functionaries are in the service of a common master, the people.

To further understand the nature of the above referred role and the fiduciary relationship between the people of Pakistan and bearers of State offices, it is useful to refer to a speech made by Prime Minister Liaqat Ali Khan, in 1949, on the floor of the Constituent Assembly. He said: "...the people have been recognized as the recipients of all authority and it is in them that the power to wield it has been vested." Mr. Sirish Chandra Chatapadhaya, another member of the Constituent Assembly echoed the same opinion but with even greater humility when he said that "the citizens of our country are our masters. We are their servants." It is these sentiments which have informed the Constitution and must also inform the official acts of State organs and their functionaries.

These statements of the founding fathers of Pakistan are, in fact, modern articulations of what is actually a timeless and prophetic principle of governance, encapsulated in the well-known saying: (The leader of a people is their servant). Constitution manifests the embodiment of this very principle when it obliges the highest executive functionary to carry out the commandments expressed by the people in the form of the Constitution and the law. Deviations by fiduciaries from these commandments must remain of the gravest concern to citizens and courts alike.

Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Justice Louis Brandeis, writing in the American Context; Olmstead v. United States, 277 U.S.438 (1928);Crl. M.A. 486 of 2010 in Criminal Appeal No.22 of 2002; Gulistan Saadi and Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

(i) Constitution of Pakistan---

----Preamble---Administration of justice---Consequentialism and the rule of law---Scope---Court cannot and should not base its decisions on expediency or on consideration of the consequences which may follow as a result of enforcing the Constitution---Court cannot base its judgments on the anticipated consequences of its decision, else court will be reverting to the malignant 'doctrine of necessity' which has already been buried because of valiant struggle of the people of Pakistan---Political stability and the rule of law will flow as a natural consequence of giving sanctity and respect to the Constitution, both in letter and in spirit---Court can only strengthen the rule of law by upholding the Constitution, which is, in fact, the supreme law.

(j) Constitution of Pakistan---

----Preamble---Significant aspect of the Constitution is the nature of broader scheme within which each State organ and its respective office bearers are to operate---All State organs and the holders of high office derive their legitimacy from the Constitution.

(k) Constitution of Pakistan---

----Preamble, Arts. 90, 204 & Third Sched.---Contempt of Court Ordinance (IV of 2003), Preamble, Ss. 3 & 19---Contempt of Court---Intra court appeal---Disobedience of court directives by Prime Minister---Constitutionalism and the law of contempt---Scope.

The Prime Minister's mandate is circumscribed by Art. 90 of the Constitution, which permits him to exercise, in conjunction with various other constitutional functionaries, "the executive authority of the Federation". This exercise of authority is however, "[s]ubject to the Constitution" as expressly stated in the proviso to Art.90 (1). In the same light, Judges are required to make an oath to the effect that they will discharge their duties "in accordance with the Constitution and the law". In fact, this part of the oath is common to the oath of every single functionary for whom the Third Schedule prescribes an oath; one of these oaths which puts the point most clearly requires that such functionary will "uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people." (Oath of Members of the Armed Forces, Third Schedule, Constitution)

It is thus clear that Constitutional Order is founded on the fundamental instruction that each organ must give effect to and act in accordance with the Constitution. Insofar as an act of any one of the organs of the State travels beyond the limits laid down in the Constitution, the said organ can be said to have strayed from representing "the will of the people of Pakistan." Conversely, insofar as all organs of the State remain within the limits prescribed by the Constitution, they have a legitimate claim to being enforcers and exponents of the will of the people. Constitution conceives of an Order wherein the various organs of State are co-equals, each manifesting the will of the people and giving effect to such through adjudication, executive action or legislation. It is important that the primacy of the Constitution over the Government as also over the judicature be fully understood.

The Constitution expressly states that "all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court." Therefore, all members of the executive, for example, are constitutionally obliged to implement the decisions of the Supreme Court. The severity of its violation is fully recognized by the Constitution in Article 204. The Contempt of Court Ordinance, 2003 which has been promulgated pursuant to the said Article expressly includes within the ambit of contempt of Court anyone who "disobeys or disregards any order, direction or process of a court which he is legally bound to obey...". The people have expressly intended the broad reach of these provisions precisely to avoid the usurpation of the Constitution and to maintain the balance envisioned by the Constitutional Order. Courts invoke these sections only because such are the express instructions of the Constitution. The present case, wherein Supreme Court has taken cognizance prima facie, of contempt by the appellant, is no different. The Court, by doing so has only fulfilled its mandate to uphold the Constitution.

Constitutional position stated above is necessary to dispel the appellant's claim to a special privilege as a matter of law, and a fear of anticipated consequences must not influence Court's decision. Supreme Court observed that the Court has avoided any comment on the specific pleas raised by the appellant in his defence and it will be for the trial Bench to receive evidence and thereafter to decide on the merits of such pleas.

(l) Constitution of Pakistan---

----Preamble---Authority of Organs of State---Scope and limitations---Doctrine of separation of powers---Principles---Constitutional Order is founded on the fundamental instruction that each organ must give effect to and act in accordance with the Constitution; insofar as an act of any one of the organs of the State travels beyond the limits laid down in the Constitution, the said organ can be said to have strayed from representing "the will of the people of Pakistan" and insofar as all organs of the State remain within the limits prescribed by the Constitution, they have a legitimate claim to being enforcers and exponents of the will of the people---Constitution conceives of an Order wherein the various organs of State are co-equals, each manifesting the will of the people and giving effect to such through adjudication, executive action or legislation.

(m) Constitution of Pakistan---

----Preamble---Anachronistic notion of "après moi, le déluge" has no room in a Constitutional Order based on institutions rather than individuals.

Aitzaz Ahsan, Senior Advocate Supreme Court assisted by Gohar Ali Khan and M.S. Khattak, Advocate-on-Record for Appellant.

Nemo for Respondents.

Dates of hearing: 9th and 10th February, 2012.

O R D E R

JAWWAD S. KHAWAJA, J---is Intra-Court Appeal has been filed under Section 19(1)(iii) of the Contempt of Court Ordinance, 2003 (the "Ordinance"). The appellant, Mr. Yousaf Raza Gillani, is the Prime Minister of Pakistan. He assails an order passed by a bench comprising seven learned Judges of this Court (the "trial Bench"), on 2-2-2012, whereby it was decided that a charge be framed against the appellant for having committed contempt of the Court. Prior to the passing of the impugned order, the learned trial Bench, vide order dated 16-1-2012, issued a notice under section 17(1) of the Ordinance to the appellant "to show cause as to why the proceedings of contempt of Court may not be initiated against him for not complying with the direction of this Court given in paragraph 178 of the judgment in the case of Dr.Mobashir Hassan (PLD 2010 SC 265) ". The appellant did not submit a written reply to the show cause notice. The learned trial Bench granted a preliminary hearing to the appellant in accordance with section 17(3) of the Ordinance, and heard him in person and also through his counsel Mr. Aitzaz Ahsan, Sr. ASC. The Bench was prima facie satisfied and held "that it is in the interest of justice that [it] shall proceed further in the matter" and adjourned the case to 13-2-2012 for framing of charge. Aggrieved, the appellant filed this appeal, which was dismissed by means of a short order dated 10-2-2012 which, in relevant part reads as under:-

"We have concluded, for the reasons to be recorded later, that the impugned order has been passed strictly in accordance with the provisions of section 17(1) and (3) of the Ordinance 2003 following the settled principles of the criminal administration of justice, therefore, no interference is called for. Consequently, the appeal is dismissed."

1. We now record our reasons in support of our short order. To facilitate understanding of these reasons, we have divided this opinion into three parts. The first part contains a brief narrative of events that have led to the initiation of contempt proceedings against the appellant. This narrative will provide context for the second and third parts wherein arguments advanced on behalf of the appellant have been addressed and key constitutional principles have been highlighted.

I. Brief Historical Narrative

1. The roots of this controversy lie in events which occurred in the year 2007. That year a number of Constitution Petitions were filed before this Court under Article 184(3) of the Constitution, challenging the constitutionality of the National Reconciliation Ordinance, 2007 (the "NRO"). The NRO had been issued on 5-10-2007 by the then President General Parvez Musharraf purportedly in exercise of powers under Article 89 of the Constitution. The NRO had attempted to create a mechanism that enabled selected individuals to escape the pale of accountability. Certain unconstitutional measures were then taken by General Musharraf to accord permanence to the NRO and to some other Ordinances. This Court declared these measures unconstitutional, illegal, mala fide, and void ab initio. The Parliament also discredited the NRO by choosing not to validate the same as permanent legislation or to adopt any alternative or modified legislation as a substitute for it.

2. While hearing the case of Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265) it was noted in paragraph 177 that, amongst other things, the Attorney General at the time, namely Malik Muhammad Qayyum initiated and exchanged communications with Swiss authorities regarding proceedings relating to laundered monies pending before Swiss Courts. A report filed in Court by the National Accountability Bureau had put the figure of such monies at US $ 60,000,000 (US Dollars sixty million only). The communication aforesaid, was itself held to be devoid of legal sanction since the Attorney General did not have the necessary authorization to initiate or engage in communications regarding this matter, with the Swiss authorities. Through these communications, he managed to withdraw Pakistan's request for mutual legal assistance and revoked its status of a civil party in the pending proceedings in Switzerland. As a consequence of this exchange, the proceedings relating to the aforesaid laundered monies were abandoned. In view of the directions given by the Court in para 178 ibid "the Federal Government and other concerned authorities [were] ordered to take immediate steps to seek revival of the said requests, claims and status" in respect of the allegedly laundered monies lying in foreign countries including Switzerland.

3. After the judgment of this Court dated 16-12-2009 (the "NRO Judgment") passed in the case of Dr. Mobashir Hassan supra, the Federal Government sought review of the same through Civil Review Petition No.129 of 2010. This Review Petition was dismissed on 25-11-2011. Therefore, the NRO Judgment is final and binding, including its directives instructing the Federal Government and other concerned authorities to take immediate steps as ordered. The necessity of initiating contempt proceedings against the appellant arose for the purpose of ensuring compliance with the orders and directives of the Court. It is neither necessary nor appropriate for this appellate Bench to dilate upon the many orders and proceedings of the Court made in furtherance of this objective between the date of the NRO Judgment in December 2007 and the issuance of a show cause notice to the appellant on 16-1-2012. Such orders and proceedings can more appropriately be examined in the contempt proceedings before the learned trial Bench. This brief factual narration brings us to the second part of this opinion.

II The Appellant's case

1. The appellant's case before us is not that the orders and directives of this Court contained in the NRO Judgment have been complied with. On the contrary, the grounds and tenor of this appeal show that the said orders/directives have still not been implemented. It has been contended on behalf of the appellant that firstly, as Chief Executive and head of the Government, he has not committed any "wilful disobedience" of the NRO Judgment and therefore, contempt proceedings against him are not justified, secondly, that a full hearing was not afforded to the appellant by the learned trial Bench and thirdly, that the impugned order is a non-speaking order as it does not cite any reasons in support of its conclusions. On the basis of these submissions, learned counsel for the appellant argued that the impugned order is liable to be set aside.

2. We can now elaborate on these contentions and comment on their respective merits. The present appeal places great emphasis on the avowed want of mens rea and the absence of a 'guilty intent' on the part of the appellant. The argument is that the disobedience of the orders of the Court, if at all there was any, was not 'wilful'. This appears to be the salient feature of the present appeal. Since the contempt proceedings are pending before the learned trial Bench, we will only make tentative observations so as not to prejudice the outcome of the matter. In his appeal, the appellant acknowledges his awareness of the contents of para 178 of the NRO Judgment and the steps enumerated therein which the Government was legally obliged to undertake. These steps, which have been enumerated in paragraph 34 of this appeal, admittedly have not been taken. The appellant has asserted that despite his admitted inaction, his "intention was not to disobey" the orders of the Court and that there exists some "valid justification with respect to his own conduct". The appellant defends his inaction by contending that since he was "required to go by the Rules of Business, 1973 ", he accepted the views presented by the concerned Government functionaries and that he "had no reason whatsoever to believe otherwise than what had been maintained in the summaries". Such explanations, which have been put up by the appellant do not detract from, rather confirm the fact that the directives in the NRO Judgment have not, as yet, been complied with.

3. Section 17(3) of the Ordinance requires that "[i]f, after giving the alleged contemner an opportunity of a preliminary hearing, the court is prima facie satisfied that the interest of justice so requires, it shall fix a date for framing a charge in open court and proceed to decide the matter..." It is settled law "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". Justice Hasnat Ahmad Khan v. Federation of Pakistan, (PLD 2011 SC 680, para 58). Here, it may be noted that under section 3 of the Ordinance a person can be proceeded against for contempt of Court if he disobeys or even disregards any Order of a Court, which he is legally bound to obey. In view of this statutory provision, the admitted position of the appellant, in our opinion, constitutes a sufficient basis for the 'prima facie' satisfaction expressed by the learned trial Bench, to proceed further in the matter by framing a charge.

4. Want of guilty intent and the wilfulness (or otherwise) of disobedience of Court directives and other averments in this appeal raise questions of fact that warrant a detailed enquiry based on evidence. Furthermore, by virtue of being distinct elements of the defence set up by the appellant, both elements need to be assessed on the facts and on the basis of such evidence as is adduced before the competent forum. For this purpose, the competent forum is the learned trial Bench. These factual defences have not and could not have been addressed and answered in a preliminary hearing. By not discussing and adjudicating upon such defences at this preliminary juncture, the learned trial Bench acted as per directions of law. The trial Bench may have prejudiced the outcome of the case by giving a conclusive verdict on the merits of the appellant's defences since such would have been issued without having evaluated the necessary evidence. It goes without saying that the appellant will have the right to rely on his arguments and produce evidence in support thereof, before the learned trial Bench.

5. We have already stressed that the judicial exercise of receiving evidence or considering factual pleas on the basis of such evidence, is not to be undertaken at the preliminary hearing. Learned counsel for the appellant appears to be under a misconception on this point, which may have blurred his appreciation of the nature of a preliminary hearing under section 17(1) of the Ordinance. The case of Justice Hasnat supra has already established that where non-compliance of a Court directive is not disputed, the Court is, prima facie, justified in the satisfaction that the matter should proceed to trial. A show cause notice under section 17 of the Ordinance can, of course, be discharged where the alleged contemnor shows that the Court order has, in fact, already been complied with. The notice may, at the discretion of the Court, also be discharged if the alleged contemnor agrees to comply with the Court order even after the issuance of a show cause notice. However, where neither of these situations exists and a factual plea is raised requiring evidence, the proper course for the Court is to frame a charge and allow the alleged contemnor to prove the pleas which he has raised in his defence, whether by way of complete exoneration from the charge or in mitigation of sentence if the charge is proved.

6. The appellant's contention that the learned trial Bench denied him a 'full hearing' is also premised on a misconceived understanding of the nature of a preliminary hearing. The appellant has been granted a reasonable opportunity to make his submissions. What comprises reasonable opportunity is a question that must depend on the facts and circumstances of each case. From what has been stated above, it is clear to us that sufficient hearing was, in fact, afforded to the appellant to justify the prima facie determination made by the learned trial Bench, before it issued a show cause notice to the appellant.

7. Learned counsel for the appellant has referred to case law in support of his submissions. The cited cases, however, mostly pertain to appeals against judgments/orders which had been issued after a final adjudication in judicial proceedings. The present appeal, however, has been brought against an order issued in a preliminary proceeding. The distinction between a preliminary hearing as opposed to final proceedings is well recognized. Precedent, therefore, which enunciates rules for full hearing as a pre-condition for final orders, is inapplicable to the facts of the present case.

8. A great deal of emphasis was placed by learned counsel for the appellant on the case titled Imran Ullah v. The Crown (1954 FC 123) and reference was made to an extract from the judgment of Cornelius, J. read superficially and taken out of context. The learned Judge had observed at page 140 that "[the Courts] should do nothing that might have the effect of terminating an Advocate's arguments unless they have first satisfied themselves, by a direct question, that he cannot usefully add to what he has already said". First of all, it may be noted that the cited judgment resulted from a challenge to a final judgment rendered by a Bench of the Lahore High Court after the final hearing of a Criminal Appeal. This obvious distinguishing factor is sufficient to show that the cited precedent has no application in this case as the order impugned before us has been passed at a preliminary hearing. Secondly, it would be useful to state that discussion and adjudication of all arguments at a preliminary hearing is not to be seen as a mindless exercise or as an end in itself. There is no warrant for a mechanical insistence on such discussion/adjudication. The distinguished British jurist, Prof. H.L.A. Hart wisely comments that "neither in interpreting statutes nor precedents are judges confined to the alternatives of blind, arbitrary choice, or 'mechanical deduction' from rules with predetermined meaning." In fact, the ratio of Imran Ullah's case supra reinforces our decision to dismiss this appeal. In the said case after considering the arguments advanced, the Court decided not to set aside the judgment assailed before it. A.S.M. Akram, J. observed at page 127 that though he "was minded to remit the case but as we have carefully listened to the elaborate arguments on the merits by either side, it would now be of no purpose to adopt that course". Considering that we have heard learned counsel for the appellant at great length even though the matter involves only a prima facie finding in a preliminary hearing, we do not find any justification for setting aside the impugned order and remitting the case to the learned trial Bench for recording its decision on each and every argument and defence advanced on behalf of the appellant, during the preliminary hearing.

9. Learned counsel for the appellant while referring to the case of Justice Hasnat supra contended that a full hearing and reasons were given by this Court while hearing the said case and also that the hearing before the trial Bench in the said case had continued for a period of close to four months at the stage of preliminary hearing. The dictum of Cornelius, J. in Imran Ullah's case supra, sufficiently addresses the appellants contention regarding the inadequate duration of the preliminary proceedings: The learned Judge said at page 135 of the judgment that "it is impossible to read into the word 'hearing' anything in the nature of an obligation as to [the] pattern of an argument or the form which it is to follow, and any suggestion that observance of any kind of ritual is involved would be, in my opinion obnoxious to the true meaning." The significant aspect of the case of Justice Hasnat supra, which appears to have been over looked, is that the case concerned only a question of law, not one which required any recording or consideration of evidence. The issue was whether contempt proceedings could be initiated against a serving Judge of a High Court. It is clear that this question raised a jurisdictional issue. If, as a matter of constitutional law, a contempt notice to a serving Judge in the extraordinary circumstances of the cited case, was not permitted then the notice issued to the Judge involved would have had to be discharged after the preliminary hearing and without the necessity of receiving evidence. No such question of law arises in the present case.

10. The case of Justice Hasnat supra also examined the scheme of the Ordinance and clearly enumerated the requirements contained therein. It was held in para 58, as reproduced above, 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". The argument that the trial Bench ought to have determined the factual issue (arising in that case) of whether the appellant had intimation of an order dated 3-11-2007 was repelled by the observation that "these aspects of the case along with others are required to be decided on the basis of evidence which will be produced before the Bench seized with the contempt cases."

11. The aforesaid dictum fortifies our view that the course adopted by the learned trial Bench in the present case was in line with precedent. We are, therefore, unable to agree with learned counsel that "all pleas and defences of the [appellant] to the allegations contained in the show cause notice [had] to be thoroughly gone into, considered and decided judiciously".

III. The Constitutional Imperative

1. A number of constitutional imperatives, which we shall presently allude to, also justify the course followed by the learned trial Bench. We may confine this part of our reasoning by adverting to a somewhat odd question posed by the appellant. He has, in his grounds of appeal, asked the Court to "show greater restraint and forbearance with respect to a duly elected Prime Minister.... when the very stability of the democratic system obtained by the people of Pakistan after so much sacrifice, may depend on the outcome of this case." This averment, coming as it is from the Chief Executive of the country appears to be based, firstly on a claim to some special privilege that accords the appellant preferential treatment by sheltering him from receiving equal treatment in accordance with the law and the constitution and thereby allowing him to disregard the orders of the Court because of his office. And, secondly, it calls upon the Court to formulate its opinion, not in accordance with the mandate of law as applicable on the facts of this appeal, but in fear and anticipation of a possible outcome that may flow out of a decision, which may be arrived at by the learned trial Bench on the basis of the law and the Constitution. In other words, the appellant is urging this Court to resurrect and adopt a form of the doctrine of necessity, which in the past had blighted Constitutional rule in Pakistan. The validity of this averment, and both arguments adduced in support of it, must be examined, like other questions of public law, in the light of the Constitution.

A - Special Privilege

1. It is clear to us that the appellant's claim to a 'special privilege' on account of his executive office, which seeks for him "greater restraint" amounting to an exception from contempt proceedings, does not find any basis in our Constitution. For this, we need only refer to the Preamble, Article 5 and Article 25, the relevant parts of which are worth examining. The Preamble, whose importance as an aid to the proper interpretation of our Constitution has already been explained in Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407), states a number of principles upon which the Constitution has been founded and in line with which it must, therefore, be interpreted. Amongst these is mentioned the principle of "equality ... as enunciated by Islam" which, it is ordained, "shall be fully observed." A number of Articles of the Constitution have been framed to give effect to the principle of equality enshrined thus in the preamble. Amongst these is Article 5 which states that "obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be ..." It should be noticed that the Constitution mentions no exemptions from the obligation it imposes. The exceptionalism therefore, which is being claimed by the appellant has no constitutional basis.

2. In a similar vein, Article 25(1) states in the clearest terms that "[a]ll citizens are equal before law and are entitled to equal protection of law. " It may be noted here that, in his appeal, the Prime Minister has not relied upon the limited and functional immunity from court processes, which is offered to certain official acts under Article 248 of the Constitution. The Article states: "the Prime Minister... shall not be answerable to any court for the exercise of powers and performance of functions of [his] office[.]or for any act done or purported to be done in the exercise of those powers and performance of those functions..." Discussion of this exception is therefore not merited here and may be left for an appropriate case. The cumulative effect of these provisions is quite powerful and hard to miss. It becomes clear that our law does not accord individual immunity to the appellant from complying with the law. Therefore, even though we have no doubt that the appellant is a duly elected Prime Minister of the country and deserves respect, this Court cannot be expected to show any restraint and forbearance on account of his position. This constitutional directive only echoes the perennial wisdom which underpins governance of the State in accordance with the mandate of the Constitution.

3. It is worth repeating here a hadith of the Holy Prophet (peace be upon him), which has become a part of the collective consciousness of the people of Pakistan. It expresses the spirit of equality enunciated by Islam which the Constitution refers to. A woman from a powerful Arabian tribe was found to have committed theft. The Holy Prophet (peace be upon him) was urged through some intermediaries to exercise restraint in her case because of her position in society. The hadith gives a description of the Prophet's reaction to this suggestion. It was, to say the least, stern. He rejected this plea and, instead, issued a warning which all functionaries of the State would do well to pay heed to. He said:

Translation: O people, those before you were ruined because when someone of high rank among them (sharif) committed theft, they would spare him, but when a weak person from amongst them (zaeef) committed theft, they would inflict the prescribed punishment upon him." (Sahih Bukhari). Similarly deference shown by a Qazi by rising from his seat when Hazrat Umar appeared before him as a defendant was strongly disapproved by Hazrat Umar on the ground it militated against the principle of equality under the law.

1. We need only give effect to this simple principle to repel the appellant's claim to a special privilege. In fact, the position which needs to be adopted, and which emerges from a close examination of the Constitution, is quite the opposite: the higher the constitutional office, the greater the onus of responsibility on the holder of such office. One reason for this is that a holder of Constitutional office is under this higher responsibility because he, unlike ordinary citizens, makes an oath to discharge his duties "in accordance with the Constitution... and the law." The Prime Minister's oath also requires that he "will preserve, protect and defend the Constitution." Therefore, more stringent legal standards apply to him as compared to others who have not taken a similar oath. In other words, the Court has greater reason to be particularly concerned about the possibility of contempt having been committed by the appellant.

2. We can now proceed to elaborate further the bases for holding this constitutional position.

B - Fiduciary Duties of Constitutional Office-bearers.

1. It has been observed by this Court that the functionaries of the State are fiduciaries of the people and ultimately responsible to the people who are also their pay masters. In a recently decided case, we have held that "holders of public office have to remain conscious that in terms of the Constitution 'it is the will of the People of Pakistan' which has established the Constitutional Order under which they hold office. As such they are, first and foremost fiduciaries and trustees for the People of Pakistan. And, when performing the functions of their Office, they can have no interest other than the interests of the honourable People of Pakistan in whose name they hold office and from whose pockets they draw their salaries and perquisites". Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132, page 163).

2. The implications of a fiduciary relationship are well-defined in our jurisprudence. Amongst other things, it implies that constitutional functionaries, being fiduciaries, must scrupulously and with complete loyalty, ensure compliance with the will of the people of Pakistan who have, via the Constitution, placed them in office. And since this will finds expression in the form of the Constitution, which is stated to be its 'embodiment', the functionaries of the State must ensure adherence to the Constitution and the law. This principle acquires added poignancy when the possibility exists that the State, starved of hard foreign currency and a grossly adverse balance of payments may benefit from pursuing the course ordered in the NRO Judgement. This jurisprudential background allows us to fully appreciate why Article 190 of the Constitution requires that "all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court". In this context it will become evident that the Government and the Court share the common objective to serve the people strictly in accordance with their will, as expressed in the Constitutional Order established by them. This is also the essence of our Constitutional and democratic dispensation that is based on the rule of law. We may at this point add that there is no conflict in the respective roles assigned to the Executive and the Judicature and nor is there any room for institutional or individual egos to create one. All that is required is the humility to recognize that these institutions and their functionaries are in the service of a common master, the people.

3. To further understand the nature of the above referred role and the fiduciary relationship between the people of Pakistan and bearers of State offices, it is useful to refer to a speech made by Prime Minister Liaqat Ali Khan, in 1949, on the floor of the Constituent Assembly. He said: "...the people have been recognized as the recipients of all authority and it is in them that the power to wield it has been vested." Mr. Sirish Chandra Chatapadhaya, another member of the Constituent Assembly echoed the same opinion but with even greater humility when he said that "the citizens of our country are our masters. We are their servants." It is these sentiments which have informed our Constitution and must also inform the official acts of State organs and their functionaries.

4. These statements of the founding fathers of Pakistan are, in fact, modern articulations of what is actually a timeless and prophetic principle of governance, encapsulated in the well-known saying: (The leader of a people is their servant). Our Constitution manifests the embodiment of this very principle when it obliges the highest executive functionary to carry out the commandments expressed by the people in the form of the Constitution and the law. Deviations by fiduciaries from these commandments must remain of the gravest concern to citizens and courts alike.

5. Justice Louis Brandeis, writing in the American context, succinctly explained another important reason why government officials, no matter how high, must be subjected to the same rules of conduct as ordinary citizens. He said: "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example... If the government becomes a lawbreaker... it invites every man to become a law unto himself; it invites anarchy." {Olmstead v. United States, 277 U.S. 438 (1928),} quoted recently by Khosa, J. in Crl. M.A 486 of 2010 in Criminal Appeal No. 22 of 2002 etc, on 10-1-2012 Similar expression can be found in the sage advice of Sheikh Saadi who said:

Translation: If the ruler plunders but five eggs, his minions will plunder a thousand roosters.

1. In a government of laws, the government is expected to play the role of an exemplar for promoting the rule of law. The case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879) drew attention to the same issue by holding the unconstitutional acts of a military dictator invalid. More than two and a half years down, it is worth posing the same question to all State functionaries and to all thinking people posed in the said case: 'has the absence of the rule of law within the upper echelons and formal structures of the State generated, in a significant way, the lawlessness which so permeates our society today?' Then and today, the causal connection strongly suggests itself. This is all the more reason why courts must not (as a matter of constitutional principle) exercise any special restraint in matters such as the present one.

2. Since there is now a prima facie case to be made that the obligation to obey the directions of this Court may have been violated by the highest constitutional functionary of the executive branch of government, legal scrutiny is clearly warranted. Therefore, the learned trial Bench has only done the needful by letting matters proceed to the stage of framing of charge.

C - Consequentialism or the rule of law?

1. We must now address the concern of learned counsel for the appellant that "the very stability of the democratic system ... may depend on the outcome of this case." In part, the concern is fully justified. Given that the instant case concerns concepts like the supremacy of the Constitution and the primacy of the rule of law, the outcome of this case is indeed important. However, the Court has in previous cases already repelled arguments based on notions of consequentialism. In the NRO case, it was held: "...the Court cannot and should not base its decisions on expediency or on consideration of the consequences which may follow as a result of enforcing the Constitution". As a court of law, we cannot base our judgments on the anticipated consequences of our decisions; else we will be reverting to the malignant doctrine of necessity which has already been buried because of the valiant struggle of the people of Pakistan. At page 481 of the NRO Judgment, it was observed thus "political stability and the rule of law will flow as a natural consequence of giving sanctity and respect to the Constitution, both in letter and in spirit. The Court can only strengthen the rule of law by upholding the Constitution, which is, in fact, the supreme law.

2. It is the strict adherence to this principle, which has fostered the revival of democracy in Pakistan, and upon which its survival still depends. If the appellant apprehends instability as a consequence of this case, such apprehension can easily be allayed by ensuring that the Constitution is adhered to. It is precisely this exercise which is being undertaken by the learned trial Bench. The appellant may also draw comfort from the fact that institutions and systems provided in the Constitution ensure political stability. What happens to an individual can be of little consequence as long as State institutions continue functioning in accordance with the Constitution. The anachronistic notion of "après moi, le deluge" has no room in a Constitutional order based on institutions rather than individuals.

D. Constitutionalism and the law of Contempt.

1. It appears from the submissions of learned counsel for the appellant that he may have overlooked some significant aspects of the nature of the broader scheme within which each State organ and its respective office bearers are to operate. It cannot be disputed that all state organs and the holders of high public office derive their legitimacy from the Constitution.

2. The Prime Minister's mandate is circumscribed by Art. 90 of the Constitution, which permits him to exercise, in conjunction with various other constitutional functionaries, "the executive authority of the Federation". This exercise of authority is however, "[s]ubject to the Constitution" as expressly stated in the proviso to Art. 90 (1). In the same light, Judges are required to make an oath to the effect that they will discharge their duties "in accordance with the Constitution ... and the law". In fact, this part of the oath is common to the oath of every single functionary for whom the Third Schedule prescribes an oath; one of these oaths which puts the point most clearly requires that such functionary will "uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people." (Oath of Members of the Armed Forces, Third Schedule, Constitution)

3. It is thus clear that our Constitutional Order is founded on the fundamental instruction that each organ must give effect to and act in accordance with the Constitution. Insofar as an act of any one of the organs of the State travels beyond the limits laid down in the Constitution, the said organ can be said to have strayed from representing "the will of the people of Pakistan." Conversely, in so far as all organs of the State remain within the limits prescribed by the Constitution, they have a legitimate claim to being enforcers and exponents of the will of the people. Our Constitution conceives of an Order wherein the various organs of State are co-equals, each manifesting the will of the people and giving effect to such through adjudication, executive action or legislation. It is important that the primacy of the Constitution over the Government as also over the judicature be fully understood.

4. As noted above, the Constitution expressly states that "all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court." Therefore, all members of the executive, for example, are constitutionally obliged to implement the decisions of the Supreme Court. The severity of its violation is fully recognized by the Constitution in Article 204. The Ordinance which has been promulgated pursuant to the said Article expressly includes within the ambit of contempt of Court anyone who "disobeys or disregards any order, direction or process of a Court which he is legally bound to obey..." The people have expressly intended the broad reach of these provisions precisely to avoid the usurpation of the Constitution and to maintain the balance envisioned by the Constitutional Order. Courts invoke these sections only because such are the express instructions of the Constitution. The instant case, wherein this Court has taken cognizance prima facie, of contempt by the appellant, is no different. The Court, by doing so has only fulfilled its mandate to uphold the Constitution.

5. We have set out above the constitutional position because we found it necessary to dispel the appellant's claim to a special privilege as a matter of law, and also, to reiterate that a fear of anticipated consequences must not influence our decision. We have also consciously avoided any comment on the specific pleas raised by the appellant in his defence. It will be for the learned trial Bench to receive evidence and thereafter to decide on the merits of such pleas. It is for this reason we have deliberately refrained from commenting on the documents placed on the file of this appeal including the summary dated 22-9-2010 (which was repeatedly referred to, by learned counsel) prepared by the Minister for Law, Justice and Parliamentary Affairs, because consideration of such documents lies within the domain of the learned trial Bench.

6. These are our reasons for the short order dated 10-2-2012.

(Sd) (Sd)

Mian Shakirullah Jan, J Iftikhar Muhammad Chaudhry, C.J.

(Sd.) (Sd.)

Anwar Zaheed Jamali, J Jawwad S. Khawaja, J

(Sd.) (Sd.)

Tariq Parvez, J Khilji Arif Hussain, J

P L D 2012 Supreme Court 501

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ

GHULAM HAIDER and others---Appellants

versus

MURAD through Legal Representatives and others---Respondents

Civil Appeals Nos.718 and 719 of 2002, decided on 30th March, 2012.

(On appeal from the judgment dated 24-9-2001 of the Lahore High Court, Multan Bench, Multan passed in Civil Revisions Nos.418 and 419 of 1984).

Per Asif Saeed Khan Khosa, J; Gulzar Ahmed and Muhammad Athar Saeed, JJ agreeing---Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ partially agreeing, [Majority view]-

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A [(as inserted by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)]---Held, that by virtue of section 2-A introduced through Ordinance XIII of 1983 a male heir acquiring any agricultural land in the Province of the Punjab before March 15, 1948 under custom from a person who at the time of such acquisition was a Muslim was to be deemed to have become, upon such acquisition, an absolute owner of the entire land acquired by him as if such land had devolved on him under the Muslim Personal Law (Shariat)---Section 2-A was applicable only to those acquisitions of agricultural land which acquisitions had come about prior to March 15, 1948 thus, after March 15, 1948 the said land could have devolved upon the heirs of the deceased only under the Islamic law of inheritance and not under the customary law of inheritance which by then had become extinct---Principles. Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others 2003 SCMR 362 dissented from.

According to the Preamble to the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 the purpose of introduction of that legislation was "to amend the West Pakistan Muslim Personal Law (Shariat) Act, 1962 so as to bring it in conformity with the Shariah in the manner hereinafter appearing." It is, therefore, quite clear that the effort made by the said Ordinance was to bring the Act of 1962 in conformity with the Shariah but the "manner" chosen for achieving that object was the one provided for in that Ordinance and, thus, any other mode conceivable for achieving the same object was meant to be ignored or disregarded and the purpose was to be achieved only in the manner specified in that piece of legislation. The next thing to be noticed is that the provisions of the newly introduced section 2-A through that piece of legislation were to have their effect "Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any court". This shows that what the new legislation wanted to achieve was that successions prior to Act IX of 1948 were meant to be governed only by the freshly introduced section 2-A introduced through Ordinance XIII of 1983 and not by any other law or judicial intervention or interpretation. It is but obvious that by introducing Ordinance XIII of 1983 the legislature intended to put to rest all controversies and litigation in respect of successions prior to Act IX of 1948 and to hold for all times to come that all such successions were to be governed and covered by the freshly introduced section 2-A. It was in that background that section 2-A introduced through Ordinance XIII of 1983 had categorically provided that "------- where before the commencement of the Punjab Muslim Personal Law (Shariat) Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:- (a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat) -------".

Section 2-A introduced through Ordinance XIII of 1983 was meant to cover all successions prior to introduction of Act IX of 1948, i.e. all successions before March 15, 1948; it dealt with only male heirs; and it was restricted to only those male heirs who had acquired any agricultural land under custom from a person who at the time of such acquisition was a Muslim. In plain terms section 2-A introduced through Ordinance XIII of 1983 was meant to be applicable to only those male heirs who had acquired some agricultural land from a Muslim before March 15, 1948 and such acquisition had come about under the customary law of inheritance. According to section 2-A introduced through Ordinance XIII of 1983 such a male heir acquiring any agricultural land under the customary law of inheritance from a Muslim was to be deemed to have become, upon such "acquisition", an absolute owner of "such land", as if "such land" had devolved on him under the Muslim Personal Law (Shariat). It is of paramount importance to notice that the words used in section 2-A introduced through Ordinance XIII of 1983 were "had acquired" and "such acquisition" and the person so acquiring was to become an absolute owner of "such land" as if "such land" had devolved on him under the Muslim Personal Law (Shariat). It is quite clear that what the legislature had intended was that the entire agricultural land acquired by such person under the customary law of inheritance was to be recognized as under his absolute ownership as if such acquisition had come about under the Islamic law of inheritance and nothing in section 2-A introduced through Ordinance XIII of 1983 was conveying any meaning that such person was to be deemed to have become an absolute owner of only that part of the acquired land which would have otherwise devolved on him as his share of inheritance under the Islamic law of inheritance. The deeming provision contained in clause (a) of section 2-A introduced through Ordinance XIII of 1983 in fact covered the entire acquisition and the entire land acquired and was never meant to be restricted to some portion or share of the acquired land. Intention of the legislature was that the entire devolution on the basis of the customary law of inheritance was meant to be saved by section 2-A and such devolution, in its entirety, was meant to be deemed to have been under the Islamic law of inheritance.

The interpretation of section 2-A introduced through Ordinance XIII of 1983 recorded in the judgments delivered by Supreme Court in Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407, Hakim Ali and others v. Barkat Bibi and others 1988 SCMR 293, Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667, Lal and others v. Rehmat Bibi and another PLD 1991 SC 582, Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others 2003 SCMR 1535, Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905, Muhammad Hussain and others v. Muhammad Shafi and others 2008 SCMR 230 and Bashir Ahmad v. Abdul Aziz (Civil Appeal No.372 of 2005) was identical to the one advanced above. The judgment passed by Supreme Court in the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others 2003 SCMR 362 had, however, struck a different note and the question of devolution of only a share of inheritance was imported in that judgment without the express words of the statute even hinting at such an effect. It can, thus, be said that such a judicially conjured or contrived adjunct or supplement in fact ran contrary to the very spirit as well as the express words of section 2-A which had quite explicitly talked about the entire acquisition and the entire land to be deemed to have come in the absolute ownership of the person who had acquired the same under the customary law of inheritance. In the first category of cases mentioned above Supreme Court had understood, captured and applied the true spirit of section 2-A introduced through Ordinance XIII of 1983 and that view appears be a correct view which is to be followed. The said view and interpretation of clause (a) of section 2-A was also fortified by the language of clauses (b) and (c) of section 2-A which categorically excluded any application or execution of "any decree, judgment or order of any court affirming the right of any reversioner under custom or usage" and went on to save all the acquisitions of land under the customary law of inheritance even if such acquisitions were contrary to the Islamic law of inheritance.

It appears that in the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others 2003 SCMR 362 that principle had been departed from. The plain language of section 2-A and its clauses clearly provided that an acquisition by a male heir from a Muslim under the customary law of inheritance before March 15, 1948 was to be deemed to be an acquisition devolving upon the recipient under the Islamic law of inheritance. In other words, such an un-Islamic acquisition had, through a legal fiction, been Islamized by the legislative intervention so as to remove any confusion and to bring an end to an otherwise unending litigation on the subject. In the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others 2003 SCMR 362 such Islamization of otherwise un-Islamic acquisitions had troubled or irked Supreme Court and, thus, through the means of interpretation some words were read by Supreme Court in section 2-A introduced through Ordinance XIII of 1983 in order to apply Islamic law of inheritance to such acquisitions which reading in had not only committed violence upon the letter and spirit of section 2-A but had also contributed towards creating complications and generating further litigation. Under the scheme of the Constitution Islamization of laws lies in the exclusive domain and jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of Supreme Court and by virtue of Article 203G of the Constitution no court or tribunal, including the Supreme Court and a High Court, can entertain any proceeding or exercise any power or jurisdiction in respect of any matter which lies within the power or jurisdiction of the Federal Shariat Court or the Shariat Appellate Bench of Supreme Court. It is, thus, obvious that what Supreme Court could not achieve directly was also impermissible to be achieved indirectly. From the plain language of section 2-A and the evident spirit of the provisions of Ordinance XIII of 1983 it is quite obvious that all such acquisitions under the customary law of inheritance were to be deemed to be Islamic conferring absolute ownership of all the land so acquired and through any laboured judicial interpretation such absolute ownership of the whole land acquired could not be reduced or restricted to a share of the land thus acquired.

By virtue of section 2-A introduced through Ordinance XIII of 1983 a male heir acquiring any agricultural land in the Province of the Punjab before March 15, 1948 under custom from a person who at the time of such acquisition was a Muslim was to be deemed to have become, upon such acquisition, an absolute owner of the entire land acquired by him as if such land had devolved on him under the Muslim Personal Law (Shariat).

Section 2-A introduced through Ordinance XIII of 1983 was applicable only to those acquisitions of agricultural land which acquisitions had come about prior to March 15, 1948 thus, after March 15, 1948 the said land could have devolved upon the heirs of the deceased only under the Islamic law of inheritance and not under the customary law of inheritance which by then had become extinct.

Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others 2003 SCMR 362 dissented from.

Abdul Ghafoor and others v. Muihammad Shafi and others PLD 1985 SC 407; Hakim Ali and others v. Barkat Bibi and others 1988 SCMR 293; Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667; Lal and 3 others v. Rehmat Bibi and another PLD 1991 SC 582; Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others 2003 SCMR 1535; Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905; Muhammad Hussain and others v. Muhammad Shafi and others 2008 SCMR 230 and Bashir Ahmad v. Abdul Aziz (Civil Appeal No.372 of 2005) affirmed.

(b) Interpretation of statutes---

----Where the plain language of a statute admits of no other interpretation then the intention of the legislature conveyed through such language is to be given its full effect.

(c) Interpretation of statutes-

----Where the terms of a Statute or Ordinance are clear, even a long and uniform course of judicial interpretation of the same may be overruled if it is contrary to meaning of enactment.

T.G. Bhoja v. G.J. Thakur AIR 1916 PC 182 rel.

Per Ejaz Afzal Khan, J; Ijaz Ahmed Chaudhry, J agreeing (Minority view)-

"I agree with the interpretation my learned brother placed on Section 2-A of the Amending Ordinance XIII of 1983, inasmuch as it is in line with the interpretation placed thereon in the judgments rendered in the cases of "Abdul Ghafoor and others. v. Muhammad Shafi and others (PLD 1985 SC 407), Hakim Ali. v. Barkat Ali and others (1988 SCMR 293) and Muhammad Ismail and others. v. Ghulam Qadir and others (1990 SCMR 1667), but not the conclusions drawn therefrom. While going through the judgments cited at the bar and many others, I noticed that more relevant are the provisions of the Punjab Laws Act, 1872 than those of Act IX of 1948 and Ordinance XIII of 1983 but surprisingly they have not been appreciated and interpreted in their correct perspective. Since the Act also held the field during the years the propositus of the parties died, a thorough examination of its provisions would be necessary to appreciate and interpret them in their correct perspective. A look at its Preamble would reveal that this law was primarily enacted to enunciate the rule of decision in questions regarding succession etc. Section 5 of the Act, which is relevant in these cases, provides that in questions regarding succession, special property of females betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relation, will, gift, partition or any religious usage of institution, the rule of decision shall be:--

(a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority;

(b) the Muhammadan Law in case where the parties are Muhammadan and the Hindus Law in case where the parties are Hindus, except so far as such law has been altered or abolished by legislative enactment or is opposed to the provision of this Act or has been modified by any such custom as is above referred to.

Custom, according to the said section, could only be the rule of decision if it is not contrary to justice, equity and good conscience and has not been by this or any other enactment altered or abolished and has not been declared to be void by any other competent authority. It provided that the rule of decision in questions regarding succession etc. shall be the Muhammadan Law where the parties are Muhammadans. Now the question arises whether a Muhammadan has been given a freedom to choose either custom or the Muhammadan law as the rule of decision in questions regarding succession etc. Section 5 (b) of the Act provides the answer to the question which clearly and unequivocally says that the rule of decision in questions regarding succession etc. shall be the Muhammadan Law where the parties are Muhammadans. It is, however, believed and fallaciously so that before a Muhammadan claims to be ruled by Section 5(b) of the Act, he has to swim across the river of custom flowing in between Section 5(a) and 5(b). But the fact is that a Muhammadan straightaway lands in the domain of Section 5(b). The words, "the rule of decision shall be the Muhammadan law in case where the parties are Muhammadan", sounding mandatory in their tone and tenor, leave no other option with a Muhammadan, but to submit to the Muhammadan Law. In a marked contrast to that custom, in the first instance, stands altered and abolished by 5(b) of the Act. If at all it lurks in any corner, it has to pass through the crucible of justice, equity and good conscience to qualify itself as a rule of decision in questions regarding succession etc. What is "justice", what is "equity" and what does the expression "good conscience" mean? The word "justice" according to the ordinary dictionary, means "the quality of being just; just treatment; fairness; fair play; evenhandedness and propriety. The expression "equity", according to Black's Law Dictionary means "justice" administered according to fairness as contrasted with the strictly formulated rules of common law". It also denotes the spirit and habit of fairness, justness and right dealing which would regulate the intercourse of men with men. The expression "good conscience" is held to be a synonym of equity. In law, this means probity, justice and honest dealing between man and man.

Custom in these cases stands for a rule of decision in the matters of succession which excludes female co-heirs from succession to agricultural property left by their propositus. As it excludes the female co-heirs from succession, it is shorn of the quality of being just. Just treatment, fairness, fair play, evenhandedness, right dealing, justness and probity are the virtues which would never uphold a custom with such attributes. Therefore, custom which fails to pass through the crucible of justice, equity and good conscience cannot qualify itself to be a rule of decision in questions regarding succession etc.

The words "has not been by this Act or any other enactments altered or abolished" too are quite meaningful. They not only have the effect of altering or abolishing the custom, but have in fact altered and abolished it. The words "except so far as such law has been altered or abolished or is opposed to the provision of this Act" appearing in S.5(b) of the Act, when read carefully leave no scope for custom to hold the field. It is, indeed, the Muhammadan Law which alone would reign supreme; firstly because it is not opposed to any of the provisions of the Act and secondly because no legislative enactment has altered or abolished it till its repeal by Act IX of 1948. The words "has been modified by any such custom as is above referred to" appearing in the concluding part of S.5(b), too, are by no means, less meaningful. These words have a reference to a custom, which, in the first instance, is not contrary to justice, equity and good conscience and then has not been by this or any other enactment altered or abolished. There is, however, not even a single word in the whole Act which could even remotely suggest that custom has modified or tended to modify the Muhammadan Law. There is also nothing in the Act which raises or tends to raise a presumption in favour of custom. It is, therefore, not correct to say that succession to agricultural land taking place under the Act would mean succession under custom."

"Regardless of what has been held in the cases cited above, once Section 5 provides that in questions regarding succession etc. the rule of decision shall be the Muhammadan Law in case where the parties are Muhammadans, we are not supposed to look around for anything to force way for custom which in fact stood altered and abolished by the section mentioned above."

"I, therefore, rule that a custom which favours grabing of the whole by a male to the exclusion of female heirs cannot be held to be just, equitable and conscionable by any stretch of imagination."

"A bare reading of section 2 of Muslim Personal Law (Shariat) Application Act, 1937, would reveal that Muslim Personal Law was given overriding effect on customs or usages to the contrary. It, however, did not touch the agricultural land because the same being a Provincial subject was already dealt with by Act IV of 1872."

"Then comes the Act of 1948. Though Section 2 is prefaced with non obstante clause yet it reiterated the same provision incorporated in S.5(b) of Act IV of 1872. The purpose behind enacting this law was to rule out the custom irrespective of the fact whether it was contrary to justice, equity and good conscience or otherwise. The law which is next in the sequence is the Punjab Muslim Personal Law (Shariat) Application Act, 1962. This Act once again incorporated the same provision with slight amendment."

"A cursory glance at the section would reveal that the legislature made no significant addition except the words "subject to the provision of any enactment for the time being in force." Section 3 of the Act provided for termination of limited estate in respect of immovable property held by Muslim female under customary law."

"In 1972, the Punjab Muslim Law (Shariat) Application (Removal of Doubts) Ordinance No.IX of 1972 was promulgated. The purpose behind this Ordinance was to remove the doubts arising in the previous enactments. Section 2(1) reiterated what was provided by Section 3 of the Punjab Muslim Personal (Shariat) Act, 1962. In Section 2(2) it provided that all decrees, judgments or order passed in any suits, appeals or other proceedings by any Court or other authority which are inconsistent with the provision of subsection (1) shall be of no legal effect and such suits, appeals or other proceedings shall be decided afresh on the application made by a person affected by such decrees, judgments or orders."

"In 1983, West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (Ordinance XIII of 1983) was promulgated. The purpose behind this Ordinance as far as it can be gathered from its Preamble was to amend the West Pakistan Muslim Personal (Shariat) Application Act, 1962 to bring it in conformity with the Shariat

"A perusal of section 2 of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 would reveal that it has done away with the restrictions imposed on alienation by a rule of customary law. A person inheriting agricultural land from a Muslim shall be deemed to be an absolute owner, having the power of alienation as is enjoyed by an heir inheriting under Muslim Law. Power of alienation, even if it takes place before 15th of March, 1948, shall not be controlled by any rule of customary law. It provided for abatement of suits or other proceedings of such a nature pending in any court and all execution proceedings seeking possession of land under such decree. It also provided that any decree, judgment or order of any court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act. It, however, protected the transaction past and closed where possession of such land has already been delivered under the decrees. But it nowhere approved and approbated custom as the rule of decision in the matters pending in the courts. Nor did it lay its hands off a dispute of such a nature to give a walk over to custom as the rule of decision without examining its credentials on the touchstone of justice, equity and good conscience."

"Then comes the factual aspect of the cases under consideration. According to Murad, the predecessor-in-interest of the respondents, the rule of decision in questions regarding succession etc. was custom. His case is that in the presence of son, females including widows are excluded from succession. The burden in view of Section 5(a) of the Act lay on him to prove that not only he was governed by custom and that the custom he was governed by was just, equitable and conscionable. But he failed to discharge the burden as required. On the contrary, Mst. Bano, predecessor-in-interest of the appellants produced sufficient evidence in the form of mutations showing that the rule of decision in the questions regarding succession etc. is the Muhammadan Law. Granted that a statement has been made by both the parties admitting that they are regulated by custom but this being against the statute will neither bind them nor prohibit the court from examining the viability of the custom in the light of the criteria provided by the Section itself. Needless to say, there can be no estoppel against statute. When considered in this background, the learned Appellate Court which is the first court of appeal and final court of fact, rightly held that the parties being Muhammadan shall be ruled by the Muhammadan Law. The view taken by the Appellate Court being correct and close to the letter and spirit of Section 5 of the Act deserves an outright and unconditional restoration."

Abdul Ghafoor and others v. Muihammad Shafi and others PLD 1985 SC 407; Hakim Ali and others v. Barkat Bibi and others 1988 SCMR 293; Muhammad Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667; Lal and 3 others v. Rehmat Bibi and another PLD 1991 SC 582; Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others 2003 SCMR 1535; Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905; Muhammad Hussain and others v. Muhammad Shafi and others 2008 SCMR 230; Bashir Ahmad v. Abdul Aziz (Civil Appeal No.372 of 2005); Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others 2003 SCMR 362; Data Ram v. Sohel Singh 1906 Punjab Report p.59; Muhammad Jan and another v. Rafuddin and others PLD 1949 PC 18; Abdul Karim and others v. Ghulam Ghous PLD 1951 Lah. 386; Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another PLD 1971 SC 334 and T.G. Bhoja v. G.J. Thakur AIR 1916 PC 182 ref.

Gul Zarin Kiani, Senior Adevocate Supreme Court for Appellants (in both cases).

M. Munir Paracha, Advocate Supreme Court for Respondent No.1(A) (in both cases).

Ex parte for Respondnets Nos. 1(B) & 2 (in both cases).

Dates of hearing: 17th and 30th January, 2012.

P L D 2012 Supreme Court 553

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Ejaz Afzal Khan, Ijaz Ahmad Chaudhry, Gulzar Ahmad and Muhammad Athar Saeed, JJ

SUO MOTU CASE NO.4 OF 2010

[Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan regarding non-compliance of this Court's Order dated 16-12-2009]

Criminal Original Petition No.6 of 2012 in Suo Motu Case No.4 of 2010, decided on 26th April, 2012.

Per Nasir-ul-Mulk; Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ. agreeing--

(a) Constitution of Pakistan---

---Art. 10A---"Right to fair trial"---Scope and meaning---Right to a 'fair trial' means right to a proper hearing by an unbiased competent forum, with the latter component being based on the maxim: "Nemo debet esse judex in propria causa" that "no man can be a judge in his own cause"---Said principle has been expounded to mean that a Judge must not hear a case in which he has personal interest, whether or not his decision is influenced by his interest, for "justice should not only be done but be seen to have been done"---Right to a fair trial has been associated with the fundamental right of access to justice, which should be read in every statute even if not expressly provided for unless specifically excluded---While incorporating Article 10A in the Constitution and making the right, to a 'fair trial' a fundamental right, the legislature did not define or describe the requisites of a 'fair trial', which showed that perhaps the intention was to give it the same meaning as is broadly universally recognized and embedded in jurisprudence in Pakistan.

The University of Dacca v. Zakir Ahmad PLD 1965 SC 90 and New Jubilee Insurance Company Ltd. v. National Bank of Pakistan PLD 1999 SC 1126 ref.

(b) Constitution of Pakistan---

----Arts. 8 & 10A--- Law, custom or usage which is inconsistent with the right to a fair trial---Scope---Law, or custom or usage having the force of law, which is inconsistent with the right to a 'fair trial' would be void by virtue of Article 8 of the Constitution.

Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Saiyyid Abul A'la Maudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673; Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan v. The President of Pakistan PLD 2007 SC 578; Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry v. The President of Pakistan PLD 2010 SC 61; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Mir Muhammad Idris and others v. Federation of Pakistan PLD 2011 SC 213; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Nadeem Ahmed v. The Federation of Pakistan (Constitution Petition No.11 of 2010 etc.) and Md. Sonafar Ali v. The State 1969 SCMR 460 ref.

(c) Constitution of Pakistan---

----Arts. 10A & 204---Contempt of Court Ordinance (V of 2003), S.17---Initiation of proceedings for contempt of Supreme Court against Prime Minister of Pakistan for non-compliance with the directions given by the Supreme Court in a case to the Federal Government for the revival of the request, withdrawn by the former Attorney General for Pakistan to be a civil party in a money laundering case in Switzerland (allegedly against the serving President of Pakistan)---Competency of Judge/Bench to try the accused for contempt of court after having issued show-cause notice, framed the charge and having formed prima facie opinion against the accused---Scope---Contentions of the accused (Prime Minister) were that since the present Bench initiated the contempt of court proceedings suo motu, issued show-cause notice and framed charge, it no longer remained competent to proceed with the trial, for to do so would be in violation of the principle of 'fair trial' guaranteed under Art.10A of the Constitution, and that the present Bench having already formed an opinion, even if prima facie, about the culpability of the accused, it was no longer competent to proceed with the trial---Validity---While issuing a show-cause notice for contempt, a Judge only forms a tentative opinion, which was subject to the ultimate outcome at the conclusion of the trial---Judge, making a prima facie assessment of a contempt matter, whether initiated suo motu or on the application of a party, did not stand disqualified on the touchstone of the requirements of a 'fair trial', from hearing and deciding the matter---Present trial of the accused did not infringe upon his fundamental right to a 'fair trial' enshrined in Art.10A of the Constitution as none of the Judges of the present Bench had the remotest personal interest in the matter and the contempt proceedings arose out of non-implementation of the judgment of the Supreme Court---Cause was not of any member of the Bench but of the Court and in a wider sense of enforcement of the law---Judge, when otherwise disqualified on account of the principles that, "no one should be a judge in his own cause and justice should not only be done but should manifestly appear to have been done", may still sit in the proceedings if in his absence the Tribunal or the Court having exclusive jurisdiction would not be complete---Such exception on the ground of necessity was also attracted to the present case---After the show-cause notice was issued to the accused, a preliminary hearing was afforded to him in terms of S.17(3) of the Contempt of Court Ordinance, 2003, and upon conclusion of such hearing Supreme Court decided to proceed further and frame a charge against the accused, which was challenged by him through an intra-court appeal---Said appeal was dismissed and the order by the present Bench, forming a prima facie opinion to frame the charge against the accused, was upheld---Like the present Bench, the Bench hearing the Intra-court appeal had also applied its mind to the existence or otherwise of a prima facie case and if the contention of the accused was accepted, all the members of the Bench hearing the intra-court appeal would be equally disqualified, with the exception of one judge; no Bench could then be constituted to hear the present contempt matter.

Government of Pakistan v. Syed Akhlaque Hussain PLD 1965 SC 527; Pakistan Muslim Legue (N) v. Federation of Pakistan PLD 2007 SC 642; Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; Commissioner of Income Tax Patiala v. M/s Roadmaster Inds. of India AIR 2000 SC 1401; Sharaf Faridi v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404, Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; The University of Dacca v. Zakir Ahmed PLD 1965 SC 90; The Government of Mysore and others v. J. V. Bhat and others AIR 1975 SC 596; Federation of Pakistan v. Muhammad Akram Sheikh PLD 1989 SC 689; Nafeesa Bano v. Chief Settlement Commissioner, West Pakistan PLD 1969 Lah. 480; Anwar v. The Crown PLD 1955 FC 185; Government of N.-W.F.P. v. Dr. Hussain Ahmad Haroon 2003 SCMR 104; Mohapatra & Co and another v. State of Orissa and another 1985 SCR 91, 322 at p.332; Amaranth Chowdhury v. Braithwaite and Company Ltd. and others 2002(2) SCC 290; Murchison's case 349 US 133 (1955); Daniel T. Tayler III v. John P. Hayes 418 US 488 (1974) and The President v. Shaukat Ali PLD 1971 SC 585 ref.

Re: Murchison's case 349 US 133 (1955) and Daniel T. Tayler III v. John P. Hayes 418 US 488 (1974) distinguished.

(d) Constitution of Pakistan---

----Arts. 10A & 204---Contempt of Court Ordinance (V of 2003). S.17---Right to fair trial---Contempt of Supreme Court---Exercise of contempt jurisdiction by the Court 'on its own motion' and 'on the complaint of a party'---Distinction and Scope---Such distinction was material as in both the situations a Judge applies his mind before issuing notice to the accused and later forms a prima facie opinion after preliminary hearing whether or not to frame a charge and proceed with the trial---If it is held that a Judge holding a trial after having formed a prima facie or tentative opinion on merits of a case violates a litigant's fundamental right guaranteed under Art. 10A of the Constitution, it would lead to striking down a number of procedural laws and well established practices, and may land the judicial system into confusion and chaos; a Judge, who frames a charge in every criminal case, will stand debarred from holding trial of the accused; a Judge hearing a bail matter and forming a tentative opinion of the prosecution case would then be disqualified to try the accused; a Judge expressing a prima facie opinion while deciding a prayer for grant of injunction would become incompetent to try the suit---In all such situations the cause is not personal to the Judge and he has no personal interest in the matter to disqualify him.

The President v. Shaukat Ali PLD 1971 SC 585 ref.

(e) Constitution of Pakistan---

----Arts. 204 & 248---Diplomatic and Consular Privileges Act, (IX of 1972), Preamble---Vienna Convention on Diplomatic Relations, 1961, Preamble---Initiation of proceedings for contempt of Supreme Court against Prime Minister for non-compliance with the directions given by the Supreme Court in a case to the Federal Government for the revival of the request, withdrawn by the former Attorney General for Pakistan to be a civil party in a money laundering case in Switzerland (allegedly against the serving President of Pakistan)---Immunity to the President---Scope---Plea of postponing implementation of directions of Supreme Court given in the said case till tenure of office of the President came to an end---Immunity to President in regard to case before a foreign court---Contention of the accused (Prime Minister) was that he would not implement the directions given by the Supreme Court in the case as implementing the same could lead to reopening of the case and trial of the President in a foreign country, who had absolute and inviolable immunity before all foreign courts, as long as he was in the office, from any civil or criminal matter---Validity---Postponement of the implementation of the directions of the Supreme Court till expiry of tenure of the President would amount to modification of the clear orders and direction given by the Supreme Court in the main as well as in the review judgment, which judgments clearly stated that the implementation was to be carried out immediately and without delay---Present Bench had no power to modify the judgment and delay implementation---Contentions regarding immunity of President under the International Law had been urged before the Supreme Court in review petitions and same were not accepted, therefore, present Bench was in no position to examine such contentions, and even otherwise, present Bench was not sitting in review and, therefore, could not go beyond what had been held therein---Complete facts of the case in the foreign court were not available before the present Bench, therefore, the authorities or the courts in the foreign country alone could, in the light of the facts before it, examine the question of immunity---Immunity could, therefore, be invoked before the relevant authorities in the foreign country and, if the same was indeed available, it might be granted to the President without invocation.

Democratic Republic of Congo v. Belgium (2002 General List No.121/ICJ Reports 2002 P.3; Djibouti v. France ICJ Reports 2008 P.177; Qaddafi v. France (International Law Reports, Vol. 125, PP.508-510; Regina v. Bow Street Metopolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte (No.30) (House of Lords [2000] 1 A.C. 147; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and A.M. Qureshi v. Union of Soviet Socialist Republics PLD 1981 SC 377 ref.

(f) Constitution of Pakistan---

----Arts. 187, 190 & 204---Issue and execution of processes of Supreme Court---Action in aid of Supreme Court---Scope---Initiation of proceedings for contempt of Supreme Court against Prime Minister for non-compliance with the directions given by the Supreme Court in a case to the Federal Government for the revival of the request, withdrawn by the former Attorney General for Pakistan to be a civil party in a money laundering case in Switzerland (allegedly against the serving President of Pakistan)---Contention of the accused (Prime Minister) was that implementation of orders and directions given by the Supreme Court fell within the territorial jurisdiction of the Provincial High Court, which court alone was empowered to implement the said orders and directions---Validity---Article 187 of the Constitution did not, in any manner, oust Supreme Court's power to enforce its decisions, particularly in view of its wide powers under Article 190 and under Art.204 of the Constitution to punish any person for disobeying the orders of the court---Article 187(1) of the Constitution only mandated that when the orders of the Supreme Court were to be enforced within a Province they shall be executed as if issued by the High Court of that Province; not that the execution was to be carried out by the High Court.

(g) Contempt of Court Ordinance (V of 2003)---

----Preamble---Constitution of Pakistan, Arts. 89, 204, 264 & 270AA---Continuity of Contempt of Court Ordinance, 2003---Scope---Power of Supreme Court to punish contemnor---Scope---Contention of Attorney-General was that Contempt of Court Ordinance, 2003 had lapsed by efflux of time under Article 89 of the Constitution and stood repealed under Article 264, and that Article 270AA of the Constitution did not protect the said Ordinance---Validity---Contempt of Court Ordinance, 2003, still held the field and even if there was no sub-constitutional legislation regulating proceedings of contempt of court, the Supreme Court was possessed of constitutional power under Article 204 to punish contemnor, with no restrictions on the exercise of power including that regarding quantum of punishment that could be imposed on the contemnor.

Suo Motu Case No.1 of 2007 (PLD 2007 SC 688) and Justice Hasnat Ahmed Khan v. Federation of Pakistan PLD 2011 SC 680 rel.

(h) Contempt of Court Ordinance (V of 2003)---

----S. 17(3)---Constitution of Pakistan, Arts. 204 & 90(2)---Rules of Business, 1973, Rr. 5(1) & 5(2)---Contempt of Supreme Court---Initiation of proceedings for contempt of Supreme Court against Prime Minister for non-compliance with the directions given by the Supreme Court in a case to the Federal Government for the revival of the request, withdrawn by the former Attorney General for Pakistan to be a civil party in a money laundering case in Switzerland (allegedly against the serving President of Pakistan)---Question as to whether accused (Prime Minister) had the knowledge of the said orders and directions---Presumption---Liability of accused (Prime Minister) for acting on summary/advice tendered to him in the ordinary course of business---Scope---Contentions of the accused (Prime Minister) were that the only order specifically and particularly addressed and communicated to him was the show-cause notice, requiring him to appear before the Supreme Court and prior to said notice, no other order with direction directly to the accused was brought to his notice; that during early stages of the implementation process, directions were given to the officials of the concerned Ministry and the National Accountability Bureau to prepare proper summaries for consideration of the Prime Minister (accused) but no specific direction was ever given to him; that accused was not to be blamed for the summaries presented to him, if same were not prepared in conformity with the directions of the Supreme Court; that the accused could not be held personally responsible for any wrong advice tendered to him in the ordinary course of business, and that knowledge of the orders and directions of the Supreme Court could not be presumed, rather same had to be proved---Validity---Contention of accused regarding lack of knowledge of the directions given by the Supreme Court until the issuance of the show cause notice, lost significance in the light of the categorical stand taken by him when he appeared before the Supreme Court after issuance of the show cause notice, as well as in his written statement, that he was not for the time being willing and ready to carry out the order of the Supreme Court, which by itself established his disobedience---Such stance taken by the accused continued right up to the conclusion of the trial, which stance amounted to saying that the order of the Supreme Court was non-implementable, as the accused believed that the same was not in accordance with the Constitution and International law---All the relevant documents, including the opinion of the former Attorney-General, along with the up to date interim orders of the Supreme Court, relating to implementation, were appended with the summary presented to the Prime Minister---Said summary did not relate to routine business of the Government as it involved implementation of the judgment of the Supreme Court in a well-publicized case of immense public importance which involved the serving President of the country---Since the accused had selected one of the four proposals in the said summary, it showed that he had applied his mind to the case and consciously approved the proposal directing the Law Minister to continue with the stance that the case against the President could not be revived as the same had been closed on merits---Decision taken by the accused on basis of the summary, therefore, was not to implement the Supreme Court's directions---Rules of Business, (1973) had to be followed for the purpose of implementation of the directions of the Supreme Court but the same were used for its non-implementation---Implementation of the directions of the Supreme Court was a straightforward case on which there could have been no two views, and even if there was any, the accused never approached the Supreme Court for clarification---Matter involved was not the one where the Prime Minister (accused) was left with any discretion and he was supposed to give a formal approval or direction to implement the decision of the Supreme Court---Prime Minister (accused) had never intended to comply with the orders of the Supreme Court regardless of any advice, therefore, he could not shift the blame or the responsibility to his Advisors for not giving him proper advice---Accused Prime Minister, in circumstances, had taken a conscious decision and had to accept responsibility for failing to obey a lawful order, which he was constitutionally bound to obey.

G.S. Gideon v. The State PLD 1963 SC 1; Civil Appeal No.1193 of 2012; Mrityunjoy Das and another v. Sayed Hasibur Rahman and others 2001(3) SCC 739; Chhotu Ram v. Urvashi Gulati and another 2001(7) SCC 530; The Aligar Municipal Board and others v. Ekka Tonga Mazdoor Union 1970(3) SCC 98; Bahawal v. The State PLD 1962 SC 476; Smt. Kiran Bedi and Jinder Singh v. The Committee of Inquiry and another AIR 1989 SC 714; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407; Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814 ref.

Dr. Subramanian Swamy v. Dr. Manmohan Singh in Civil Appeal No.1193 of 2012 and Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814 distinguished.

(i) Constitution of Pakistan---

----Art. 204---Contempt of Court Ordinance (V of 2003), S.3---Contempt of Supreme Court---Non-implementation of the orders and directions of the Supreme Court on the ground that same were not in accord with the Constitution and the Law---Effect---Non-implementation of orders and directions of the Supreme Court on such a ground would set a dangerous precedent and anyone would then successfully flout the orders of the courts by pleading that according to his interpretation orders were not in accord with the law; a judgment debtor would then be allowed to plead before the executing court that the decree against him was inconsistent with the established law---No finality would then be attached to the judgments and orders of the courts, even those by the Supreme Court.

(j) Constitution of Pakistan---

----Arts. 204, 185 & 188---Contempt of Supreme Court---Process for questioning the decision of the Supreme Court---Scope---Executive authority may question a court's decision through the judicial process provided for in the Constitution and the law but is not entitled to flout the same because it believes the decision to be inconsistent with the law or the Constitution.

(k) Interpretation of statutes---

----Scope---Interpretation of the law was the exclusive domain of the judiciary.

(l) Constitution of Pakistan---

----Arts. 204 & 100---Contempt of Supreme Court---Non-implementation of the orders and directions of the Supreme Court---Statement made by the Attorney-General before the Court---Presumption of correctness attached to such statement---Scope---Attorney-General had made a statement in the Supreme Court that he had duly communicated the detailed order of the Supreme Court to the Prime Minister (accused), through which order accused was put on notice to implement the orders and directions of the Court---Contention of accused that value of such statement by the Attorney-General was only the evidence that it was made but not of its contents unless the Attorney-General testified on oath to the correctness of the statement---Validity---Attorney-General was the Principal Law Officer of the Federation and the statements made by him before the Court were official communications and , thus, were presumed to be correct, unless validly contradicted.

(m) Constitution of Pakistan---

----Art. 204---Contempt of Court Ordinance (V of 2003), S. 17---Contempt of Supreme Court---Charge of "wilful disobedience" of the orders and directions of the Supreme Court by the Prime Minister---Requirement of mens rea---Conduct of accused establishing the mens rea for the offence---Scope---Contentions of the accused (Prime Minister) were that contempt proceedings were criminal in nature, therefore, mens rea of the accused was to be established and it must be proved that his conduct was contumacious, and that prosecution had failed to establish mens rea for the charge---Validity---Accused had been charged for "wilful" disobedience and the mens rea required for such charge, was the wilfulness of the accused, which was amply demonstrated by the conduct of the accused, who being aware of the directions of the Supreme Court and being Chief Executive of the Federation was the ultimate authority to formally carry out the orders of the court, which he persistently declined---Directions of the accused in regard to the summaries presented to him, and his categorical stand before the Supreme Court upon commencement of the contempt proceedings, established beyond reasonable doubt that the accused wilfully flouted, and continued to flout, the orders of the Supreme Court and failed to obey a lawful order, which he was constitutionally bound to obey.

(n) Contempt of Court Ordinance (V of 2003)---

----Ss. 2(a), 3 & 5---Constitution of Pakistan, Art.204---Punishment for contempt of Supreme Court---Scope---Charge against the Prime Minister of wilfully flouting, disregarding and disobeying orders and directions of the Supreme Court--- Scope--- Contempt of Court Ordinance, 2003, derived its authority from Article 204(3) of the Constitution, and Article 204(2) of the Constitution itself empowered the Supreme Court to punish a person for committing "contempt of court"---Words, "wilfully flouting, disregarding and disobeying" as used in the charge framed against the accused also stood sufficiently covered by the provisions of Article 204(2) of the Constitution.

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

----S. 221---Constitution of Pakistan, Art. 204--- Contempt of Supreme Court--- Charge to state offence---Scope-Charge against the accused (Prime Minister) was of non-implementation of orders and directions of the Supreme Court---Scope---Section 221, Cr.P.C., clarifies that a charge is to state the offence and if the offence with which an accused is charged is given a specific name by the relevant law then the offence may be described in the charge "by that name only"---According to Section 221, Cr.P.C. "If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged"---Section 221, Cr.P.C, further provides that "the law and section of the law against which the offence is said to have been committed shall be mentioned in the charge"---In the present case, not only the name of the offence, i.e. contempt of court had been specified in the charge framed against the accused but even the relevant constitutional and legal provisions defining 'contempt of court' had been mentioned in the charge framed, which in terms of section 221(5), Cr.P.C, "is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case"

(p) Contempt of Court Ordinance (V of 2003)---

----Ss. 5 & 18--- Constitution of Pakistan, Art.204---Punishment for contempt of Supreme Court---Satisfaction of the Court that such contempt caused substantial detriment---Scope---Section 18 of the Contempt of Court Ordinance, 2003, clearly shows that despite culpability of accused having been established, a court seized of a matter of contempt is not to hold the offender guilty or punish him for every trivial contempt committed and it is only a grave contempt having the effects mentioned in Section 18(1) of the Contempt of Court Ordinance, 2003, that may be visited with a finding of guilt or punishment---Satisfaction of the court mentioned in section 18(1) of the Ordinance regarding gravity of the contempt is to be adverted to by it after commission of the contempt is duly established and such satisfaction of the Court is neither an ingredient of the offence nor a fact to be proved through evidence---Such satisfaction is purely that of the Court concerned keeping in view the nature of the contempt found to have been committed, its potential regarding detrimental effect upon administration of justice or scandalizing the Court and its tendency to bring the Court or the Judge into hatred or ridicule---At such stage the contempt of court attributed to the offender already stands established and assessment of the tendency of the contempt to possibly create the mentioned detrimental effects is thereafter to be undertaken by the court for its own satisfaction in order to decide whether to convict or punish the offender or not and such satisfaction based upon judicially assessed possible effects is not to be based upon proofs or evidence to be produced during the trial---Where, however, the court is not satisfied about the mentioned detrimental effects, then despite the contempt having been established and proved, it may not convict or punish the offender and may resort to merely deprecating the conduct or actions of the accused in terms of Section 18(2) of the Contempt of Court Ordinance, 2003---Satisfactions of the court contemplated by Section 18(1) of the Ordinance are the minimum thresholds to be crossed and there is no limit upon a court regarding not recording satisfaction in respect of any graver detriment or tendency made possible by the conduct or actions of an offender.

(q) Contempt of Court Ordinance (V of 2003)---

----Ss. 3, 5 & 18--- Constitution of Pakistan, Art. 204--- Contempt of Supreme Court---Wilful, deliberate and persistent defiance by the accused (Prime Minister) of the orders and directions of the Supreme Court given in a case---Scope---Such clear and persistent defiance by the highest executive functionary of the State constituted contempt which was substantially detrimental to the administration of justice and tended not only to bring the Supreme Court but also the judiciary of the country into ridicule--- Accused in his written submissions had specifically adverted to the provisions of section 18 of the Contempt of Court Ordinance, 2003, and, therefore, he was fully aware of the applicability and implications of the said legal provision vis-a-vis the case against him.

(r) Constitution of Pakistan---

----Art. 204---Contempt of Court Ordinance (V of 2003), S.3---Contempt of Supreme Court---Defiance of orders of Supreme Court by the Chief Executive of the State---Effect---Such defiance might tempt others in the country to follow the example leading to a collapse or paralysis of administration of justice besides creating an atmosphere wherein judicial authority and verdicts are laughed at and ridiculed.

Per Asif Saeed Khan Khosa, J; agreeing with Nasir-ul-Mulk, J

(s) Constitution of Pakistan---

----Art. 204---Contempt of Court Ordinance (V of 2003). S.3---Wilful flouting, disregard and disobedience of the directions of the Supreme Court---Supreme Court, in the present context of the case, quoted "Khalil Gibran" which paint a picture which appeared quite familiar.

Following are the unforgettable words of "Khalil Gibran" that paint a picture which appears quite familiar in the present context of the case:

Pity the Nation

Pity the nation that is full of beliefs and empty of religion.

Pity the nation that wears a cloth it does not weave, eats a bread it does not harvest, and drinks a wine that flows not from its own wine-press.

Pity the nation that acclaims the bully as hero, and that deems the glittering conqueror bountiful.

Pity the nation that despises a passion in its dream, Pity the nation that raises not its voice

save when it walks in a funeral, boasts not except among its ruins, and will rebel not save when its neck is laid

between the sword and the block.

Pity the nation whose statesman is a fox, whose philosopher is a juggler, and whose art is the art of patching and mimicking.

Pity the nation that welcomes its new ruler with trumpeting, and farewells him with hooting, only to welcome another with trumpeting again.

Pity the nation whose sages are dumb with years

and whose strong men are yet in the cradle.

Pity the nation divided into fragments, each fragment deeming itself a nation.

His Lordship further observed that:

"With an apology to Khalil Gibran and with reference to the present context, I may add as follows:--

Pity the nation that achieves nationhood in the name of a religion but pays little heed to truth, righteousness and accountability which are the essence of every religion.

Pity the nation that proclaims democracy as its polity

but restricts it to queuing up for casting of ballots only

and discourages democratic values.

Pity the nation that measures honour with success

and respect with authority, that despises sublime and cherishes mundane, that treats a criminal as a hero and considers civility as weakness and that deems a sage a fool and venerates the wicked.

Pity the nation that adopts a Constitution

but allows political interests to outweigh constitutional diktat.

Pity the nation that demands justice for all

but is agitated when justice hurts its political loyalty.

Pity the nation whose servants treat their solemn oaths

as nothing more than a formality before entering upon an office.

Pity the nation that elects a leader as a redeemer

but expects him to bend every law to favour his benefactors.

Pity the nation whose leaders seek martyrdom

through disobeying the law

than giving sacrifices for the glory of law

and who see no shame in crime.

Pity the nation that is led by those

who laugh at the law

little realizing that the law shall have the last laugh.

Pity the nation that launches a movement for rule of law

but cries foul when the law is applied against its bigwig, that reads judicial verdicts through political glasses

and that permits skills of advocacy to be practised

more vigorously outside the courtroom than inside.

Pity the nation that punishes its weak and poor

but is shy of bringing its high and mighty to book.

Pity the nation that clamours for equality before law

but has selective justice close to its heart.

Pity the nation that thinks from its heart

and not from its head.

Indeed, pity the nation

that does not discern villainy from nobility.

I must clarify that I do not want to spread despair or despondency and it may be appreciated that no reform or improvement is possible until the ills or afflictions are identified and addressed."

(t) Constitution of Pakistan---

----Art. 204---Contempt of Court Ordinance (V of 2003), S.3---Contempt of Supreme Court---Initiation of proceedings for contempt of Supreme Court against Prime Minister for non-compliance with the directions given by the Supreme Court in a case to the Federal Government for the revival of the request, withdrawn by the former Attorney General for Pakistan to be a civil party in a money laundering case in Switzerland (allegedly against the serving President of Pakistan)---Supreme Court observed that the conduct of the accused (Prime Minister) in the present case appeared to be symptomatic of a bigger malady which, if allowed to remain unchecked or uncured, might overwhelm or engulf the nation, and quoted the celebrated poet and writer Khalil Gibran in the present context of the case.

His Lordship observed that "I recall here what Johne Donne had written:

Each man's death diminishes me, For I am involved in mankind.

Therefore, send not to know

For whom the bell tolls, It tolls for thee.

Khalil Gibran had also harped on a somewhat similar theme as under:

On Crime and Punishment

Oftentimes have I heard you speak of one who commits a wrong as though he were not one of you, but a stranger unto you and an intruder upon your world.

But I say that even as the holy and the righteous cannot rise beyond the highest which is in each one of you, So the wicked and the weak cannot fall lower than the lowest which is in you also.

And as a single leaf turns not yellow but with the silent knowledge of the whole tree, So the wrong-doer cannot do wrong without the hidden will of you all.

Like a procession you walk together towards your god-self.

You are the way and the wayfarers.

And when one of you falls down he falls for those behind him, a caution against the stumbling stone.

Ay, and he falls for those ahead of him, who though faster and surer of foot, yet removed not the stumbling stone.

And this also, though the word lie heavy upon your hearts:

The murdered is not unaccountable for his own murder, And the robbed is not blameless in being robbed.

The righteous is not innocent of the deeds of the wicked, And the white-handed is not clean in the doings of the felon. Yea, the guilty is oftentimes the victim of the injured, And still more often the condemned is the burden bearer for the guiltless and unblamed.

You cannot separate the just from the unjust and the good from the wicked;

For they stand together before the face of the sun even as the black thread and the white are woven together.

And when the black thread breaks, the weaver shall look into the whole cloth, and he shall examine the loom also."

(u) Constitution of Pakistan---

----Preamble & Art. 204---Contempt of Court Ordinance (V of 2003). S.3---Contempt of the Supreme Court---Punishment---Scope---Power to punish a person for committing contempt of court is primarily a power of the People of the country to punish such person for contemptuous conduct or behavior displayed by him towards the Courts created by the People for handling the judicial functions of the State and such power of the People has been entrusted or delegated by the People to the Courts through the Constitution---Ownership of the Constitution and of the Organs and Institutions created thereunder as well as of all the powers of such Organs and Institutions rests with the People of the country who have adopted the Constitution and have thereby created all the Organs and Institutions established under it---Where the cause is constitutional and just then the strength and support for the same is received from the people-at-large who are the ultimate custodians of the Constitution.

(v) Constitution of Pakistan---

----Preamble & Art. 204---Contempt of Court Ordinance (V of 2003). S.3---Initiation of proceedings for contempt of Supreme Court against Prime Minister for non-compliance with the directions given by the Supreme Court in a case to the Federal Government for the revival of the request, withdrawn by the former Attorney General for Pakistan to be a civil party in a money laundering case in Switzerland (allegedly against the serving President of Pakistan)---Defiance of a judicial verdict by the Executive---Punishment for such defiance---Scope---Person defying a judicial verdict in fact defies the Will of the people-at-large and the punishment meted out to him for such recalcitrant conduct or behaviour is in fact inflicted upon him not by the courts but by the People of the country themselves acting through the courts created and established by them---Where the executive is bent upon defying a final judicial verdict and is ready to go to any limit in such defiance, including taking the risk of bringing down the constitutional structure itself, then it would be the responsibility of the People themselves to stand up for defending the Constitution and the Organs and Institutions created and established thereunder and for dealing with the delinquent appropriately---Accused (Prime Minister), in the present case, was the Chief Executive of the Federation who had openly and brazenly defied the constitutional and legal mandate regarding compliance of and obedience to judgments and orders of the Supreme Court and in his conviction lay collective damnation.

Olmstead v. United States (227 U.S.438,485 ref.

Irfan Qadir Prosecutor/Attorney-General for Pakistan for Prosecution.

Barrister Aitzaz Ahsan, Senior Advocate Supreme Court assisted by Barrister Gohar Ali Khan, Shaukat Ali Javid, Shahid Saeed, Kashif Malik, Bilal Khokar, Ms. Zunaira Fayyaz, Ms. Ayesha Malik, Fahad Usman, Tayyab Jan, Ch. Babars, Advocates with M.S. Khattak Advocate-on-Record for Respondents.

P L D 2012 Supreme Court 610

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

SUO MOTU CASE NO.15 OF 2009

(Corruption in Pakistan Steel Mills Corporation)

Suo Motu Case No.15 of 2009 along with C.M.As. Nos. 4928-4929/2009 and 1989 and 1998/2010 and Constitutional Petition No.30 of 2010 and H.R.C.Nos.13922-S, 14156-S and 12664-P of 2010.

(a) Constitution of Pakistan---

----Preamble & Art. 2A---"Objectives Resolution"---Scope---"Islamic Republic of Pakistan"---Scope---State of Pakistan was named "Islamic Republic of Pakistan", under the Constitution which had direct nexus with the very reason and object of the creation of the country, which was reflected in Art.2A of the Constitution, known as 'Objectives Resolution', which stated that "wherein 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"---Individual and collective behavior of citizens was subject to the teaching of Islam and Sunnah of Prophet Muhammad (p.b.u.h.).

(b) Administration of justice---

----Higher the position of an individual, greater his responsibility and accountability.

(c) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to the Constitution and law---Scope---Every citizen of Pakistan was expected to be loyal to the State and the basic duty of every citizen was to be obedient to the Constitution and law as ordained under Article 5 of the Constitution.

(d) Words and phrases---

----"Corruption"---Definition and scope---"Corruption" was generally defined as an act of doing something with the intent to give some advantage inconsistent with official duty and to the rights of others, and this amounted to misconduct in office, misbehavior in office, misdemeanor in office or official corruption---"Corruption" was a menace and curse in a society.

(e) Words and phrases---

----"Misappropriation"---Definition---"Misappropriation" has been defined as 'wrong appropriation; to turn or put to a wrong purpose'.

Words and Phrases. Permanent Edition Vol. 27, p.432 ref.

(f) Words and phrases---

----"Mismanagement"---Definition---"Mismanagement" has been defined as 'to manage badly, improperly, or unskillfully'.

Words and Phrases. Permanent Edition Vol.Vol. 27, p.546 ref.

(g) Words and phrases---

----"Misappropriate"---Definition---"Misappropriate" has been defined as 'wrongful conversion of or dealing with anything, by the person to whom it had been entrusted.'

Stroud's Judicial Dictionary (5th Edn.) at p.1605 ref.

(h) Corruption---

----Connotation---Effect on society, political system and economy---Scope---"Corruption" in a civilized society was a disease like cancer, which if not detected in time was sure to malign the polity of a country leading to disastrous consequences---Corruption has been termed as plague which was not only contagious but if not controlled, spreads like a fire in a jungle and it could be compared with the HIV virus which leads to the incurable disease of AIDS---Corruption has also been termed as royal thievery---Socio-political system exposed to such a dreaded communicable disease was likely to crumble under its own weight---Corruption opposed democracy and social order, was anti-people, and affected the economy and destroyed the cultural heritage---Unless corruption was nipped in the bud at the earliest, it was likely to cause turbulence, shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrant society.

Supreme Court on Criminal Law 1950-2002, 6th Edn. (Vol.2); State of Madhya Pradesh v. Ram Singh AIR 2000 SC 870 and 2000 Cr.LR (SC) 188 ref.

(i) United Nations Convention against Corruption [General Assembly Resolution 58/4 of 31-10-2003]---

----Scope and purpose of the Convention---Effects of corruption on State and society---Legislative, administrative and judicial measures to be undertaken by States to combat and prevent corruption---"United Nations Convention against corruption", considered corruption as one of the serious problems and threats posed to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and the rule of law---Illicit acquisition of personal wealth was equated with causing damage to the democratic institutions, national economies and the rule of law---Prevention and eradication of corruption was the responsibility of all States and they were required to cooperate with each other---State should, in accordance with fundamental principles of its own legal system, develop and implement or maintain effective, coordinated anti-corruption policies and should promote the participation of society by reflecting the principles of the rule of law, proper management of public affairs and public property, its integrity, transparency and accountability---State should endeavor to periodically evaluate the entire relevant legal instruments and administrative measure with a view to determining their adequacy to prevent and fight corruption---State which was party to the said Convention should ensure within its legal system the existence of a body or bodies as appropriate or necessary for the prevention of corruption and should grant to such body or bodies 'necessary independence' in accordance with the fundamental principles of its legal system so as to enable them to carry out their functions effectively, freely and without being influenced from within or from outside, and they should be provided necessary material resources with specialist staff, which is given continuous/periodical training---Each State party was to take appropriate steps within their legal system for maintaining and strengthening system for recruitment, hiring, retention, promotion and retirement of civil servants---For protecting and ensuring the safety of State properties in public sector, the State should adhere to principles of efficiency, transparency and objective criteria, such as merit, equity and aptitude, by adopting the measures for promoting adequate remuneration and equitable pay scales---State was responsible for promoting integrity, honesty and responsibility among its public officials and to adopt the measures for establishing the system to facilitate reporting by the public officials of acts of corruption to the appropriate authorities---Independence of judiciary was crucial in combating corruption and State should take measures for strengthening the integrity and preventing opportunities for corruption among members of judiciary---State should take necessary measures to establish criminal offences for intentional acts like making a promise, offering or giving to a public official or any other person, directly or indirectly of an undue advantage, in order that the public official or the person, abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State an undue advantage---Measures to tackle corruption, suggested in the Convention included, retrenchment of the properties/assets by freezing, seizure or confiscating the same to the State; provisions for requesting other State parties for return of an offender, and provisions for mutual legal assistance between States for investigation, prosecution and judicial proceedings.

The United Nations Convention against Corruption was passed by the General Assembly Resolution 58/4 of 31-10-2003 ref.

(j) Constitution of Pakistan---

----Art. 2A---"United Nations Convention against Corruption" [General Assembly Resolution 58/4 of 31-10-2003]---Objectives Resolution---Corruption and corrupt practices---Scope---Such practices were not only violation of the Quranic Injunctions but also deviation of the established conventions agreed to by the nations of the world.

Surah-Al-Anfal Ayt.27; Surah-al-Hajj Ayt.38; Surah-Al-Baqarah Ayt.188 and The United Nations Convention against Corruption was passed by the General Assembly Resolution 58/4 of 31-10-2003 ref.

(k) Constitution of Pakistan---

----Art. 184(3)---National Accountability Ordinance (XVIII of 1999), Preamble---Federal Investigation Agency Act, 1974 (VIII of 1975), Preamble---Suo motu notice by the Supreme Court under Art.184(3) of the Constitution on the basis of a write up published in a newspaper providing details of the corruption and mismanagement in "Pakistan Steel Mills", in the year 2008-2009, causing losses of billions of rupees to the Government exchequer---Ineffective investigation into the matter conducted by Federal Investigation Agency and Ministry for Industries---Supreme Court consistently made efforts to procure sufficient data and material in respect of the allegations against the accused officials and persons so as to make out a prima facie case of corruption and mismanagement, and time and again the Federal Investigation Agency was given opportunities to submit its report in such regard---During pendency of the present case, Director General of the Investigation Agency was transferred before completion of his tenure, and whenever a Director General of the Agency was in a position to make headway and lay his hands on the culprits, he was posted out on an unknown pretext---One of the Director Generals of the Investigation Agency, himself disagreed with the investigation of his subordinates in open court---Investigation Agency did register F.I.Rs. against certain persons, who were subsequently released on bail by the courts, but the Agency took no steps towards seeking cancellation of such bails---No professional skills were shown by the Investigation Agency towards collection of incriminating evidence against the culprits---Forensic Audit Report for Steel Mills was prepared by a firm of Chartered Accountants and according to their calculation, cumulative losses for the year 2008-2009 amounted to Rs.26.526 billion---Ministry of Industries took no prompt action on receipt of said audit report on the ground that the Ministry was contemplating and deliberating on referring the matter to the National Accountability Bureau---During investigation of the case the Investigation Agency obtained bank accounts and other details of an industrial group and its linkage with a certain person on account of a transaction between the Steel Mills and the said group by which the latter lifted items from the Steel Mills below the market price---Investigation Agency failed to establish any linkage between the losses caused to the Steel Mills and the involvement or interest of the said person---One of the former Directors of the said group was in a foreign country where she was served with a questionnaire by the Investigation Agency regarding her contentions in respect of alleged transaction between the Steel Mills and the said group but no progress was made in such respect and report submitted by the Investigation Agency contained no connection of the said Director with the group---Investigation Agency had thus failed to pinpoint the real beneficiaries who obtained wrongful benefits under the garb of the said group---Perusal of different order sheets of the case and report submitted by Ministry of Industries made it clear that neither the Investigation Agency nor the said Ministry had taken the matter seriously, rather had taken it evasively and on no good pretext intended to refer the matter to the National Accountability Bureau---Supreme Court observed that no meaningful results were likely to be achieved towards the investigation conducted by the Federal Investigation Agency, in particular qua recovery of misappropriated money, which was not within the power and jurisdiction of the Agency.

Wattan Party v. Federation of Pakistan PLD 2006 SC 697 ref.

(l) Constitution of Pakistan---

----Art. 184(3)---National Accountability Ordinance (XVIII of 1999), Preamble, Ss. 12, 25 & 31-A---Federal Investigation Agency Act, 1974 (VIII of 1975), Preamble---Power to freeze property, voluntary return and plea bargain, abscondance to avoid service of warrants---Suo motu notice by the Supreme Court under Art.184(3) of the Constitution on the basis of a write-up published in a newspaper providing details of the corruption and mismanagement in Pakistan Steel Mills, in the year 2008-2009, causing losses of billions of rupees to the Government exchequer---Supreme Court ordered transfer of investigation of the matter from the Federal Investigation Agency to the National Accountability Bureau and formulated the reasons for transferring the case to the effect that Investigation Agency had been filing either preliminary or incomplete reports and never filed any satisfactory final report; that no serious effort was made by the Investigation Agency towards prosecution of the cases registered by it through the F.I.Rs.; that Investigation Agency had not filed any appeal for cancellation of bail granted to the nominated accused persons who were involved in the scam of misappropriation of money; that number of accused had been shown as absconders but no purposeful steps were taken by the Investigation Agency to procure their arrest except for obtaining their warrants of arrest; that reports submitted by the Investigation Agency mentioned the names of those persons who were responsible for the misappropriation of money and in some cases the amounts misappropriated were also specified therein, but Director Legal and other officials of the Federal Investigation Agency had admitted before the Supreme Court that the Agency could not successfully effect the recovery of the said misappropriated money; that during the course of investigation, a former Director General of the Investigation Agency, from whom there were good expectations, was transferred and some of those who subsequently replaced him either showed no cooperation towards the investigation of the case or gave evasive replies; that during the first stage of the proceedings, the then Director General of the Investigation Agency disagreed with the reports of his own subordinates in open court; that the entire investigation appeared to be casual and not result oriented and that no conclusive report was prepared by the Investigation Agency---Supreme Court observed that investigation carried out by the Bureau would be more purposeful and effective as under section 12 of the National Accountability Ordinance, 1999, Chairman of the Bureau or the court, trying the accused for any offence under the Ordinance could order freezing of his property or part thereof, whether the same was in his possession or in possession of his relative, associate or some person on his behalf---Section 25 of the National Accountability Ordinance, 1999, provided for voluntary return and plea bargain and through such process State money, which belonged to the people of the country could be recovered/retrieved, leaving criminal prosecution of the involved persons to the Trial Court, if reference was sent before it---Many nominated accused were still absconding and their arrest in the near future was not expected but the National Accountability Bureau could press into service section 31-A of the National Accountability Ordinance, 1999, against such persons, who were either absconding or were purposely avoiding being served with the process issued against them either by the court or by any investigating agency---Such conduct itself was an offence under S.31-A of National Accountability Ordinance, 1999, punishable with imprisonment, which might extend to two years---Supreme Court directed the Director General of the Federal Investigation Agency to hand over all the record prepared/collected by it in relation to the scam to the Chairman of the National Accountability Bureau.

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

----Preamble & S. 6(b)---Duty of Chairman and other officials of the National Accountability Bureau---Scope---Chairman and all those who were working under the Bureau were expected to take to task any person who had prima facie committed the offence of corruption and misappropriated the public money, to which every citizen of the country had a right and claim.

(n) Constitution of Pakistan---

----Art. 184(3)---National Accountability Ordinance (XVIII of 1999), Preamble---Suo motu notice by the Supreme Court under Art.184(3) of the Constitution on the basis of a write up published in a newspaper providing details of the corruption and mismanagement in Pakistan Steel Mills, in the year 2008-2009, causing losses of billions of rupees to the Government exchequer---Purpose of present proceedings was not to punish someone but to secure the recovery of looted money, which had been plundered by the persons, prima facie, connected with the commission of the offence and to hold such persons responsible in accordance with the law by sending them for trial before the court of competent jurisdiction.

(o) Constitution of Pakistan---

----Art. 184(3)---National Accountability Ordinance (XVIII of 1999), S.6(b)--Suo motu notice by the Supreme Court under Art.184(3) of the Constitution on the basis of a write up published in a newspaper providing details of the corruption and mismanagement in Pakistan Steel Mills, in the year 2008-2009, causing losses of billions of rupees to the Government exchequer---Supreme Court ordered transfer of investigation of the matter from the Federal Investigation Agency to the National Accountability Bureau and directed the Chairman of the National Accountability Bureau to supervise/appoint a team of honest and upright officers under his administration to further probe in the scam of losses of more than 26 billion rupees to the Pakistan Steel Mills for the financial year, 2008-2009; to determine the accusation against the individuals responsible for such losses and misappropriation including negligence; since sufficient material including the Forensic Audit Report would be available to the Chairman, his team should feel facilitated for probing into the matter further in its own manner; to ensure that immediate and stringent steps were taken for the recovery of looted money from the persons who were responsible for it; to also ensure the completion of investigation/enquiry within the shortest possible time; to further ensure the arrest of the accused who had been declared absconders or who might be found involved in the case; to direct his prosecution agency to file applications before the court of competent jurisdiction to seek cancellation of bail obtained by some of the nominated accused persons, if in the opinion of the Chairman same were not justified; and to make sure that on completion of the enquiry/investigation, references were filed against the persons found involved in the crime---Chairman of the National Accountability Bureau was directed by Supreme Court to complete and comply with the directions provided within a period of three months.

(p) Constitution of Pakistan---

----Arts. 184(3) & 204---Contempt of Court Ordinance (V of 2003), Ss.3 & 17---Contempt of Supreme Court---Suo motu notice by the Supreme Court under Art. 184(3) of the Constitution on the basis of a write-up published in a newspaper providing details of the corruption and mismanagement in Pakistan Steel Mills, in the year 2008-2009, causing losses of billions of rupees to the Government exchequer---Constitution of a Joint Investigation Team by the Federal Interior Minister to investigate into the matter when matter was sub judice before the Supreme Court---Effect---Constitution of such an Investigation Team and its terms of reference were an attempt to undo the directions given by the Supreme Court in the proceedings and once the issue was under examination/consideration of the Supreme Court, matter should not have been placed before the Investigation Team---Attempts to divert the fair and honest investigation of the case were made by the Ministry of Interior by appointing the Investigation Team in spite of the fact that the matter was sub judice before the Supreme Court and the Federal Investigation Agency was carrying out the investigation under directions of the Supreme Court---During pendency of said proceedings, former Director General of the Federal Investigation Agency was transferred before completion of his tenure---Notices were issued, in circumstances, to the Interior Minister to explain as to why he should not be proceeded against for contempt of court---Supreme Court gave directions to register the contempt proceedings against the Interior Minister independently and issue notices to him---Order accordingly.

Barrister Zafaullah Khan, Senior Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Petitioner (in Constitutional Petition 30 of 2009).

Dil Muhammad Alizai, D.A.G. on Court Notice.

Fakhruddin G. Ibrahim, Senior Advocate Supreme Court, M.S. Khattak, Advocate on Record, Waseem Ahmed, CEO., Qamar Mehmood Sindhu, Dy. G.M., Raja Aviz Mehmood, Chief Law Officer for Pakistan Steel Mills.

Suleman Aslam Butt, Advocate Supreme Court for Ex-Chairman, PSM (Moin Aftab).

Mansoor-ul-Arfeen, Advocate Supreme Court for Riaz Lalji.

Gul Muhammad Rind, Secretary and Abdul Ghaffar Somoro, Ex-Secy. for M/o Industries.

Rehman A. Malik (in person), Qamar Zaman Ch., Ex-Secy. and Nasir Hayat, Ex-Addl. Secy. for M/o Interior.

Zubair Mehmood, Dir. (Sindh), Moazam Jah, Dir. (Sindh), Azam Khan, Director Law, Khaleeq-uz-Zaman, Dy. Dir., Akhtar Baloch, Dy. Dir., Anwar Qureshi, Asst. Dir. and Wasim Ahmed, Ex-D.G. for FIA.

Akbar Tarrar, Addl. P.G. for NAB.

Dr. Aslam Khaki, Advocate Supreme Court (in person) for the Applicant (in C.M.A. No.4928 of 2009).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Applicants (in C.M.A. No.4929 of 2009).

Khalid Anwar, Senior Advocate Supreme Court for Applicants (in C.M.A. No.1989 of 2010).

Raja Qureshi, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Applicants (in C.M.A. No.1998 of 2010).

S.M. Zafar, Senior Advocate Supreme Court for Pakistan Steel Re-Rolling Mills Association.

Sohail Muzaffar, Advocate Supreme Court and Khalid Javed, Advocate Supreme Court for Iron Steel Merchants.

Tahir Hussain Lughmani, Advocate Supreme Court for Respondent No.2 (in Const. Petition No.30 of 2010).

P L D 2012 Supreme Court 649

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Amir Hani Muslim, JJ

PROVINCE OF SINDH through Chief Secretary and another---Appellants

Versus

RASHEED A. RIZVI and others---Respondents

Civil Appeals Nos.212 and 213 of 2011, decided on 9th May, 2012.

(a) Sindh Judicial Service Rules, 1994---

----R. 5---Constitution of Pakistan, Arts. 138. 175, 199, 203, 242---Judiciary, appointment to---Separation of powers, principle of---Notification dated 4-12-2008, gave Sindh Public Service Commission a significant and overbearing role in recruitment of Judges in Sindh Judicial Service---Validity---Process of appointment to judiciary must be scrutinized through lens of constitutional principles such as principle of separation of powers---Notification which had taken away the power of selection from High Court and gave it to Sindh Public Service Commission did not meet constitutional standards which had become part of jurisprudence---Method of making appointments of judicial officers attempted through a Notification had the effect of negating independence of judiciary and separation of powers envisaged in Arts.175 and 203 of the Constitution, because High Court was neither involved in selection of Judges nor in their appointment---Former function was meant to be performed by Sindh Public Service Commission and the latter by the Sindh Government---Sindh Public Service Commission to which certain functions of Provincial Government of Sindh had by law been delegated under Art.138 of the Constitution, had correctly been deemed by High Court as an executive authority---Commission was performing an executive function and for such reason, it could not be given task of making appointments to the Judicature---While it remained a part of Executive branch, for effective discharge of its duties, it had been provided certain degree of autonomy from political executive---Where such autonomy was unlawfully impinged upon by Executive in a given situation, the remedy was in rectifying the specific situation under Art.199 of the Constitution, rather than declaring an Executive body to be incompetent or to be acting mala fide---Supreme Court declined to interfere in judgment passed by High Court---Appeal was dismissed.

PLD 1996 SC 324, 429; Mehrain Ali and others v. Federation of Pakistan PLD 1998 SC 1445, 1474; Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, 658; Sindh High Court Bar Association v. Federation of Pakistan PLD 2010 SC 879, 1182; Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407; Sharaf Faridi v. Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Maxwell on the Interpretation of Statutes, 11th Edn.(Sweet and Maxwell Limited: 1962) p.296 and Hakim Khan and others v. Government of Pakistan and others PLD 1992 SC 595, 619 ref.

(b) Constitution of Pakistan---

----Arts. 175 & 203---Provincial autonomy---Scope---Each federating unit is free to carve out its own policy and practice in such matters---Parity between the federating units is not required and would be contrary to federal nature of the Constitution---Only requirement is that policy and practice adopted by each province must conform to constitutional imperatives elaborated in Arts.175 and 203 of the Constitution and relevant precedents.

Abdul Fateh Malik, A.G. Sindh for Appellants (in Civil Appeal No.212 of 2011).

Rasheed A. Rizvi Senior Advocate Supreme Court for Respondent No.1 (in Civil Appeal No.212 of 2011).

Anwar Mansoor Khan, Senior Advocate Supreme Court for Respondent No.2 (in Civil Appeal No.212 of 2011).

Abdul Fateh Malik, A.G. Sindh for Appellants (in Civil Appeal No.213 of 2011)..

Nemo for Respondent No.1 (in Civil Appeal No.213 of 2011)..

Muhammad Waqar Rana, Advocate Supreme Court for Respondent No.2 (in Civil Appeal No.213 of 2011).

Abdul Rasool Memon, Registrar, High Court of Sindh for Respondent No.3 (in both cases).

Maulvi Anwar-ul-Haq, Attorney General of Pakistan on Court's Notice (On behalf of Federation).

Date of hearing: 16th February, 2012.

P L D 2012 Supreme Court 660

Present: Iftikhar Muhammad Chaudhry, C.J. Jawwad S. Khawaja and Khilji Arif Hussain, JJ

MUHAMMAD AZHAR SIDDIQUE and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 40, 41, 42, 43, 44, 45, 46, 47, 50 and C.M.As. Nos.2494 to 2496 of 2012, decided on 19th June, 2012.

(a) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution---Scope---Supreme Court in exercise of jurisdiction under Art.184(3) of the Constitution was competent to ensure enforcement of the fundamental rights of the citizens in all matters of public importance.

(b) Constitution of Pakistan---

----Arts. 63(2), 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she declined to send a reference against the Prime Minister to the Election Commission seeking his disqualification in view of his conviction in the contempt of Supreme Court case---Disqualification for membership of Majlis-e-Shoora (Parliament)---Powers exercised by the Speaker of the Majlis-e-Shoora under Art.63(2) of the Constitution---Nature and scope---Judicial review of such powers---Scope---Speaker of the National Assembly under Art.63(2) of the Constitution exercised powers, in the present case, which were not covered by the definition of internal proceedings of Majlise- Shoora, therefore, the Supreme Court, in exercise of power of judicial review, was not debarred from inquiring into the order of the Speaker by which she refused to send a reference against the Prime Minister to the Election Commission keeping his disqualification in view of his conviction in the contempt of court case.

Mining Industries of Pakistan (Pvt.) Ltd. v. Deputy Speaker, Balochistan Provincial Assembly PLD 2006 Quetta 36; Madad Ali v. Province of Sindh 1996 SCMR 366; Shams-ud-Din v. Speaker, Balochistan Provincial Assembly 1994 MLD 2500; Muhammad Naeem Akhtar v. Speaker, Sindh Provincial Assembly 1992 CLC 2043; Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Muhammad Anwar Durrani v. Province of Balochistan PLD 1989 Quetta 25; Jagjit Singh v. State of Haryana AIR 2007 SC 590 and Rajendra Singh Rana v. Swami Prasad Maurya (AIR 2007 SC 1305 ref.

(c) Constitution of Pakistan---

----Arts. 63(1)(g), 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), Ss.3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she declined to send a reference against the Prime Minister to the Election Commission seeking his disqualification in view of his conviction in the contempt of Supreme Court case---Contempt of Supreme Court committed by the Prime Minister and his resultant conviction---Effect---Prime Minister's disqualification from being a Member of the Majlis-e-Shoora---Determination---Supreme Court had found the Prime Minister guilty of contempt of Supreme Court under Art.204(2) of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003 and sentenced him to undergo imprisonment till rising of the Court under S.5 of the said Ordinance, and since no appeal was filed against said judgment, the conviction had attained finality---Prime Minister, in such circumstances, had become disqualified from being a Member of the Majlis-e-Shoora (Parliament) in terms of Art.63(1)(g) of the Constitution on and from the date and time of pronouncement of the judgment (26-4-2012) of the Supreme Court with all consequences, i.e. he had also ceased to be the Prime Minister with effect from the date of the judgment (26-4-2012) and the office of the Prime Minister was deemed to be vacant accordingly.

(d) Constitution of Pakistan---

----Arts. 63(1)(g), 204(2) & 184(3)--- Contempt of Court Ordinance (V of 2003), Ss.3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she declined to send a reference against the Prime Minister to the Election Commission seeking his disqualification in view of his conviction in the contempt of Supreme Court case---Supreme Court directed that the Election Commission was required to issue notification of disqualification of the Prime Minister from being a Member of the Majlis-e-Shoora w.e.f. the date of the judgment of the Supreme Court (26-4-2012), and that the President was required to take necessary steps under the Constitution to ensure continuation of the democratic process through parliamentary system of government in the country.

A.K. Dogar, Senior Advocate Supreme Court, Azhar Siddique, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record for Petitioners (In Const.P.No.40 of 2012).

Hamid Khan, Senior Advocate Supreme Court, M. Waqar Rana, Advocate Supreme Court, S. Safdar Hussain, Advocate-on-Record for Petitioners (in Const. P. No.41 of 2012).

Kh. Muhammad Asif, MNA (in person) for Petitioners (in Const.P.No.42 of 2012).

S. Zafar Ali Shah, Senior, Advocate Supreme Court for Petitioners (in Const.P. No.43 of 2012).

S. Mehmood Akhtar Naqvi (in person) for Petitioners (in Const.P.No.44 of 2012).

Abdul Rehman Siddiqui, Advocate Supreme Court for Petitioners (in Const.P. No.45 of 2012).

A.K. Dogar, Senior Advocate Supreme Court for Petitioners (in Const.P. No.46 of 2012).

Khan Attaullah Tareen, Advocate Supreme Court and Ch. M. Asghar Saroha, Advocate Supreme Court for Petitioners (in Const.P. No.47 of 2012).

Taufiq Asif, Advocate Supreme Court for Petitioners (in Const.P.No.50 of 2012).

Irfan Qadir, Attorney General for Pakistan (on Court Notice).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court for Syed Yousaf Razal Gillani.

Muhammad Munir Peracha, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Federation.

Muhammad Latif Qureshi, Joint Secretary (L), N. Assembly for the Speaker, N.A.

Muhammad Nawaz, Director (L) for the ECP.

Dates of hearing: 14th, 15th, 18th and 19th June, 2012.

O R D E R

IFTIKHAR MUHAMMAD CHAUDHRY, C J.---For reasons to be recorded later, the titled petitions are disposed of as under:--

(1) This Court in exercise of jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan is competent to ensure enforcement of the fundamental rights of the citizens in all matters of public importance;

(2) The Speaker of the National Assembly under Article 63(2) of the Constitution exercises powers, which are not covered by the definition of internal proceedings of Majlis-e-Shoora, therefore, this Court, in exercise of power of judicial review, is not debarred from inquiring into the order dated 25-5-2012. Reference in this behalf may be made to the cases of Mining Industries of Pakistan (Pvt.) Ltd. v. Deputy Speaker, Balochistan Provincial Assembly (PLD 2006 Quetta 36), Madad Ali v. Province of Sindh (1996 SCMR 366), Shams-ud-Din v. Speaker, Balochistan Provincial Assembly (1994 MLD 2500), Muhammad Naeem Akhtar v. Speaker, Sindh Provincial Assembly (1992 CLC 2043), Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98); Muhammad Anwar Durrani v. Province of Balochistan (PLD 1989 Quetta 25); Jagjit Singh v. State of Haryana (AIR 2007 SC 590) and Rajendra Singh Rana v. Swami Prasad Maurya (AIR 2007 SC 1305);

(3) As a Bench of 7 Hon'ble Judges vide judgment dated 26-4-2012 followed by the detailed reasons released on 8-5-2012 has found Syed Yousaf Raza Gillani guilty of contempt of Court under Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance, 2003 and sentenced him to undergo imprisonment till rising of the Court under section 5 of the said Ordinance, and since no appeal was filed against this judgment, the conviction has attained finality. Therefore, Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majlis-e-Shoora (Parliament) in terms of Article 63(1)(g) of the Constitution on and from the date and time of pronouncement of the judgment of this Court dated 26-4-2012 with all consequences, i.e. he has also ceased to be the Prime Minister of Pakistan with effect from the said date and the office of the Prime Minister shall be deemed to be vacant accordingly;

(4) The Election Commission of Pakistan is required to issue notification of disqualification of Syed Yousaf Raza Gillani from being a member of the Majlis-e-Shoora w.e.f. 26-4-2012; and

P L D 2012 Supreme Court 664

Present: Jawwad S. Khawaja and Khilji Arif Hussain, JJ

SUO MOTU ACTION REGARDING ALLEGATION OF BUSINESS DEAL BETWEEN MALIK RIAZ HUSSAIN AND DR. ARSALAN IFTIKHAR ATTEMPTING TO INFLUENCE THE JUDICIAL PROCESS

Suo Motu Case No. 5 of 2012, decided on 14th June, 2012.

Per Jawwad S. Khawaja, J; Khilji Arif Hussain, J, agreeing--

(a) Constitution of Pakistan---

----Arts. 184(3) & 19A---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding allegation of business deal between a businessman and son of the serving Chief Justice of Pakistan attempting to influence the judicial process---Maintainability--Whether such allegation raised an issue of public importance---Determination---Right to information about matters of public importance---Scope---Suo motu notice of the issue was absolutely necessary to stem the uninformed opinion and comment feeding such media frenzy and to ensure the right of the citizens to correct information on a matter of the gravest national importance in a transparent manner-Supreme Court in the exercise of its original jurisdiction under Art.184 (3) of the Constitution was entitled to use inquisitorial powers---Suo motu cognizance of the present matter had been taken for a specific object and said powers were to be exercised only as were necessary to achieve that object---Concise statements of the parties were before the Supreme Court, which could take note of such material particulars therein, which had a direct bearing on the object of present suo motu case---Determination of other legal or factual questions might be left to a competent court or forum---Parts of the concise statements submitted by the parties which had a bearing on the outcome of present suo motu case, were those which pertained directly to the independence and integrity of the judiciary---Said Businessman had confirmed in his concise statement that he met with a number of journalists and showed them 'documentary evidence' of payments made to son of the Chief Justice in exchange for promises on his part to gain favours for him (businessman) from the Supreme Court---Businessman during the hearing of present matter, stood by his said statement given in writing, in the most categorical and unambiguous terms through his counsel---Such statement settled the question of public importance to a large extent---Matter of public importance, in the present case was the aspersion cast on the independence and integrity of the superior judiciary of the country.

Dr. Mubashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 ref.

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

----Ss. 163/383/415/420---Constitution of Pakistan, Art.184(3)---National Accountability Ordinance (XVIII of 1999), S.9---Taking gratification, for exercise of personal influence with public servant, extortion, cheating, cheating and dishonestly inducing delivery of property, corruption and corrupt practices---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding allegation of business deal between a businessman and son of the serving Chief Justice of Pakistan attempting to influence the judicial process---Alleged flow of money and valuables between individuals concerned in exchange for promises of illegal favours to obstruct the course of justice---Legality and effect---Attempts by individuals to obstruct the course of justice were a matter of serious and grave concern and imperiled the reputation of the justice system at large---Exchange of bribes with the attempt, even a failed one, to influence the course of justice, had been declared illegal and punishable under various laws and if proven guilty by a court of competent jurisdiction, the parties involved might be punished under S.163, P.P.C. (illegal gratification using personal influence over public servant), S.383, P.P.C. (extortion), S.415, P.P.C. and S.420, P.P.C. (cheating), and S.9 of the National Accountability Ordinance, 1999---Supreme Court observed that court need not delve deeply into the contours of the various legal provisions or determine the manner of their applicability to the facts of the present case, as that was a job best left to investigating agencies and the trial court, to be decided on the basis of evidence, and that it expected that the Attorney General would set the machinery of the State in motion so that all those who might have committed any illegal acts, including the individuals concerned were pursued and brought to book with the full force and rigour of the law.

(c) Constitution of Pakistan---

----Arts. 10A & 184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding allegation of business deal between a businessman and (son of the serving Chief Justice of Pakistan attempting to influence the judicial process---Right to fair trial and due process---Scope---Cornerstone of the administration of justice was that all people, whether they appeared to the Supreme Court to be innocent or guilty, were entitled to the due process of law and were to be deemed innocent until proven guilty after a fair trial---Article 10A of the Constitution had codified said principle of due process in the form of a fundamental right---Supreme Court observed that all the individuals involved in the present matter were entitled to due process and fair trial.

(d) Constitution of Pakistan---

----Arts. 19A & 184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding allegation of business deal between a businessman and (son of the serving Chief Justice of Pakistan attempting to influence the judicial process---Scope and purpose---Right to information about matters of public importance---Scope---While highlighting the need for bringing individuals concerned to justice, in the present case, it was not for the Supreme Court to judge the guilt or innocence of the parties concerned without evidence or trial and all it needed to do was to highlight the underlying spirit of the relevant laws, which, in essence, was the timeless wisdom encapsulated in the prophetic saying " ", the one who gave bribes as well as the one who took bribes were doomed to hell fire---People who had chosen to be governed by a government of laws, were entitled to see a temporal manifestation of the said principle--- Supreme Court observed that through present suo motu action, it was not the intention to pronounce final judgment on the guilt or innocence of those allegedly involved but the purpose was to take cognizance of the matter so that the people's right to have access to information about matters of public importance could be vindicated.

Hafez, sage of Shiraz ref.

(e) Constitution of Pakistan---

----Art. 184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding allegation of business deal between a businessman and son of the serving Chief Justice of Pakistan attempting to influence the judicial process---Wide spread and disparaging media coverage of the issue--- Effect--- Supreme Court observed that the ethical and legal framework of the media required fairness and objectivity and it also required that the journalists conducted due diligence before reporting any news so that rumours and insinuations were filtered out, particularly in matters of grave significance such as ones arising in the present case; that even when the media and journalists came across a particular information, fair conduct required that it was checked and rechecked; that due diligence by media persons, prima facie, appeared not to have been undertaken in the present case; that son of the serving Chief Justice of Pakistan and his conduct should have, from the very beginning, been kept separate and distinct from the integrity and independence of the judiciary; that without proper care and professional excellence, even sincere and honest journalists risked being used as tools in the hands of those who might not be obedient to the laws and the Constitution, and that appropriate levels of due diligence could have avoided the situation which the whole nation including the Supreme Court found itself in.

(f) Constitution of Pakistan---

----Arts. 25 & 184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding allegation of business deal between a businessman and son of the serving Chief Justice of Pakistan attempting to influence the judicial process---Equality before law---Scope---Openness and transparency in the full glare of an open court hearing with equal opportunity to the two sides, was one of the defining features of the legal system---People could rightfully demand such openness and transparency as their right---Supreme Court observed that hearings of the present case had given it an opportunity to demonstrate and make it absolutely clear that in Pakistan, no one was above the law; that even the highest constitutional functionaries, and their kith and kin, could not but submit themselves and their affairs to the law, and that everyone must know that howsoever high and mighty a person might be, the law was higher and mightier.

Syed Yousaf Raza Gillani v. Assistant Registrar, Supreme Court of Pakistan 2012 SCMR 424 ref.

Per Khilji Arif Hussain, J; agreeing with Jawwad S. Khawaja, JJ--

(g) Constitution of Pakistan---

----Arts. 184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding allegation of business deal between a businessman and son of the serving Chief Justice of Pakistan attempting to influence the judicial process---Conduct to be exercised by family members of public functionaries---Scope---Held, although family members of public functionaries were, properly speaking, not performing State functions, but the alleged facts of the present case highlighted the necessity of extreme caution and discretion in their private and public dealings and conduct.

(h) Public functionaries---

----Family members of---Conduct---Scope--- Such family members had to exercise extreme caution and discretion in their private and public dealings and conduct.

Irfan Qadir, Attorney General for Pakistan (On Court Notice).

Sardar M. Ishaq Khan, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Dr. Arsalan Iftikhar with Dr. Arsalan Iftikhar.

Zahid Hussain Bokhari, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Malik Riaz Hussain.

Syed Ali Zafar, Advocate Supreme Court for Ali Ahmad Riaz Malik.

Dr. Amjad Hussain Bukhari, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Company Secy./BTPL.

Date of hearing: 14th June, 2012.

P L D 2012 Supreme Court 679

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

PAKISTAN HINDU COUNCIL---Petitioner

Versus

PAKISTAN through Ministry of Law---Respondent

Constitution Petition No.70 of 2007, decided on 17th May, 2012.

(Under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973)

Constitution of Pakistan---

----Arts. 20 & 184(3)---Constitutional petition under Art.184(3) of the Constitution praying for promulgation of a new law against forced conversion from one religion to another---Freedom to profess religion---Scope---Petitioner had filed the present constitutional petition with the prayer that for the protection and enforcement of the fundamental rights of the citizens, the Supreme Court might direct the Government to promulgate a law prescribing it to be an offence punishable with imprisonment for a person who converted or attempted to convert any person from one religion to another by use of force, allurement or by fraudulent means or aided or abetted any such conversion---Validity---In view of Art.20 of the Constitution, there was no necessity of a specific legislation as had been prayed for, because every citizen had a fundamental right to profess, practice and propagate his religion---Supreme Court observed that where there was a forced conversion, the law always took its own course---Constitutional petition was disposed of, accordingly.

M. Akram Sheikh, Senior Advocate Supreme Court for Petitioner.

Dil Muhammad Alizai DAG and Syed Tanvir Hussain Shah, SO.M/O Law for Respondent.

Date of hearing: 17th May, 2012.

P L D 2012 Supreme Court 681

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

WORKERS' PARTY PAKISTAN through Akhtar Hussain, Advocate, General Secretary and 6 others---Petitioners

Versus

FEDERATION OF PAKISTAN and 2 others---Respondents

Constitution Petition No.87 of 2011, decided on 8th June, 2012.

(Petition under Article 184(3) of the Constitution challenging certain practices and process of electioneering as violative of fundamental rights)

(a) Constitution of Pakistan---

----Arts. 17, 25, Part VIII [Arts.213 to 226] & Art.184(3)---Representation of the People Act (LXXXV of 1976), Preamble---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Maintainability---Freedom of association, equality of citizens---Scope---Right to form, or to be a member of a political party guaranteed under Art.17 of the Constitution subsumed the right to participate or contest in the election, and to form a government if successful---Petitioners had vehemently averred that the impugned electioneering practices violated the fundamental rights of the citizenry at large guaranteed by Art.17 read with Art.25 of the Constitution---None of the respondents had rebutted the said assertion of the petitioners, accordingly, present petition was held to be maintainable.

Ms. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

Ms. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Haji Muhammad Saifullah Khan v. Federation of Pakistan PLD 1989 SC 166 and Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 rel.

(b) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Public interest litigation---Nature---Inquisitorial proceedings---Jurisdiction of Supreme Court to adjudicate upon such proceedings---Scope---Present petition fell under public interest litigation, which was not adversarial but inquisitorial in nature---Supreme Court had the jurisdiction to adjudicate upon a case if it fell within the ambit of inquisitorial proceedings.

Watan Party v. Federation of Pakistan PLD 2011 SC 997 and All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1 ref.

(c) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3)---Powers of Supreme Court---Scope---While entertaining a petition under Art.184(3), the Supreme Court had ample power to examine the vires of laws, rules or regulations.

Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Farooq Ahmad Khan Laghari v. Federation of Pakistan PLD 1999 SC 57; Jalal Mehmood Shah v. Federation of Pakistan PLD 1999 SC 395; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and Muhammad Mubeen-us-Salaam v. Federation of Pakistan PLD 2006 SC 602 ref.

(d) Constitution of Pakistan---

----Preamble & Art. 2A---Constitutional Order---Nature, scope and principles---Constitutional Order was a living manifestation of the will of the people of Pakistan, wherein, the people had made clear that all authority to govern shall be exercised "within the limits prescribed by (Allah)", and only by or on behalf of the people of Pakistan---Constitutional Order, therefore, rested on two fundamental precepts; firstly, that the exercise of authority shall be informed and circumscribed by the principles of Islam, and secondly, that the people of Pakistan shall play an integral role in the exercise thereof---Any action or inaction that contravened said instructions was ultra vires of this authority, unconstitutional and void.

(e) Constitution of Pakistan---

----Arts. 2A & 8(1)---Objectives Resolution---Scope---Laws inconsistent with or in derogation of fundamental rights to be void---Article 2A, expressly instructed that principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed---Protection and advancement of said principles was an integral objective and an essential feature of the Constitutional Order---Article 2A mandated that the State shall guarantee fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality---Article 8(1) of the Constitution enunciated the significance of said rights and the principles that they embody, by declaring that all laws, or any custom or usage having the force of law, in so far as it was inconsistent with the rights, shall, to the extent of such inconsistency, be void---In effect said rights, as enunciated by Islam, had been placed on a higher pedestal and enshrined as a central feature of the constitutional framework.

(f) Constitution of Pakistan---

----Preamble, Part II [Arts.7 to 40] & III [Arts.41 to 100]---Constitutional Order---Scope---Constitution and democracy---Relationship---Scope---Constitutional Order declared that the authority was to be exercised by the people of Pakistan---Vesting of said authority and entrusting the exercise thereof to the people, emphasized the principle of self-government as the bedrock of the constitutional framework---By guaranteeing the observance of 'principles of democracy' and mandating that the "State shall exercise its powers and authority through the chosen representatives of the people" the Constitution instructed that this authority was to be exercised by and through a representative and democratic government---Constitutional Order was framed with an ardent dedication 'to the preservation of democracy' and therefore encapsulated it as one of its core values---Part II and III of the Constitution established and enumerated the powers and manner in which the legislature was to function, which cemented 'democracy' as the chosen system of the people and a fundamental constitutional dictate---Constitutional imperative of 'advancing and protecting Fundamental Rights, as enunciated by Islam, through a democratic system of government' underpinned the operation of the Constitutional Order---Such symbiotic relationship between 'democracy' as a governing system and the objective of 'advancing and protecting Fundamental Rights, as enunciated by Islam' preserved and reinforced both said constitutional dictates as cardinal features of the Constitution.

(g) Constitution of Pakistan---

----Art. 218---Election Commission---Duties---Election process---Significance and scope---Election process was one of the key aspects of democracy and was identified and regulated by the Constitution---Article 218 of the Constitution, constituted the Election Commission and empowered it to organize and oversee the election process and to ensure, inter alia, that it was conducted honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against.

(h) Words and phrases---

----"Honestly"--- Meaning.

Chambers, 20th Century Dictionary, New Edn. 1983, p.601 ref.

(i) Words and phrases---

----"Truth", "veracity"' and "honesty"--- Synonymy between the words.

Advanced Law Lexicon, 2005 Edn. Vol. 2, p.2153 ref.

(j) Words and phrases---

----"Honesty"---Scope.

Fakhruddin v. A. Shah PLD 1982 Kar. 790 and Amjad Khan v. Marium 1993 CLC 175 ref.

(k) Words and phrases---

----"Justly" --- Meaning and scope.

Black's Law Dictionary Revised 4th Edn. of 1968, p.1001; Chambers, 20th Century Dictionary, New Edn. 1983, p.686; 2 Bom LR 845; Murtagh Barry (1890) 44 Ch.D 632; M.A. Rahim and another v. Sayari Bai AIR 1973 Mad. 83, 87; Helen C. Rebellor v. Maharashtra S.R.T.C., (1999) 1 SCC 90, para.28: AIR 1998 SC 3191; Divisional Controller KSRTC v. Mahadeva Shetty (2003) 7 SCC 197, para.15; Crewe v. Social Security Commissioner (1982) 2 All ER 745, 749; T.Arumjuga Mudaliar AIR 1955 Mad. 622; P. Ramanatha Aiyar's "Advanced Law Lexicon", 2005 Edn. Vol.3, pp.2539 & 2540; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 and Shahi Bottlers (Pvt.) Ltd. v. Punjab Appellate Tribunal 1993 SCMR 1370 ref.

(l) Words and phrases---

----"Fairly"---Meaning and scope.

Black's Law Dictionary Revised 4th Edn. of 1968, p.719; Chambers, 20th Centgury Dictionary, New Edition 1983, p.452 and P. Ramanatha Aiyar's "Advanced Law Lexicon", 2005 Edn., Vol. 2, pp.1761, 1762 ref.

(m) Constitution of Pakistan---

----Art. 218(3)---Election Commission---Duties and powers---Words "justly", "fairly" and "honestly" used in Art.218(3) of the Constitution---Implications---Said words implied that the Election Commission was under a direct constitutional obligation to exercise all powers vested in it in a bona fide manner, meeting the highest of standards and norms, therefore, as a natural corollary all discretionary powers were also to be exercised and tested against such standards.

(n) Constitution of Pakistan---

----Art. 218(3)---Election Commission---Duties and responsibilities---Scope---Election Commission was charged with the duty to 'organize' and 'conduct the election'---Article 218(3) implied that the Election Commission was responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day---Constitution conferred such responsibility on the Election Commission and ensured that all activities both prior, on and subsequent to Election Day, that were carried out in anticipation thereof, adhered to standards of justness and fairness, were honest, in accordance with law and were free from corrupt and/or illegal practices.

Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 ref.

(o) Constitution of Pakistan---

----Art. 218(3)---Election Commission---Powers to take pre-emptive action before a violation occurs---Scope---Election Commission may also exercise its powers in anticipation of an ill that might have the effect of rendering the election unfair---Where a violation of the standards mentioned in Art.218(3) of the Constitution had not as yet taken place, the Election Commission was legally empowered under Art.218(3) to exercise its powers pre-emptively in order to avoid a violation of these standards---Election Commission was fully empowered by Art.218(3) of the Constitution to make such orders as in its opinion were necessary for ensuring that the election was fair, honest etc.---Election Commission enjoyed broad powers not only to take pre-emptive action but also to pass any and all orders necessary to ensure that the standards of 'honesty, justness and fairness' mentioned in Art.218(3) were met.

Syed Qaim Ali Shah's case PLD 1991 Jour. 41 and Mst. Qamar Sultana v. Public at Large 1989 MLD 360 ref.

(p) Constitution of Pakistan---

----Arts. 218(3) & 220---Representation of the People Act (LXXXV of 1976), Preamble---Election Commission---Power and responsibilities---Scope---Representation of the People Act, 1976, vested the Election Commission with the responsibilities and powers to regulate and check intra-party affairs and actions taken by candidates and parties in anticipation of and on Election Day; to resolve all election disputes; to declare the election void, and to award punishments for violating relevant election laws---Article 220 of the Constitution also directed the Federal and Provincial machinery to assist the Election Commission in fulfilling its constitutional responsibilities---Election Commission was entrusted with exclusive, broad and extensive powers to attend to all issues related directly and ancillary to the election process.

(q) Constitution of Pakistan---

----Art. 218(3)---Representation of the People Act (LXXXV of 1976), S.103(a) & (c) , 78, 79, 80, 80-A, 81 & 83---Election Commission--- Duty to ensure fair elections---Implication---Cognizable activities---Scope---Section 103(a) of the Representation of the People Act, 1976, instructed the Election Commission to ensure a "fair election", which implied that large scale malpractices including coercion, intimidation and pressures, prevailing at the election would negate the 'fairness' elections were to embody---Sections 78, 79, 80, 80-A, 81 and 83 of the Representation of the People Act, 1976, specified activities that the Election Commission could regulate and check under Art.218(3), but section 103(a) of the Representation of the People Act, 1976 substantially enhanced said defined spectrum of cognizable activities and reinforced the obligation to check them---Section 103(c) of the Act, empowered the Election Commission to issue instructions, exercise its powers and make orders to effectuate the said standard.

(r) Constitution of Pakistan---

----Art. 218(3)---Election Commission---Independence of---Significance for democracy---Scope---In the parliamentary system of government a constitutionally independent and empowered Election Commission rested as one of the foundational stones of a democratic setup.

(s) Constitution of Pakistan---

----Art. 218(3)---Representation of the People Act (LXXXV of 1976), S.107---Election Commission---Power to make rules---Scope---Independence of the Election Commission---Scope---By virtue of S.107 of the Representation of the People Act, 1976, the Commission could, with the approval of the President, make rules for carrying out the purposes of the said Act, which further reinforced the independence with which the Commission was to exercise its powers---No restriction existed on the Commission to frame rules with the approval of the President, to ensure that the elections were conducted fairly, honestly, justly and in accordance with law and that corrupt practices were guarded against.

Sh. Rashid Ahmed v. Federation of Pakistan PLD 2010 SC 573 ref.

(t) Constitution of Pakistan---

----Arts. 218, 213 & 222---Election Commission/Chief Election Commissioner---Abridgment of powers---Effect---Majlis-e-Shoora could promulgate law to regulate the electoral laws, but any law which had the effect of abridging any of the powers of the Commissioner or the Commission would not find support in the law.

(u) Constitution of Pakistan---

----Art. 218---Election Commission---Effective discharge of responsibility---Significance---Scope---Shortfall in effective discharge of responsibilities---Effect---Was of utmost importance that the Election Commission executed its functions and discharged its responsibilities effectively, efficiently and in letter and spirit---By fulfilling its mandated duties and responsibilities, the Election Commission essentially gave birth to a body/institution of the nation, called the Parliament---Effective fulfillment and honest discharge by the Commission of its responsibilities would lend greater legitimacy to an elected democratic government and give effect to its constitutional mandate, therefore, it was imperative that the Election Commission employed its extensive powers to regulate the election process---Any shortfall in the discharge of its responsibilities would violate express dictates of the Constitution, devastate the efficacy of the Constitutional Order and the envisioned operation of the State.

Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 ref.

(v) Constitution of Pakistan---

----Art. 51(6)(a)---Election of members of the National Assembly---Constitutional dictate---Scope---Article 51(6)(a) of the Constitution declared that the representatives of the people "shall be elected by direct and free vote, in accordance with law", which identified 'elections' as the first and an integral step in effectuating the said constitutional dictate.

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

----Ss. 49 & 50---Constitution of Pakistan, Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Laws pertaining to regulation of election expenses---Adequacy---Monitoring of election expenses by the Election Commission---Directions by Supreme Court to devise expenditure monitoring mechanism---Practice of filing false returns of election expenses---Effect---Constitution and the election laws of Pakistan provided a comprehensive and adequate mechanism for regulating election expenses by enumerating different offences, penalties and procedures for a breach thereof but provisions and Articles regulating the same were not adhered to, both in letter and in spirit, therefore, it was observed by the Supreme Court, that all said laws should be strictly complied with by all the relevant parties--- Supreme Court further observed that although the account of election expenditure was required to be submitted within thirty (30) days of the declaration of the result, the monitoring had to be done on a regular basis during the campaign period because after the campaign was over, it became difficult to get any evidence of election expenditure; that to overcome the phenomenon of filing of false returns of election expenses, the Election Commission must monitor election expenses from the day the holding of election was notified; that all expenses incurred in carrying out any election related activity, were legally required to be accounted for and it was precisely because of the failure to account for the same that election expenses incurred by each candidate ran into millions of rupees and exceeded the prescribed ceiling, and that all expenditure over and above the prescribed ceiling qualified as corrupt practice--- Supreme Court directed the Election Commission to exercise its rule making power to formulate procedures to monitor election expenses and deal with the corrupt practices committed in the election process in accordance with law; to ensure that the election was held justly, honestly and in accordance with law; to devise an expenditure monitoring mechanism, i.e. monitoring cell, surveillance system, media certification, etc., to monitor the election expenses, be they for the National Assembly, Senate, Provincial Assemblies or the Local Bodies; to hold meetings with the candidates and apprise them of the relevant laws/rules, receive from them statements of expenses on weekly basis by engaging election staff and carry out random inspection at different places; to enter all transactions relating to election expenses into with General Sales Tax (GST) registered firms/persons; to ensure that a candidate accounted for all the expenses immediately after the election was over, and to constitute election expenditure monitoring centers/teams to monitor day-to-day election expenditure incurred by the candidate.

Javaid Hashmi's case PLD 1989 SC 396; Rananjaya Singh v. Baijnath Singh AIR 1954 SC 749; Kanwar Lal Gupta v. Amar Nath Chawla AIR 1975 SC 308 = 1975 SCR (2) 269 ref.

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

----S. 49---Constitution of Pakistan, Arts.218(3) & 184(3)---Constitutional petition under Art.184(.3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Restriction on election expenses---Scope---Practice of taking out massive car rallies and use of expensive vehicles for transporting voters to and from polling stations---Effect and legality of such practices---By performing said practices candidates and parties end up incurring exorbitant expenses and exceed the ceiling prescribed by S.49 of the Representation of the People Act, 1976---Said practices also created a nuisance for the ordinary citizens and caused discomfort to the sick and students---Such rallies should not be allowed to travel long distances except if they had pre-arranged corner meetings at specific designated places, and such meetings should be notified to the ordinary public by the local administration, which must ensure that all candidates were accommodated---Supreme Court observed that substantial expenditure incurred in hiring and using transport had never been adequately monitored by the Election Commission and directed the Election Commission to take account of all expenditures incurred in the course of campaigning for activities that were directly and indirectly related and ancillary to the election process; to facilitate the voters by increasing the number of polling stations appropriately throughout the country so that the polling stations were not at a distance of more than two kilometers from the place of residence of voters; to take into consideration the suggestions made during the present proceedings and ban all private transport on Election Day; to consider alternative arrangement of transporting voters by vehicles, owned, rented or affiliated with the Election Commission, and to widely advertise the routes of such vehicles in the print and electronic media for information of the general public.

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

----Ss. 84 & 85---Constitution of Pakistan, Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Prohibition of public meetings and canvassing in or near polling stations---Scope---Practice of camping in vicinity of polling stations and handing over of 'perchis' to the voters---Effect and legality of said practices---By performing said practices the candidates, through their polling agents and supporters, influenced the voters and compromised the objectivity with which they were to cast their vote---Establishing camps near the polling stations on polling day and spending substantial amounts to canvass the voters to vote was clear violation of S.84 of the Representation of the People Act, 1976, on part of the candidates/supporters---Supreme Court observed that in order to ensure strict compliance with S.84 of the Representation of the People Act, 1976, the Election Commission might manage to dispatch extracts from the voters' list in the name of one or more persons living in a house much before the polling day by post, or to save the postage by annexing such extracts with any of the utility bills; that National Database and Registration Authority (NADRA) might be deputed to furnish details of the voters at their residences, which exercise was required to be completed at least seven (7) days before the polling day, and would facilitate a voter to exercise his right of franchise independently with full application of mind and without influence from the candidate or his supporters, and that if need be, instead of involving employees of Provincial Governments, the employees of Federal Government/ autonomous organizations/agencies, including the armed and para-armed forces might be instructed to carry out stipulated functions at the polling stations.

(z) Constitution of Pakistan---

----Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Fair and transparent election---Significance---Fair and transparent election rested at the heart of a democratic system, therefore, any effort which cultivated a complimentary political culture should be encouraged.

(aa) Representation of the People Act (LXXXV of 1976)

----S. 83A---Constitution of Pakistan, Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Affixation of posters, hoardings or banners, wall chalking and use of loud speakers---Enforcement of provisions against said practices---Scope--- Supreme Court directed that District (Zila) Nazim and the Returning Officer should ensure the effective implementation of provisions provided in S.83A(1) of the Representation of the People Act, 1976---Supreme Court observed that concerned authorities had never taken any steps to enforce the said provisions, therefore directed the Election Commission to take all necessary steps to ensure compliance and enforcement thereof.

(bb) Constitution of Pakistan---

----Art. 184(3)---Representation of the People Act (LXXXV of 1976), Preamble---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Practice of door to door campaigning---Significance---Door-to-door campaigning was an effective means of establishing communication between the candidate and the voter---Such a campaign strategy demonstrated the candidate's resolve, commitment and level of interest in his/her community.

(cc) Constitution of Pakistan---

----Arts. 218 & 184(3)---Representation of the People Act (LXXXV of 1976), Preamble---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Measures to achieve the objective of fair, free, just and honest elections---Scope---Supreme Court directed the Election Commission to frame rules and issue instructions to provide legal sanction to different measures, namely, door-to-door campaign, manifesto, canvassing on State television and radio, and candidate-voter interaction/debates, etc. as appropriate and implement the same.

(dd) Constitution of Pakistan---

----Arts. 218(3), 219(a), 222(c) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Preparation/revision of electoral rolls---Scope---Supreme Court observed that fair, free, honest and just elections were sine qua non for strengthening of democracy and to achieve said goal, accurate preparation/revision of electoral rolls was immediately required to be undertaken by the Election Commission through credible and independent agencies, and that conventional ways and means of merely depending upon National Database and Registration Authority (NADRA) alone or other similar bodies had to be discontinued immediately---Supreme Court directed the Election Commission to undertake door-to-door checking of voters' lists and if needed, complete the process of updating/revision of the electoral rolls by engaging the Army and the Frontier Corps.

Imran Khan v. Election Commission of Pakistan (Constitution Petition No.31 of 2011 and Ms. Banazir Bhutto v. Federation of Pakistan (Constitution Petition No.45 of 2007) ref.

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

----S. 67(1A)---Constitution of Pakistan, Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Election Tribunal---Delay in disposal of election petitions---Section 67(1A) of the Representation of the People Act, 1976, mandated that an Election Tribunal must adjudicate a petition within three (3) months, but said provision in the observation of the Supreme Court was violated more often than not, therefore, there was a need to adhere to the procedure laid down for resolving election disputes expeditiously and ensure completion of whole process including appeals within 120 days---Supreme Court further observed that corrective measures were required to be taken by the Election Commission to ensure that the election disputes were resolved at the earliest, and that the Election Commission might also consider establishing a panel of lawyers well conversant with election laws at the State expense to provide free legal services to the marginalized segments of society and take other steps it considered appropriate.

(ff) Constitution of Pakistan---

----Preamble, Arts. 51 & 184(3)---Representation of the People Act (LXXXV of 1976), Preamble---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Scope of Art.51 of the Constitution---Election of members of the National Assembly---Low voter turn-out---Effect---Candidates securing an insignificant majority of the votes casted, elected as representatives of the people---Effect---Article 51 of the Constitution was an embodiment of the democratic spirit of the Constitution and prescribed the mechanism for the selection and establishment of a democratically elected government---Article 51 of the Constitution entitled every person to cast their vote if they met the requirement mentioned therein, which enabled all eligible individuals to participate in the political process of the country and to thereby, select as well as set a democratic government in motion---Constitutional dictate of establishing a democratic government was realized through the operation of Art.51 of the Constitution and any failure or shortfall in the operation thereof would substantially undermine the legitimacy of an elected democratic government and would also have the effect of isolating the electorate from the democratic process and render the elected government, democratic in form, but not in spirit---Supreme Court observed that individuals who stood elected by securing an insignificant majority of the votes casted, could not legitimately claim to be the representative of the people; that an election which suffered from a poor voter turnout could not be said to be effectuating the true spirit of democracy, as envisioned by the Constitution, and that necessary steps must be taken to ensure that the Constitutional dictate of nurturing and being governed by democratic ethos was honoured in letter and spirit.

(gg) Constitution of Pakistan---

----Preamble, Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Compulsory voting---Significance and effect---Supreme Court observed that the Election Commission was obliged to ensure that all elections witnessed a substantial participation of the electorate, therefore, by making voting compulsory and attaching sanctions for its violation, the Election Commission and/or the appropriate body could resolve the problem of low voter turn-out and bring existing election-related processes in line with the dictates of the Constitution---Supreme Court further observed that all necessary steps must be taken to make voting compulsory in Pakistan as early as possible, as such an initiative would have the effect of strengthening democracy by giving effect to the constitutional mandate that the Government shall be run by the chosen representatives.

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

----S. 42---Constitution of Pakistan, Preamble & Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---"First Past the Post" (FPTP) voting system---Drawbacks---According to "First Past the Post" (FPTP) system of election, the candidate securing the highest number of votes was the winner, which meant that the winning candidate did not necessarily receive an absolute majority of all votes casted---Members of the Parliament who claimed themselves to be representatives of people, according to the "First Past the Post" (FPTP) voting system, might not command the majority of the votes registered and polled, therefore, they might not genuinely represent their electorate---Such phenomenon was perpetuated by defective electoral laws, especially S.42 of the Representation of the People Act, 1976, which was based on "First Past the Post" (FPTP) voting system---Supreme Court observed that in order to make the electoral system democratic and representative the only remedy laid in the adoption of re-polling (runoff) in those electoral constituencies where there was no clear winner who had secured at least or more than 50% of the votes polled, and that in the fresh polling between the two leading candidates anybody who secured majority votes should be declared successful.

Mir Salim Khan Khosa v. Chief Election Commissioner 2002 SCMR 109 ref.

(ii) Words and phrases---

----"Majority votes"---Definition.

Black's Law Dictionary, 6th Edn., p.955 ref.

(jj) Constitution of Pakistan---

----Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Ballot papers---List of candidates' names---"None of the above" option---Effect and scope---Supreme Court observed that if the vote was an expression of the electorate's choice, then the electorate should also be given the option to express their dissatisfaction with the candidates; that a 'None of the above' option would serve to give effect to such purpose; that with a 'None of the above' option, the electorate would be in a position to claim greater ownership of their constituencies and would be able to exercise their own decision-making powers by nominating appropriate candidates, and that the concerned authority should consider adopting the said option.

(kk) Constitution of Pakistan---

----Arts. 16, 17, 19, Parts II [Arts.7 to 40] & III [Arts.41 to 100], Arts.218(3) & 184(3)---Representation of the People Act (LXXXV of 1976), Preamble---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Supreme Court disposed of the petition with the observations that freedom of association, as enunciated by Art.17 of the Constitution, conferred a Fundamental right on every individual to partake in the political governance of the State, whilst concurrently reinforcing the constitutional mandate to protect and advance said right through a democratic system; that 'freedom of assembly' (Art.16 of the Constitution) and 'freedom of speech' (Art.19 of the Constitution) also served to realize the same constitutional imperative; that by guaranteeing the observance of 'principles of democracy' and mandating that the "State shall exercise its powers and authority through the chosen representatives of the people", the Constitution instructed that the authority to govern be exercised by and through a representative and democratic government; that conferment of such authority had been framed with an ardent dedication 'to the preservation of democracy' and, therefore, encapsulated it as one of its core values; that Part II and III of the Constitution cemented 'democracy' as the chosen system of the people and a fundamental constitutional dictate; that the Constitution mandated the Election Commission to organize and conduct the election and to make such arrangements as were necessary to ensure that the election was conducted honestly, justly, fairly and in accordance with law, and corrupt practices were guarded against; that the Representation of the People Act, 1976 vested the Election Commission with the responsibilities and powers to, inter alia, regulate election expenses, provide for offences, penalties and procedures in case of breach of conditions relating thereto, resolve all election disputes, declare the election void, etc.; that the constitutional requirement to hold elections fairly, freely, honestly, justly and in accordance with law obligated the Election Commission to exercise all powers vested in it to the best of standards and norms; that public power was a sacred trust, which was to be exercised fairly, justly, honestly and in accordance with law and wherever any discretionary power was vested in a public authority or functionary, that too, was to be exercised to achieve the goal of fair, free, honest and just discharge of sacred trust; and that the impugned election practices and processes were cognizable by the Election Commission and were required to be dealt with in accordance with the Constitution and the law.

(ll) Constitution of Pakistan---

----Arts. 218(3), 16, 17, 19 & 184(3)---Representation of the People Act (LXXXV of 1976), Preamble---Constitutional petition under Art.184(3) of the Constitution concerning election laws and prevailing electioneering and campaigning practices---Supreme Court directed that all the election laws should be strictly implemented by the Election Commission in the discharge of its constitutional mandate under Art.218(3) of the Constitution, Representation of the People Act, 1976, and other laws/rules; that Election Commission was empowered to check not just illegal actions relating to the election (violating the limits set for campaign finance, etc.) or corrupt practices (bribery, etc.), but was also empowered to review all election activities, including "Jalsas", "Jaloos", use of loudspeakers, etc. for their effects on the standards of 'fairness, justness and honesty' that elections were expected to meet; that the Election Commission was also empowered to take pre-emptive measures to ensure that the spirit of democracy and 'fairness, justness and honesty' of elections was fully observed; that the Election Commission must undertake monitoring of the election expenses from the day the holding of election was notified; that a candidate must account for all the expenses immediately after the election was over; that the Election Commission must hold meetings with the candidates and apprise them of the relevant laws/rules, receive from them statements of expenses on weekly basis by engaging election staff and carry out random inspection at different places; that all transactions relating to election expenses should be entered into with General Sales Tax (GST) registered firms/persons; that the number of polling stations might be increased appropriately throughout the country so that the polling stations were not at a distance of more than two kilometers from the place of residence of voters; that the Election Commission might take into consideration the suggestions made during the present proceedings, including the provision of official transport to the voters, but in no case, should it allow the candidates to hire/use private transport on election day; that where arrangement for transport was made by the Election Commission, the routes of such transport should be widely advertised in the print and electronic media for information of the general public; that with regard to handing over of "Perchis" to the voters at election camps, the Election Commission must take steps to provide the requisite information to the voters by other means; that establishing of camps near the polling stations should be banned immediately; that the Election Commission might manage to dispatch extracts from the voters' list in the name of one or more persons living in a house at least seven (7) days before the polling day by post, or to save the postage by annexing such extracts with any of the utility bill; that only those election campaign activities should be permitted, which on the one hand fulfilled the purpose of the election campaign, and on the other were within the reach of the common man; that the Election Commission should encourage certain activities based on their merit, namely, door-to-door campaign, manifesto, canvassing on State television and radio, and candidate-voter interaction/debates, etc.; that instead of involving the employees of the Provincial Governments, the employees of Federal Government/ autonomous organizations/agencies, including the armed and para-armed forces might be instructed to carry out stipulated functions at the polling stations; that the Election Commission was expected to take effective steps in regard to computerized balloting at an appropriate time; that the Election Commission should undertake door-to-door checking of voters' lists and complete the process of updating/revision of the electoral rolls by engaging Army and the Frontier Corps to ensure transparency, if need be; that the Election Commission had to ensure that the election disputes were resolved at the earliest, for which it might consider establishing a panel of lawyers well conversant with election laws at the State expense to provide free legal services to marginalized segments of society; that all necessary steps must be taken to make voting compulsory as early as possible; that the voting system of 'First Past the Post' violated the principle of majority, therefore, the Election Commission might explore ways and means to introduce appropriate system of election including 'run-off election' and 'none of the above options' to ensure true representation of the people and rule of the majority, and that the Election Commission should frame rules and issue instructions to provide legal sanction to all said measures and implement the same to achieve the ultimate objective of fair, free, just and honest election.

Abid Hassan Minto, Senior Advocate Supreme Court, Bilal Hassan Minto, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Dil Muhammad Alizai , DAG, Syed Safdar Hussain Shah, Advocate-on-Record, Syed Sher Afgan, D.G. (Elections) and M. Nawaz, Director for Election Commission of Pakistan.

Khalid Khan, Advocate Supreme Court for ANP.

Dr. Farogh Naseem, Senior Advocate Supreme Court for MQM.

Dr. Khalid Ranjha, Senior Advocate Supreme Court and Syed Nayab H. Gardezi, Advocate Supreme Court for PML(Q).

M. Rafique Rajwana, Advocate Supreme Court and Naseer Ahmed Bhutta, Advocate Supreme Court for PML(N).

Hamid Khan, Senior Advocate Supreme Court, Waqar Rana, Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for PTI.

Taufique Asif, Advocate Supreme Court for JI.

Salman Akram Raja, Advocate Supreme Court assisted by Malik Ghulam Sabir, Barrister Sahar Asif and Malik Ahsan Mehmood for APP.

Abdul Wahab Baloch, Advocate Supreme Court, Syed Jalal Shah, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for SUP.

Nemo for other Political Parties.

Amir Ahmed Ali, DC, Ibd. and Syed Muzaffar Ali, Manager (L) NADRA (On Court notice).

Dates of hearing: 9th, 10th, 11th, 12th, 16th, 17th, 18th, 19th and 20th April, 2012.

P L D 2012 Supreme Court 758

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

Mst. NADIA PERVEEN---Petitioner

Versus

Mst. ALMAS NOREEN and others---Respondents

Criminal Petition No.127-L of 2010, decided on 19th May, 2011.

(On appeal from the order dated 1-2-2010 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.89-H of 2010)

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

----S. 491---Guardians and Wards Act (VII of 1890), S.12---Habeas corpus petition before the High Court for recovery of minors---Scope---Conditions.

Matter of custody of minor children can be brought before a High Court under section 491, Cr.P.C. only if the children are of very tender ages they have quite recently been snatched away from lawful custody and there is a real urgency in the matter. In such a case the High Court may only regulate interim custody of the children leaving the matter of final custody to be determined by a Guardian Judge.

Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 and Naziha Ghazali v. The State and another 2001 SCMR 1782 ref.

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

----S. 491---Guardians and Wards Act (VII of 1890), S.12---Habeas corpus petition before the High Court for recovery of minors---Jurisdiction of High Court---Scope.

Jurisdiction of a High Court under section 491, Cr.P.C. for recovery of minors, is to be exercised, sparingly and such exercise may be undertaken only in exceptional and extraordinary cases of real urgency keeping in view that even a Guardian Judge has the requisite powers of recovery of minors and regulating their interim custody.

Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Nisar Muhammad and another v. Sultan Zari PLD 1997 SC 852; Mst. Khalida Perveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 and Naziha Ghazali v. The State and another 2001 SCMR 1782 ref.

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

----S. 491---Constitution of Pakistan, Art.185(3)---Habeas corpus petition before the High Court for recovery of minors---Said petition was dismissed by the High Court on the ground that the mother (petitioner) had left her children on her own and they were not removed from her custody, therefore, it could not be said that the children were being illegally detained by the respondent---Validity---Children in the present case, were neither of very tender ages nor had they been snatched away from their mother and, thus, the petition filed before the High Court under S.491, Cr.P.C. was misconceived---Guardian Judge had already appointed the paternal grandmother of the minors as the guardian of their persons and properties---Said decision of the Guardian Judge had not been assailed by the mother before any higher court---Petition for leave to appeal was dismissed, in circumstances.

Aftab Gul, Advocate Supreme Court with petitioner in person.

Tahir Munir Malik, Advocate Supreme Court for Respondent No.1.

Date of hearing: 19th May, 2011.

P L D 2012 Supreme Court 760

Present: Mian Saqib Nisar, Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ

Mst. KAUSAR PARVEEN---Appellant

Versus

MUHAMMAD IQBAL---Respondent

Civil Appeal No.211-L of 2010, decided on 18th June, 2012.

(On appeal from the order dated 15-5-2007 of the Lahore High Court, Lahore passed in Civil Revision No.85 of 2007).

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss.30 & 31---Pre-emption suit---Limitation period---Determination---No notice of sale published/issued as required under S.31 of Punjab Pre-emption Act, 1991--- Contention of the pre-emptor (appellant) was that S.30(a) of the Punjab Pre-emption Act, 1991, was subject to provisions of S.31 of the said Act, as no notice of sale had been published/issued as required by S.31 of the said Act, the limitation period would commence from the date of pre-emptor's knowledge as per S.30(d) of the said Act---Validity---Sections 30 and 31 of Punjab Pre-emption Act, 1991, were independent of each other having no effect and impact on each other---Although S.31 of the said Act mandated that a public notice must be issued in terms thereof, but by no stretch of the imagination S.31 of the Act could be held to regulate and control the period of limitation prescribed by S.30 of the Act---If the intention of the legislature was to make the period of limitation subject and subservient to the requirements of S.31 of Punjab Pre-emption Act, 1991, the legislature would have clearly indicated its intention by use of appropriate expression and/or words in either of the two sections---Section 30 of Punjab Pre-emption Act, 1991, could not be read into by implication or on the basis of any other rule of interpretation---Requirement of notice under S.31 of the Act was not a condition precedent for computing the period of limitation and it could not be held that in the absence of the notice, the date of knowledge should be the starting point of the four months limitation period---Appeal was dismissed, in circumstances.

Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 and Qasim Ali v. Rehmatullah 2005 SCMR 1926 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 30---Pre-emption suit---Limitation period---Scope---Section 30 of Punjab Pre-emption Act, 1991, had four parts/components, each of which was a separate and independent provision in itself contemplating different eventualities for the purpose of limitation of four months---Section 30(d) of the Act was not an exception to sub-clauses (a), (b) and (c) of the said section, rather it was a residual provision and would only come into play where none of the preceding clauses to it were applicable/attracted---Appeal was dismissed accordingly.

M. Farooq Qureshi Chisthti, Advocate Supreme Court for Appellant.

Ch. Inayat Ullah, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 18th June, 2012.

P L D 2012 Supreme Court 764

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Ijaz Ahmad Chaudhry, JJ

Hafiz MUHAMMAD RAMZAN---Petitioner

Versus

MUHAMMAD BAKHSH---Respondent

Civil Petition No.1134-L of 2008, decided on 25th June, 2012.

(Against the judgment dated 15-7-2008 of Lahore High Court, Multan Bench in Civil Revision No.246-D of 2008).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 24---Constitution of Pakistan, Art.185(3)---Pre-emption suit---Deposit of zar-e-soem of the property---Timeframe/period fixed for such deposit---Scope---Failure to deposit zar-e-soem of the property---Effect---Pre-emptor (petitioner) had instituted a suit for pre-emption but failed to deposit the zar-e-soem within thirty days, as directed by the Trial Court---Subsequently the pre-emptor, rather than moving an application for extension of time, moved an application asking for permission to deposit the zar-e-soem, which application was allowed by the Trial Court "subject to provisions of law of Pre-emption 1991"---Contentions of the pre-emptor were that by allowing his subsequent application, the court had allowed him to make the deposit for which no time was fixed, and in such circumstances the deposit made by him was within the 30 days period---Validity---Court was under a legal obligation and had to mandatorily require the pre-emptor to deposit the zar-e-soem and for that purpose it had a discretion to fix a specific time frame-Such time frame/period, in view of proviso to S.24(1) of the Punjab Pre-emption Act, 1991, could not exceed 30 days, rather it was a specific constraint on the jurisdiction/discretion of the court---Any order of the court permitting the pre-emptor to make the deposit beyond 30 days would be in violation of the law and thus illegal and untenable in the eyes of the law---Where the pre-emptor failed to make the deposit in terms of S.24(1) of the Punjab Pre-emption Act, 1991, his suit was liable to be dismissed in view of S.24(2) of the Act---Suit of the pre-emptor, in the present case was liable to be dismissed as he failed to make the deposit in terms of the order of the Trial Court (30 days' time)---Trial Court under no circumstances had the jurisdiction and authority to extend the statutory fixed time of 30 days---Subsequent application filed by the pre-emptor, deliberately did not mention the fact that statutory time for deposit had already lapsed, and the Trial Court, in order to avoid any legal implications quite appropriately allowed the application "subject to provision of law of Pre-emption, 1991", meaning thereby that neither any time was extended nor the court permitted the pre-emptor to make the deposit by enabling him to avail a fresh period---Case of the pre-emptor was squarely hit by S.24(2) of Punjab Pre-emption Act, 1991, and his suit was liable to be dismissed, as done by all the courts below---Petition for leave to appeal was dismissed, in circumstances.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 24---Pre-emption suit---Deposit of zar-e-soem of the property---Nature and scope---Object of such a deposit was to guarantee the vendee against frivolous proceedings by the possible pre-emptor and was a token of good faith on the part of the pre-emptor.

Sanwal Das v. Jaigo Mal and others AIR 1924 Lah. 68 and Mst. Sakina Begum v. Mst. Surat Bibi 1991 CLC 398 ref.

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

----S. 148---Extension of time for performance of an act---Discretion of the court---Scope---Power/discretion of the court to extend time as envisaged by S.148, C.P.C was only available to the court where the time had been fixed by the court itself or under the Civil Procedure Code, 1908, but where the time for the performance of an act had been fixed by some other statute, the court in terms of S.148, C.P.C had no jurisdiction at all to enlarge and extend that time.

Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 25th June, 2012.

P L D 2012 Supreme Court 769

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD ANWAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 229-L of 2012 in J.P. No. 88 of 2011 along with Criminal Petition No.122-L of 2011 decided on 26th June, 2012.

(On appeal from the judgment dated 21-1-2011 in Criminal Appeal No.173-J of 2006 and M.R.No.384 of 2006 passed by the Lahore High Court, Lahore).

Penal Code (XLV of 1860)---

----Ss. 323 & 302(b)---Criminal Procedure Code (V of 1898), S.345---Constitution of Pakistan, Art.185(3)---Qatl-e-amd---Compromise between the parties---Nature---Value of diyat---Determination---Diyat amount was payable to legal heirs of the deceased at the rate prevalent at the time of the compromise and not the commission of the offence---Scope---Accused (applicant) was sentenced to death by the Trial Court under S.302(b), P.P.C, with a direction to pay Rs.50,000 as compensation to the legal heirs of the deceased---High Court on appeal, converted death sentence of the accused into imprisonment for life but maintained payment of compensation---Subsequently the mother, widow and son of the deceased recorded their statements stating that they had forgiven the accused in the name of Allah without accepting Badl-e-Sulah---Widow of the deceased stated that she had accepted land and Defence Saving Certificates in the name of her minor children, according to their share of Diyat amount being their Wali---Compromise between the parties was genuine and had been effected with their own free will and consent without external pressures, however Diyat amount had been paid to the minor legal heirs of the deceased at the rate prevalent at the time of the commission of the offence---Validity---Compromise between the legal heirs of the deceased and the convict was a type of a contract---Where the legal heirs of the deceased made a statement before the court pardoning the convict, they would get Badl-e-Sulah in the shape of Diyat amount and where they forgave the convict in the name of Allah, they would get reward thereof from Allah---Where the natural guardians i.e. mother or father of the minors legal heirs of the deceased, forgave the convict, the interest of minors was to be safeguarded by paying them their due share as Diyat amount according to the rate of Diyat prevailing at the time of arriving at the compromise between the parties, as the contract could not have retrospective effect---Section 323, P.P.C, made it clear that the value of Diyat should not be less than the value of thirty thousand six hundred and thirty grams of silver, therefore, it was apparent that the rate of Diyat in vogue at the time of compromise should be applicable and not the rate prevailing at the time of commission of the offence---Compromise, in the present case, had been effected in the financial year 2011-12, therefore, the rate of Diyat declared by the Government vide its notification for the year 2011, was payable to the minor legal heirs of the deceased---Parties were allowed to compound the offence subject to the payment of Diyat to the minor legal heirs of the deceased---Application of the accused was accepted and his petition for leave to appeal was converted into appeal and allowed and he was acquitted of the charge.

2012 SCMR 437 rel.

Ms. Tasneem Amin, Advocate Supreme Court/Advocate-on-Record for Applicant/Petitioner (in Crl.M.A.&JP).

Nemo for Petitioner (in Crl.P.No.122-L of 2011).

Mazhar Sher Awan, Addl. P.G. Punjab for the State.

Date of hearing 26th June, 2012.

P L D 2012 Supreme Court 774

Present: Iftikhar Muhammad Chaudhry, C J, Jawwad S. Khawaja and Khilji Arif Hussain, JJ

MUHAMMAD AZHAR SIDDIQUI and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 40 to 47, 50 of 2012 and C.M.As. Nos.2494 to 2496 of 2012, decided on 19th June, 2012.

Per Iftikhar Muhammad Chaudhry, CJ; Jawwad S. Khawaja and Khilji Arif Hussain JJ, agreeing.

(a) Constitution of Pakistan---

----Arts. 63(2), 204(2), 9, 10A, 14, 17, 25 & 184(3)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Maintainability---Contentions of the Prime Minister (respondent) were that the petitions did not meet the requirements of Art.184(3) of the Constitution of Pakistan, viz., the involvement of a question of public importance with reference to enforcement of any of the Fundamental Rights; that the petitioners had not identified as to which of their fundamental rights stood violated, and that all the petitioners had not approached the court with clean hands, inasmuch as they were using the court to settle political scores and with the object of seeking public sympathy and votes for the upcoming election--- Contentions of the petitioners were that they had approached the court for the vindication of their Fundamental Rights as enshrined in Arts.10A, 14, 17 and 25 of the Constitution and for ensuring obedience to the Constitution and the law, which was the inviolable obligation of every citizen; that the action of the Speaker, in not sending the reference to the Election Commission ran contrary to the principle of independence of the judiciary and also infringed the Fundamental Right of access to justice, and that the conviction of the Prime Minister, ipso facto, made it a question of public importance---Validity---Prime Minister stood convicted by the Supreme Court for wilfully, deliberately and persistently defying a direction issued in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), and such persistent defiance at the highest level was considered substantially detrimental to the administration of justice, and as tending not only to bring the Supreme Court, but also the entire judiciary into ridicule---Ruling of the Speaker by which she declared that no question of disqualification of the Prime Minister had arisen despite a concluded judgment of the Supreme Court defied the principles of independence of the judiciary and trichotomy of powers, and also constituted a violation of the due process clause under Art.10A of the Constitution---Such circumstances made the present petitions suitable for invoking the original jurisdiction of the Supreme Court---Present petitions raised a question of public importance with reference to the enforcement of Fundamental Rights enshrined in Arts.9, 10A, 14, 17 & 25 of the Constitution and met the requirement of Art.184(3) of the Constitution, therefore, they were maintainable.

Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Syed Kabir Ahmad Bukhari v. Federation of Pakistan 1988 SCMR 1988; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; In re: Corruption of Hajj Arrangements PLD 2011 SC 963 and Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407 ref.

(b) Constitution of Pakistan---

----Arts. 184(3), 185(3), 188, 63(1)(g), 4, 10A & 204(2)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Right to appeal against decision of the present petitions---Scope---Contentions of the Prime Minister were that the petitioners had directly invoked the jurisdiction of the Supreme Court under Art.184(3) of the Constitution, and in case they succeeded in getting the relief, the Prime Minister would be deprived of the right of appeal under Art.185(3) of the Constitution, which was included in the right to fair trial and due process enshrined in Art.10A read with Art.4 of the Constitution---Validity---Where a judgment was pronounced by the Supreme Court in exercise of its original jurisdiction under Art.184(3), although an aggrieved person had the right to seek review thereof under Art.188 of the Constitution, but the framers of the Constitution in their wisdom had not provided a right of appeal against it---Legislature was presumed to know the state of law as it existed, and as such, no premium could be allowed to be made on account of any provision of the Constitution or the law---Contention of the Prime Minister was unfounded and rejected, in circumstances.

Abdul Haq v. Muhammad Yasin PLD 1956 Lah. 209; Pakistan v. General Public PLD 1989 SC 6; Jamat-e-Islami v. Federation of Pakistan PLD 2008 SC 30; All Pakistan News Paper Society v. Federation of Pakistan PLD 2012 SC 1 and Ghulam Mustafa v. General Manager 2012 PLC (C.S.) 617 distinguished.

(c) Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Scope---Right to claim review of any decision of a court of law, like the right of appeal was a substantive right and not a mere matter of procedure---Review was not available unless it had been so conferred by law.

Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1 ref.

(d) Constitution of Pakistan---

---Arts. 63(2), 63(1)(g), 204(2), 175(2) & 184(3)---Contempt of Court Ordinance (V of 2003), Ss.3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Conviction of the Prime Minister by the Supreme Court---Question of disqualification of the Prime Minister---Role of the Speaker, National Assembly, in such circumstances---Scope---Contentions of the petitioners were that after the pronouncement of the conviction of the Prime Minister, the Speaker was bound to refer the matter to the Election Commission for issuance of notification of disqualification of the Prime Minister, and that the Speaker was not legally empowered to sit in judgment over a matter, which had been finally adjudicated upon by the Supreme Court---Contentions of the Prime Minister were that the Speaker had the power and jurisdiction to decide the question of disqualification of the Prime Minister by applying her independent mind as she was not a mere post office; that there was no such thing as automatic application of Art.63(1)(g) of the Constitution, and that the Supreme Court had no role to play in matters to be decided either by the Speaker of the National Assembly or eventually by the Election Commission---Validity---Prime Minister had been convicted by the Supreme Court under Art.204(2) of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003 for wilfully flouting, disregarding and disobeying the Supreme Court's direction and was sentenced to imprisonment "till rising of the Court", which was duly undergone by him---Prime Minister did not file an appeal against the said judgment, therefore, the judgment attained finality entailing all the consequences, including his disqualification from being a Member of the Parliament on and from the day and time of his conviction and sentence---Speaker, in such circumstances, was not required to take upon herself the exercise of deciding whether a question of disqualification of the Prime Minister had arisen---As soon as the judgment of conviction and sentence was passed by the Supreme Court against the Prime Minister there was no doubt whatsoever that a question of his disqualification had arisen under Art.63(1)(g) of the Constitution---Speaker, in such circumstances, ought to have referred the question of the Prime Minister's disqualification to the Election Commission within the prescribed time of 30 days---Speaker of National Assembly effectively made an attempt to overrule the judgment of the Supreme Court passed by it in exercise of its jurisdiction conferred upon it under Art.175(2) of the Constitution---Speaker, by interfering in a concluded judgment on contempt of Supreme Court, had gone beyond the jurisdiction available to her under the Constitution.

Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265; A.K. Fazlul Quadir Chowdhry v. Shah Nawaz PLD 1966 SC 105; Abdul Hamid Dogar, Former Judge v. Federation of Pakistan PLD 2011 SC 315; Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan 2012 SCMR 422; Justice Hasnat Ahmad Khan v. Federation of Pakistan/State PLD 2011 SC 680 and Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.

Kanwar Intezar Muhammad Khan v. Federation of Pakistan 1995 MLD 1903 and Ayatullah Dr. Imran Liaqat Hussain v. Election Commission of Pakistan PLD 2005 SC 52 distinguished.

(e) Constitution of Pakistan---

----Arts. 184, 185 & 199---System of constitutional governance---Role of judiciary---Scope---Judiciary, in such a system, was assigned the role of interpreting and applying the law, adjudicating upon disputes arising among governments or between State and citizens or citizens inter se and enforcing the fundamental rights.

(f) Constitution of Pakistan---

----Arts. 184(3) & 199---Original jurisdiction of the Supreme Court/High Court---Action or decision of the Executive---Interference by the judiciary---Scope---Where the action or decision in question was perverse or was such that no reasonable body of persons, properly informed could come to, or was arrived at by misdirecting itself and adopting a wrong approach or was influenced by irrelevant or extraneous matters, the court would be justified in interfering with the same.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; In re: Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963; Tariq Aziz-ud-Din's case 2010 SCMR 1301; "Suo Motu Case No.5 of 2010 (Liquefied Natural Gas case) PLD 2010 SC 731; Wattan Party v. Federation of Pakistan PLD 2006 SC 697; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; In the matter of: Human Rights Cases Nos. 4668 of 2006 etc. (F.9 Park) PLD 2010 SC 759 and SMC No.13 of 2009 regarding Multi Professional Housing Societies PLD 2011 SC 619 ref.

(g) Constitution of Pakistan---

----Arts. 63(2), 63(1)(a), (g) & (h)---Conviction of a Member of Parliament by a court of competent jurisdiction---Role of Speaker---Scope---When conviction of a member of Parliament by a court of competent jurisdiction was placed before the Speaker, she was bound to make a reference to the Election Commission and could not instead sit in judgment over it in the garb of an exercise of power under Art.63(2) of the Constitution---Speaker did not enjoy an appellate authority or a review jurisdiction to look into the merits of the judgment, nor did she have the power to set such a conviction aside---Where the court specifically noted that it was convicting a person for the kind of offence that would form the basis of disqualification under Art.63(1) (a), (g) and (h) of the Constitution, the Speaker had no choice but to refer the matter to the Election Commission under Art.63(2) of the Constitution.

(h) Constitution of Pakistan---

----Arts. 63(2), 69, 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Function of the Speaker under Art.63(2) of the Constitution---Scope---Ruling of the Speaker under Art.63(2) of the Constitution---Nature---Such ruling of the Speaker could be subject to judicial review/ scrutiny---Scope---Contentions of the Prime Minister were that the jurisdiction of the Supreme Court was barred under Art.69(1) of the Constitution because the Speaker was the Member of Parliament, therefore, her ruling fell within the ambit of internal proceedings and the Court had no jurisdiction to interfere with the same; that the Supreme Court had no role to play in the matter of disqualification of a member of the Parliament, which was to be decided either by the Speaker of the National Assembly or eventually by the Election Commission; that the Speaker of the National Assembly was not bound by the judgment of the Supreme Court, and that the Constitution itself had specifically empowered the Speaker to decide the question of disqualification of a member of the Parliament, therefore, the decision of the Speaker was sui generis and adjudicatory in nature---Validity---Under Art.63(2) the Speaker's function was not part of the parliamentary process and he/she performed the administrative task of determining whether a question of disqualification had arisen and if in doing so he/she went beyond the constitutional remit, misapplied the applicable law or misused discretion, then his/her decision would be reviewable---Article 69 would not provide such a ruling any immunity from judicial review---Ruling of the Speaker in the matter of referring a case to the Election Commission under Art.63(2) of the Constitution wherein a question of disqualification of a Member of the Parliament had arisen, or where the Speaker decided that no such question had arisen, was amenable to the jurisdiction of the superior courts---Ruling of the Speaker, in the present case, was open to judicial scrutiny by the superior Courts by virtue of Art.69 of the Constitution because it did not fall within the "proceedings" of the Majlis-e-Shoora (Parliament) or conduct of business of the Parliament within the contemplation of Art.69 of the Constitution.

Ayatullah Dr. Imran Liaqat Hussain v. Election Commission of Pakistan PLD 2005 SC 52 and Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 ref.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Muhammad Naeem Akhtar v. Speaker, Sindh Provincial Assembly 1992 CLC 2043; Shams-ud-Din v. Speaker, Balochistan Provincial Assembly 1994 MLD 2500; Mining Industries of Pakistan (Pvt.) Ltd. v. Deputy Speaker, Balochistan Provincial Assembly PLD 2006 Quetta 36; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407; Ravi S. Naik v. Union of India AIR 1994 SC 1558; Mayawati v. Markandeya Chand [(1998) 7 SCC 517]; Jagjit Singh v. State of Haryana AIR 2007 SC 590; Rajendra Singh Rana v. Swami Prasad Maurya AIR 2007 SC 1305 and D. Sudhakar v. D.N. Jeevanraju (Civil Appeals Nos.4517-4521 of 2011) rel.

(i) Constitution of Pakistan---

---Arts. 63, 14 & 204(2) --- Contempt of Court Ordinance (V of 2003), Ss.3 & 5--- Member of Parliament (chosen representative) convicted and sentenced for contempt of court and disqualified as a consequence---Right of citizens not to be governed by such a representative---Scope---Citizens had a right to be governed by the chosen representatives who were not disqualified to become, and from being members of the Majlis-e-Shoora (Parliament)---As soon as a member of the Majlis-e-Shoora (Parliament) incurred a disqualification in terms of Art.63 of the Constitution, he ceased to be a member---Citizens had the right to live with respect, honour and dignity as envisaged by Art.14 of the Constitution, therefore, they were to be governed by their representatives who had not been convicted or sentenced for contempt of court in pursuance whereof they were disqualified for a period of five years.

(j) Constitution of Pakistan---

----Arts. 184(3), 63 & 204(2)---Contempt of Court Ordinance (V of 2003), Ss.3, 5 & 19---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case--- Contentions (grounds) raised against the conviction of the Prime Minister for contempt of court during proceedings of present petitions under Art.184(3) of the Constitution---Legality---Said contentions (grounds) could have been raised in the appeal under S.19 of the Contempt of Court Ordinance, 2003---Bench of the Supreme Court, hearing the present petitions, in exercise of jurisdiction under Art.184(3) of the Constitution was not the appellate Court of the Bench which convicted the Prime Minister, therefore, said contentions could not be adjudicated upon in the present proceedings.

(k) Words and phrases---

----"Question"---Meaning.

Concise Oxford Dictionary of Current English; 8th Edn.; The Oxford English Dictionary, Vol. VIII and The American Heritage Dictionary of English Language, 4th Edn. ref.

(l) Constitution of Pakistan---

----Arts. 63(1)(g), 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), Ss.3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case-Conviction of Prime Minister for contempt of court---Such contempt of court tending to ridicule the judiciary---Effect---Contention of the Prime Minister was that every conviction, ipso facto, did not disqualify a person from being a Member of the Parliament---Validity---Prime Minister had been found guilty of contempt of court by the Supreme Court for wilfully, deliberately and persistently defying its clear direction after taking into consideration his conduct as the highest executive functionary of the State---Such wilful and persistent defiance at such a high level constituted contempt, which was substantially detrimental to the administration of justice, and tended not only to bring the Supreme Court but also the judiciary of the country into ridicule--- Word 'ridicule' had been used in Art.63(1)(g) of the Constitution, therefore, provision of disqualification was attracted--- Prime Minister after having been convicted and sentenced for contempt of Court, was disqualified, ipso facto, from being a Member of the Parliament.

(m) Constitution of Pakistan---

----Arts. 63(2), 63(1)(g), 204(2) & 184(3) --- Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Contention of the Prime Minister was that in case the court came to the conclusion that said ruling of the Speaker was not sustainable, then the matter might be sent back to the Speaker for fresh decision as per law---Validity---Speaker had a period of 30 days at her disposal to decide whether she agreed to send a reference or not---Although the Speaker ought to have decided the question much earlier because the affairs of the country were being run by a Member of the Parliament who had become disqualified after his conviction and sentence, against which neither any appeal was filed nor was it got suspended from the forum provided under the law, but the Speaker decided the matter just one day before the expiry of the period of 30 days provided for the purpose---Contention for remand, in circumstances, was not entertainable, inasmuch as the period of 30 days already had expired, the same could not be enlarged--- People were being governed by a disqualified Member of the Parliament and same was the position of the Cabinet, therefore, it was not in the interest of the country and the institution to remand the case.

Umar Draz Khan v. Muhammad Yousaf 1968 SCMR 880; Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260 and Begum B.H.Syed v. Afzal Jahan Begum PLD 1970 SC 29 distinguished.

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

(n) Constitution of Pakistan---

----Arts. 63(2)&(3) & 63(1)---Conviction of Member of Parliament recorded by a court of competent jurisdiction---Question of disqualification of such member referred by the Speaker to the Election Commission---Role and function of Election Commission in such circumstances---Scope---Where there was a conviction recorded by a competent court against a person, who was a Member of the Parliament, which had attained finality, the role and function of the Election Commission was confined to issuing notification of disqualification of the concerned Member on the basis of verdict of the court---Election Commission could not sit in appeal over a concluded judgment of a superior court, and had to decide the question in the affirmative that the convicted person had become disqualified, therefore, his/her seat should become vacant.

(o) Constitution of Pakistan---

----Arts. 63(1)(g), 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Disqualification of the Prime Minister---Decisions and actions performed by the Prime Minister on and from the date of his conviction (26 April, 2012) till date of his disqualification (19 June, 2012)---Legality---Prime Minister on having been convicted under Art.204(2) of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003 with effect from 26 April, 2012 stood disqualified from being a Member of the National Assembly and became a stranger to the House, but continued to hold the office of the Prime Minister contrary to the Constitution and the law---All the decisions made and the acts or actions performed or done by him during such period had no constitutional sanctity---Supreme Court observed that the Federal Government or the Provincial Governments, if needed, might refer such matters to the Parliament for the purpose of ratification of all those decisions, acts or actions.

Asma Jilani v. Government of Punjab PLD 1972 SC 139 and Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

(p) Constitution of Pakistan---

----Arts. 63(1)(g), 63(2) & (3) & 204(2)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Prime Minister convicted by the Supreme Court for contempt of court---No appeal filed against said conviction---Effect---Speaker via her ruling deciding not to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction---Validity and effect---Disqualification of the Prime Minister in terms of Article of 63(1)(g) of the Constitution---Scope--- Prime Minister after having been convicted by the Supreme Court for contempt of court became disqualified to be a Member of the Parliament in terms of Article of 63(1)(g) of the Constitution as he had not availed the remedies provided by law to get such a finding set aside---When the matter came before the Speaker, she ought not to have delayed the decision and to have referred it to the Election Commission immediately in view of the exigency of the circumstances, notwithstanding the fact that 30 days' period was available to her, and also keeping in mind that she was not the appellate authority of the Supreme Court, whose judgment of conviction had attained finality---Speaker by her ruling did not make a reference to the Election Commission and exceeded her jurisdiction---Said ruling of the Speaker was a nullity in the eyes of law---Article 63(2) of the Constitution stipulated that if the Speaker failed to decide if a question of disqualification had arisen within 30 days "it shall be deemed to have been referred to the Election Commission", therefore, the matter stood referred to the Election Commission---Election Commission, in turn, considering it a reference deemed to have been sent to it, issued the notification of disqualification of the Prime Minister in exercise of the power vested in it under Art.63(3) of the Constitution.

Per Jawwad S. Khawaja, J; agreeing with Iftikhar Muhammad Chaudhry, CJ and Khilji Arif Hussain, J.

(q) Constitution of Pakistan---

----Preamble & Third Sched.---Constitution supreme over all organs of the State, creating a balance between these organs---Scope---Contention was that elected members of Parliament alone represented the will of the people and, therefore, were not answerable to any other organ of the State including the Supreme Court---Validity---Elected representatives in Parliament and the Executive could not claim any primacy over and above the Constitution, which itself was supreme over all organs of the State because it manifested the will of the people---Such a fundamental principle was the hall-mark of democratic dispensation in Pakistan---Examination of the Constitution showed that the people in their wisdom had created a balance between Parliament, the Judiciary and the Executive---Division of powers in the Constitution with its distinct features, obliged the government and Parliament to themselves be controlled by constitutional norms and mechanisms---People of Pakistan had ordained that all three organs of the State were to function in accordance with the Constitution---With the object of ensuring that said organs of the State remained obedient to the Constitution, a simple and uncomplicated mechanism, which relied on the trichotomy of powers, had been set out in the Constitution.

Syed Yousaf Raza Gillani v. Assistant Registrar, Supreme Court of Pakistan PLD 2012 SC 466 and James Madison, in Federalist No.51 ref.

(r) Constitution of Pakistan---

----Art. 190---Implementation and enforcement of orders of the Supreme Court---Scope---Supreme Court did not have to exercise executive or enforcement powers on its own because this was not necessary in the light of Art.190 of the Constitution---People had willed that the Executive should implement and enforce any order passed by the Supreme Court.

(s) Constitution of Pakistan---

----Arts. 63(1)(g), 204(2), 190 & 184(3)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Right of people not to be represented by a person who had been disqualified under Art.63 of the Constitution---Scope---People, in the clearest possible terms, had stated that they would not allow themselves to be represented by a person who had or earned himself a disqualification under Art.63 of the Constitution---Supreme Court had convicted the Prime Minister on this count and by not appealing he had accepted the verdict of the court---Elected member of Parliament insisting upon disobeying constitutional orders and yet remaining insistent upon remaining a member of Parliament, amounted to defiance of the Constitution.

(t) Constitution of Pakistan---

----Arts. 63, 190 & 204---Disqualification of Prime Minister for contempt of the Supreme Court---Cumulative effect of Arts.190, 63 and 204 of the Constitution---Scope---Cumulative effect of said Articles of the Constitution effectively ensured adherence to the peoples' will embodied in the Constitution, which was an important and distinctive feature of the Constitution.

(u) Constitution of Pakistan---

----Art. 204---Power of the court to punish member of Parliament for contempt of court---Purpose and scope---Such a power ensured that the court was not a helpless bystander incapable of ensuring that the command of the people was fulfilled---Court could effectively perform the role of the peoples' sentinel and guardian of their rights by enforcing their will; even against members of Parliament who might have been elected by the people but who had become disobedient to the Constitution and thus strayed from their will---Such a mechanism provided a straightforward governance paradigm, controlled ultimately by the people.

(v) Constitution of Pakistan---

----Art. 204---Contempt of Court Ordinance (V of 2003), Preamble---Law of contempt of court---Purpose---Law of contempt of court was not a device to be used by courts for their self-aggrandizement, but must be employed where the will of the people (i.e. the Constitution) was being flouted.

(w) Constitution of Pakistan---

----Preamble & Third Sched.---State organs and their functionaries---Role---Scope---Enforcement of the will of the people---Scope---All the State organs and their respective functionaries were in the service of the people and could have as their raison d'être, only the enforcement of the will of the people as manifested in the Constitution and the law---All organs of the State had to act in harmony and with due humility as instrumentalities and servants of the people and there was no question of any clash of institutional or individual egos in abiding by the Constitution.

Syed Yousaf Raza Gillani v. Assistant Registrar PLD 2012 SC 466; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 and Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407 rel.

(x) Constitution of Pakistan---

----Arts. 63(1)(g), 63(2), 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Prime Minister convicted by a court of competent jurisdiction for contempt of court---Role of the Speaker in such circumstances---Scope---When a member of Parliament stood "convicted by a court of competent jurisdiction…" there was no room left for the exercise of decision making by the Speaker---Judgment of the Supreme Court by which it convicted the Prime Minister, had attained finality and there was no lawful basis on which the Bench in the present proceedings, or the Speaker could have gone against the said judgment or reviewed the same.

(y) Constitution of Pakistan---

----Part III, Chap.2 [Arts.50 to 89]---Parliamentary supremacy---Concept of Parliamentary supremacy in the context of the Constitution of Pakistan---Scope---His Lordship observed that there was no justification in our dispensation, for muddying the crystal and undefiled waters of our constitutional stream with alien and antiquated, 19th Century Diceyan concepts of Parliamentary supremacy, and that it was about time, that we unchained ourselves from the shackles of obsequious intellectual servility to colonial paradigms and started adhering to our own peoples' Constitution as the basis of decision making on constitutional issues.

Jackson and others v. Her Majesty's Attorney General (2005 UKHL 560) ref.

Per Khilji Arif Hussain, J; agreeing with Iftikhar Muhammad Chaudhry, CJ and Jawwad S. Khawaja, J.

(z) Constitution of Pakistan---

----Arts. 184(3), 199 & Part. II, Chap.I [Arts.8 to 28]---Constitutional petition---Requirement of locus standi---Scope---No requirement of locus standi existed for bringing a petition before the High Courts and by extension before the Supreme Court, however, two requirements had to be met before the Supreme Court might directly entertain such a petition under its Original Jurisdiction under Art.184(3), which were that the petition must raise "a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II."

Shahida Zahir Abbassi v. President of Pakistan PLD 1996 SC 632 ref.

(aa) Constitution of Pakistan---

----Arts.184(3), 17, 62, 63, 69, 204, 225 & Part.II, Chap.I [Arts.8 to 28]---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Maintainability---Petitioners' Fundamental Right of freedom of association (Art.17 of the Constitution), which included the right of political participation and the right to be governed by chosen representatives, was most directly affected in the present case---Present petitions, raised questions regarding the interpretation and enforcement of Arts.62, 63, 69, 204 and 225 of the Constitutioin, as they dealt with the qualifications and disqualifications of members of Parliament and the role of the Speaker of National Assembly and the Election Commission in the disqualification process; petitions also raised questions concerning the interpretation of Arts.63(1)(g) and 204 of the Constitution as the petitions dealt with the role of the judiciary, the enforcement of its decisions and the effects of convictions for contempt, and raised questions of public importance with reference to the enforcement of Fundamental Rights conferred by Chap. I of Part II of the Constitution---Speaker's ruling rendered the mechanism for adjudicating questions of disqualification under Art.63(2) of the Constitution inefficacious, therefore, the alternate forum became unavailable---Petitions did not raise any issues of fact-finding as the relevant facts were admitted and available on record---Petitions were maintainable, in circumstances.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Darshan Masih v. The State PLD 1990 SC 513; Shrin Munir v. Government of Punjab PLD 1990 SC 295; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 and Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

(bb) Constitution of Pakistan---

----Arts.184(3) & Part.II, Chap.I [Arts.8 to 28]---Constitutional petition under Art.184(3) of the Constitution---Maintainability---Cases where the threshold of meeting the test of "public importance with reference to the enforcement of any of the Fundamental Rights" was low---Scope---Test of maintainability was easily met in cases that involved the interpretation of constitutional provisions governing the structure, functioning and accountability of the institutions of the State under the Constitution, including cases that raised questions concerning the independence functioning, appointment and accountability of the superior judiciary---Judiciary was the institution responsible for the interpretation and ultimately the enforcement of Fundamental Rights under the Constitution, therefore, when questions of constitutional interpretation and enforcement regarding the independence, appointment and functioning of the judiciary were raised, they were by definition questions of public importance relating to the enforcement of Fundamental Rights.

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

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61; PLD 2007 SC 578 and Nadeem Ahmed, Advocate v. Federation of Pakistan PLD 2010 SC 1165 rel.

(cc) Constitution of Pakistan---

----Arts.184(3) & PartII, Chap.I [Arts.8 to 28]---Constitutional petition under Art.184(3) of the Constitution---Maintainability---Cases where the threshold of meeting the test of "public importance with reference to the enforcement of any of the Fundamental Rights" was low---Scope---Cases where the threshold was low involved the processes for the election, qualification, disqualification of the members of the Parliament, and the legislative powers of the legislature---Such cases met the test of maintainability by their very nature as it was the legislative institutions and the legislators who were responsible for framing laws that both gave meaning to and imposed limitations on the citizens' rights, including Fundamental Rights---Case which raised a matter of constitutional interpretation and enforcement regarding the composition, processes and powers of the legislatures was by its very nature a case of public importance, as it affected the rights of the public at large, and also affected the Fundamental Rights of the citizens.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955 and Workers Party v. Federation of Pakistan C.P.No.87 of 2011 ref.

(dd) Constitution of Pakistan---

----Arts.184(3) & Part II, Chap.I [Arts.8 to 28]---Constitutional petition under Art.184(3) of the Constitution---Maintainability---Cases which by their very nature met the test of "public importance with reference to the enforcement of any of the Fundamental Rights"---Scope---Cases which pertained to appointments, promotions, dismissals, disciplining, transfers, powers and accountability of key executive officials, including but not limited to ministers, senior bureaucrats and heads of regulatory bodies and statutory corporations---Executive, especially its upper echelons, was the first and foremost branch of the constitutional government which was entrusted with the execution of laws and framing and enforcement of policies which directly affected the citizens' rights, including Fundamental Rights---Any petition which raised questions of constitutional interpretation and enforcement affecting the structure, powers and procedures of the top executive, including the elected representatives heading ministries, career bureaucrats heading or overseeing important functions in the government departments and top officials responsible for the functioning of regulatory bodies and statutory corporations, by their very nature raised questions of public importance concerning Fundamental Rights.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; In re Tariq Aziz-ud-Din 2010 SCMR 1301 and In the matter of: Alleged Corruption in Rental Power Plaints and others 2012 SCMR 773 ref.

(ee) Constitution of Pakistan---

----Arts. 184(3)---Constitutional petition under Art.184(3) of the Constitution---Denial of such a petition by the Supreme Court---Grounds---Supreme Court retained the discretion to deny petitioners who approached the court after undue delay or with unclean hands; would refuse to exercise its jurisdiction where other forums that were efficacious and suitable were available, and would refuse to entertain a petition under Art.184(3) of the Constitution if it involved the need for extensive fact-finding which might more appropriately be done by another forum.

(ff) Constitution of Pakistan---

----Arts. 63(2), 69, 63(1)(g) & 204(2)---Rules of Procedure and Conduct of Business in the National Assembly, 2007, Chap.VI, R.45--- Speaker's ruling under Art.63(2) of the Constitution---Nature---Review of such a ruling by the courts---Scope---Conviction of a member of Parliament for contempt of court under Art.63(1)(g) of the Constitution---Role of the Speaker in disqualification of such a member---Scope---Speaker's ruling under Art.63(2) of the Constitution did not fall under the category of decisions - "regulating procedure or the conduct of business, or for maintaining order" - which were held to be immune from review by the Supreme Court---Speaker in performing her function under Art.63(2) of the Constitution was acting in an administrative or quasi-judicial capacity which did not relate to the internal processes, conduct of business or the maintenance of order in the House, therefore, her actions were reviewable under the Writ jurisdiction before the High Court or under the Original Jurisdiction of the Supreme Court like those of any other functionary performing administrative or quasijudicial functions---Once a court of competent jurisdiction had found a member of Parliament to be guilty of contempt under Art.63(1)(g) of the Constitution the Speaker was bound to refer the matter to the Election Commission under Art.63(2)---Role of Speaker though was not merely that of a post office, it was also evident that her role in the disqualification process was very limited---Perusal of the Rule 45, Chap.VI, in the Rules of Procedure and Conduct of Business in the National Assembly, 2007, indicated that in the National Assembly's internal view the Speaker had a very limited role in the disqualification process.

Fazalul Quader Chaudhury v. Shah Nawaz PLD 1966 SC 105; Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Muhammad Anwar Durrani v. Province of Balochistan PLD 1989 Quetta 25; Muhammad Naeem Akhtar v. Speaker, Sindh Assembly 1992 CLC 2043; Asif Ali Zardari v. Federation of Pakistan PLD 1999 Kar. 54; Mining Industries of Pakistan (Pvt.) Ltd. v. Deputy Speaker PLD 2006 Quetta 36 and Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007 (3) SCC 184 ref.

(gg) Constitution of Pakistan---

----Arts. 63(2) & 225---Disqualification from membership of Parliament (Majlis-e-Shoora)---Jurisdiction of courts---Scope---Mechanism for disqualification of member under Art.63(2) and Art.225 of the Constitution---Distinction---Article 225 of the Constitution though expressly provided for the adjudication of "election disputes" exclusively before election tribunals and sought to oust the jurisdiction of the courts, but no such exclusionary language was found in Art.63(2) of the Constitution and would have to be inferred as a matter of necessary intendment---Article 225 of the Constitution appeared to provide the mechanism for pre-election disqualification, i.e. disqualification that existed at the time of elections, along with other election disputes, while Art.63(2) appeared to provide the mechanism of dealing with post-election disqualification, i.e. disqualification arising after the election of a person as a member of Parliament.

(hh) Constitution of Pakistan---

----Arts. 63(2), 199(1)(b)(ii) & 184(3)---Question of disqualification of member of Parliament---Jurisdiction and power of courts under Arts.199(1)(b)(ii) & 184(3) of the Constitution to adjudicate upon such a question---Scope---Mechanism provided for in Art.63(2) of the Constitution could not be the exclusive manner of dealing with questions of disqualification and must be reconciled with the relevant jurisdictions of the superior courts---Articles 199(1)(b)(ii) and 184(3) of the Constitution entrusted the courts with the jurisdiction to require a person "holding or purporting to hold a public office to show under what authority of law he claims to hold that office."---Articles 199(1)(b)(ii) and 184(3) of the Constitution appeared to provide the superior courts with an independent power to adjudicate upon questions of disqualifications of members of Parliament along with other persons holding or purporting to hold public office---Superior courts had an independent jurisdiction to examine questions of disqualification under Art.199 or 184(3) of the Constitution, however, the access to the court's jurisdiction was conditional upon the meeting of the requirements of maintainability---Court would not exercise its powers if a suitable and equally efficacious remedy was available through another competent forum, such as an Election Tribunal or through a reference to the Election Commission under Art.63(2) and (3) of the Constitution.

Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Sabir Shah v. Saad Muhammad Khan PLD 1995 SC 66 and Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863 distinguished.

Farzand Ali v. Province of West Pakistan PLD 1970 SC 98; Niaz Ahmed v. Province of Sindh PLD 1977 SC 604; State v. Zia ur Rahman PLD 1973 SC 49; Federation of Pakistan v. Ghulam Mustafa Khan PLD 1989 SC 30; Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 644; Muhammad Hayat Khan v. Imtiaz Ahmad Khan PLD 2008 SC 85, 103-104; Intesar Hussain Bhatti v. Vice-Chancellor PLD 2008 SC 313, 319 and Nayyar Hussain Bukhari v. District Returning Officer, NA-49 PLD 2008 SC 487 rel.

Aftab Ahmad Khan v. Muhammad Ajmal PLD 2010 SC 1076 and Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan PLD 2005 SC 52 ref.

(ii) Constitution of Pakistan---

----Arts. 225, 199(1)(b)(ii) & 184(3)---Process for pre-election disqualification of a member of Parliament---Scope---Where an issue of pre-election disqualification arose at the time of the election, the petitioner must first avail the remedies provided under the relevant statute including an election petition, but if, for reasons beyond the petitioner's control, the issue could not be raised before the relevant forums provided for in the election laws, then the petitioner could approach the High Courts under Art.199(1)(b)(ii) or the Supreme Court directly under Art.184(3) of the Constitution, if the petition raised questions of constitutional interpretation and met the maintainability conditions---Such petitions would not be ousted by Art.225 of the Constitution.

(jj) Constitution of Pakistan---

----Arts. 63(1) & (2), 199 & 184(3)---Post-election disqualification of a member of Parliament under Art.63(1) of the Constitution--- Process---Role of the Speaker or Chairman---Scope---Where a question of post-election disqualification arose under any sub-clause of Art.63(1) of the Constitution, the matter must be referred to the Speaker or Chairman of the House of Parliament under Art.63(2)---Speaker or the Chairman had a limited role to perform, i.e. determine if any question of disqualification had arisen or not---Where the Speaker or the Chairman exercised his/her discretion under Art.63(2) of the Constitution improperly then his/her decision was reviewable by the superior courts.

(kk) Constitution of Pakistan---

----Arts. 63(1)(a), (g) & (h) & 63(2)---Conviction of member of Parliament under Art.63(1)(a) or (g) or (h), by a court of competent jurisdiction---Disqualification of such a member---Role of Speaker or Chairman---Extent and scope---Articles 63(1) (a), (g) and (h) of the Constitution provided for disqualification pursuant to convictions or findings by courts---Speaker's or the Chairman's role, in such cases, was curtailed to determining whether such convictions existed.

(ll) Constitution of Pakistan---

----Arts. 63(1)(g) & 63(2)---Conviction of member of Parliament under Art.63(1)(g) by a court of competent jurisdiction---Disqualification of such a member---Role of Speaker---Extent and scope---Once a court of competent jurisdiction found a member of Parliament guilty of an offence of the nature mentioned in Art.63(1)(g) of the Constitution, the Speaker's role was greatly reduced to merely establishing whether such a conviction existed.

(mm) Constitution of Pakistan---

----Arts. 184(3), 63(1)(g), 63(2) & 204(2)---Contempt of Court Ordinance (V of 2003), Ss.3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Maintainability---Speaker's decision not to refer the question of disqualification to the Election Commission---Validity---Supreme Court found the Prime Minister guilty of contempt of court for acting in a manner which brought "into ridicule the judiciary" but did not disqualify him from being a member of the Parliament on the spot, instead the court left the question of disqualification to be determined through the process laid down in Art.63(2) of the Constitution---Subsequently the Speaker, by claiming much greater authority than she possessed in this regard and by misusing her limited powers, rendered that mechanism inefficacious---Petitions under Art.184(3) of the Constitution, in such circumstances, became competent in order to review the Speaker's decision---Speaker's decision not to refer the question of disqualification to the Election Commission was flawed because the conviction by the Supreme Court clearly met the conditions laid down in Art.63(1)(g) of the Constitution---Supreme Court directed the Prime Minister's disqualification to the Election Commission, in circumstances.

A.K. Dogar, Senior Advocate Supreme Court, Azhar Siddique, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in Const.P.No.40 of 2012).

Hamid Khan, Senior Advocate Supreme Court, M. Waqar Rana, Advocate Supreme Court, S. Safdar Hussain, Advocate-on-Record for Petitioners (in Const.P.No.41 of 2012).

Kh. Muhammad Asif, MNA Petitioner (in person) (in Const.P.No.42 of 2012).

S. Zafar Ali Shah, Senior Advocate Supreme Court, Petitioner (in person) (in Const.P.No.43 of 2012).

S. Mehmood Akhtar Naqvi, Petitioner (in person) (in Const.P.No.44 of 2012).

Abdul Rahman Siddiqui, Advocate Supreme Court for Petitioner (in Const.P.No.45 of 2012).

A.K. Dogar, Senior Advocate Supreme Court for Petitioner (in Const.P.No.46 of 2012).

Khan Attaullah Tareen, Advocate Supreme Court and Ch.M.Asghar Saroha, Advocate Supreme Court for Petitioners (in Const.P.No.47 of 2012).

Taufiq Asif, Advocate Supreme Court for Petitioner (in Const.P.No.50 of 2012).

Irfan Qadir, Attorney General for Pakistan (On Court Notice).

Ch; Aitzaz Ahsan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Syed Yousaf Raza Gillani.

Muhammad Munir Piracha, Advocate Supreme Court and Raja Abdul Ghaffor, Advocate-on-Record for Federation.

Muhammad Latif Qureshi, Joint Secretary (L), N. Assembly for the Speaker. N.A.

Muhammad Nawaz, Director (L) for ECP.

Dates of hearing: 14th, 15th, 18 & 19th June, 2012.

P L D 2012 Supreme Court 866

Present: Asif Saeed Khan Khosa, Amir Hani Muslim, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ

ADNAN A. KHAWAJA---Appellant

Versus

THE STATE---Respondent

Suo Motu Case No.4 of 2010, Civil Miscellaneous Application No.1080 of 2010, Civil Miscellaneous Applications Nos.1238 and 1239 of 2010 and Civil Miscellaneous Application No.129 of 2012.

(Suo Motu action regarding appointment of convicted person namely Ahmed Riaz Sheikh (NRO Beneficiary) as Additional Director General, Federal Investigation Agency).

Civil Miscellaneous Application No.1253 of 2010 in Suo Motu Case No.4 of 2010.

(Report submitted in Court by Attorney-General regarding Fact Finding Inquiry in the case of Missing Letter No.PS/DG/FIA/ 2009/5047-49 dated 17-11-2009).

Civil Miscellaneous Application No.1254 of 2010 in Suo Motu Case No.4 of 2010.

(Additional Documents comprising of Interim Report filed by Secretary Law dated 4-4-2010, points formulated by Secretary for Hon'ble Court, Advice of Former Attorney-General and Authorization letter in favour of Mr. Hassan Wasim Afzal, Joint Secretary of Ehtisab Bureau dated 20-5-1998).

Civil Miscellaneous Application No.1082 of 2010

(Report/Minutes of Hon'ble Chief Justice of Lahore High Court, Lahore)

Civil Miscellaneous Application No.3222 of 2012

(Application filed by Mr. Muhammad Ismail Qureshi)

Civil Miscellaneous Application No.3462 of 2012

(Application filed by Muhammad Ahsan Raja).

Decided on 8th August, 2012.

(a) Contempt of Court Ordinance (V of 2003)---

----S. 17---Constitution of Pakistan, Art.204---Contempt of Supreme Court---Issuance of show cause notice to the Prime Minister/Chief Executive of the Federation---Matter pertained to implementation of directions given by the Supreme Court in the case of Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265, regarding writing of a letter to authorities in Switzerland to seek revival of requests for mutal legal assistance and to secure the status of civil party and the claims lodged to the allegedly laundered money lying in foreign countries including Switzerland---Former Prime Minister (predecessor of the incumbent Prime Minister) persistently and wilfully showed disobedience in complying with said directions of Supreme Court and was consequently convicted and sentenced for committing contempt of court and stood disqualified as a member of the National Assembly and also stood removed from the office of the Prime Minister---Incumbent Prime Minister was directed to implement said directions of Supreme Court and to submit a report regarding the same---Reasons and observations for issuing notice to incumbent Prime Minister/Chief Executive of Federation under S.17 of Contempt of Court Ordinance, 2003 for resisting implementation of said directions recorded.

Supreme Court observed that the ostensible calculated defiance on part of the incumbent Prime Minister/Chief Executive of the Federation through adoption of dilatory tactics and putting up excuses for resisting implementation of Supreme Court's directions might know no bounds but at the same time restraint exercised by the Supreme Court was also not without any limit.

Supreme Court issued notice to incumbent Prime Minister/Chief Executive of the Federation, under section 17 of the Contempt of Court Ordinance, 2003, read with Article 204 of the Constitution to show cause as to why he might not be proceeded against for committing contempt of Supreme Court by not complying with the relevant directions of the Court.

Supreme Court directed the Prime Minister/Chief Executive of the Federation to appear before the Court in person on the next date of hearing in accordance with the provisions of section 17 of Contempt of Court Ordinance, 2003. [p. 870] C & D

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 ref.

(b) Contempt of Court Ordinance (V of 2003)---

----S. 17---Constitution of Pakistan, Art.204---Contempt of Supreme Court---Issuance of show cause notice to the Prime Minister/Chief Executive of the Federation---Matter pertained to implementation of directions given by the Supreme Court in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), regarding writing of a letter to authorities in Switzerland to seek revival of requests for mutual legal assistance and to secure the status of civil party and the claims lodged to the allegedly laundered money lying in foreign countries including Switzerland---Present implementation Bench of the Supreme Court directed the incumbent Prime Minister to implement said directions and to submit a report regarding the same---Federation Government (through Attorney-General) had contended that the Supreme Court was not properly assisted on facts and law before rendering its judgment in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) and also at the time of handing down the judgment in the review petition filed in the same case, therefore, said judgments were un-implementable and proper recourse for the Supreme Court would be to revisit said judgments---Validity---Said judgments were passed by a Larger Bench of the Supreme Court and by the Full Court respectively and had attained finality---Present Bench was only seized of implementation proceedings vis-à-vis said judgments---Supreme Court observed that an implementation Bench could not go behind a concluded and final judgment or revisit the same.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 ref.

(c) Administration of justice---

----Concluded and final judgment---Implementation Bench could not go behind such judgment or revisit the same.

Irfan Qadir, Attorney-General for Pakistan with Dil Muhammad Khan Alizai, Deputy Attorney-General for Pakistan for the Federation.

Shaiq Usmani, Senior Advocate Supreme Court, K. K. Agha, Prosecutor-General Accountability, Akbar Tarar, Addl. PG. NAB, Fauzi Zafar, Addl.P.G. NAB, Mehmood Raza, Addl. PG and M.S. Khattak, Advocate on Record on behalf of National Accountability Bureau.

Wasim Sajjad, Senior Advocate Supreme Court (in C.M.A. No.3222 of 2012), Muhammad Ibrahim Satti, Senior Advocate Supreme Court (in C.M.A. No.3462 of 2012) for the Applicant.

Dr. A. Basit, Senior Advocate Supreme Court for Ahmad Riaz Sheikh.

Nemo on behalf of Secretary Law.

Date of hearing: 8th August, 2012.

P L D 2012 Supreme Court 870

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Tassaduq Hussain Jillani, Jawwad S. Khawaja and Khilji Arif Hussain, JJ

BAZ MUHAMMAD KAKAR and others---Appellants

Versus

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

Constitutions Petition No.77 of 2012 and C.M.A. No.3057/2012 along with Constitutional Petitions Nos. 72, 73, 74, 75, 76, 78, 79, 80, 81, 82, 84, 85, 86, 87, 88, 91, 92, 94, 95, 96, 97, 98, 99, 100, 101, 102 and 103 of 2012.

(a) Constitution of Pakistan---

----Art. 204 & Fourth Sched., Part 1, Entry 55--- Contempt of court--- Power of courts to punish contemnor---Scope.

Under Article 204 read with Entry 55 of Fourth Schedule to the Constitution, the High Courts and the Supreme Court had powers to punish any person who was found guilty for the contempt of court falling within the definition of contempt of court given in Article 204(2) of the Constitution.

Supreme Court observed that Entry 55, Fourth Schedule, of the Constitution had provided for the enlargement of the jurisdiction and supplemental powers of the Supreme Court, and had never conceived about curtailing the powers of the Supreme Court.

(b) Constitution of Pakistan---

----Art. 184(3) & Part II, Chap. 1 [Arts. 8 to 28]---Power of judicial review by Supreme Court---Scope---Supreme Court had the power of judicial review to examine the constitutionality of any provision of any enactment, if same was found to be contrary to the Fundamental Rights as well as constitutional provisions.

(c) Constitution of Pakistan---

----Arts. 8, Part II, Chap. 1 [Arts. 8 to 28] & 184(3)---Laws inconsistent with or in derogation of Fundamental Rights--- Judiciary, duty of---Scope---Judiciary had a duty to examine the constitutionality of any law if it was concluded that it had been promulgated in derogation of the Fundamental Rights as envisaged by Art.8 of the Constitution, or where any provision of any law was found contrary to the Constitution.

(d) Legislation---

----Person-specific law, promulgation of---Legality---Administration of justice---Person-specific laws could not be promulgated because such exercise instead of promoting the administration of justice caused injustice in the society amongst the citizens who were being governed under the Constitution.

(e) Contempt of Court Ordinance (V of 2003)---

---Preamble--- Contempt of court proceedings---Purpose---Court failing to take prompt action against contemnor---Effect.

Where an act of contempt of court persists and no prompt action is taken, the court loses its authority and all its decisions and the judgments will be considered mere paper decrees, therefore, to maintain its dignity and respect and to restore the confidence of the citizens in the supremacy of the Constitution and the rule of law, as a last resort, proceedings for contempt of court are initiated.

(f) Contempt of Court Act (XVIII of 2012)---

----Preamble & Ss. 3, 4(4), 10(b)---Constitution of Pakistan, Arts.204, 248, 4, 9, 10A, 14, 19, 25, 68 & 184(3)---Constitutional petitions under Art.184(3) of the Constitution questioning the constitutionality of the Contempt of Court Act,2012---Maintainability---Petitioners contended that Contempt of Court Act, 2012, violated Arts.9, 14, 19 & 25 of the Constitution; that said Act amounted to denial of access to justice under Arts.4 and 10A of the Constitution since by granting immunity to public office holders, it had created a distinction between office holders and ordinary contemnors, and that said Act was also discriminatory in its nature and violated Art.25 of the Constitution---Federal Government (respondent) contended that petitions were not maintainable since none of the Fundamental Rights of the petitioners had been infringed---Validity---Petitions were maintainable under Art.184(3) of the Constitution as questions of public importance with reference to enforcement of Fundamental Rights were involved---Section 3 of the Contempt of Court Act, 2012, as a whole was void and contrary to Arts.4, 9, 25 & 204(2) of the Constitution for the reason that S.3(1) of the Act granted exemption to public office holders mentioned in Art.248(1) of the Constitution from contempt of court, which was violative of Art.25 of the Constitution as under Art.204(2), the Court was empowered to punish 'any person' for its contempt without any exception---Article 248(1) of the Constitution had not granted immunity to any of the public office holders mentioned therein from any criminal proceedings, therefore, by means of S.3(1) of the Contempt of Court Act, 2012, no immunity could be granted to the public office holders in violation of Art.25 of the Constitution---Terms and phrases used in provisos (i) to (xi) to S.3 of the Contempt of Court Act, 2012, were ambiguous and absurd and were meant to give benefit to contemnors who had no respect for the judgments of the courts, therefore, said provisos were contrary to the principle of equality before law---Section 4 (4) of the Contempt of Court Act, 2012, nullified the effect of earlier judgments by pronouncing a legislative judgment without removing the basis on which the judgments were pronounced, which was violative of the Fundamental Right of access to justice as enshrined in Art.9 of the Constitution---Section 10(b) of Contempt of Court Act, 2012 was violative of Fundamental Right of freedom of speech and expression enshrined in Art.19 of the Constitution, which was subject to a reasonable restriction, inter alia, in relation to contempt of court and Art.68 of the Constitution, which provided that no discussion should take place in Parliament with respect to conduct of a Judge of the Supreme Court or a High Court---Petitions were disposed of accordingly.

(g) Contempt of Court Act (XVIII of 2012)---

----Preamble, Ss. 2(a), 3, 4, 6, 8, 10, 11, 12 & 13---Constitution of Pakistan, Art.184(3)---Constitutional petitions under Art.184(3) of the Constitution questioning the constitutionality of the Contempt of Court Act, 2012---Severability of statute---Scope---Various provisions of Contempt of Court Act, 2012, having been found ultra vires of the Constitution, Supreme Court observed that remaining provisions of the said Act, if allowed to stay on the statute book, would serve no purpose particularly, when it had been found that repealing section of the said Act (section 13), itself was a nullity---Contempt of Court Act, 2012, therefore, was declared unconstitutional, void and non est---Petitions were disposed of accordingly.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 distinguished.

Attorney General for Alberta v. Attorney-General for Canada AIR 1948 PC 194 fol.

(h) Contempt of Court Act (XVIII of 2012) ---

----Preamble, Ss. 2(a), 3, 4, 6, 8, 10, 11, 12 & 13---Contempt of Court Ordinance (I of 2004), Preamble---Contempt of Court Ordinance (V of 2003), Preamble---Contempt of Court Act (LXIV of 1976), Preamble---Constitution of Pakistan, Arts.184(3), 2A, 4, 9, 25, 37(d), 63(1)(g), 204, 238, 239, 248 & Fourth Sched., Part 1, Entry 55---Constitutional petitions under Art.184(3) of the Constitution questioning the constitutionality of the Contempt of Court Act, 2012---Supreme Court declared the Contempt of Court Act, 2012, to be unconstitutional, void and non est as a consequence whereof, the Contempt of Court Ordinance, 2003 should be deemed to have been revived with effect from 12-7-2012, the day when Contempt of Court Act, 2012 was enforced with all consequences.---Reasons.

Section 2(a) of Contempt of Court Act, 2012, which defined the word "Judge" as including all officers acting in judicial capacity in administration of justice, was contrary to Article 204(1) of the Constitution as under the latter provision, the "Court" meant the Supreme Court or a High Court.

Section 3 of Contempt of Court Act, 2012 as a whole was void and contrary to Articles 4, 9, 25 & 204(2) of the Constitution for the reasons that the acts of contempt liable to be punished mentioned in Article 204(2)(b) and some actions of contempt of court falling under Article 204(2)(c) had been omitted from the definition of contempt of court given in section 3 of said Act; that Contempt of Court Act, 2012, had been promulgated under Article 204(3) of the Constitution, which conferred power on the legislature to make law to regulate the exercise of power by the courts, and not to incorporate any substantive provision or defences as had been done in section 3 of said Act; that powers of the courts had been reduced by incorporating the expression "by scandalizing a Judge in relation to his office" in section 3 of said Act whereas in Article 204(2) of the Constitution the word 'Court' had been used; that the definition provided by section 3 of said Act ran contrary to the provisions of Article 63(1)(g) of the Constitution according to which, if a person had been convicted/sentenced for ridiculing the judiciary, he would be disqualified to hold a public office, but in section 3 of said Act such an expression had been omitted and instead of institution of judiciary, scandalization of a Judge had been confined in relation to his office; that by enacting provisos (i) to (xi) to section 3 of said Act , immunities/defences had been provided, whereas no such provision existed in the Constitution, and that proviso (i) to section 3, which granted exemption to the public office holders mentioned in Article 248(1) of the Constitution from contempt of court was violative of Article 25 of the Constitution as under Art.204(2), the court was empowered to punish 'any person' for its contempt without any exception.

Incorporation of Article 248(1) of the Constitution in proviso (i) to section 3 was tantamount to amending the Constitution, which could not be done without following the procedure laid down in Articles 238 and 239 of the Constitution.

Article 248(1) had not granted immunity to any of the public office holders mentioned therein from any criminal proceedings, therefore, by means of proviso (i) to section 3, no immunity could be granted to the public office holders in violation of Article 25 of the Constitution.

Terms and phrases used in provisos (i) to (xi) to section 3 were ambiguous and absurd and were meant to give benefit to contemnors who had no respect for the judgments of the courts, therefore, said provisos being contrary to the principle of equality before law were void.

Section 4(4) of Contempt of Court Act, 2012, nullified the effect of earlier judgments by pronouncing a legislative judgment without removing the basis on which the judgments were pronounced, which was violative of the Fundamental Right of access to justice as enshrined in Article 9 of the Constitution and also ran contrary to Article 189 of the Constitution; therefore, section 4(4) of said Act was void.

Section 6(2) of Contempt of Court Act, 2012, was not sustainable because of declaration of section 3 of the same Act as void. Section 6(3) of said Act encouraged/promoted the commission of contempt of court by postponing cognizance of a contempt of court, arising from an averment made in due course in appellate, revisional or review proceedings, till such proceedings had been finalized and no further appeal, revision or review laid. To maintain the dignity and respect of the court, prompt action to punish the contemnor was called for. Since any delay in such behalf would not only erode the dignity, but would also promote the tendency of disrespecting the courts and their orders, therefore, section 6(3) being contrary to the principle of independence of judiciary and access to justice as enshrined in Articles 2A and 9 of the Constitution was void.

Section 8 of Contempt of Court Act, 2012, relating to transfer of proceedings was tantamount to curtailing judicial powers. Section 8(1) of said Act was not sustainable because instead of the phrase 'scandalizing the Court', expression 'scandalizing a Judge in relation to his office' had been used. Section 8(1) of the Act also ran contrary to recognized principle of punishing any person who was guilty of contempt on the face of the court where a prompt action to maintain the dignity of the court was called for. Transfer of proceedings form one Judge/Bench to another Judge/Bench was the prerogative of the Chief Justice being the administrative head of his court, which could not be controlled by the legislature, therefore, section 8(3) of Contempt of Court Act, 2012, was violative of the principle of independence of judiciary. Section 8(5) of the Contempt of Court Act, 2012, was also not sustainable as the legislature could not exercise power of transferring a case from the file of Chief Justice to next senior judge as it would be against the independent functioning of the court and legislative interference in such behalf was tantamount to undermining the authority of the Chief Justice and other judges.

Section 10(b) of Contempt of Court Act, 2012, was violative of Fundamental Right of freedom of speech and expression enshrined in Article 19, which was subject to a reasonable restriction, inter alia, in relation to contempt of court and Article 68 of the Constitution, which provided that no discussion should take place in Parliament with respect to conduct of a judge of the Supreme Court or a High Court.

Section 11(3) of Contempt of Court Act, 2012, relating to filing of intra-court appeal against issuance of show cause notice or an original order including an interim order passed by a Bench of the Supreme Court in any case, including a pending case to a larger Bench consisting of all the remaining available judges of the Supreme Court within the country was violative of the principle of expeditious disposal of the cases enshrined in Article 37(d) of the Constitution. Possibility of hearing of appeals by a larger Bench consisting of remaining judges of the court within the country might render the proceedings ineffective, as against each interlocutory order appeals would be filed and there would be no end to the proceedings which would compromise the dignity and independence of the courts. First proviso to section 11(3) would render the whole proceedings of contempt of court ineffective as at the initial stage after issuing a show cause notice, full court would have to be assembled to examine the grievance of the contemnor, if show cause notice had been issued by half of the judges whereas under the Supreme Court Rules, 1980, even very high profile cases could be decided by a two-member Bench. Second proviso to section 11(3), which provided for automatic suspension of a judicial order, was violative of the principle of trichotomy of power and the independence of judiciary. Passing of such an order was essentially a judicial function, which had to be performed by the judges of the Supreme Court or the High Courts, therefore, it was contrary to settled principles governing the grant or refusal of an injunction/stay order. Sections 11 (4) & (5) of said Act, which prescribed limitation period of 30 days for filing an appeal to a Bench of the High Court, 60 days for filing an appeal to the Supreme Court, and filing of intra-court appeal or application for reappraisal within 30 days from the date of show cause notice or the order, as the case may be, were aimed at delaying decision of contempt cases and compromised the expeditious disposal of such cases to restore the dignity of the courts, who were responsible for administration of justice.

Section 12 of Contempt of Court Act, 2012, was contrary to Article 204(3) of the Constitution, thus void ab initio.

Section 13 of Contempt of Court Act, 2012 did not assign any reasons for repealing Contempt of Court Act, 1976, and Contempt of Court Ordinances of 2003 and 2004. Section 13 also did not spell out any logical reasons for promulgating the Contempt of Court Act, 2012, therefore, it was a nullity in the eyes of law.

Preamble to the Contempt of Court Act, 2012, stated that the Act had been framed in exercise of the powers conferred by Article 204(3) of the Constitution, which Article provided that the exercise of the power conferred on a court by the said Article might be regulated by law and subject to law by rules made by the court, but it did not mean that a statute could control or curtail the powers conferred on the superior courts by the said Article, nor did it mean that in the absence of a statute on the subject (i.e contempt of court), said Article would be inoperative.

Enactment of Contempt of Court Act, 2012, in pursuance of Article 204(3) read with Entry 55 of the Fourth Schedule to the Constitution, was an attempt to reduce the powers of the court through various provisions of the Act, thus, all such provisions were contrary to Entry 55 of Fourth Schedule to the Constitution.

Supreme Court observed that perusal of Contempt of Court Act, 2012, suggested that it had been promulgated in haste for reasons which had been admitted by the Federal Government, i.e. said Act had been promulgated with a motive to ensure that democratic order continued to prevail under the Constitution as one of the Prime Ministers had been convicted and sentenced for Contempt of Supreme Court and was declared disqualified from being a member of the Parliament and same could happen with another Prime Minister, therefore, said Act had been promulgated to provide protection to the public office holders.

Supreme Court declared that Contempt of Court Act, 2012, was unconstitutional, void and non est, as a consequence whereof, the Contempt of Court Ordinance, 2003 should be deemed to have been revived with effect from 12-7-2012, the day when Contempt of Court Act, 2012 was enforced with all consequences.

Petitions were disposed of accordingly.

Navid Malik v. President of Pakistan 1998 SCMR 1917; Dr.Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; State v. Khalid Masood PLD 1996 SC 42; Syed Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823 and PLD 2012 SC 553; Attorney General for Alberta v. Attorney-General for Canada AIR 1948 PC 194 ref.

Attorney General for Alberta v. Attorney-General for Canada AIR 1948 PC 1946 fol.

M. Zafar, Senior Advocate Supreme Court and Baz Muhammad Kakar, Advocate Supreme Court for Petitioner (in Const.P.77 of 2012).

Muhammad Ikram Chaudhry, Advocate Supreme Court and Suyed Safdar Hussain Shah, Advocate on Record for Petitioner (in Const.P.72 of 2012).

Syed Mehmood Akhtar Naqvi, (in person) (in Const.P.73 of 2012).

Liaqat Ali Qureshi, in person (in Const.P.74 of 2012).

Hamid Khan, Senior Advocate Supreme Court, Muhammad Waqar Rana, Advocate Supreme Court and M.S. Khattak, Advocate on Record for Petitioner (in Const.P.75 of 2012).

Ch. Muhammad Ashraf Gujjar, Advocate Supreme Court in person (in Const.P.76 of 2012).

Abdul Rehman Siddiqui, Advocate Supreme Court Assisted by Ms. Neeli Khan, Advocate for Petitioner (in Const.P.78 of 2012).

Abdul Naveed Khan, Petitioner (absent) (in Const.P.79 of 2012).

Ghulam Mustafa, in person (in Const.P.80 of 2012).

A.K. Dogar, Senior Advocate Supreme Court for Petitioner (in Const.Ps.81-82 of 2012).

Barrister Zafarullah Khan, Advocate Supreme Court for Petitioner (in Const.P.84 of 2012).

Muhammad Azhar Siddiqui, Advocate Supreme Court for Petitioner (in Const.P.85 of 2012).

Sh. Ahsan-ud-Din, Advocate Supreme Court and Ch.Akhtar Ali, Advocate on Record for Petitioner (in Const.P.86 of 2012).

Arshad Ali Ch., Advocate Supreme Court/Advocate on Record for Petitioner (in Const.P.87 of 2012).

Ch. Afrasiab Khan, Advocate Suprreme Court and Ch. Akhtar Ali, Advocate on Record for Petitioner (in Const.P.88 of 2012).

Engineer Jamil Ahmad Malik in person (in Const.P.91 of 2012).

G.M. Chaudhry, Advocate for Petitioner (in Const.P.92 of 2012).

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate on Record for Petitioner (in Const.P.93 of 2012).

Rasheed A. Rizvi, Senior Advocate Supreme Court for Petitioner (in Const.P.95 of 2012).

Solicitor Muhammad Dawood, in person (in Const.P.96 of 2012).

Zafarullah Khan, Advocate, in person (in Const.P.97 of 2012).

Muhammad Jamil Rana, in person (in Const. P.98 of 2012).

Shahid Orakzai, in person (in Const.P.99 of 2012).

Malik Mushtaq Ahmad, Advocate Supreme Court, Mehmood Ahmad Bhatti, Advocate and Arshad Mehmood Bagoo, Advocate for Petitioner (in Const.P.100 of 2012).

Abdul Latif Afridi, Advocate Supreme Court, Mehmood A. Sheikh, Advocate on Record for Petitioner (in Const. P.101 of 2012).

Ms. Nasira Iqbal, Advocate Supreme Court for Petitioner (in Const.P.102 of 2012).

Khan Afzal Khan, Advocate Supreme Court for Petitioner (in Const.P.103 of 2012).

Irfan Qadir, Attorney General for Pakistan, Khan Dil Muhammad Khan, Alizai, DAG, Assisted by Ch. Faisal Hussain and Barrister Shehryar Riaz, Advocates on Court Notice.

Abdul Shakoor Peracha, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate on Record Assisted by Haseeb Shakoor Paracha, Waseem Riaz Satti and Malik Saqib Mehmood, Advocates for Federation of Pakistan.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh, AOR for Leader of Opposition in Senate.

Nemo for the other Respondents.

Dates of hearing: 23rd to 27th, 30th, 31st of July and 1st to 3rd of August, 2012.

P L D 2012 Supreme Court 892

Present: Mian Saqib Nisar, Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD NAZIR---Petitioner

Versus

FAZAL KARIM and others---Respondents

Criminal Petition No.577-L of 2012, decided on 3rd August, 2012.

(Against the judgment dated 18-6-2012 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.6671-B of 2012).

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 420/468/471---Constitution of Pakistan, Art.185(3)---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Petition for cancellation of bail, dismissal of---Accused (respondent) was granted pre-arrest bail by the High Court---Contentions of the complainant (petitioner) were that sufficient incriminating material was available on the record of investigation to prima facie establish involvement of accused (respondent) in the alleged offences and that there was no malice on the part of the complainant in prosecuting the accused---Validity---Offences under Ss.420 and 471, P.P.C. were bailable whereas an offence under S.468, P.P.C., although non-bailable, did not attract the prohibitory clause contained in S.497(1), Cr.P.C---No evidence was available on record even tentatively to establish that it was none other than the accused who had actually forged the relevant document---Accused had already joined the investigation and his physical custody was not required by the police for further investigation---Considerations for grant of bail and those for its cancellation were entirely different---No allegation had been levelled regarding any misuse or abuse of the concession of bail by the accused---Supreme Court declined interference with the legitimate exercise of jurisdiction and discretion in the matter by the High Court---Petition was dismissed and leave to appeal was refused, in circumstances.

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

----S. 195(1)(c)---Prosecution for certain offences relating to documents given in evidence---Procedure---Cognizance of such offences by court---Scope---"Cognizance of offence" and 'investigation of an offence"---Distinction---Provisions of S.195(1)(c), Cr.P.C. dealt only with taking of cognizance of an offence by a court and the same did not place any embargo upon reporting such an alleged forgery to the police, registration of an F.I.R. in that regard or conducting of an investigation in respect of such an allegation---Taking of cognizance of an offence by a court was a thing quite distinct from investigation of a reported offence by the police or any other investigation agency---Provisions of S.195(1)(c), Cr.P.C. placed a prohibition against taking of cognizance of an offence by a court except in the manner given in the said section but all prior steps taken before the stage of taking of cognizance by a court could be deemed to be permissible---Petition of leave to appeal was disposed of accordingly.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483; Muhammad Bashir alias Bakola and 8 others v. Superintendent of Police, City Division, Lahore and 9 others 2007 PCr.LJ 864 and Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Court PLD 1992 SC 72 ref.

Mian Abdul Quddus, Advocate Supreme Court and Mehmud-ul-Islam, Advocate on Record for Petitioner.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 3rd August, 2012.

P L D 2012 Supreme Court 897

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

CHIEF ADMINISTRATOR AUQAF and others---Petitioners

Versus

DIWAN SHEIKH TAJ-UD-DIN and others---Respondents

Civil Petition No.2-L of 2009, decided on 17th May, 2012.

(On appeal from the judgment dated 29-10-2008 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in FAO 2 of 1996).

Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 7 & 11---Notification No. SOB.II-3(4)/ Auqaf/60, dated 8-6-1992---Constitution of Pakistan, Art.185(3)---Property given as reward to Sajjadanashin of Shrine to maintain the upkeep of the shrine (Hazrat Baba Farid-ud-Din Ganj Shakr)---Auqaf Department seeking the take over of said property declaring the same to be Waqf Property---Legality---Question was as to whether said property was Waqf property---Determination---Waqf property, definition of---Scope---Auqaf Department (petitioner) issued a notification vide which the property in question was sought to be taken over by the Department declaring same to be Waqf property attached with the shrine---Courts below declared said notification to be without lawful authority on the grounds that property in question was neither dedicated nor attached with the shrine---Contention of the Auqaf Department was that the alleged owners (respondents/descendants of late Sajjada Nashin who was rewarded the land) had no title over the property and were in possession of the same only on the basis that their ancestor was granted the property by Nawab of Bahawalpur for the purpose of upkeep of the shrine---Validity---Property could be called or declared Waqf property only if same was either dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable or as added in the explanation to section 7 of the Punjab Waqf Properties Ordinance, 1979---Document in terms of which Nawab of Bahawalpur granted the property to the ancestor of the alleged owners indicated that the same was given as "inam/reward" and it was stipulated that it would be considered as property of the ancestor---Said documents (sanad) did not indicate that either any trust was created or the said property was deemed to be part of the shrine---Intent and object of the document (sanad) appeared to be that the ownership of the property was vested with the guarantee of maintaining the upkeep of the shrine, and if did not stipulate that the property was either being dedicated to the shrine or for any religious purpose or that any "mutawalli" or trustee was being created---Petition for leave to appeal was dismissed, in circumstances.

Chief Administrator of Auqaf v. Koura PLD 1991 SC 596 ref.

Syed Zaheer Saghir, Advocate Supreme Court and Mehmud-ul-Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 17th July, 2012.

P L D 2012 Supreme Court 903

Present: Jawwad S. Khawaja andKhilji Arif Hussain, JJ

Dr. ARSALAN IFTIKHAR---Petitioner

Versus

Malik RIAZ HUSSAIN and others---Respondents

Civil Revision Petition No.167 of 20112 in Suo Motu Case No.5 of 2012.

(Against the order dated 14-6-2012 passed by this Court in SMC No.5 of 2012).

(a) Constitution of Pakistan---

----Art. 187---National Accountability Ordinance (XIII of 1999), S.19---Issue and execution of processes of Supreme Court---Transfer of inquiry---Power of National Accountability Bureau (NAB) to call for information from a person---Duties of National Accountability Bureau (NAB)---Scope---Alleged business deal between respondent (businessman) and petitioner (son of serving Chief Justice of the Supreme Court) attempting to influence the judicial process---Inquiry into the matter by National Accountability Bureau (NAB) and a Joint Investigation Team (JIT) constituted by the Chairman, NAB---Petitioner alleging partiality and bias of the Attorney General, National Accountability Bureau (NAB) and that of the Joint Investigation Team (JIT)---Supreme Court concluded that inquiry by NAB in the matter would not be free from perception of partiality or bias or lack of competence and consequently transferred the same to a one man inquiry Commission---Reasons/directions given by the Supreme Court to the said Commission detailed.

Following are the reasons for transferring the inquiry to a one man Inquiry Commission with directions to the Commission for conducting the inquiry:

Attorney General had not disclosed to the Supreme Court his association or professional relationship with the respondent (businessman), Supreme Court would not have tasked the Attorney General with any responsibility in the present matter if he had made disclosure to the Court as to his professional association with the respondent.

Supreme Court had directed the Attorney General to "set the machinery of the State in motion" in relation to the inquiry into the present matter but it was evident from the contents of his letter addressed to the Chairman, NAB that the Attorney General went well beyond setting the machinery of the State in motion and adopted a position and used words in his letter which should have been objectionable to a truly independent investigator. Word "expectation" used in the said letter, on the part of the Attorney General appeared to have influenced the Chairman, NAB in the performance of his duties which he was required by law to undertake without outside influence. Pursuant to the Attorney General's letter the Chairman, NAB obediently followed the Attorney General's instruction as if it were an obligatory and binding command coming from his superior, thus giving rise to the perception that NAB's independence appeared to have been compromised. Record provided prima facie evidence that NAB might have wilted under the outside influence of the Attorney General and might, therefore, not be in a position to conduct an impartial inquiry in the matter.

NAB authorities addressed two letters to the Registrar of the Supreme Court in his official capacity, asking him to bring "all original documentary and other evidence to the NAB Headquarter" in connection with the inquiry. However, no information or particulars were given as to the nature of the documentary and other evidence or the facts and circumstances of the case. Imperious and pernicious "thana" (police station) mentality was apparent from the said letters, which NAB persisted with obdurately, and it raised serious questions, prima facie, as to the fairness, competence and professionalism of the members of the Joint Investigation Team (JIT). Prosecutor General, NAB, took offence to the response given by the Registrar of the Supreme Court, to the said letters, based on his justified assumption that he was being summoned in his official capacity. Fact that such a senior functionary of NAB got offended due to legitimate concern raised by the Registrar of the Supreme Court, further created the perception that it might not be possible for NAB to conduct its investigation in a dispassionate and objective manner.

Police official (member of the Joint Investigation Team) who was seen on CCTV footage, receiving the respondent (businessman) at the court entrance and escorting and extending protocol to him on his first appearance in court in connection with the matter, had no justification to do the same. Said police official had no business inside the Court building on the date, even if he had been assigned security duty in front of the Supreme Court. Said police official was being defended by NAB rather than being probed, which further showed an apparent lack of objectivity, transparency and fairness on the part of NAB.

Two members of the Joint Investigation Team had been removed from the inquiry team and remaining three members of the team, who were employees of NAB had also demonstrated their ignorance of the law or utter disdain for judicially recognized norms of fair investigation and due process.

Any inquiry by NAB in the matter would not be free from perception of partiality or bias or lack of competence, therefore, to meet the ends of justice and to ensure a fair, impartial, honest and competent inquiry, the same should be transferred to some other person or agency to act independently, fairly and justly.

Supreme Court entrusted the inquiry into the matter to a one man inquiry Commission with the direction that the entire record available with NAB which related to the present matter should be handed over to the Commission; that the Commission should look into the facts relevant to the conduct of police officials (who had escorted the respondent in court and might have submitted false, dishonest or deliberately misleading statements in Court during present proceedings/inquiries), and that proceedings in the inquiry should not preclude the departmental authorities from taking disciplinary proceedings against said police officers in accordance with law.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau Islamabad and 2 others PLD 2007 Kar. 469; Muhammad Younus Arain v. Chairman, NAB and another 2008 MLD 1431; Niaz A. Baloch v. Chairman, NAB and 4 others 2008 MLD 1451 and Raja Muhammad Zarat Khan and another v. Federation of Pakistan through Secretary Ministry of Cabinet Divison and 2 others PLD 2007 Kar. 597 ref.

(b) Constitution of Pakistan---

----Art. 187---Issue and execution of processes of Supreme Court---Alleged business deal between respondent (businessman) and petitioner (son of serving Chief Justice of the Supreme Court) attempting to influence the judicial process---Transfer of inquiry---Attorney General influencing the investigation authority---Professional relationship between Attorney General and the respondent---Effect---Inquiry into the matter by National Accountability Bureau (NAB) and a Joint Investigation Team (JIT) constituted by the Chairman, NAB---Attorney General writing a letter to NAB authorities in furtherance of the directions of the Supreme Court in relation to the matter---Petitioner alleged that contents of said letter showed that Attorney General had exerted illegal and unwarranted influence over NAB, and that he had acted in a partisan manner and influenced NAB to favour the respondent---Validity---Attorney General had not disclosed to the Supreme Court his association or professional relationship with the respondent---Attorney General would not have been tasked with any responsibility in the present matter if he had made disclosure to the Supreme Court as to his professional association with the respondent---Attorney General had been directed by the Supreme Court to "set the machinery of the State in motion" in relation to the inquiry into the present matter but it was evident from the contents of his letter addressed to the Chairman, NAB that the Attorney General went well beyond setting the machinery of the State in motion and adopted a position and used words in his letter which should have been objectionable to a truly independent investigator---Word "expectation" used in the said letter, on the part of the Attorney General appeared to have influenced the Chairman, NAB in the performance of his duties which he was required by law to undertake without outside influence--- Pursuant to the Attorney General's letter the Chairman, NAB obediently followed the Attorney General's instruction as if it were an obligatory and binding command coming from his superior, thus giving rise to the perception that NAB's independence appeared to have been compromised---Record provided prima facie evidence that NAB might have wilted under the outside influence of the Attorney General and might, therefore, not be in a position to conduct an impartial inquiry in the matter---Supreme Court entrusted the inquiry into the matter to a one man inquiry Commission with the direction that the entire record available with NAB which related to the present matter should be handed over to the Commission---Petition was disposed of accordingly.

(c) Constitution of Pakistan---

----Art. 187---National Accountability Ordinance (XIII of 1999), S.19---Issue and execution of processes of Supreme Court---Transfer of inquiry---Appearance---Registrar of the Supreme Court before an investigation team---Scope---Power of National Accountability Bureau (NAB) to call for information from a person---Duties of National Accountability Bureau (NAB)---Scope---Alleged business deal between respondent (businessman) and petitioner (son of serving Chief Justice of the Supreme Court) attempting to influence the judicial process---Inquiry into the matter by National Accountability Bureau (NAB) and a Joint Investigation Team (JIT) constituted by the Chairman, NAB---NAB authorities asking Registrar of the Supreme Court to appear before the Joint Investigation Team (JIT) and provide all original documentary and other evidence without informing him of the nature of such evidence--- Validity--- NAB authorities had addressed two letters to the Registrar of the Supreme Court in his official capacity, asking him to bring "all original documentary and other evidence to the "NAB Headquarter" in connection with the inquiry, but no information or particulars were given as to the nature of the documentary and other evidence or the facts and circumstances of the case---Before summoning a person to attend, National Accountability Bureau (NAB) was duty bound to identify and particularize the information sought from any witness etc. and to state the nexus between such information and the subject of the inquiry being conducted by NAB---Said letters showed imperious and pernicious "thana" (police station) mentality, which NAB persisted with obdurately, and it raised serious questions, prima facie, as to the fairness, competence and professionalism of the members of the Joint Investigation Team (JIT)---Fact that Prosecutor General, NAB, took offence to the response given by the Registrar of the Supreme Court, to the said letters, based on his justified assumption that he was being summoned in his official capacity, further created the perception that it might not be possible for NAB to conduct its investigation in a dispassionate and objective manner---Supreme Court entrusted the inquiry into the matter to a one man inquiry Commission with the direction that the entire record available with NAB which related to the present matter should be handed over to the Commission---Petition was disposed of accordingly.

Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau Islamabad and 2 others PLD 2007 Kar. 469; Muhammad Younus Arain v. Chairman, NAB and another 2008 MLD 1431; Niaz A. Baloch v. Chairman, NAB and 4 others 2008 MLD 1451 and Raja Muhammad Zarat Khan and another v. Federation of Pakistan through Secretary Ministry of Cabinet Division and 2 others PLD 2007 Kar. 597 ref.

(d) Constitution of Pakistan---

----Art. 187---Issue and execution of processes of Supreme Court---Transfer of inquiry---Alleged deal between respondent (businessman) and petitioner (son of serving Chief Justice of the Supreme Court) attempting to influence the judicial process---Inquiry into the matter by National Accountability Bureau (NAB) and a Joint Investigation Team (JIT) constituted by the Chairman, NAB---Petitioner alleging partiality and bias of the Attorney General, National Accountability Bureau (NAB) and that of the Joint Investigation Team (JIT)---Supreme Court transferring inquiry into the matter to a one man inquiry Commission--Powers of said Commission as provided by the Supreme Court expounded.

(e) National Accountability Ordinance (XIII of 1999)---

----Ss. 19(a), (b) & (c)---Inquiry---Power to call for information---Summoning a person---Duties of National Accountability Bureau (NAB)---Scope---Before summoning a person to attend, National Accountability Bureau (NAB) was duty bound to identify and particularize the information sought from any witness etc. and to state the nexus between such information and the subject of the inquiry being conducted by NAB.

Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau Islamabad and 2 others PLD 2007 Kar. 469 rel.

(f) Rule of law---

----Implementation---Duty of courts and executive agencies---Scope---Executive agencies or courts were duty bound to give effect to the rule of law without fear or favour, within their respective spheres of authority.

Syed Yousaf Raza Gillani v. Assistant Registrar, Supreme Court of Pakistan 2012 SCMR 424 and Al-Quran, ))4,135 (An-Nisa) ref.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Petitioner (with petitioner).

Zahid Hussin Bokhari, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate on Record for Respondent No.1.

Shafi Muhammad Chandio, D.A.G. for Respondent No.4.

K.K. Agha, Prosecutor-General, NAB, M. Akbar Tarar, Addl. Prosecutor-General, NAB and Fauzi Zafar, ADPG, NAB for the NAB (on Court Notice).

Dates of hearing: 31st July, 2nd and 28th August, 2012.

P L D 2012 Supreme Court 923

Present: Iftikhar Muhammad Chaudhry, CJ Mian Shakirullah Jan, Tassaduq Hussain Jillani, Jawwad S. Khawaja and Khilji Arif Hussain, JJ

BAZ MUHAMMAD KAKAR and others---Petitioners

versus

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

Constitution Petition No.77 of 2012 and C.M.A. No.3057/2012 a/w Constitutional Petitions Nos.72, 73, 74, 75, 76, 78, 79, 80, 81, 82, 84, 85, 86, 87, 88, 91, 92, 94, 95, 96, 97, 98, 99, 100, 101, 102, and 103 of 2012

Per Iftikhar Muhammad Chaudhry, CJ; Mian Shakirullah Jan, Tassaduq Hussain Jillani, Jawwad S. Khawaja and Khilji Arif Hussain, JJ, agreeing.

(a) Contempt of court---

----Proceedings---Object---Object of contempt proceedings was not to afford protection to the Judges personally from imputations to which they might be exposed as individuals; but to keep the course of justice free and to ensure that law and order prevailed in the courts.

Sura An Nisa: 4:65; Adab-al-Qadi, Vol.,l, by Allama Mawardi; Fikr-o-Nazar; Stone's case Howell's State Trials, Vol. XXV. p.1458; Blackstone, Vol. iv, pp.124 and 125; 2 Dyer 188 b (notes), cf. Oswald, James Francis, Contempt of Court, Committal and Attachment and Arrest Upon Civil Process, Biobliolife LLC, (2009), at pp.24, 25 and Naved Malik v. President of Pakistan 1998 SCMR 1917 ref.

(b) Words and phrases---

----"Regulate"-Meaning.

Arshad Mahmood v. Government of Punjab PLD 2005 SC 193 (221); Robkar Adalat v. Sarfraz Alam 1996 MLD 1752; Black's Law Dictionary, Fifth Edition, p.1156; Corpus Juris Secundum, Vol. LXXVI, p.610; Words and phrases by West Publishing Company, Vol.36-A, pp.303-305; Messrs East and West Steamship Co. v. Pakistan through Secretary to Government of Pakistan PLD 1958 SC 41; National Labour Relations Board v. Jones and Laugh in Steel Corporation (301 US 1 at p.37); Malik Asghar v. Government of Punjab PLD 2003 Lah. 73; VSR and Oil Mills v. State of A.P. (AIR 1964 SC 1781); State of Uttar Pradesh v. Messrs Hindustan Aluminium Corporation AIR 1979 SC 1459; Jiyajeerao Cotton Mills Ltd. v. Madhya Pradesh Electricity Board 1989 (Suppl.) 2 SCC 52; U.P. Co-Operative Cane Unions v. West U.P. Sugar Mills Association AIR 2004 SC 3697 = (2004) 5 SCC 430; Union of India v. Messrs Asian Food Industries AIR 2007 SC 750 = (2006) 13 SCC 542; Jibendra Kishore v. Province of East Pakistan PLD 1957 SC 41; State v. Khalid Masood PLD 1996 SC 42 and Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823 ref.

(c) Vires of statute---

----Constitutionality not challenged in the past---Effect---Absence of challenge to any particular law or a provision thereof in the past would not make it immune to any challenge in the future.

(d) Constitution of Pakistan--

----Art. 204(3)---Contempt of court---Statute controlling powers of court to punish for contempt---Scope---Although the exercise of the power conferred on a court by Art.204(3) of the Constitution might be regulated by law and subject to law by rules made by the court, but it did not mean that a statute could control or curtail the power conferred on the superior courts under the said Article nor in the absence of a statute on the subject, the said Article would be inoperative.

State v. Khalid Masood PLD 1996 SC 42 affirmed.

(e) Constitution of Pakistan.---

----Arts. 70(4) & Fourth Sched., Part 1, Entry 55---Powers of Parliament to legislate on the jurisdiction and powers of the Supreme Court-==Scope---Entry 55 of Fourth Schedule, Part 1 of the Constitution on one hand limited the legislative power of the Parliament to the making of any law on the jurisdiction and powers of the Supreme Court, and on the other hand empowered the Parliament to make law for enlargement of the jurisdiction of the Supreme Court and the conferring of supplemental powers.

(f) Constitution of Pakistan---

----Arts. 184(3) & 199---Executive and legislative action, constitutionality of---Examination by court---Scope--- Constitution of Pakistan conferred upon the superior courts power and jurisdiction under Arts.199 and 184(3) to examine the constitutionality of executive and the legislative actions.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781; Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Federation of Pakistan v. Shaukat Ali Mian PLD 1999 SC 1026; Wattan Party v. Federation of Pakistan PLD 2006 SC 697: Muhammad Mubeen­us-Salam v. Federation of Pakistan PLD 2006 SC 602; Muhammad Nasir Mahmood v. Federation of Pakistan PLD 2009 SC 107; Dr. Mobashir Hassan's case PLD 2010 SC 265 and All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1 ref.

(g) Interpretation of statutes/Constitution---

----"Literal rule" of statutory interpretation---Scope---Literal rule of interpretation of the Constitution and statutes was that the words and phrases used therein should be read keeping in view their plain meaning.

Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz PLD 2011 .SC 260; Mumtaz Hussain v. Dr. Nasir Khan 2010 SCMR 1254; Kamaluddin Qureshi v. Ali International Co. PLD 2009 SC 367; Pakistan through Secretary Finance v. Messrs Lucky Cement 2007 SCMR 1367; Federation of Pakistan through Secretary, Ministry of Finance v. Haji Muhammad Sadiq PLD 2007 SC 67; Mushtaq Ahmed v. Secretary, Ministry of Defence PLD 2007 SC 405; Syed Masroor Shah v. State PLD 2005 SC 173; Federation of Pakistan v. Ammar Textile Mills (Pvt.) Ltd. 2002 SCMR 510; World Trade Corporation v. Excise and Sales Tax Appellate Tribunal 1999 SCMR 632 and State Cement Corporation of Pakistan Ltd. v. Collector of Customs. Karachi 1998 SCMR 2207 ref.

(h) Constitution of Pakistan---

---Arts. 204(2)(d) & 204(3)--- Powers conferred on Parliament by Arts.204(2)(d) and 204(3) of the Constitution-- Distinction--- Under Art.204(2)(d) of the Constitution the Parliament was empowered to make law providing for more offences of contempt of the court, i.e. to add to the offences already described in Art.204(2)(a), (b) & (c) of the Constitution---Under Art.204(3) of the Constitution the Parliament was empowered to make law to regulate the exercise of power conferred on a court under Art. 204 of the Constitution.

(i) Constitution of Pakistan---

----Part VII, Chap.2---Legislation relating to jurisdiction and powers of the Supreme Court---Legislature, obligation op--Legislature while enacting any law pertaining to the jurisdiction and the powers of the Supreme Court had an obligation to show obedience to the Constitution and the law.

(j) Constitution of Pakistan---

---Art. 204---Contempt of court---Power of courts to punish a person for contempt of court-"Person"-Scope---Article 204 of the Constitution empowered the Supreme Court and a High Court to punish all persons across the board without any exception, be he an ordinary citizen, any government servant, or the holder of any public office.

Zahur Ilahi v. Zulfiqar Ali Bhutto PLD 1975 SC 383 ref.

(k) Constitution of Pakistan---

---Arts. 238 & 239---Amendment of Constitution---Amendment through reference in a statute---Legality---Provision of the Constitution could not be amended by such a reference---Procedure for the amendment of the Constitution was provided in Arts.238 and 239 of the Constitution, i.e. by majority of 2/3rd votes of the total number of seats of the House.

(l) Constitution of Pakistan---

----Arts. 9 & 25---Right of access to justice---Scope---Right of access to justice included the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or Tribunal.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Sharaf Faridi v. Islamic Republic of Pakistan PLD 1989 Kar. 404; Syed Abul Ala Maudoodi v. Government of West Pakistan PLD 1964 SC 673; Ms. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(m) Constitution of Pakistan---

---Arts. 9 & 25---Right of access to justice---Law barring right of access to justice and courts of law---Legality---Articles 9 and 25 of the Constitution read collectively did not permit the Legislature to frame a law, which might bar right of access to the courts of law and justice.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

(n) Constitution of Pakistan---

----Art.203---Courts/Tribunals subordinate to the High Court---Controlled and supervised by executive authorities---Effect---Courts/Tribunals which were manned and run by executive authorities without being under the control and supervision of the High Court in terms of Art.203 of the Constitution could hardly meet the mandatory requirement of the Constitution.

All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1; Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Raul' B. Kadri v. State Bank of Pakistan PLD 2002 SC 1111; In the matter of: Reference No.2 of 2005 by the President of Pakistan PLD 2005 SC 873; Muhammad Nadeem Arif v. Inspector-General of Police, Punjab 2011 SCMR 408; Shahid Orakazi v. Pakistan through Secretary Law PLD 2011 SC 365 and Watan Party v. Federation of.Pakistan. PLD 2012 SC 292 ref.

(o) Constitution of Pakistan---

----Arts. 184(3) & 99---Judicial review---Scope---Legislative and executive actions=-- Compatibility with the Constitution---Doctrine of judicial review postulated that the legislative and executive actions were subject to scrutiny by the superior courts to determine their compatibility or otherwise with the terms of a written Constitution.

Dr. Bonham's case 8 Co. Rep.107a; Muhammad Azhar Siddique v. Federation of Pakistan Constitution Petition No.40 of 2012; Calder v. Bull 3 U.S.386 (1798); Murbury v.Madison 5 U.S. (1 Cranch) 137 (1803); Dred Scott v. Sandford 60 U.S. 393 (1857); Hepburn v. Griswold 75 U.S. 603 (1870); Hammer v. Dagenhart 247 U.S. 251 (1918); Bailey v. Drexel Furniture Co. 259 U.S. 20 (1922); Carter v. Carter Coal Co. 298 U.S. 238 (1936); Baker v. Carr 369 U.S. 186 (1962); Kesavananda Bahrain v. The State of Kerala AIR 1973 SC 1461 Smt. Indira Gandhi v. Shri Raj Narain AIR 1975 SC 2299; Minerva Mills Ltd v. Union of India AIR 1980 SC 1789; A.K. KauI v. Union of India AIR 1995 SC 1403: Raja Ram Pal v. Speaker, Lok Sabha (2007) 3 SCC 184; I.R. Coelho v. State of Tamil Nadu AIR 2007 SC 861; L. Chandra Kumar v. Union of India (1997) 3 SCC 261 and S.R. Bonimai v. Union of India (1994) 3 SCC 1 ref.

(p) Constitution of Pakistan--

---Arts.184(3), 199, 2A & 8---Judicial review---Powers of Supreme Court and High Court to declare a law as void---Scope---Superior courts, while exercising the power of judicial review were possessed with the jurisdiction to declare a law void to the extent of inconsistency with the Fundamental Rights, the principle of Independence of Judiciary or any other provision of the Constitution.

(q) Constitution of Pakistan---

----Art. 19---Contempt of Court Ordinance (V of 2003), Preamble & S.3---Freedom of speech and expression---Restriction in relation to contempt of court---Scope---Right to freedom of speech and expression guaranteed under Art.19 of the Constitution was subject to reasonable restrictions imposed by law, inter alia, in relation to contempt of court---Citizen while exercising his Fundamental Right of speech and expression was obliged to ensure that his comment with regard to conduct of a Judge or the court did not violate the law .

Masroor Ahsan v. Ardeshir.Cowasjee PLD 1998 SC 823 ref.

(r) Constitution of Pakistan---

----Art. 68---Rules of Procedure and Conduct of Business in the National Assembly, 2007, Rr.31(c) & 284---Member of Parliament making derogatory remarks relating to conduct of a Judge of the Supreiite Court or High Court---Expunction of such remarks by Speaker of Parliament---Scope---Speaker could only expunge remarks which were not derogatory--Regarding derogatory remarks, the Speaker of the National Assembly and the Chairman Senate were under a constitutional obligation to take action in terms of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, inasmuch as the expunction of such derogatory remarks would be contrary to Constitution and law.

Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823 ref.

(s) Legislation---

----Colourable legislation, doctrine of--- Principles and scope stated.

K.C. Gajapati Narayan Dco v. The State of Orissa AIR 1953 SC SC 375; G. Ngeswara Rao v. Andhra Pradesh State Road Transport Corporation AIR 1959 SC 308 and Ashok Kumar alias Golu v. Union of Idian 1991 3 SCC 498 rel.

(t) Severability of statute, doctrine of---

-.--Principles and rules stated.

Attorney-General for Alberta v. Attorney General for Canada PLD 1947 PC 387 ref.

R.M.D.C. v. Union of India AIR 1957 SC 628 and Motor General Traders v. State of Andhra Pradesh AIR 1984 SC 121 quoted.

(u) Severability of statute, doctrine of---

----Unconstitutional part of a statute---Severance from the remaining (valid) part of statute---Scope---Doctrine of severability permitted a court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the court would declare the entire Act void.

Attorney-General for Alberta v. Attorney General for Canada PLD 1947 PC 387; R.M.D.C. v. Union of India AIR 1957 SC 628 and Motor General Traders v. State of Andhra Pradesh AIR 1984 SC 121 rel.

(v) Constitution of Pakistan---

----Arta 184(3)---Constitutional petition before Supreme Court---Maintainability---Pre-requisites---Language of Art.184(3) of the Constitution made it clear that it was not necessary that Fundamental Right of any particular individual was breached, rather the only requirement was that a question of public importance with reference to the enforcement of a Fundamental Right was involved.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963; Watan Party v. Federation of Pakistan PLD 2011 SC 997 and Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109 ref.

(w) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional petition, filing of---Practice and procedure---Constitutional petition filed directly before the Supreme Court without filing the same before the High Court first---Validity---Exercise of jurisdiction by the Supreme Court under Art.184(3) of the Constitution was to be regulated by the Supreme Court itself in accordance with the Constitution and the law as per its practice and procedure, and no hard and fast rule had ever been, or could be, laid down providing for the cases to be first entertained by the High Court under Art.199 of the Constitution and then cases to be directly filed in the Supreme Court under Art.184(3) of the Constitution---Question as to which case was to be directly entertained by the Supreme Court was to be decided by the Supreme Court considering the peculiar facts and circumstances of a particular case, therefore, a plea to the effect that the aggrieved party would have the right of appeal against the judgment of the High Court if the matter was first decided by the High Court under Art.199 of the Constitution would have no merit.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Darshan Masih v. State PLD 1990 SC 513 and Pakistan Lawyers' Forum v. Pervez Musharraf 2000 SCMR 897 ref.

(x) Constitution of Pakistan---

---Arts. 184(3), 9 & 25---Constitutional petition before Supreme Court---Locus Standi---Scope---Right of access to justice and independent judiciary, denial of---Effect---Right of access to justice and independent judiciary was one of the important rights of the citizens and if there was any threat to the independence of judiciary, it would be tantamount to denial of access to justice, which undoubtedly was a fundamental right under An. 9 of the Constitution---Whenever there was a violation of Arts. 9 and 25 of the Constitution, it would involve a question of public importance with reference to enforcement of the Fundamental Rights of the citizens, who might approach the court for the enforcement of said rights under Art.184(3) of the Constitution without having to discharge the burden of locus standi.

(y) Contempt of Court Act (XVIII of 2012) --

----Preamble, Ss. 2(a), 3, 4, 6, 8, 10, 11, 12 & 13---Constitution of Pakistan, Arts. 184(3)---Constitutional petitions under Art.184(3) of the Constitution challenging the constitutionality of the Contempt of Court Act, 2012---Contempt of Court Act, 2012 was a colourable legislation as it was beyond the legislative competence of the Parliament, and accordingly unconstitutional and void--- Constitutional petitions were allowed accordingly.

K.C. Gajapati Narayan Deo v. The State of Orissa AIR 1953 SC SC 375; G. Naqeswara Raq v. Andhra Pradesh State Road Transport

Corporation AIR 1959 SC 308 and Ashok Kumar Alias Golu v. Union of India (1991) 3 SCC 498 rel.

(z) Contempt of Court Act (XVIII of 2012)---

----Preamble, Ss. 2(a), 3, 4, 6, 8, 10, II, 12 & 13---Constitution of Pakistan, Art.184(3)---Constitutional petitions under Art.184(3) of the Constitution challenging the constitutionality of the Contempt of Court Act, 2012---Severability of statute, doctrine of---Applicability to Contempt of Court Act, 2012---Preamble and Ss.2(a), 3, 4, 6, 8,. 10, 11, 12 & 13 of the Contempt of Court Act, 2012 were declared by the Supreme Court to be unconstitutional and void---Supreme Court observed that remaining provisions of the Contempt of Court Act, 2012 if allowed to stay on the statute book, would serve no purpose particularly, when it had been found that repealing section of the said Act (section 13), itself was a nullity, therefore, doctrine of severability was not attracted in the present case---Contempt of Court Act, 2012 was declared unconstitutional, void and non est---Constitutional petitions were allowed accordingly.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and Zaman Cement Co. (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312 rel.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265 distinguished.

Attorney-General for Alberta v. Attorney General for Canada PLD 1947 PC 387 fol.

(aa) Contempt of Court Act (XVIII of 2012)---

----Preamble, Ss. 2(a), 3, 4, 6, 8, 10, 11, 12 & 13---Legal Practitioners and Bar Councils Act (XXXV of 1973), Ss. 9(1)(e) & 13---Constitution of Pakistan, Arts. 5 & 184(3)---Filing of constitutional petition under Art.184(3) of the Constitution by a Bar Council---Scope and legality---Constitutional petitions filed by petitioners, including Pakistan Bar Council and Provincial Bar Councils, under Art.184(3) of the Constitution challenging the constitutionality of the Contempt of Court Act, 2012 Attorney General (on behalf of the Federal Government) contended that it was not the function and role of Bar Councils to file petitions and challenge the vires of any law---Validity---Pakistan Bar Council and Provincial Bar Councils, under the Legal Practitioners and Bar Councils Act, 1973 enjoyed statutory status as the highest bodies representing the legal fraternity in the Federation and the Provinces respectively--- Active interest of Bar Councils in the present petitions was a sign of vibrancy and vitality in society and rule of law and the Constitution---Article 5 of the Constitution provided that obedience to the Constitution and law was the inviolable obligation of every citizen---Said Article casted an obligation on all persons to work for-the supremacy of the Constitution and the rule of law, therefore, like all other natural persons, the legal entities also had a bounden duty to see that the Constitution was implemented and enforced---Contention of Attorney General was without substance and accordingly rejected---Constitutional petitions were allowed accordingly.

Supreme Court Bar Association v. Federation of Pakistan PLD 2002 SC 939; Supreme Court Bar Association's case PLD 2003 SC 82; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Nadeem Ahmad v. Federation of Pakistan PLD 2010 SC 1165 and President Balochistan High Court Bar Association v. Federation of Pakistan 2012 SCMR 897 rel.

(bb) Contempt of Court Act (XVIII of 2012) ___

----Preamble, Ss. 2(a), 3, 4, 6, 8, 10, 11, 12 & 13---Contempt of Court Ordinance (I of 2004), Preamble--- Contempt of Court Ordinance (V of 2003), Preamble--- Contempt of Court Act (LXIV of 1.976), Preamble---Constitution of Pakistan, Arts. 184(3), 2A, 4, 8, 9, 10,4, 25, 37(d), 63(1)(g), 175, 204, 238, 239, 248, 270(AA) & Fourth Sched., Part 1, Entry 55---Constitutional petitions under Art.184(3) of the Constitution challenging the constitutionality of the Contempt of Court Act, 2012---Maintainability---Constitutional petitions were maintainable as questions of public importance with reference to enforcement of Fundamental Rights were involved---Preamble and Ss.2(a), 3, 4, 6, 8, 10, 11, 12 & 13 of the Contempt of Court Act, 2012 were found to be unconstitutional---Supreme Court declared Contempt of Court Act, 2012 to be unconstitutional, void and non est. as a consequence whereof, the Contempt of Court Ordinance, 2003 was deemed to have been revived with effect from 12-7-2012, the day when Contempt of Court Act, 2012 was enforced with all consequences---Section 2(a) of Contempt of Court Act, 2012, which defined the word "Judge" as including all officers acting in judicial capacity in administration of justice, was contrary to Art.204(1) of the Constitution as under the latter provision, the word "Court" meant the Supreme Court or a High Court.

Section 3 of Contempt of Court Act, 2012 as a whole was void and contrary to Articles 4, 9, 25 & 204(2) of the Constitution for the reasons: that the acts of contempt liable to be punished mentioned in Article 204(2)(b) of the Constitution and some actions of contempt of Court falling under Article 204(2)(c) of the Constitution had been omitted from the definition of contempt of court given in section 3 of said Act; that Contempt of Court Act, 2012, had been promulgated under Article 204(3) of the Constitution, which conferred power on the legislature to make law to regulate the exercise of power by the courts, and not to incorporate any substantive provision or defences as had been done by section 3 of said Act; that powers of the courts had been reduced by incorporating the expression "by scandalizing a Judge in relation to his office" in section 3 of said Act whereas in Article 204(2) of the Constitution the word `Court' had been used; that the definition provided by section 3 of said Act ran contrary to the provisions of Article 63(1)(g) of the Constitution according to which, if a person had been convicted/sentenced for ridiculing the Judiciary, he would be disqualified to hold a public office, but in section 3 of said Act such an expression had been omitted and instead of institution of Judiciary, scanalization of a Judge had been confined in relation to his office; that by enacting provisos (i) to (xi) to section 3 of Contempt of Court Act, 2012 immunities/defences had been provided, whereas no such provision existed in the Constitution, and that proviso (i) to section 3 of said Act, which granted exemption to the public office holders mentioned in Article 248(1) of the Constitution from contempt of court was violative of Article 25 of the Constitution as under Article 204(2), the Court was empowered to punish any person for its contempt without any exception.

Incorporation of Article 248(1) of the Constitution in proviso (i) to section 3 of Contempt of Court Act, 2012 was tantamount to amending the Constitution, which could not be done without following the procedure laid down in Articles 238 and 239 of the Constitution.

Article 248(1) had not granted immunity to any of the public office holders mentioned therein from any criminal proceedings, therefore, by means of proviso (i) to section 3 of Contempt of Court Act, 2012 no immunity could be granted to the public office holders in violation of Article 25 of the Constitution.

Terms and phrases used in provisos (i) to (xi) to section 3 of Contempt of Court Act, 2012 were ambiguous and absurd and were meant to give benefit to contemnors who had no respect for the judgments of the courts, therefore, said provisos being contrary to the principle of equality before law were void.

Section 4 (4) of Contempt of Court Act, 2012, nullified the effect of earlier judgments by pronouncing a legislative judgment without removing the basis on which the judgments were pronounced, which was violative of the Fundamental Right of access to justice as enshrined in Article 9 of the Constitution and also ran contrary to Article 189 of the Constitution; therefore, section 4(4) of said Act was void.

Section 6(2) of Contempt of Court Act, 2012, was not sustainable because of declaration of section 3 of the said Act as void. Section 6(3) of the Act encouraged/promoted the commission of contempt of court by postponing cognizance of a contempt of court, arising from an averment made in due course in appellate, revisional or review proceedings, till such proceedings had been finalized and no further appeal, revision or review laid. To maintain the dignity and respect of the court, prompt action to punish the contemnor was called for. Any delay in such behalf would not only erode the dignity, but would also promote the tendency of disrespecting the courts and their orders, therefore, section 6(3) of said Act being contrary to the principles of independence of judiciary and access to justice as enshrined in Articles 2A and 9 of the Constitution was void.

Section 8 of the Contempt of Court Act, 2012, relating to transfer of proceedings was tantamount to curtailing judicial powers. Section 8(1) of said Act was not sustainable because instead of the phrase scandalizing the court', expressionscandalizing a Judge in relation to his office' had been used. Section 8(1) of the said Act also ran contrary to recognized principle of punishing any person who was guilty of contempt on the face of the court where a prompt action to maintain the dignity of the court was called for. Transfer of proceedings from one Judge/Bench to another Judge/Bench was the prerogative of the Chief Justice being the administrative head of his court, which could not be controlled by the legislature, therefore, section 8(3) of Contempt of Court Act, 2012, was violative of the principle of independence of judiciary. Section 8(5) of the Contempt of Court Act, 2012, was also not sustainable as the legislature could not exercise power of transferring a case from the file of Chief Justice to next senior judge as it would be against the independent functioning of the court and legislative interference in such behalf was tantamount to undermining the authority of the Chief Justice and other Judges.

Section 10(b) of Contempt of Court Act, 2012 was violative of Fundamental Right of freedom of speech and expression enshrined in Article 19 of the Constitution and violative of Article 68 of the Constitution, which provided that no discussion should take place in Parliament with respect to conduct of a Judge of the Supreme Court or a High Court.

Section 11(3) of Contempt of Court Act, 2012, relating to filing of intra-court appeal against issuance of show case notice or an original order including an interim order passed by a Bench of the Supreme Court in any case, including a pending case to a larger Bench consisting of all the remaining available Judges of the Supreme Court within the country was violative of the principle of expeditious disposal of the cases enshrined in Article 37(d) of the Constitution. Possibility of hearing of appeals by a larger Bench consisting of remaining Judges of the court within the country might render the proceedings ineffective, as against each interlocutory order appeals would be filed and there would be no end to the proceedings which would compromise the dignity and independence of the courts. First proviso to section 11(3) of Contempt of Court Act, 2012 would render the whole proceedings of contempt of court ineffective as at the initial stage after issuing a show cause notice, Full Court would have to be assembled to examine the grievance of the contemnor, if show cause notice had been issued by half of the Judges whereas under the Supreme Court Rules, 1980, even very high profile cases could be decided by a two-member Bench Second proviso to section 11(3) of the said Act, which provided for automatic suspension of a judicial order, was violative of the principle of trichotomy of power and the independence of judiciary. Passing of such an order was essentially a judicial function, which had to be performed by the judges of the Supreme Court or the High Courts, therefore, it was contrary to settled principles governing the grant or refusal of an injunction/stay order. Section 11(4) & (5) of, the said Act, which prescribed limitation period of 30 days for filing an appeal to a Bench of the High Court, 60 days for filing an appeal to the Supreme Court, and filing of intra-court appeal or application for reappraisal within 30 days from the date of show cause notice or the order, as the case might be, were aimed at delaying decision of contempt cases and compromised the expeditious disposal of such cases to restore the dignity of the courts, who were responsible for administration of justice.

Section 12 of Contempt of Court Act, 2012, was contrary to Article 204(3) of the Constitution, thus void ab initio.

Contempt of Court Ordinance, 2003 continued in force till the day of enactment of Contempt of Court Act, 2012, by means of Article 270(AA) of the Constitution. Section 13 of Contempt of Court Act, 2012 did not assign any reasons for repealing Contempt of Court Act, 1976, and Contempt of Court Ordinances of 2003 and 2004. Section 13 of Contempt of Court Act, 2012 also did not spell but any logical reasons for promulgating the said Act, therefore, it was a nullity in the eyes of law.

Preamble to Contempt of Court Act, 2012, stated that the said Act had been framed in exercise of the powers conferred by Article 204(3) of the Constitution, which Article provided that the exercise of the power conferred on a court might be regulated by law and subject to law by rules made by the court, but the said Article did not mean that a statute could control or curtail the powers conferred on the superior courts nor did it mean that in the absence of a statute on the subject (i.e contempt of court), said Article would be inoperative.

Enactment of Contempt of Court Act, 2012, in pursuance of Article 204(3) read with Entry 55 of the Fourth Schedule to the Constitution. was an attempt to reduce the powers of the court through various provisions of the said Act, thus, all such provisions were contrary to Entry 55 of Fourth Schedule to the Constitution.

Perusal of Contempt of Court Act, 2012, suggested that it had been promulgated in haste for reasons which had been admitted by the Federal Government, i.e. said Act had been promulgated with a motive to ensure that democratic order continued to prevail under the Constitution as one of the Prime Ministers had been convicted and sentenced for contempt of Supreme Court and was declared disqualified from being a member of the Parliament and same could happen with another Prime Minister, therefore, said Act had been promulgated to provide protection to the public office holders.

Contempt of Court Act, 2012, was unconstitutional, void and non est, as a consequence whereof, the Contempt of Court Ordinance, 2003 was deemed to have been revived with effect from 12-7-2012, the day when Contempt of Court Act, 2012 was enforced with all consequences.

Constitutional petitions were allowed accordingly.

Attorney-General for Alberta v. Attorney General for Canada AIR 1948 PC 194; Arshad Mahmood v. Government of Punjab PLD 2005 SC 193(221); S.S. Bola v. B.D. Sardana AIR 1997 SC 3127; Jaora Sugar Mills Pvt. Ltd. v. State of M.P. AIR 1966 SC 416; Shankara Narayana, BR v. State of Mysore AIR 1966 SC 1571; R. S. Joshi v. Ajit Mills AIR 1977 SC 2279; Ashok K:.r.ar alias Golu v. Union of India (AIR 1991 SC 1792) = [(1991) 3 SCC 498]; Robkar Adalat v. Sarfraz Alam 1996 MLD 1752; Constitutional Law of India By H.M. Seervai, Volume I, 4th Edition, Chapter III "Court and the Constitution" at pages 269-275; Naveed Malik v. President of Pakistn 1998 SCMR 1917; Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Zahoor Ahmad v. State PLD 2007 Lah. 231; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233; Zafar Ali Shah v. Pervez Musharraf PLD 2000 SC 869; Pepper (Inspector of Taxes) v. Hart 1993 SCMR 1019; Sapphire Textile Mills Ltd. v. Collector of Central Excise and Land Customs, Hyderabad 1990 CLC 456; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Azam Khan v. Government of N.-W.F.P. 1998 SCMR 204; Indian Aluminum Co. v. State of Kerala and others (1996) 7 SCC 637) (Paras 35 to 56 at pages 653 to 663); Karachi Bar Association v. Abdul Hafeez Pirzada PLD 1988 Kar. 309; Ch. Zahur Ellahi v. Zulfiqar Ali Bhutto PLD 1975 SC 383; Amanullah Khan v. Federation of Pakistan PLD 1990 SC 1092; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; PLD 1997 SC 11; Tofazzal Hossain v. Province of East Pakistan PLD 1963 SC 251; Tirath Ram Rajindra Nath v. State of U.P. AIR 1973 SC 405: Mamukanjan Cotton Factory 'v. Punjab Province PLD 1975 SC 50; Misrilal Jain v. State of Orissa AIR 1977 SC 1686; I.N. Saksena v. State of Madhya Pradesh AIR 1976 SC 2250; Al-Samrez Enterprise v. Federation of Pakistan 1986 SCMR 1917; Haji Ghulam Rasul v. Government of The Punjab through Secretary, Auqaf 2003 SCMR 1815; Fecto Belarus Tractor Ltd. v. Government of Pakistan PLD 2005 SC 605; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Reference No.2 of 2005 by the President PLD 2005 SC 873; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Mehram Ali v. Federation of Pakistan 1998 SCMR 1156; Mir Muhammad Idris v. Federation of Pakistan through Secretary Ministry of Finance PLD 2011 SC 213; Chairman, N.-W.F.P. Forest Development Corporation v. Khurshid Anwar Khan 1992 SCMR 1202; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Sajjad Ali Shah v. Asad Ali 1999 SCMR 640; Jamat-i-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111; Ziaullah v. Najeebullah PLD 2003 SC 656; Accountant-General Sindh v. Ahmed Ali U. Qureshi PLD 2008 SC 522; Shamshad v. Federation Board of Intermediate and Secondary Education PLD 2009 SC 75; Chief Justice of Pakistan v. President of Pakistan PLD 2010 SC 61; Sir Edward Snelson's case PLD 1961 SC 237; State v. Mujibur Rahman Shami PLD 1973 SC 1; The St. James' Evening Post case (1742) 2 Atkins 469 at p.472; R v. Almon (1765) Wilm 243-271; References Nos.1 and 2 of 1996 PLD 1997 SC 80; Zulfikar Ali Bhutto v. The State PLD 1978 SC 125; Malik Hamid Sarfaraz v. Federation of Pakistan PLD 1979 SC 991; Supreme Court Bar Association v. Federation of Pakistan PLD 2002 SC 939; Special Reference by the President Under Article 143 AIR 1965 SC 745; Abdul Hameed Dogar, Former Judge v. Federation of Pakistan PLD 2011 SC 315; Justice Hasnat Ahmed Khan v. Federation of Pakistan/State PLD 2011 SC 680; Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan 2012 SCMR 422; Contempt proceedings against Syed Yousaf Raza Gillani PLD 2012 SC 553; President v. Shaukat Ali PLD 1971 SC 585; Federation of Pakistan v. Muhammad Akram Sheikh PLD 1989 SC 689; Multan Electric Power Company Ltd. through Chief Executive v. Muhammad Ashiq PLD 2006 SC 328; Muhammad Siddique v. Lahore High Court, Lahore PLD 2003 SC 885; Pakistan v. Abdul Hayee Khan PLD 1995 SC 418; Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983; H.M. Fazil Zaheer v. Kh. Abdul Hameed 1983 SCMR 906; Government of Punjab through Secretary, Labour and Manpower v. Shahid Mehmood Butt 2006 PLC (C.S.) 325; Naeem Ullah Khalid v. Dr. Hafiz Mushtaq Ahmad 2007 YLR 1418; Mian Ghulam Yasiu •v. Election Commission of Pakistan 2007 CLC 304; Suo Motu Case No.1 of 2007 PLD 2007 SC 688; Hasnat Ahmad Khan v. Institution Officer 2010 SCMR 354; Justice Hasnat Ahmed Khan v. Registrar, Supreme Court of Pakistan PLD 2010 SC 806; Mehr Zulfiqar Ali Babu PLD 1997 SC 11; K.C. Gajapati Narayan Deo v. The State of Orissa AIR 1953 SC 375; G. Naqeswara Rao v. Andhra Pradesh State Road Transport Corporation AIR 1959 SC 308; Ashok Kumar alias Golu v. Union of India (1991) 3 SCC 498; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan 2004 SC 583; Pakistan Muslim Leaque (N) v. Federation of Pakistan PLD 2007 SC 642; Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 and Corruption of Hajj Arrangement PLD 2011 SC 963 ref.

Per Jawwad S. Khawaja, J; agreeing with Iftikhar Muhammad Chaudhry, CJ

(cc) Constitution of Pakistan---

----Arts. 204(2)(a) & (b)---Contempt of court---Contempt through disobedience of court order ("disobedience contempt") and Contempt through scandalization of a Judge or Court ("scandalization contempt")---Distinction---Scope---Such distinction had been accorded recognition in Art.204 of the Constitution---Article 204 (2)(a) of the Constitution empowered the court to punish any person who obstructed the process of the court in any way or disobeyed any order of the court, whereas Art. 204 (2)(b) of the Constitution spoke of contempt where a person scandalized the court or otherwise did anything which tended to bring the court or a Judge of the court into hatred, ridicule or contempt---Distinction between "disobedience contempt" and "contempt through scandalization" was founded on sound doctrinal principles.

Syed Yousaf Raza Gillani v. Assistant Registrar Supreme Court 2012 SCMR 424 ref.

(dd) Contempt of court---

----Contempt through disobedience of court order ("disobedience contempt")---Punishment---Purpose---Power of punishing contemnors for disobedience was meant more to be a deterrent than a weapon of aggression.

(ee) Contempt of court---

----Contempt through disobedience of court order ("disobedience contempt")---Judicial restraint---Scope---In cases of disobedience contempt, courts did not show restraint because at stake was the people's right to the rule of law, not the ego of Judges.

R v. Meteropolitan Police Commissioner, ex parte Blackburn (No.2) [1968] 2 QB -150 at 154) and Syed Masroor Ahsan and others v. Ardesher Cowasjee and others PLD 1998 SC 823, 1124 ref.

(ff) Contempt of court---

----Court order, implementation of---Contempt through disobedience of court order ("disobedience contempt") by executive and its functionaries---Effect---Responsibility for implementation (of court's orders) had been made obligatory on other organs of the State, primarily the executive-When a functionary of the executive refused to discharge its constitutional duty, the court was empowered to punish it for contempt.

Shakespeare's Henry V, Part 2, Act 5, Scene 2 and Goldfard, Ronald, The History of the Contempt Power, Washington University Law Review, Vol. 1961, Issue 1 ref.

(gg) Contempt of Court Act (XVIII of 2012) ---

----Preamble, Ss. 2(a), 3, 4, 6, 8, 10, 11, 12 & 13---Constitution of Pakistan, Arts. 184(3)---Constitutional petitions under Art. 184(3) of the Constitution challenging the constitutionality of the Contempt of Court Act, 2012---Contempt of Court Act, 2012 created impermissible and unconstitutional exceptions to protect a certain category of persons from contempt for violating court orders which they were obliged by the Constitution to obey and enforce---Court had no option but to strike down the impugned Contempt of Court Act, 2012---Constitutional petitions were allowed accordingly.

Per Khilji Arif Hussain, J; agreeing with Iftikhar Muhammad Chaudhry, CJ

(hh) Constitution of Pakistan--

---Preamble---Democratic State---Government---Exercise of power---Scope---In every democratic State, the Government was the trustee that could not act or exercise powers against the interest of its beneficiaries (people).

(ii) Administration of justice---

----Democratic State---Law---Scope---In a true democratic State, it was in the courts and not in the legislature that the citizens of such a State primarily felt the keen, cutting edge of the law---Actual law, be it enacted or customary, was what the courts interpreted and finally enforced.

(jj) Fundamental Rights---

----Enforcement---Pre-requisites---Strong legal system---Independent judiciary---Fundamental aspect of the protection of human rights was the creation of a strong indigenous legal system and the maintenance of an independent judiciary---Human rights could only be enforced through the creation of a strong legal system---System of enforcement of human rights would only operate effectively if Judges could determine disputes between individuals and the State in the absence of the State's influence.

(kk) Independence of Judiciary---

----Importance---Protection and enforcement of fundamental rights--Importance of the independence of the judiciary could not be minimized and neglected because there could be no democracy without basic human rights and fundamental freedoms as its foundation and there could be no protection and enforcement of human rights and fundamental freedoms without the existence of an independent judiciary.

Director of Public Prosecution of Jamaica v. Mollison (2003) 2 AC 411 and R. Anufrijeva v. Secretary of State for the Home Department 2003 UKHL 36 ref.

(ll) Legislature---

---Power to nullify a court judgment---Scope---Legislature could overcome the effect of any judgment of the superior courts by way of legislation.

Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917 ref.

(mm) Constitution of Pakistan---

----Arts. 184(3) & 199---Judicial review---Legislation inconsistent with the Constitution---Judiciary, duty of---Scope---Judiciary had a duty to review legislation which breached any provision of the Constitution or which could not be construed in a manner consistent with Articles of the Constitution.

(nn) Constitution of Pakistan-- .

----Art. 204---Contempt of Court proceedings---Purpose---Article 204 of the Constitution was not to protect the ego of the Judges but in fact it protected the rights of public generally and specially of the litigant so that the rights given to them by courts could be enforced.

(oo) Constitution of Pakistan---

----Arts. 184(3) & 199--- Judicial review---Vires of statute---Scope---To conduct judicial review of a statute, the court must review the statute in the light of exactly what the Constitution said, and state why each part of the statute was unconstitutional.

(pp) Constitution of Pakistan---

---Art. 204---Power of court to punish for contempt of court---Non­existence of any legislation in respect of contempt of court---Effect---Constitution provided for the punishment of any person in terms of Art.204 by the court even if no regulation in such regard had been made by legislation.

M. Zafar, Sr. Advocate Supreme Court, Baz Muhammad Kakar, Advocate Supreme Court (in Const. P.77/2012), Muhammad lkram Chaudhry, Advocate Supreme Court and Syed Safdar Hussain Shah, Advocate-on-Record (in Const.P.72/2012)

Syed Mehmood Akhtar Naqvi (in person) (in Const.P.73/2012) Liaqat Ali Qureshi, in person (in Const.P.74/2012)

Hamid Khan, Senior Advocate Supreme Court, Muhammad Waqar Rana, Advocate Supreme Court and M.S. Khattak, Advocate­on-Record (in Const. P.75/2012)

Ch. Muhammad Ashraf Gujjar, Advocate Supreme Court in person (in Const. P.76/201.2)

Abdul Rehman Siddiqui, Advocate Supreme Court Assisted by Ms. Neeli Khan, Advocate (in Const.P.78/2012)

Abdul Naveed Khan (absent) (in Const.P.79/2012)

Ghulam Mustafa, in person (in Const.P.80/2012)

A.K. Dogar, Senior Advocate Supreme Court (in Const. Ps.81-82/2012)

Barrister Zafarullah Khan, Advocate Supreme Court (in Const. P.84/2012)

Muhammad Azhar Siddique, Advocate Supreme Court (in Const. P. 85/2012)

Sh. Ahsan-ud-Din, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (in Cosnt. P.86/2012)

Arshad Ali Ch., Advocate Supreme Court/ Advocate-on-Record (in Const.P.87/2012)

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (in Const. P.88/2012)

Engineer Jamil Ahmad Malik, in person (in Const.P.91/2012) G.M. Chaudhry, Advocate (in Const.P.92/2012)

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (in Const.P.93/2012)

Rasheed A. Rizvi, Senior Advocate Supreme Court (in Const. P.95/2012)

Solicitor Muhammad Dawood, in person (in Const. P.96/2012) Zafarullah Khan, Advocate, in person (in Const. P.97/2012) Muhammad Jamil Rana, in person (in Const. P.98/2012) Shahid Orakzai, in person (in Const. P.99/2012)

Malik Mushtaq. Ahmad, Advocate Supreme Court, Mehmood Ahmad Bhatti, Advocate and Arshad Mehmood Bagoo, Advocate (in Const. P.100/2012)

Abdul Latif Afridi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record (in Const.P.101/2012)

Ms. Nasira Iqbal, Advocate Supreme Court (in Const. P.102/2012)

Khan Afzal Khan, Advocate Supreme Court (in Const. P.103/2012)

Irfan Qadir, Attorney General for Pakistan, Khan Dil

Muhammad Khan Alizai, DAG, Assisted by Ch. Faisal Hussain and Barrister Shehryar Riaz. Advocates on Court Notice.

Abdul Shakoor Paracha, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record Assisted by Haseeb Shakoor Paracha, Waseem Riaz Satti and Malik Saqib Mehmood, Advocates for Federation of Pakistan

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Leader of the Opposition in Senate

Nemo for the Remaining Respondents

Dates of hearing: 23rd to 27th, 30th & 31st of July and 1st to 3rd of August, 2012

P L D 2012 Supreme Court 1054

Present: Iftikhar Muhammad Chaudhry, C.J.,Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Syed MEHMOOD AKHTAR NAQVI---Petitioner

versus

FEDERATION OF PAKISTAN throughSecretary Law and others---Respondents

Constitution Petition No.5 of 2012 and C.M.As Nos. 2382, 2487, 2492, 2876 and 3446 of 2012, Criminal Original Petitions Nos. 47, 54, 65 & 71 of 2012, decided on 20th September, 2012.

(a) Pakistan Citizenship Act (II of 1951)---

----S. 14--- Representation of the People Act (LXXXV of 1976), Ss. 78 & 82---Constitution of Pakistan, Arts. 63(1)(c), 63(2) & 184(3)---Penal Code (XLV of 1860), Ss. 193, 196, 197, 198 & 199---Constitutional petition under Art.184(3) of the Constitution seeking disqualification of Parliamentarians having dual citizenship in terms of Art.63(1)(c) of the Constitution read with S.14 of the Pakistan Citizenship Act, 1951---Petitioner contended that all the Parliamentarians/respondents (Senators and Members of National and Provincial Assemblies) having dual citizenship/nationalities be disqualified as they were holding their respective offices contrary to the provisions of Art.63(1)(c) of the Constitution---Contention on behalf of Parliamentarians in question was that under Art.63(1)(c) of the Constitution, the phrases, "… … ceases to be a citizen of Pakistan", or "acquires the citizenship of a foreign State" were to be read conjunctively and not disjunctively and the word 'or' appearing in between said phrases was to be read as 'and' because in such a situation Members of Senate, National Assembly and Provincial Assemblies having dual citizenship could continue in their offices without suffering from any disqualification under Art.63(1)(c) of the Constitution---Validity---Provisions of Art.63(1)(c) of the Constitution had to be construed strictly by interpreting the same in view of the established principles of interpretation by assigning plain and simple meanings to the words and phrases used therein and avoiding any substitution thereof as the same was not within the ambit of the court---When a candidate suffered from pre or post disqualification under Art.63(1)(c) of the Constitution, no sooner such disqualification as envisaged under the said Article was attracted, candidate became disqualified from being elected or chosen, and from being a Member of the Majlis-e-Shoora (Parliament)---Candidate, while filing nomination papers had signed a declaration on oath to the effect that he/she fulfilled the qualifications specified in Art.62 of the Constitution and was not subject to any of the disqualifications specified in Art.63 of the Constitution or any other law for the time being in force for being elected as a member of the National Assembly/Provincial Assembly---Said declaration was applicable to the candidates of membership of Parliament and Provincial Assemblies, therefore, whoever signed such a declaration was meant to be fully aware of the constitutional provisions---After signing the said declaration if the same turned out to be false, candidate made himself/herself liable to be disqualified from being elected or chosen as Member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly for making misstatement or concealment of fact, and also exposed himself to criminal proceedings contemplated under Ss.193, 196, 197, 198 and 199, P.P.C.---Parliamentarians in question were disqualified from being members of Majlis-e-Shoora (Parliament) and Provincial Assemblies because of their disqualification under Art.63(1)(c) of the Constitution---Such disqualification was, in view of the established fact that they had acquired the citizenship of foreign States, therefore, no question had arisen, which was to be determined by the Chairman/Speaker, thus, no reference under Art.63(2) of the Constitution was made---Parliamentarians in question had made false declarations before the Election Commission while filing their nomination papers and as such appeared to be guilty of corrupt practice in terms of S.78 of Representation of the People Act, 1976 --- Supreme Court directed the Election Commission to de-notify the respective memberships of Parliamentarians in question; to institute legal proceedings against them under S.82 of Representation of the People Act, 1976 read with Ss.193, 196, 197, 198 and 199, P.P.C, and to examine the cases of (other) Parliamentarians and members of Provincial Assemblies, individually, by obtaining fresh declaration on oath from all of them that they were not disqualified under Art.63(1)(c) of the Constitution---Supreme Court further directed the Parliamentarians in question to refund all monetary benefits drawn by them for the period during which they occupied the public office and had drawn their emoluments etc. from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation along with other perks which were to be calculated in terms of money by the Secretaries of the Senate, National Assembly and Provincial Assemblies accordingly---Constitutional petition was allowed.

Constitution Petition No.40 of 2012 (PLD 2012 SC 774) ref.

(b) Pakistan Citizenship Act (II of 1951)---

----S. 14---Representation of the People Act (LXXXV of 1976), S.99(1)(f)---Constitution of Pakistan, Arts. 63(1)(c) & (p), 63(2) & 184(3)---Penal Code (XLV of 1860), Ss.193, 196, 197, 198 & 199--- Constitutional petition under Art.184(3) of the Constitution seeking disqualification of Parliamentarians having dual citizenship in terms of Art.63(1)(c) of the Constitution read with S.14 of the Pakistan Citizenship Act, 1951---Amongst the Parliamentarians in question, a Senator claimed to have renounced his foreign citizenship before contesting the election for Senate---Senator in question contended that he had applied to renounce his foreign (British) citizenship before contesting the election of Senate, but the border control agency of the foreign country did not issue certificate of renunciation of his citizenship---Validity---Prima facie, it was apparent that Senator in question had renounced his citizenship after the institution of the present petition, which was evident from the contents of a letter from the border control agency of the foreign country---Copy of declaration of renunciation of foreign citizenship bearing stamp of registration was not placed on record despite the fact that the court repeatedly directed for filing of the same---Senator in question had made a false statement before the court knowing well that his foreign nationality/citizenship did not stand renounced at the time of contesting the election of Senate---Senator in question had made a false declaration at the time of filing his nomination papers for election to the effect that he was not subject to any of the disqualifications specified in Art.63 of the Constitution or any other law for the time being in force for being elected as a member of the Parliament/Provincial Assembly, therefore, reference would be required to be made to the Chairman Senate under Art.63(2) of the Constitution in view of the provision of S.99(1)(f) of Representation of the People Act, 1976, which laid down that a person was not qualified for being elected or chosen as a member of an Assembly unless he was sagacious, righteous and non-profligate and honest and ameen---Senator in question, in view of the false declaration filed by him at the time of contesting the election to the Senate, could not be considered sagacious, righteous, honest and ameen within the contemplation of S.99(1)(f) of the Representation of the People Act, 1976, therefore, Art.63(1)(p) of the Constitution was to be adhered to---Supreme Court directed that Senator in question was to refund all monetary benefits drawn by him for the period during which he occupied the public office, and the Election Commission was to institute legal proceedings against him under S.82 of the Representation of the People Act, 1976 read with Ss.193, 196, 197, 198 and 199, P.P.C.---Constitutional petition was allowed accordingly.

Petitioner in person (in Const. Petition 5 of 212)

Malik Waheed Anjum, Advocate Supreme Court (in C.M.A. 2382/2012), Dr. Tariq Asad, Advocate Supreme Court (in C.M.A.2487/2012), Ms. Samira Bashir (in C.M.A.-2876/2012), M.Shoaib Lodhi (absent C.M.A. No.2492 of 2012) and Khawar Mahmood Khattana Advocate Supreme Court (in C.M.A. No.3446/2012) for Applicants.

Irfan Qadir, Attorney General for Pakistan Assisted by Barrister Shehryar Riaz Sheikh on Court Notice.

Dil Muhammad Khan Alizai, DAG, Raja Abdul Ghafoor, Advocate-on-Record and Syed Sher Afghan, D.G. Election Commission for Respondents Nos.1, 2, 4, 6, 8 and 10.

Qasim Mir Jat, Addl. A.G.Sindh for Respondent No.3.

Jawwad Hassan, Addl. A.G. Punjab for Respondent No.5.

Azam Khattak, Addl. A.G.Balaochistan for Respondent No.7.

Syed Arshad Hussain, Addl. A.G. KPK for Respondent No.9.

Waseem Sajjad, Senior Advocate Supreme Court (absent) and Ch. Akhtar Ali, Advocate-on-Record for Ms.Farah Naz Isfahani.

Mian Abdul Rauf, Advocate Supreme Court for Zahid Iqbal, MNA and Dr. Ahmad Ali Shah, MPA.

Anwar Mansoor Khan, Senior Advocate Supreme Court, Muhammad Azhar Ch., Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for A. Rehman Malik.

Muhammad Akhlaq, MPA (Pb.) (absent), Farhat Mehmood Khan, MNA (absent), Dr. Muhammad Ashraf Chohan, MPA (absent), Nadia Ghabool, MPA (Sindh) (absent), Ch. Waseem Qadir, MPA (Pb.) (absent) and Ch. Khadim Nadeem, MPA (Pb.) (absent) (in C.M.A. No.2382 of 2012).

Imtiaz Rashid Siddiqui, Advocate Supreme Court (absent) for Jameel Malik, MNA (Respondent in C.M.A. 2492 of 2012).

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Mehmood A.Sheikh, Advocate-on-Record with Sardar Shahjehan Yousaf, MNA (Respondent in C.M.A. 2487 of 2012).

Dates of hearing: 17th and 18th September, 2012.

P L D 2012 Supreme Court 1067

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany, Amir Hani Muslim and Muhammad Athar Saeed, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Parliamentary Affairsand Justice, Islamabad---Petitioner

versus

SINDH HIGH COURT BAR ASSOCIATION through President and another---Respondents

C.Ps.L.A. Nos.1390 and 1397 of 2012, decided on 7th September, 2012.

(On appeal from judgment of High Court of Sindh at Karachi dated 11-6-2012 passed in C.Ps. Nos.D-3286 and 3125 of 2011).

(a) Constitution of Pakistan----

----Arts. 175A, 197 & 185(3)---Additional Judges of High Court, confirmation of---Permanent appointment of Additional Judges of the High Court with ante-dated seniority and benefits--- Parliamentary Committee declining confirmation/permanent appointment of Additional Judges of the High Court whose names had been recommended by the Judicial Commission---Legality---Two Judges in question were appointed as Additional Judges of the High Court for a period of one year vide notification dated 24-9-2009---Judicial Commission ("Commission") recommended extension of their tenure after expiry of one year and accordingly Parliamentary Committee ("Committee") approved their names and notification for extension of their tenure was issued---Subsequently Chief Justice of the High Court forwarded his opinion recommending names of six Judges, including said two Judges, to the Commission for confirmation/permanent appointment---Commission recommended their names for confirmation and sent it to the Committee for consideration---Committee endorsed the view of the Commission as regards confirmation of only four Judges but declined to recommend confirmation of two Judges in question on the basis of adverse remarks given against them by Chief Justice of the High Court at an earlier time regarding their performance, knowledge and capability and on the basis of their questionable financial integrity and non-payment of income tax---High Court struck down the decision of the Committee on grounds that its decision was beyond its domain and was an encroachment upon the powers of the Commission---Contentions on behalf of the Committee were that it was the sole prerogative of the Committee to record its disagreement/dissent to the recommendations of the Commission by assigning its own reason for such decision, and that reasons recorded by Committee for not confirming the Judges in question were based on proper information and data collected through various concerned agencies---Validity---Initial notification of appointment of two Judges presupposed a detailed exercise undertaken by Chief Justice of the Province, Chief Justice of Pakistan and other Government functionaries, including intelligence agencies etc. , which must have undertaken such homework before recommendation/clearance of their names for appointment as Additional Judges of the High Court---Tenure of office of said two Judges was extended for one year on the recommendation of the Commission and Committee, as both the bodies found them suitable for such purpose---Commission recommended names of said two Judges for confirmation/permanent appointment after due consideration of each and every relevant aspect of the matter---Committee had given undue weight to the earlier adverse remarks/opinion of the Chief Justice of the High Court because after due deliberations before the Commission, Chief Justice of the High Court himself retracted from his earlier stance as was evident from the unanimous decision of the Commission in such regard---Commission because of its expertise had exclusive jurisdiction to evaluate the professional capability, performance, skills, rectitude and competence of an Additional Judge of the High Court before recommending his name for permanent appointment---Embarking upon the professional capability and other related issues of a recomendee of the Commission, was clearly beyond the domain of the Committee---Regarding objection of non-payment of taxes, said objection might have been forceful, in case it had been raised by concerned quarters at the time of initial appointment or at time of extension of tenure of the two Judges in question---Since tax authorities had not taken any action against said two Judges regarding concealment of income or evasion of tax, therefore, conclusions drawn by Committee were squarely based on presumptions---No reliance could be placed on reports of tax authorities and intelligence agencies based on simple conjectures---Two Judges in question were denied their legitimate right by the Committee for reasons which were neither factually correct nor tenable in law---Permanent appointment of two Judges in question would have its effect from 17-9-2011, the date when four other recomendees of the Commission in the same batch were notified by the Committee, and they would have their respective seniority and other benefits as permanent Judges of the High Court from such date---Supreme Court observed that ratio of the case Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407) was fully applicable to the present case and was rightly relied upon by the High Court in the impugned judgment to give requisite relief to the two Judges in question---Petition for leave to appeal was disposed of accordingly.

Munir Hussain Bhatti v. Federation of Pakistan and another PLD 2011 SC 407; Province of Sindh v. Rasheed A Riozvi PLD 2012 SC 649 and PLD 2010 Kar. 63 rel.

Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Sayed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Chief Justice of Pakistan Iftikahr Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Walayat Ali Mir v. Pak. Internatinal Airlines 1995 SCMR 650; Iftikharullah Malhi v. Chief Secretary 1998 SCMR 736; Edulji Dinshaw Limited v. Income Tax Officer 1990 PTD 155; Sharaf Fridi v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; Liaqat Hussain v.Federation of Pakistan PLD 1999 SC 504; Sindh High Court Bar Association v. Federtion of Pakistan PLD 2009 SC 879; Rasheed A. Rizvi v. Procince of Sindh PLD 2010 Kar. 63; Nadeem Ahmed v. Federation of Pakistan PLD 2010 SC 1165 and Province of Sindh v. Rasheed A. Rizvi PLD 2012 SC 649 ref.

(b) Constitution of Pakistan----

----Arts. 175A & 197---Additional Judges of High Court---Appointment and confirmation---Professional skills and competence of a Judge, determination of---Exclusive jurisdiction of Judicial Commission---Scope--- Judicial Commission because of its expertise had exclusive jurisdiction to evaluate the professional capability, performance, skills, rectitude and competence of an Additional Judge of the High Court before recommending his name for permanent appointment---Embarking upon the professional capability and other related issues of a recomendee of the Commission was clearly beyond the domain of the Parliamentary Committee.

Munir Hussain Bhatti v. Federation of Pakistan and another PLD 2011 SC 407 rel.

(c) Constitution of Pakistan---

----Art. 175-A---Appointment of High Court Judges---Ante-dated seniority and benefits---Scope---When an illegal action/wrong was struck down by the court, as a consequence, it was also to be ensured that no undue harm was caused to any individual due to such illegality/wrong or due to delay in redressal of his grievance---For such reason concepts of reinstatement into service with original seniority and back benefits had been developed to give complete relief to an aggrieved party.

Ashique Raza, Deputy Attorney General and Javed Farooqi, Deptuy Attorney General for Petitioner.

Anwar Mansoor Khan, Senior Advocate Supreme Court, Makhdoom Ali Khan, Senior Advocate Supreme Court, Dr. M. Farough Naseem, Senior Advocate Supreme Court and Manzhar Ali B. Chohan, Advocate-on-Record for Respondents.

Date of hearing: 7th September, 2012.

P L D 2012 Supreme Court 1086

Before Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmad Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ

SUO MOTU CASE NO.4 OF 2010

[Contempt proceedings against Raja Pervez Ashraf, Prime Minister of Pakistan/Chief Executive of the Federation, in pursuance of this Court's order dated 8-8-2012]

Criminal Original Petition No.74 of 2012 in Suo Motu Case No.4 of 2010, decided on 10th October, 2012.

Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art. 204---Contempt proceedings against Prime Minister/Chief Executive of the Federation for non-implementation of directions given by the Supreme Court in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), regarding writing of a letter to authorities in Switzerland to seek revival of requests for mutual legal assistance and to secure the status of civil party and the claims lodged to the allegedly laundered money lying in Switzerland---Draft of the communication (letter) to be addressed and dispatched to the concerned authorities in Switzerland in compliance of the directions of the Supreme Court presented in the Court---Supreme Court observed that the draft communication (letter) presented before it conformed to the requirements of said directions and it also addressed the relevant concerns voiced by the Prime Minister before the Supreme Court---Supreme Court directed that the draft communication (letter) should be dispatched and delivered to the concerned authorities in Switzerland within a period of four weeks and proof of actual receipt of the communication by concerned authorities in Switzerland should be produced before the Court; that Minister for Law and Justice should place on the record of present case a copy of the relevant summary for the Prime Minister, a copy of the Prime Minister's order regarding authorization, a copy of the authorization and a copy of the actual letter/communication (with its diary number, date and signatures) dispatched to Switzerland.

Dr. Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265 ref.

Farooq H.Naek, Federal Minister for Law and Justice for Respondent.

Irfan Qadir, Attorney-General for Pakistan with Dil Muhammad Khan Alizai, Deputy Attorney-General for Pakistan.

Date of hearing: 10th October, 2012.

P L D 2012 Supreme Court 1089

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Syed MEHMOOD AKHTAR NAQVI---Petitioner

Versus

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

Constitution Petition No.5 of 2012 and C.M.As. Nos.2382, 2487, 2492, 2876 and 3446 of 2012, decided on 18th September, 2012.

Per Khilji Arif Hussain, J; Iftikhar Muhammad Chaudhry, CJ and Jawwad S. Khawaja, J, agreeing;

(a) Interpretation of statutes---

----"Literal rule"---Scope---Words of a statute were to be first understood in their natural, ordinary or popular sense---Phrases and sentences were construed according to their grammatical meaning unless that lead to some absurdity or unless there was something in the context or in the object of the statute to suggest the contrary by necessary implication.

Tata Consultancy Services v. State of Andhra Pradesh AIR 2005 SC 371 ref.

(b) Interpretation of statutes---

----Legislative intent, determination of--- Principles and scope---Court had to discover true legislative intent while interpreting statutes---Intention of the Legislator was primarily to be gathered from the language used, which meant that attention had to be paid to what had been said and also to what had not been said---Construction which required for its support, addition or substitution of words or which resulted in rejection of words as meaningless, had to be avoided---Courts always presumed that the Legislature inserted every part (of a statute) thereof for a purpose and the legislative intention was that every part of statute should have effect---While construing the provisions of statutes no provision should be rendered meaningless and there was no scope of placing unnatural interpretation on the meaning of language used by the legislators---When the language of the (legislative) provision was clear, it was not the duty of court to either enlarge scope of legislation or the intention of the Legislators.

The Interpretation of Application of Statues, Reed Dickerson, p.35 and Reserve Bank of India v. Peerless Generl Finance and Investment Co. Ltd. AIR 1987 SC 1023 rel.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

(c) Interpretation of Constitution---

----Words and expressions, interpretation of---Scope---Words and expressions used in the Constitution, have no fixed meaning and must receive interpretation based on the experience of the people in the course of working of the Constitution.

(d) Constitution of Pakistan---

----Art. 63(1)(c)---Disqualification of membership of Majlis-e-Shoora (Parliament) on basis of dual nationality (citizenship)---Word "or" used in Art.63(1)(c) of the Constitution, interpretation of---Perusal of Art.63(1)(c) of the Constitution showed that the Legislature had put a comma before the word 'or', which manifested the intention of Legislature that "ceases to be a citizen of Pakistan" was to be read separately from "holding of citizenship of foreign State"---Word 'or' used in Art.63(1)(c) of the Constitution could not be read as 'and'.

Messrs Hyderabad Asbestos Cement Products v. Union of India AIR 2000 SC 314; Abdul Razak v. Karachi Building Control Authority PLD 1994 SC 512; Green v. Premier Glynrhonwy Slate Company, Limited (1928) 1 KB 561, P.568 and Mersey Docks and Harbour Board v. Henderson Bros. (58 LJQBN 152 (HL) ref.

(e) Constitution of Pakistan---

----Arts. 63(1) & 63A---Pre and post-election disqualification---Articles 63(1) and 63A of the Constitution---Distinction---Article 63(1) of the Constitution applied to pre and post-election disqualification, whereas Art.63(A) applied to post election disqualification on the ground of defection.

(f) Constitution of Pakistan---

---Art. 63(1)(c)---Person acquiring/holding dual nationality (citizenship)---Disqualification of membership of Majlis-e-Shoora (Parliament) on basis of dual nationality (citizenship)---Scope---In terms of Art.63(1)(c) of the Constitution, "a person" who held dual citizenship but wished to be elected or chosen to become Parliamentarian, had to first renounce citizenship of foreign State---Person who held citizenship of a foreign State at the time of submitting his/her nomination paper, would be disqualified to be elected---Where any member of the Parliament acquired citizenship of foreign State, he would become disqualified to remain as a member of the Parliament.

(g) Constitution of Pakistan---

----Art. 63---Disqualification of membership of Majlis-e-Shoora (Parliament)---Pre and post-election disqualification under Art.63 of the Constitution---Scope---Article 63 of the Constitution dealt with both pre and post-election disqualification---Legislature had used the word "a person" in Article 63 of the Constitution, which demonstrated the intention that any person, whether (or not) he was a Member of the Majlis-e-Shoora (Parliament), should be disqualified if any one of the disqualifications mentioned in the said Article were applicable upon him---Said Article further provided that the person shall be disqualified "from being elected or chosen", which related to pre-election disqualification whereas (mention of the words) "from being a Member of Majlis-e-Shoora" related to post-election disqualification.

(h) Constitution of Pakistan---

----Art. 63(1)(c)---Disqualification of membership of Majlis-e-Shoora (Parliament) on basis of dual nationality (citizenship)---Involuntary acquisition of foreign nationality (citizenship)---Scope---Article 63(1)(c) of the Constitution specified disqualification from being member of Parliament, where any person, whether voluntarily or not, acquired citizenship of a foreign State.

(i) Constitution of Pakistan---

----Arts. 63(1)(c), 113 & 184(3)---Pakistan Citizenship Act (II of 1951), S.14---Constitutional petition under Art.184(3) of the Constitution seeking disqualification of members of Majlis-e-Shoora (Parliament) and Provincial Assemblies having dual citizenship (nationality) in terms of Article 63(1)(c) of the Constitution read with S.14 of the Pakistan Citizenship Act, 1951---Maintainability---Issues in the present petition about the disqualification of a person to be a Member of Parliament on the basis of dual nationality (citizenship), and that the State had to exercise its powers and authority through the chosen representatives of the people and the Parliament had to make laws for the nation and safeguard their fundamental rights, were questions of public importance---Constitutional petition was maintainable accordingly.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; General Secretary, West Pakistan Salt Miners Labour Union (CBA), Khewra, Jhelum v. Director Industries and Mineral Development, Punjab 1994 SCMR 2061 and Mrs. Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632 ref.

(j) Constitution of Pakistan---

----Arts. 63(1)(c), 63(2), 65, 113 & 184(3)---Pakistan Citizenship Act (II of 1951), S. 14---Representation of the People Act (LXXXV of 1976), Ss.78 & 82---Penal Code (XLV of 1860), Ss. 193, 196, 197, 198 & 199---Constitutional petition under Art.184(3) of the Constitution seeking disqualification of members of Majlis-e-Shoora (Parliament) and Provincial Assemblies having dual citizenship (nationality) in terms of Art.63(1)(c) of the Constitution read with S.14 of the Pakistan Citizenship Act, 1951---Disqualification on basis of dual nationality (citizenship)---Scope---Article 63(1)(c) of the Constitution read with S.14 of Pakistan Citizenship Act, 1951 (as amended by Pakistan Citizenship (Amendment) Act, 1972), made it clear that a person holding dual citizenship was disqualified from being elected or chosen as member of the Majlis-e-Shoora (Parliament)---Parliamentarians in question (members of Majlis-e-Shoora and Provincial Assemblies) held dual citizenship of foreign States, therefore, at the time of submitting their nomination papers they were disqualified and ineligible to file the same and apparently had made false statements while submitting their nomination papers---Supreme Court declared that Parliamentarians in question were disqualified from being members of Majlis-e-Shoora (Parliament) and Provincial Assemblies because of their disqualification under Art.63(1)(c) of the Constitution, in view of the established fact that they had acquired the citizenship of foreign States; that no question had arisen, which was to be determined by the Chairman/Speaker, therefore, no reference under Art.63(2) of the Constitution was to be made, and that Parliamentarians in question had made false declarations before the Election Commission while filing their nomination papers and as such appeared to be guilty of corrupt practice in terms of S.78 of Representation of the People Act, 1976---Supreme Court directed the Election Commission to de-notify the respective memberships of Parliamentarians in question and to institute legal proceedings against them under S.82 of the Representation of the People Act, 1976 read with Ss.193, 196, 197, 198 and 199, P.P.C in accordance with law, and to examine the cases of (other) members of Parliament and Provincial Assemblies, individually, by obtaining fresh declaration on oath from all of them that they were not disqualified under Art.63(1)(c) of the Constitution---Supreme Court also directed the Parliamentarians in question to refund all monetary benefits drawn by them for the period during which they occupied the public office and had drawn their emoluments etc. from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation along with other perks, which were to be calculated in terms of money by the Secretaries of the Senate, National Assembly and Provincial Assemblies accordingly---Constitutional petition was disposed of accordingly.

Umar Ahmad Ghumman v. Government of Pakistan and others PLD 2002 Lah. 521; Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379; Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others PLD 2010 SC 817 ref.

(k) Constitution of Pakistan---

---Arts. 63(1)(c), 63(1)(p), 63(2), 65 & 184(3)---Pakistan Citizenship Act (II of 1951), S. 14---Representation of the People Act (LXXXV of 1976), Ss.78, 82 & 99(1)(f)---Penal Code (XLV of 1860), Ss.193, 196, 197, 198 & 199---Constitutional petition under Art.184(3) of the Constitution seeking disqualification of members of Majlis-e-Shoora (Parliament) and Provincial Assemblies having dual citizenship (nationality) in terms of Art.63(1)(c) of the Constitution read with S.14 of the Pakistan Citizenship Act, 1951---Amongst the Parliamentarians in question, a Senator claimed to have renounced his foreign citizenship before contesting for election of Senate in the year 2008---Senator in question contended that he had renounced his citizenship of foreign country on 25-3-2008 (i.e before contesting election of Senate in the year 2008)---Validity---Certificate, dated 29-5-2012, issued by the Border Agency of the foreign country, showed that Senator was registered as having renounced his foreign citizenship on the said date---Border Agency of the foreign country had also enclosed a declaration of renunciation of foreign citizenship bearing stamp of registration and the date on which Senator ceased to be a foreign citizen, however said declaration of renunciation was not placed on record despite directions of the Supreme Court---Senator in question was holding citizenship of a foreign State at the time of filing his nomination papers for election to the Senate held in the year 2008, and made a false declaration to the effect that he was not subject to any of the disqualifications specified in Art.63 of the Constitution or any other law for the time being in force for being elected as a member of the Parliament, therefore, Reference would be required to be made to the Chairman Senate under Art.63(2) of the Constitution in view of the provision of S.99(1)(f) of the Representation of the People 1976, which laid down that a person was not qualified from being elected or chosen as a member of an Assembly unless he was sagacious, righteous, non-profligate, honest and ameen---Senator, in view of the false declaration filed by him at the time of contesting the election to the Senate in the year 2008, could not be considered sagacious, righteous, honest and ameen within the contemplation of S.99(1)(f) of the Representation of the People Act, 1976, therefore, Art.63(1)(p) of the Constitution was to be adhered to---Supreme Court directed the Senator in question to refund all monetary benefits drawn by him for the period during which he occupied public office, and the Election Commission was directed to institute legal proceedings against him under S.82 of the Representation of the People Act, 1976 read with Ss.193, 196, 197, 198 and 199 P.P.C.---Constitutional petition was disposed of accordingly.

Muhammad Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774; Muddasar Qayyum Nahra v. Ch. Bilal Ijaz and others 2011 SCMR 80; Ch. Bilal Ijaz v. Mudassar Qayyum Nahra and 4 others 2010 CLC 1692 and Iftikhar Ahmad Khan Bar v. Chief Election Commisison Islamabad and others PLD 2010 SC 817 ref.

Per Jawwad S. Khawaja, J; agreeing with Khilji Arif Hussain, J.

(l) Constitution of Pakistan---

----Arts. 63(1)(c) & 113---Disqualification of membership of Majlis-e-Shoora (Parliament)---Citizen of Pakistan acquiring/holding dual nationality (citizenship)---Effect---Constitution did not permit a citizen of Pakistan, who also acquired the citizenship of another State, to become a member of Pakistan's Parliament or of a Provincial Assembly.

Umar Ahmad Ghumman v. Government of Pakistan and others PLD 2002 Lah. 521 affirmed.

(m) Constitution of Pakistan---

----Arts. 63(1)(c), 65, 113 & 184(3)---Pakistan Citizenship Act (II of 1951), S. 14---Constitutional petition under Art.184(3) of the Constitution seeking disqualification of members of Majlis-e-Shoora (Parliament) and Provincial Assemblies having dual citizenship (nationality) in terms of Art.63(1)(c) of the Constitution read with S.14 of the Pakistan Citizenship Act, 1951---Spirit behind Art.63(1)(c) of the Constitution---Scope---All State authority was in the nature of a "sacred trust" and its bearers should therefore be seen as fiduciaries---Parliamentarians, while acting as trustees and the chosen representatives of the people, took decisions which were often of grave consequence for the protection of the economic, political and over-all national interests of the people---Foremost obligation of a fiduciary was to show complete loyalty to the principal and to scrupulously avoid situations which might create a conflict of interest in the performance of such duty---Constitution required constitutional functionaries including members of the National Assembly, Senators and members of Provincial Assemblies to solemnly swear that they would "bear true faith and allegiance to Pakistan" and act "always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan." (Third Schedule of the Constitution)---Holding dual citizenship was likely to create situations for the holder where he faced a conflict of interest in the discharge of fiduciary duty to the people of Pakistan, and such conflict was particularly evident when the acquisition of foreign citizenship entailed taking an oath of allegiance to the foreign State and renunciation of allegiance to Pakistan---Acquiring the citizenship of a foreign State did create a serious conflict of interest and such conflict of interest rendered a person unsuited for discharging a fiduciary duty as onerous as being a public representative, and this was precisely the spirit in which the framers had enacted Art.63(1)(c) of the Constitution, which prevented citizens who acquired the citizenship of another State from entering or remaining in Parliament and in the Provincial Assemblies---His Lordship observed that it was hard to see how someone who had openly "renounce[d] and abjure[d]" all allegiance to Pakistan or who had sworn allegiance to a foreign monarch, could be safely entrusted with the "sacred trust" of protecting the interests of the people of Pakistan, and that the wisdom of the framers of the Constitution was founded on the requirement of absolute and undiluted loyalty to Pakistan as a qualification for having the privilege of being a chosen representative of the people of Pakistan---Constitutional petition was disposed of accordingly.

Munir Bhatti v. Federation of Pakistan PLD 2011 SC 407 and Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

Petitioner in person (in Constitution Petition No.5 of 2012).

Malik Waheed Anjum, Advocate Supreme Court (in person) (in C.M.A. 2382 of 2012).

Dr. Tariq Asad, Advocate Supreme Court (in person) (in C.M.A. 2387 of 2012)

Ms. Samira Basharat (in person) (in C.M.A. 2876 of 2012).

M. Shoaib Lodhi (absent C.M.A. No.2492 of 2012).

M. Irfran Qadir, Attorney General for Pakistan assisted by Barrister Shehryar Riaz Sheikh, Advocate On Court Notice.

Dil Muhammad Khan Alizai, D.A.-G., Raja Abdul Ghafoor, Advocate-on-Record and Syed Sher Afghan, D.G. (Elections), for Respondents Nos. 1, 2, 4, 6, 8 & 10.

Qasim Mir Jat, Addl. A.G. Sindh for Respondent No.3.

Jawwad Hassan, Addl. A.G. PB. for Respondent No.5.

Azam Khattak, Addl. A.G. Balochistan for Respondent No.7.

Syed Arshad Hussain, Addl. A.G. KPK for Respondent No.9.

Waseem Sajjad, Senior Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record assisted by Idrees Ashraf, Advocate for Ms. Farah Naz Isfahani.

Mian Abdul Rauf, Advocate Supreme Court for Zahid Iqbal, M.N.A. and Dr. Ahmad Ali Shah, MPA.

Anwar Mansoor Khan, Senior Advocate Supreme Court, Muhammad Azhar Ch. Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for A. Rehman Malik.

Khawar Mehmood Khattana, Advocate Supreme Court for Ms. Amna Buttar, MPA and Wasim Qadir, MPA.

Saeed Yousaf, Advocate Supreme Court for Tariq Mehmood Aloana, M.P.A.

Mian Sultan Tanvir, Advocate Supreme Court for Ch. Iftikhar Nazir, MNA.

Kh. Haris Ahmed, Senior Advocate Supreme Court with/for Ms. Anusha Rehman, MNA.

Shah Khawar, Advocate Supreme Court for Sabir Ali Baloch, Senator.

Kh. Muhammad Asif, MNA. (in person).

Imtiaz Rashid Siddiqui, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Jamil Ahmed Malik, MNA.

Muhammad Akhlaq, MPA (Pb) (in person) (in CMA-2382 of 2012), Farhat Mehmood Khan, MNA (absent), Dr. Muhammad Ashraf Chohan, MPA (absent), Ms. Nadia Ghabool, MPA (Sindh) (absent) and Ch. Khadim Nadeem, MPA (Pb) (absent) (in CMA 2382 of 2012).

Hafiz S.A. Rehman, Sr. Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record with Sardar Shahjehan Yousaf, MNA.

Dates of hearing: 8th, 10th, 16th, 25th and 30th May, 4th, 13th, 21st and 25th June, 2nd, 3rd, 4th and 23rd July, 9th, 12th, 17th and 18th September, 2012.

P L D 2012 Supreme Court (AJ&K) 1

Present: Muhammad Azam Khan, C.J. and Chaudhry Muhammad Ibrahim Zia, J

SOHBAT ALI---Appellant

Versus

MUHAMMAD ALAM---Respondent

Civil Appeal No.12 of 2010, decided on 12th December, 2011.

(On appeal from the judgment and decree of the High Court dated 21-11-2009 in Civil Appeal No.4 of 2004).

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

----Art. 59---Specific Relief Act (I of 1877), S. 42---Suit for declaration ---Opinion of expert---Claim of the plaintiff was that suit land was in his ownership and possession; and that defendant had no concern whatsoever with the said land---Defendant rebutted the claim of the plaintiff and contended that the plaintiff had executed sale-deed in respect of suit land in favour of the defendant and that on the basis of said sale-deed he was in possession of suit land as an owner thereof---Plaintiff had alleged that said-deed in question was fictitious and inoperative on his right as the same was not executed by him---Bone of contention between the parties being said sale-deed, in compliance of court's order, original sale-deed and finger prints of the plaintiff were sent to Finger Print Expert---Counsel for the parties stated that appeal be decided on the basis of opinion of the Finger Print Expert--Under Art.59 of Qanun-e-Shahadat, 1984, the opinion of Expert, was relevant and could be read in evidence---When the court had to form an opinion upon the identity of Finger Print impression, the opinions of the Expert in said field were relevant---Expert witness was the one who had devoted time and study to a special branch of learning and was specially skilled on the points on which he was asked to state his opinion---Evidence of Expert on such points was admissible to enable the court to come to satisfactory conclusion---Opinion of an expert could not be relied upon without recording his statement, so that the party against whom the expert had formed opinion could cross-examine him, but where a party admitted the expert's opinion and did not insist for calling the expert as a witness in the court, then the opinion of the expert was relevant---After perusal of the report of the Finger Print Expert, in the present case, it could be concluded that without discussing any other evidence, the appeal could be decided on the report of Finger Print Expert---Finger Print Expert had in unequivocal terms opined that the impressions in the sale-deed, were identical to the right thumb-impression of plaintiff on the sample paper---Report of Finger Print Expert, had made clear that the thumb-impressions affixed on the sale-deed were of the plaintiff---Sale-deed was executed by the plaintiff, in circumstances.

Muhammad Sarwar and another v. Fazal Rehman 1982 CLC 1286; Muhammad Zaman Khan v. Sher Afzal Khan PLD 1984 SC(AJ&K) 138; Muhammad Mehrban v. Mst. Rizwana Bibi 2006 SCR 243 and Khan Muhammad Badar v. Mst. Roshni 2008 SCR 46 ref.

Dil Muhammad and another v. Sain Das and others AIR 1927 Lah. 396 and Langer and others v. Ch. Muhammad Shafi 1994 MLD 2169 rel.

Khalid Rasheed Chaudhary for Appellent.

Ch. Muhammad Mehfooz for Respondent.

Date of hearing: 2nd December, 2011.

P L D 2012 Supreme Court (AJ&K) 7

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

MUHAMMAD MAROOF and 6 others---Appellants

versus

MUHAMMAD ZAREEF KH-IAN and another---Respondents

Civil Appeal No.79 of 2009, decided on 1st December, 2011.

(On appeal from the judgment of the High Court dated 4-4-2009 in Civil Revision

No.12 of 2008).

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

----Ss. 12 & 42---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for possession and declaration----Plaintiffs' case was that they were owners of Shamilat deh in dispute and that defendants who were not owners of suit land were in illegal occupation thereof---Plaintiffs along with plaint filed application for maintaining status quo---Trial Court, initially issued stay order, but later on recalled the same---Appeal against order of the Trial Court having been dismissed by the Appellate Court below, plaintiffs filed revision petition before High Court, which having been accepted by the High Court vide impugned order maintained status quo till final decision of suit---Validity---Defendants after obtaining the gift-deed in respect of said Shamilat deh from one of the sharers of said land, had become co sharers in said land---Defendants who had become sharers in Shamilat deh land after obtaining gift-deed, could not be dispossessed from said land without due process of law through regular partition---Any member, who was co-sharer in the Shamilat deh, could retain possession of the same, even if it was in excess of his share, till the regular partition of the said land was made---Plaintiffs themselves had admitted that defendants were in possession of land and had constructed a house consisting of 6 rooms---When the possession of the defendants who were co-sharers in the land had been admitted by the plaintiffs, the plaintiffs had no good prima facie arguable case in their favour---If the house constructed by the defendants, was demolished, defendants would suffer an irreparable loss---Balance of convenience was also in favour of the defendants, particularly when the defendants: had filed an undertaking that if ultimately decree was passed against them, they would demolish the house at their own cost, without claiming any compensation---Stay order to the extent of construction of house at the place of old house, was vacated by Supreme Court, in circumstances.

Kh. Abdus Subhan v. Khurshid and 11 others 2000 YLR 2898 ref.

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

----0. XXXIX, Rr.l, 2---Interim injunction---Ingredients of grant or refusal of interim injunction---For .issuance or refusal of interim injunction, the court had to see that a good prima facie arguable case, was made out in favour of the plaintiff; if the party succeeded in establishing a good prima facie arguable case, then other 'two ingredients, irreparable loss and balance of convenience, had to be looked into---Question of balance of convenience, was to be weighed keeping in view the circumstances that, if ultimately the suit filed by the plaintiff was decreed, which party would suffer more inconvenience, if the interim relief was not granted.

Muhammad Rasab and another v. Muhammad Siddique Chaudhary 1998 MLD 2045 rel.

Abdul Majeed Malik for Appellants.

Sh. Masood Iqbal for Respondents.

Date of hearing: 30th November, 2011.

P L D 2012 Supreme Court (AJ&K) 13

Present: Muhammad Azam Khan, C.J. and Chaudhry Muhammad Ibrahim Zia, J

FEROZ DIN KHAN---Appellant

versus

MUHAMMAD LATIF KHAN and 5 others---Respondents

Civil Appeal No:19 of 2009, decided on 16th January, 2012.

(On appeal from the judgment and decree of the High Court dated 16-10-2008 in Civil Appeal No.43 of 2005).

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

----Arts.142 & 144---Specific Relief Act (I of 1877), Ss.8 & 9---Suit for possession---Limitation---Scope and applicability of Arts.142 & 144, Limitation Act, 1908---Under Art. 142 of Limitation Act, 1908, period of limitation for filing a suit for possession of an immovable property, - when the plaintiff while in possession of property had been dispossessed from or had discontinued possession, was 12 years from the date of dispossession; or discontinuance of possession---Determining factor was date of dispossession or discontinuance of possession---Expression `dispossession' referred to actual physical dispossession and would involve collusion and expulsion---Constructive possession in spite of mere abandonment or non-use, would remain with the owner---To establish "discontinuance of possession" it must be shown that the owner had withdrawn with intention of abandoning the property; and the gap had been filled in by another person, who had come to occupy• the consequence of such withdrawal---When a suit was filed, not on the basis of dispossession or discontinuance of possession, but on the basis of title, Art.142 of Limitation Act, 1908 would not attract in the case---Article 142 of Limitation Act, 1908 was applicable only if a suit for possession of immovable property was filed on the ground that the party was in possession of land, and had been dispossessed or its possession was discontinued, but when a suit for possession of immovable property was filed on the basis of title, Art.142 of Limitation Act, 1908 was not applicable, but Art.144 would govern the period of limitation---After deletion/omission of Art.144 from 25-4-1997, no other Article of the Limitation Act, 1908 would govern the limitation for filing a suit on the basis of title or interest in the property---No period of limitation for filing a suit for possession of immovable property on the basis of title---True owner could file a suit for possession of immovable property any time on the basis of title.

Walayat Khan and 2 others v. Muhammad Yusuf and 15 others PLD 1995 SC(AJ&K) 41; Noor Hussain Shah and another v. Muhammad Hussain Shah and 2 others PLD 1988 AJK 1; Muhammad Rashid v. Ch. Munshi Khan and 7 others 2007 SCR 86; Ghulam Akram and 5 others v. Syed Shabir Hussain Shah and 10 others PLD 1986 SC(AJK) 56 and Abdul Razaq v. Sabar Khan 2004 CLC 950 ref.

Maqsood Hussain Shah v. Noor Hussain Shah and 3' others PLD 1989 SC(AJK) 45; Dewan Ali Khan v. Jehandad Khan and others 1995 CLC 136 and Haji Muhammad Hussain v. Malik Fateh Muhammad PLD 1953 BJ 10 rel.

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

----Art.142---Specific Relief Act (I of 1877), S.8---Suit for possession---Limitation---In the present case, suit was filed by the plaintiffs for possession of immovable property on the ground that they were owners of the land, land of the defendants was adjacent to their land, who had allegedly encroached upon the same---Defence of the defendants was that they had not encroached upon the land, but were in possession of their own land---Case of the plaintiff, in the Trial Court was not one of dispossession or discontinuance of possession---Plaintiff had filed a suit for possession on the basis of title---Suit was not hit by the mischief of Art.142 of the Limitation Act, 1908.

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

----S. 75 & O.XXVI, R.9---Spot inspection---If the Trial Court would feel difficulty in deciding a case, and reach the conclusion that judgment could not be delivered without spot inspection, then the court had jurisdiction to make spot inspection.

Sardar Atta Ellahi Abbasi for Appellant.

Raja Sajjad Ahmed Khan for Respondents Nos. 1 and 2. Date of hearing: 19-12-2011.

P L D 2012 Supreme Court (AJ&K) 21

Present: Khawaja Shahad Ahmed, C.J., Muhammad Azam Khan, Ch. Muhammad Ibrahim Zia and Khawaja Attaullah Chak, JJ

Civil Appeal No.31 of 2008

CHIEF ADMINISTRATOR AUQAF (Nazim Aala Augat), Azad Government of the

State of Jammu and

Kashmir, Muzaffarabad---Appellant

versus

SAIN GHULAM AHMED NISAR and 38 others---Respondents

(On Appeal from the judgment of the High Court dated 28-3-2008 in Civil Appeal No.10 of 2007).

Civil Appeal No.55 of 2008

Ch. JAN MUHAMMAD through Attorney---Appellant

versus

MUHAMMAD AFZAL and another---Respondents

(On appeal from the judgment of the High Court dated 25-6-2008 in Civil Appeals Nos.62 and 66 of 2006).

Civil Appeals Nos. 31 and 55 of 2008, decided on 26th April, 2011.

(a) Interpretation of statutes---

----Phraseology, used along with punctuations and conjunctions had to be understood keeping in view first principle of interpretation of statutes, which provided that words and phrases were ordinarily be given plain. dictionary meaning---Punctuation in the statute, had to be allotted clear meaning; and could not be left unnoticed, the use of word and' had to be read in a cumulative sense---Where the Legislature intended two sub-clauses to have conjunctive effect, the wordand' would find place at the end of first sub-clause.

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

----S. 109(a)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(11)(d)(e)---Appeal to Supreme Court---Value of subject matter of the dispute---Where the amount of value of the subject matter of the suit in the court of first instance and also in appeal, unless varied by an Act of the Parliament, fifty thousand rupees and the Appellate Court i.e. the High Court had varied, altered or set aside the judgment, decree or final order of the court immediately below, a direct appeal, would be competent before the Supreme Court--Intention of the Legislature referring to any amount "fixed by an Act of the Parliament", clearly would mean that it referred to an increase or decrees in the amount of fifty thousand rupees---Such was why the Legislature in the Civil Procedure Code; 1908 expressed its intention by ,using the word `unless varied' by an Act of the Parliament, and the same had been put in brackets---Under clauses (d) & (e) of sub-section (11) of S.42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, a direct appeal would lie to the Supreme Court, if the amount or value of the subject matter in the first court, as well as in appeal before the Supreme Court was not less than fifty thousand rupees or any increased sum specified by the Act, and the judgment decree or final order placed before the court was varied or set aside by High Court---Intention of the legislature was clear on the point that if the High Court did not vary, alter or set aside the judgment of the court below, a direct appeal to the Supreme Court was not competent, although the amount or value of the subject-matter, was more than fifty thousand rupees---Constitution fixed the minimum value of the claim, unless same was not altered by an Act of the Parliament---Constitution did not contemplate the appeal from a decree of affirmance.

1999 YLR 1308; PLJ 1988 SC (AJ&K) 166 (sic); PLD 1981 SC(AJ&K) 55; AIR 1964 SC 1099 and AIR 1968 SC 1050 ref.

Sardar Muhammad Azam for Appellant (in Civil Appeal No.31 of 2008).

Raja Hassan Akhtar for Respondents (in Civil Appeal No.31 of 2008).

Ch. Muhammad Taj for Appellants (in Civil Appeal No.55 of 2008).

Khalid Rasheed Chaudhry for Respondents (in Civil Appeal No.55 of 2008).

Date hearing: 28th March, 20-11.

P L D 2012 Supreme Court (AJ&K) 32

Present: Muhammad Azam Khan, C. J. and Ch. Muhammad Ibrahim Zia, J

SHAHID NADEEM and another---Appellants

versus

MUHAMMAD MANSHA and others---Respondents

Criminal Appeal No.3 of 2010, decided on 20th June, 2011.

(a) Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974)--

----Ss. 5, 15 & 25---Penal Code (XLV of 1860), 5.302---Qatl-e-amd---Appeal against acquittal---Reappraisal of evidence---Double presumption of innocence accrued to the accused after acquittal---Concurrent findings of fact recorded by both the courts below---Complainant party/ appellant had not succeeded to point out any material thing to satisfy the court that conclusion drawn by the courts below was incorrect, or not supported from the record---Contention that as the statement of witnesses remained unchallenged in cross-examination, same could be treated as admitted, was not acceptable in the peculiar, circumstances and facts of the case---Said principle would attract, if the witness was otherwise found to be reliable, natural and trustworthy, whereas in the present case, the conduct and behaviour of the sole eye-witness; made his whole statement doubtful and incredible---When the statement, as a whole was not reliable, then it would become immaterial whether any portion of statement in crossexamination had been challenged or not---Defence having cross-examined the witness on material points, such argument had no foundation---Deposition of the prosecution witness had created doubt regarding his credibility and truthfulness---None of the statement allegedly recorded under S. 164, Cr.P.C. bore the date of its recording---While recording statement under S.164, Cr.P.C., the Magistrate was under legal obligation to record the statement in the manner prescribed for recording of evidence or in the manner provided under S.364, Cr.P.C.--- Said statutory mandatory requirement had not been complied with by the Magistrate, while recording the statement---Whole process of recording the statement under 5.164, Cr.P.C. was doubtful---One of recovery witness was brother-in-law of the deceased, whereas the other one was the uncle of the deceased---Both of them were residents of village other than the one from where crime weapon was recovered---None of recovery witnesses stated the manner of recovery of crime weapon---Prosecution had failed, to record the statement of any of the independent witness regarding the recovery of the crime weapon---Appellant had not succeeded to point out any illegality in the impugned judgment of the courts below, or to satisfy that all impugned judgments were the result of misreading and non-reading of evidence---Prosecution was supposed to prove its case beyond any shadow of doubt---Impugned judgment, was neither perverse nor arbitrary or suffering from any illegality---Appeal against acquittal was dismissed, circumstances.

Muhammad Yaqub v. The State PLD 1986 Lah. 217; Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633; Nazir Ahmad and another v. The State PLD 1986'FSC 162; Asia Bibi and 5 others v.Ghazanfar Ali and 3 others 2005 PCr.LJ 415 and Muhammad Latif Butt v. Shehtab and 4 others 2009 SCR 432 ref.

Asia Bibi's case 2005 PCr.LJ 415 rel.

(b) Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act (IX of 1974)--

----Ss. 5, 15 & 25---Penal Code (XLV of 1860), S.302---Qatl-e-Amed---Reappraisal of evidence---Statement of Medical Expert---Circumstantial evidence---No doubt the medical expert could state cause of death, nature of injury and the manner of causing the injury, or the weapon through which the injury caused but he could not go behind to connect the chains of prosecution story by identification of accused---Unless there was convincing evidence regarding the conduct of accused that injuries which caused death of the victim were inflicted by the accused, no one could be punished merely on the basis of such corroboratory piece of circumstantial evidence.

Asghar Ali Malik for Appellants.

Kh. Muhammad Nasim for Respondent No.1.

Date of hearing: 13th June, 2011.

P L D 2012 Supreme Court (AJ&K) 42

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD YOUNAS TAHIR and another---Appellants

versus

SHAUKAT AZIZ, ADVOCATE, MUZAFFARABAD and others---Respondents/Proforma Respondents

Civil Appeals Nos. 144 and 143 of 2010, decided on 16th May, 2012.

(On appeal from the judgment of the High Court dated 30-4-2010 in Writ Petition No.122 of 2007).

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

----S. 43---High Court of Azad Jammu and Kashmir---History of establishment and procedure of appointment of Judges recorded.

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

----S. 43(2-A)---High Court of Azad Jammu and Kashmir---Appointment of Judges---Procedure---Consultation of the President with the Chief Justice of High Court and the Chief Justice of Azad Jammu and Kashmir---Scope---President to consult both Chief Justices at the same time---De facto, doctrine of---Applicability---President of Azad Jammu and Kashmir consulted the Chief Justice of High Court and the Chief Justice of Azad Jammu and Kashmir in December 2005, for filling vacancies of Judges of the High Court---Chief Justice of the High Court recommended names of appellants but the Chief Justice Azad Jammu and Kashmir did not agree to recommend said names---Subsequently, new President was elected and in December 2006, Chief Justice of Azad Jammu and Kashmir at that time (same judge/person who was Chief Justice of High Court during consultation by the previous President) recommended names of appellants for appointment, while Acting Chief Justice of the High Court at that time was not consulted---Question was as to whether such consultation made by former President with a person in the capacity of Chief Justice of High Court and the consultation by the new President, made with the same person in the capacity of Chief Justice of Azad Jammu and Kashmir, after a period of one year, could be treated as valid consultation---Scheme of Azad Jammu and Kashmir Interim Constitution Act, 1974, showed that both the Chief Justices were to be consulted at the same time otherwise the consultation would be meaningless---In the present case, consultation with both the Chief Justices was not simultaneous but at different times involving a period of more than one year, therefore, it could not be said to be a valid consultation, especially after the elevation of the Chief Justice of the High Court to the Supreme Court, no consultation was made with the then Acting Chief Justice of the High Court---Appointment of a Judge in the High Court had to be made when there was a vacancy and both the Chief Justices, i.e. the Chief Justice of the High Court and the Chief Justice of Azad Jammu and Kashmir had to be consulted at the same time---Consultation with one person in different capacities at two different times was against the prudence and canons of interpretation---Appointment of appellants (Judges) was made while considering the recommendations made by the Chief Justice of the High Court in December, 2005 and the recommendations made by the same person in the capacity of Chief Justice of the Azad Jammu and Kashmir in December, 2006---Such consultation was not a meaningful, purposive, consensus-oriented and valid---Names of appellants had not been recommended by Chief Justice of the Azad Jammu and Kashmir during December 2005, and such opinion was not only to be preferred but it also excluded the appellants from being appointed as Judges of the High Court---Appellants (Judges) were appointed through notification and on annulment of said notification, benefits derived by appellants could not be ordered to be paid back on the basis of de facto doctrine as they had validly done the acts and performed functions under the colour of lawful authority--- Supreme Court directed that in future all the appointments of Judges and Chief Justices in the Supreme Court and the High Court should be made in the light of the dictum laid down by the Supreme Court of Pakistan in the case of Al-Jehad Trust v Federation of Pakistan [PLD 1996 SC 324]---Appeals were dismissed, in circumstances.

Salmond on Jurisprudence 12th Edn.; Ellis v. Kerr [1909 E. 559]; William Henry Neale v. Sir T. Turton and others [(1827) 4 Bingham 149 130 E.R. 725]; Napier v. Williams [1910 N. 1362] and Munir Hussain and others v. Muhammad Aslam and others PLD 2003 Azad J&K 16 distinguished.

M.D. Tahir v. Federal Government and 12 others 1989 CLC 1369; Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others 2000 YLR 2868; Raja Muhammad Irshad Khan v. Azad Jammu and Kashmir Council and 3 others 2007 SCR 419; Habibullah v. D.I.G. Police and 3 others 2004 SCR 378; Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLD 1997 SC 84; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511; Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530; Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148; Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Chairman Evacuee Trust Property, West Pakistan, Lahore v. Muhammad Din and another PLD 1971 Lah. 217; Ghulam Mustafa Mughal v. The Azad Government and others 1992 MLD 2083; Muhammad Shafi v Mauj Din Khan and 3 others PLD 1976 Lah. 171; Mubarik Ali Bhatti v. Fiayaz Ali Khan, District Manager, Provincial Transport Service, Lyallpur and others PLD `1963 (W.P.) Lah. 8; Azad Government of the State of Jammu and Kashmir v. Kh. Noor-ul-Amin and others 1991 MLD 1190; Sindh High Court Bar Association through its Secretary and others v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 889 and Al-Jehad Trust's case PLD 1996 SC 324 ref.

Al-Jehad Trust's case PLD 1996 SC 324 and Supreme Court Advocates-on-Record Association and another v. Union of India AIR 1994 SC 268 rel.

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

----Ss. 44(5), 43(2-A) & 42-E---High Court of Azad Jammu and Kashmir---Appointment of High Court Judge by notification---Writ of quo warranto against such appointment---Maintainability---Writ petition in the present case, had not been filed against the High Court or a judgment of the High Court, rather it had been filed against a notification issued by the President/Executive, being against the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Executive order can be challenged in the writ petition and the petition for writ of quo warranto in the present case was competently filed and section 42-E of the Azad Jammu and Kashmir Interim Constitution Act, 1974 was no bar in filing the writ petition---Appeals were disposed of accordingly.

Supreme Court Advocates-on-Record Association and another v. Union of India AIR 1994 SC 268; Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan PLD 1996 SC 324; M.D. Tahir v. Federal Government and 12 others 1989 CLC 1369 and Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLD 1997 SC 84 ref.

Ghulam Mustafa Mughal and another v. AJK Government through Chief Secretary and 5 others 1992 MLD 2083 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 rel.

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

----S. 43(2-A)---High Court of Azad Jammu and Kashmir---Appointment of Judges---Procedure---President to consult Chief Justice of High Court and Chief Justice of Azad Jammu and Kashmir---Failure/delay in appointment of permanent Chief Justice of High Court---Consultation of the President with Acting Chief Justice of High Court in such circumstances---Scope---Where Chief Justice of the High Court had been elevated as Judge of the Supreme Court, the next senior Judge who had expectancy of becoming a permanent Chief Justice was not appointed as permanent Chief Justice but was appointed as Acting Chief Justice, and was left to work in the same capacity till his retirement, then the President had two options; either he could leave the post vacant or to consult the Acting Chief Justice---If the permanent Chief Justice of High Court was not appointed in a reasonable time, then the President had no option except to consult the Acting Chief Justice for the purpose of appointment of Judges---Consultation made by the President in such circumstances with the Acting Chief Justice could be termed as a valid consultation---In the present case, Acting Chief Justice of High Court was appointed in October, 2006 and remained working in the same capacity till his retirement in December, 2009---Azad Jammu and Kashmir Council which had to issue advice to the President for appointment of permanent Chief Justice failed to perform its constitutional duty---Since there was no permanent Chief Justice, the requirement of the Constitution was that the President should have consulted the Acting Chief Justice of the High Court, which would have been valid consultation---Appeals were disposed of accordingly.

Raja Bashir Ahmad Khan v. Azad Jammu and Kashmir Council and 2 others 1997 CLC 832 ref.

Al-Jehan Trust's case PLD 1996 SC 324 rel.

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

----Ss. 42(4), 43(2-A) & 7---Supreme Court and High Court of Azad Jammu and Kashmir---Appointment of Judges---Procedure---Advice of Prime Minister---Relevancy---Advice of Prime Minister under section 7 of Azad Jammu and Kashmir Interim Constitution Act, 1974, was not relevant for the purpose of appointment of Judges of High Court and Supreme Court of Azad Jammu and Kashmir.

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

----Ss. 42(4) & 43 (2-A)---Constitution of Pakistan, Arts. 177 & 193---High Court and Supreme Court of Azad Jammu and Kashmir---Appointment of Judges---Procedure---Word "consultation"---Connotation---'Consultation' occurring in Ss. 42(4) and 43(2-A) of Azad Jammu and Kashmir Interim Constitution Act, 1974 was used in similar sense as used in Arts. 177 and 193 of the Constitution of Pakistan---Consultation should be effective, meaningful, purposive, consensus oriented, leaving no room for complaint or arbitrariness or unfair play---Principles laid down by the Supreme Court of Pakistan in the case of Al-Jehad Trust v. Federation of Pakistan [PLD 1996 SC 324] were fully applicable in case of the appointments of Judges and Chief Justices of the Supreme Court and High Court of Azad Jammu and Kashmir.

Al-Jehan Trust's case PLD 1996 SC 324 ref.

(g) Administration of justice---

----Act/Rule prescribing performance of an act in a specific way--- Deviation--- Scope--- When a particular method for performance of an act was prescribed under an Act or Rules, then such act must be performed according to that particular method or not at all.

Habibullah v. D.I.G. Police and 3 others 2004 SCR 378; Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another 2008 SCMR 1148 and Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307 rel.

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

----S. 43(2-A)---High Court of Azad Jammu and Kashmir--- Appointment of Judges---Procedure---Consultation---Opinion of Chief Justice of Azad Jammu and Kashmir---Preference---Scope---Opinion of the Chief Justice of Azad Jammu and Kashmir had to be preferred---Where the Chief Justice of Azad Jammu and Kashmir did not think that a person was suitable to be appointed as Judge of the High Court, such person could not be considered for appointment as a Judge.

Al-Jehad Trust's case PLD 1996 SC 324 and Supreme Court Advocates-on-Record's case AIR 1994 SC 268 rel.

(i) Bias---

----Definition and meaning.

Asif Ali Zardari and another v. the State PLD 2001 SC 568 rel.

All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1 ref.

(j) Administration of justice---

----Bias in Judge---Scope---Judge could not be barred from hearing a case merely on the ground that a person to the litigation had worked as his subordinate.

Azad Government and others v. Genuine Rights Commission and others 1999 MLD 160 rel.

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

----S. 43---Appointment of Judges of High Court---Appointment in contravention of constitutional provisions---Acts done and functions performed during such appointment---Validity---Contravention of the constitutional provisions invalidates the appointments but the acts done and functions performed by a person who held that office under the authority of law continue to be valid and effective.

S.M. Zafar, Talib Hussain and Muhammad Azam Khan for Appellants.

Ch. Shoukat Aziz, in person, Farooq Hussain Kashmiri, Sadaquat Hussain Raja, and Mir Sharafat Hussain, Advocates for Respondents.

Raja Ghazanfar Ali, Advocate-General and Raja Muhammad Hanif Khan, Advocate for Azad Government and Law Department. Respondents.

Sardar Mansoor Pervaiz Khan for AJK Council. Respondents.

Date of hearing: 31st January, 2012.